"Internet On Trial" was how Vanity Fair's December issue billed its report on the libel lawsuit against Matt Drudge, the Internet's first political gossip columnist. What's really on trial is not the Internet itself but two other things: the degree to which mainstream journalists demonize the Net and the usefulness of libel law itself.
Drudge, 30, is a news junkie who decided to become a gossip columnist and, thanks to the Internet, succeeded beyond his expectations, if not his wildest dreams. Starting from scratch in 1995, Drudge has built up a subscriber list of (he estimates) 85,000 and won a substantial contract with America Online to publish his online newsletter there as well. And in the past year or so, he has blazed a meteoric path–becoming a frequently read source for political journalists, if not always a well-respected one.
But whatever Drudge's dreams of success at Internet journalism, he almost certainly didn't anticipate the nightmare of a $30 million lawsuit. And that's precisely the amount of reputational damage White House aide and former journalist Sidney Blumenthal is claiming that Drudge and America Online did to him when the online columnist published an item suggesting that Blumenthal has a history of spousal abuse.
As it turns out, Drudge's report, which was based on information from an undisclosed source, adds up to a falsehood–there is no known evidence that Blumenthal ever engaged in anything like domestic violence with regard to Jacqueline Jordan Blumenthal, his wife of 21 years, who heads the White House Fellowships Commission. Tellingly, Blumenthal read the Drudge item on the evening of August 10, 1997, the same day it was released–illustrating the immediacy of Internet news, Drudge's must-read status, or both. (Jacqueline Blumenthal received a faxed copy of the item from a former congressional press secretary the following morning.)
Understandably incensed, Blumenthal had his lawyer, William McDaniel, send what Vanity Fair called a "strongly worded" letter to Drudge, who, after quickly discovering that he could not verify his original item, published an apology and a retraction. Unsatisfied with this response, Blumenthal filed a libel lawsuit against Drudge and America Online, seeking an improbable $30 million in damages.
The case raises a raft of First Amendment issues–most of which have been only casually addressed, if at all, by the legal commentators and media watchers, and all of which undercut Blumenthal's case:
• Who's a public figure? Longstanding libel-law principles hold that a "public figure"–someone who, as the Supreme Court put it in Gertz v. Robert Welch Inc. (1974), thrusts himself "into the vortex" of public debate–bears a heavier burden of proof than a private individual plaintiff. While the latter may need only to prove negligence (under some states' libel laws) in order to recover damages, a public figure must prove that the publisher of the defamation either knew the statement was false or that he didn't care whether it was true or not. This poses a tough problem for Blumenthal, whose work as a pro-Clinton journalist almost certainly would qualify him as a public figure even if he had not followed up that work with a new job on the White House staff. While Drudge was (in my view) almost certainly negligent in what he published, there's no evidence yet that shows he knew it was false or that he didn't care about its truth–quite the contrary, in fact.
• Vicarious liability. Drudge is not the only defendant, of course. Surely America Online's assets are the main reason for the inflated monetary demands. But where $30 million might have seemed a fair figure if Blumenthal had been publicly humiliated and fired from his White House job, press reports indicate that, if anything, President Clinton has been quite supportive of Blumenthal in the aftermath of Drudge's erroneous report; he even allowed Blumenthal to state publicly that he had the president's support in suing the online journalist. Still, this logic might escape a trial court appalled by the gravity of Drudge's spousal-abuse charge, and if it were to award damages of $30 million, America Online is the only party to the case that might conceivably be able to pay it.
But once again Blumenthal has a problem–namely, that America Online, which provided access to The Drudge Report but did not prescreen it, cannot reasonably be said to have had the kind of relationship to Drudge that, say, The New York Times has to its reporters. A traditional news organization like the Times can be held legally and financially responsible for any libels its reporters generate because the Times has editorial policies and an editorial hierarchy ensuring that nothing will appear in the newspaper that its editors have not approved before publication. And ever since the milestone 1964 case New York Times v. Sullivan, the Supreme Court has grounded libel liability on the concept of "scienter": A successful plaintiff must be able to show that the publisher either knew or should have known about the offending content prior to publication.
McDaniel, Blumenthal's attorney, has hinted he may sidestep this evidentiary hurdle by showing that America Online was reckless even to contract with Drudge–that Drudge's reputation for publishing unsubstantiated rumors should have kept the service provider from signing a contract with him, just as a builder should know better than to hire a subcontractor with a reputation for drunkenness or negligence. But this is, after all, Drudge's first libel lawsuit; it can hardly be said that AOL should have known Drudge was going to publish actionable material when there were no previous cases to show AOL he had done so in the past. Given that the legal theory behind suing AOL is shaky at best, AOL's presence in the lawsuit is hard to justify, legally speaking. Even if Blumenthal loses, the prospect of such lawsuits may scare AOL and other providers away from carrying controversial political content.
• Reputational damage. Let's suppose I'm wrong about Blumenthal's status as a public figure and about his ability to keep America Online in the lawsuit. There remains the issue of whether Blumenthal has actually suffered any damage to his reputation at all–much less $30 million worth. I won't dispute that Blumenthal found Drudge's false story personally painful–he and his wife surely did. But the raison d'être of libel law is damage to reputation, not to one's psychological well-being. That's why "publication"–legalese for the showing of the defamatory statement to a third party–is the sine qua non of libel cases: You can't have committed a libel merely by hurting someone's feelings privately.
We can start by reminding ourselves that Drudge quickly retracted his false report and apologized for it–more than once, as it happens. This means that, at the very least, the same readership who saw the original erroneous report saw its retraction, which ought to be enough to reduce the reputational damage–whatever it might have been–significantly. But that can't be the end of the inquiry, since Drudge's retraction, and Blumenthal's announcement of the lawsuit, were immediately reported and discussed all over the Internet with an audience far broader than Drudge's core subscribers. What's more, it was a headline-grabber in lots of traditional media outlets as well, including The Wall Street Journal and The New York Times.
This raises a central question for the case–one that not only calls the whole foundation of the lawsuit into question but also underscores the extent to which both traditional media and traditional legal commentators have been willing to shut off their critical faculties when it comes to thinking about the Internet: Is there anyone at all who knows a) who Blumenthal is and b) what Drudge originally wrote about him but who does not also know c) that Drudge retracted his story? I'm willing to bet that the answer to this question is a solid no.
The answer might be different if Blumenthal were a public figure as widely known as, say, Bill Clinton–or even Conan O'Brien. But Blumenthal is well-known only in those circles that pay attention to bylines in The New Republic or The New Yorker–Blumenthal's former employers–and you can bet that to anyone with whom Blumenthal even has a reputation, Drudge's flat retraction is already old news. In other words, this is one case in which the media–both old and new–have functioned just the way they're supposed to in an open society. Drudge's correction has caught up with, and even outpaced, the original defamation.
This fact is obvious to anyone who reflects on the Drudge case, but it is a fact that has nevertheless been omitted from virtually all of the reports about the case, which, when not skewed by partisan comments (liberals tend to be anti-Drudge, and conservatives tend to defend him reflexively) are full of comments about the Internet as a no-man's-land of dangerous speech that is only just now being civilized by the legal system. In reality, the Net has always been subject to libel law (as well as other laws), and no reasonable person has ever supposed that he couldn't be sued for saying something libelous on the Internet. A good indicator of the kind of nonsense one hears from legal commentators dealing with the Net is the statement that we "don't know what the rules of the road are."
The fact is, we do know what the rules are, but what most of the pundits have yet to grasp is how the old rules play out in new ways on the Net. For example, one of the reasons a newspaper can still be made to pay a libel defendant even when it has published a retraction is that the retraction (one may reasonably argue) never has quite the impact that the original defamation did–not even if it's printed on the front page, and not even if the falsity of the report is further publicized by the filing of a libel lawsuit. That's why Richard Jewell, the hero of the Olympic bombing whose reputation was seriously damaged by the FBI's irrational identification of him as a suspect in the crime, and by the press's exacerbation of that damage with its own wildly speculative reports, is still in the process of extracting tidy monetary settlements from news organizations around the country. Publications such as Time took months to clear the air–quite a contrast to the immediacy of Drudge's retraction.
This has not prevented would-be legal pundits from dithering about the Net. "If anything, a libel on the Web is more permanent in impact even though it is evanescent in form," University of Virginia law professor Robert O'Neil told New York Times reporter Carl Kaplan. O'Neil's comment is an odd one from someone who's also director of The Thomas Jefferson Center for the Protection of Freedom of Expression, but not untypical of remarks by a legal commentator in these days of social panic about the Internet. What the commentators in this case have somehow missed is that ink on dead trees is a little more permanent than your average webzine and that Blumenthal's sufferings, whatever they may have been, don't hold a candle to Jewell's.
And for that Blumenthal has two phenomena to thank: the immediacy of news reporting on the Net, and the willingness of the media to sensationalize any story that makes the Net look scary. Operating in tandem, these factors have made the retraction a bigger story than the libel ever was–which in turn makes Blumenthal's lawsuit look a lot more like opportunistic overreaching and a lot less like justice in action.