FREEDOM OF EXPRESSION AND THE INFORMATION SOCIETY: A LEGAL ANALYSIS TOWARD A LIBERTARIAN FRAMEWORK FOR LIBEL DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Nikhil Moro, M.A. * * * * * The Ohio State University 2006 Dissertation Committee: Approved by Professor Prabu David, Advisor Professor Elliot Slotnick Professor David Goldberger ________________________ Professor Sharon West Advisor Professor Young Mie Kim Graduate Program in Communication ABSTRACT Web blogs, as alternate sources of political opinion and analysis, have enabled new voices that can empower netizens and democratize information access. Their larger social contribution may be that they increase manifold the ideas available in the marketplace, in theory challenging any information hegemony of an increasingly consolidating corporate media. Bloggers, citizen journalists and others of the fifth estate have joined the social conversation by acting as watchdogs of not just government but also of the corporate media. Libel law, as a determinant of freedom of expression, also defines the democratic values of individual self-fulfillment, marketplace of ideas, and empowerment. Libel lawsuits, however, impose a chilling effect, a chill which is exacerbated for the fifth estate by the challenge of multiple personal jurisdictions – a netizen can be hauled before a court whose location, laws and procedures are hard to predict. The dissertation addresses that express challenge by proposing a separate common jurisdiction for libel cases that emanate in the information society. Specifically, it delineates a normative, inductive, theoretical framework for that common jurisdiction after analyzing the fundamental principles of freedom of expression characterizing jurisprudence. The framework comprises (1) a proposal to extend a reconsidered actual malice doctrine to the fifth estate, (2) a set of recommendations, situated in the libertarian scholarship of Thomas Emerson and John Milton, to define a norm of freedom of expression for the information ii society, and (3) a model law to deliver the framework to a libel litigant of the fifth estate. The study does not describe the new jurisdiction’s executive powers, or the treaty terms from which it would draw its authority. That jurisdiction, asserted by an Internet Empowerment Agency born out of international treaty, would decide information society libel cases. The study employs traditional legal analysis and inductive reasoning to take an early step toward making libel law predictable and reliable for the fifth estate – without regulating the content or technology of the Internet. It explores whether the fifth estate fundamentally restructures the freedom of expression, and develops refinements to the actual malice and public figure doctrines among other corollaries. iii To My parents Hemlata and Madhav Rao Moro and My paternal grandparents, the late Tarabai and Dr. S. Jagannath Rao Moro iv ACKNOWLEDGMENTS A lettered edifice such as a dissertation can scarcely emerge, or hold together, without foundational inspirations and critics. To start off, I would like to acknowledge Dr. Prabu David, my advisor of 2006, for his scholarly and logistical support. Dr. David’s intellectual agility and pedagogic charisma, not to mention his empathy, helped me complete and defend the dissertation seven months after I’d asked to be his advisee. I am especially grateful for his agreeing to chair my committee when I was already relatively deep into the research. It is hard to express my indebtedness to Dr. Thomas A. Schwartz, my advisor of 2000-2005, for his many insightful critiques. Dr. Schwartz’s commitment to progressive and libertarian ideals, evident in the numerous charming conversations I was privileged to share with him, has broadly influenced this work. His erudition, eloquence and eye for detail have informed not only the dissertation but also my academic career at Ohio State and beyond. I am deeply grateful to professors David Goldberger, Elliot Slotnick, Sharon West and Young Mie Kim for generously serving on the dissertation committee; especially to Professor Goldberger for his incisive criticism. v I thank Ohio State’s School of Communication as well as the National Regulatory Research Institute for hiring me as Graduate Associate, which paid for my tuition, living expenses and more for nearly three years starting September of 2000. I thank Kennesaw State University for appointing me Assistant Professor in August of 2003, upon which I found a reassuring mentor in Dr. Chuck Aust and an inspiring friend in Professor Leonard Witt. In addition, I also found an occasional consultant in the attorney Herb Schlanger of Atlanta, Georgia. I am grateful for the continuing prayers of Stanley and Tanya Mathew of Columbus, Ohio, who hosted me after I traveled from Mumbai (India) to begin my doctoral study. I feel blessed to have the priceless cheering and steady support of Dr. Vijay Prabhu of Mumbai. I thank Prabhakar Moro of Georgetown, South Carolina, and Gangotri Goyal of Princeton, New Jersey, for the use of their respective computers to edit a couple of early drafts. I benefited from a few blind peer reviews while presenting portions of this research to the Association for Education in Journalism and Mass Communication’s 2006 annual convention in San Francisco, California. I would be amiss to not acknowledge my many absorbing conversations or warm friendships, usually both, with these individuals named in a chronological order of our association: Swami Muktidananda (guru in Mysore, India), Dr. Aditi Bapat (friend in Pune, India), Dr. Avinash Thombre (friend in Little Rock, Arkansas), Pavak Mehta, Gautam Mehta, Shunahshep Shukla, Dr. Nandan Ukidwe, Dr. Mahesh Iyer (roommates in Columbus, Ohio), Dr. Vivian Witkind Davis, Srinivasan Ramarajan, Venkata Bujimalla, Dr. Edwin Rosenberg, Dr. Chang Hee Lee (colleagues at the Institute), Karthikeyan Thyagaraja, Dharmendra Saraswat (friends at Ohio State) and Madhav Apte (friend in Kennesaw, Georgia). vi More generally, I’d like to express gratitude to the hundreds of Internet pioneers whose technology offered me not just the object of my research but a medium to communicate with advisors and family, as well as an early social space. Above all else I salute my wonderful parents Hemlata and Madhav Rao Moro of Mysore (India) for their dreams for me, with special accent on my mother’s indomitable enthusiasm; my sister Shylaja Moro of New Delhi (India) for her goodwill; and my paternal grandmother, the late Tarabai Moro, for her ashirvad . Without the support of those four noble individuals, this intellectual quest was not feasible. vii VITA September 27, 1973 . Born – Ahmedabad, India 1994 . News Editor, Andolana , Mysore 1995 . B.A. Journalism, Public Administration & English Literature, University of Mysore 1995 . Editor, Coffeeland News , Madikeri 1996 . Copy Editor, The Times of India , Mumbai 1997 . M.A. Journalism & Mass Communication, University of Mysore 2000 . Graduate Teaching Associate, School of Communication, Ohio State University 2001 . Graduate Research Associate, National Regulatory Research Institute, Columbus, Ohio 2001 . Editor, The Networker , Columbus, Ohio 2003 . Instructor, School of Communication, Ohio State University, Marion Campus 2003 – present . Assistant Professor, Department of Communication, Kennesaw State University RESEARCH PUBLICATION Nikhil Moro, “National Security v. Civil Liberties: Newspapers and USA PATRIOT Act,” in Media in an American Crisis , eds. Elinor Grusin and Sandra Utt (Lanham, MD: United Press of America, 2005), 146-160. viii FIELDS OF STUDY Major Field: Communication Minor Fields: Law and Politics ix TABLE OF CONTENTS Page Abstract………………………………………………………………………. ii Dedication …………………………………………………………………… iv Acknowledgments …………………………………………………………… v Vita…………………………………………………………………………… viii List of Tables……………..………………………………………………….. xiii Chapters: 1. Introduction ……………………………………………………………….. 1 1.1. The Problem…………….………………………………………. 3 1.2. A Proposed Resolution………………………………………….. 8 1.3. Social Significance ……………………………………………… 11 1.4. Scholarly Significance ………...………………………………… 12 2. Literature Review …………………………………………………………. 13 2.1. Libel Law as a Predicate of Democracy………………………… 13 2.1.1. Speech, Press and Expression…………………………. 22 2.1.2. Theories of Freedom of Expression …………………. 24 2.1.2.1. Libertarian-Liberal ………………………… 26 2.1.2.2. Conservative-Utilitarian …………………… 35 2.1.2.3. Critical-cultural and Postmodern ………….. 42 2.2. Freedom of Expression, the Internet and Individualization……… 48 2.2.1. The Global Reach of a ‘Real Time’ Medium..……….. 53 2.3. America’s Constitutional Law of Libel ………………………… 57 2.3.1. New York Times v. Sullivan and its Progeny……….. 60 2.3.2. Facts and Law of New York Times v. Sullivan …….. 64 2.3.3. Standards of Fault …………………………………. 68 2.3.4. Actual Malice and Nonmedia Defendants………….. 69 2.3.5. Public Figures ………………………………………. 70 2.4. Libel in the Information Society ………………………………. 75 2.4.1. Corporations and Libel Law …………….…………… 76 2.4.2. Predicates and Properties of the Information Society… 83 2.4.2.1. Jurisdiction is Questionable………………… 85 2.4.2.2. Choice of Law is Questionable……………… 89 2.4.2.3. Shortened Information Cycle ……………… 90 2.4.2.4. Anonymity and Pseudonimity ……………… 92 2.4.2.5. American ISP Not Liable……………………. 95 x 2.4.2.6. “First Publication” and “Single Publication” are Questionable ……… 96 3. Research Questions ……………………………………………………….