(Of course, Colonial Americans probably didn’t have bulletin boards in their front yards, or if they did, it has escaped the notice of history. But they had town criers, newspapers, letters and tavern gossip, with which they managed to launch a Revolution. But I digress.)

The indictment charged violations of the federal interstate stalking statute, 18 U.S.C. §§ 2261A, which criminalizes the use of interstate communications to engage in a course of conduct with the intent to place a person in reasonable fear of death or serious bodily injury. As amended in 2006, the statute additionally criminalizes the use of interstate communications, including an interactive computer service, with the intent to harass or intimidate or cause “substantial emotional distress.” As the court in United States v. Cassidy noted, the 2006 amendments to the statute significantly broaded its scope.

Cassidy moved to dismiss the indictment, alleging that the statute was unconstitutionally overbroad and vague, and was unconstitutional as applied to him.

The court assumed for purposes of analysis that the tweets and blog posts that Cassidy was alleged to have published anonymously in fact inflicted substantial emotional distress on their target; the court described them as “anonymous, uncomfortable Internet speech addressing religious matters.” (The messages are catalogued in an appendix to the court’s opinion.) Nevertheless, the court concluded that Cassidy’s publications are not within one of the categories of speech that fall outside of First Amendment protection: “obscenity, fraud, defamation, true threats, incitement or speech integral to criminal conduct.” Citing both Reno v. American Civil Liberties Union (U.S. 1997) and the Supreme Court’s recent ruling in Brown v. Entertainment Merchants Association (U.S. 2011), the court commented: “Even though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment….” Slip. Op. at 12.

The court rejected the Government’s argument that the Government has a compelling interest in protecting victims from emotional distress sustained through an interactive computer service, and further rejected the argument that the statute regulated conduct rather than speech. It is on this point that the court’s analogy between Colonial bulletin boards and blogs was brought to bear.

While prosecutions for making harassing telephone calls have been upheld, the court acknowledged, phone calls and e-mails are communications that are directed at a particular victim and received outside a public forum. In contrast, the court concluded, “Twitter and and Blogs are today’s equivalent of a bulletin board that one is free to disregard ….”

Having found that the statute was unconstitutional as applied to Cassidy, the court declined to reach his facial overbreadth and vagueness challenges to the statute.

It will be interesting to see if the court’s analysis holds up in other cases, either under the federal statute or under a similar state law. The Amicus Brief submitted by the National Center for Victims of Crime and Maryland Crime Victims’ Resource Center in support of the Government’s position pointed out that anti-stalking laws have been enacted in all 50 states, and some of those statutes encompass so-called “cyberstalking,” “cyberharassment” or “cyberbullying,” variously defined.

In some cases the creation of an Internet-specific rule has involved a deliberate policy choice to reject a traditional rule in favor of a new and sharply different rule applicable to the online environment. Section 230 of the Communications Decency Act is at the top of the list of such enactments. In other cases, judges struggling with the task of applying precedents to controversies arising in the Internet context have crafted Internet-specific rules on the fly. The so-called Zippo sliding scale for assessing personal jurisdiction in cases involving Web sites is the prime example in that category. Prof. Eric Goldman has written an article analyzing the phenomenon, including recent examples of enactments that are not only Internet-specific, but focus in on a particular kind of Web site, e.g., social networking sites. See Eric Goldman, The Third Wave of Internet Exceptionalism, (March 11, 2009). But some courts have rejected Internet exceptionalism, at least in certain contexts.

Late last week, the U.S. Court of Appeals for the Second Circuit included in its ruling on New York’s revised attorney ethics rules on advertising an essay broadly rejecting the notion of Internet exceptionalism in cases involving the First Amendment, at least in the context presented. This is not the first time that the Second Circuit has questioned the need for an Internet-specific rule. In Best Van Lines, Inc. v. Walker (2d Cir. 2007), a panel of the court concluded that while the Zippo sliding scale is useful in assessing whether a party did business in New York, "it does not amount to a separate framework for analyzing Internet-based jurisdiction." See also the ruling in In re Cohen,  (N.Y. Sup. Ct. N.Y. Cty Aug. 17, 2009), rejecting the argument that there are special rules applicable to defamatory statements made on a blog.

In Alexander v. Cahill, (2d Cir. Mar. 12, 2010), a panel consisting of Judges Walker and Calabresi (Judge Sotomayor was on the panel until her elevation to the U.S. Supreme Court) considered whether the New York ethics rule banning targeted attorney solicitation of accident victims in any media within 30 days of the accident was sufficiently narrowly tailored to survive constitutional scrutiny under applicable U.S. Supreme Court precedents. Noting that the rule would unquestionably survive constitutional review if it applied only to direct-mail solicitations, the panel concluded that the same analysis should be applied to all communications media, including the Internet. While recognizing that a "technology-specific approach" may be appropriate in some contexts, the court reasoned, it is not appropriate where there has been a merger of traditional and Internet communications channels:

In the context before us, we eschew a technology-specific approach to the First Amendment and conclude that New York’s moratorium provisions—as we construe them—survive constitutional scrutiny notwithstanding their applicability across the technological spectrum. We focus first on the potential differences among media as to the degree of affirmative action needed to be taken by the targeted recipient to receive the material Plaintiffs seek to send. For many media forms, it is about the same. Thus, to us, the affirmative act of walking to one’s mailbox and tearing open a letter seems no greater than walking to one’s front step and picking up the paper or turning on a knob on a television or radio.

It is true that the Internet may appear to require more affirmative acts on the part of the user in order to recover content (and is therefore perhaps entitled to greater First Amendment protection insofar as users are soliciting information, rather than being solicited). But regardless of whether this characterization was once accurate, it no longer is so. E-mail has replaced letters; newspapers are often read online; radio streams online; television programming is broadcast on the Web; and the Internet can be connected to television. See Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248 (2003) ("[T]he impending shift of all networks to packet switched technologies promises to cause all of the distinctions based on the means of conveyance and the type of speech conveyed to collapse entirely."). Furthermore, Internet searches do not bring a user immediately to the desired result without distractions. Advertisements may appear with the user’s search results; pop-up ads appear on web pages; and Gmail (Google’s e-mail service) creates targeted advertising based on the keywords used in one’s e-mail. In such a context, an accident victim who describes her experience in an e-mail might very well find an attorney advertisement targeting victims of the specific accident on her computer screen.

States are increasingly responding to these expanded and expanding roles of the Internet. Several already apply existing attorney professional responsibility rules to electronic and Internet advertisements and solicitations. See Amy Haywood & Melissa Jones, Navigating a Sea of Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over  the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001) ("[I]t can be assumed that Internet use in the context of legal marketing will generally invoke all ethics rules relating to advertising and solicitation."). Texas and Florida have also added language to their disciplinary rules specifically to address attorney solicitation via the Internet. The New York Task Force Report reached the same conclusion. The Report repeatedly stated that "on-line advertisements and websites are not materially different than typical" printed advertisements, and that the rules should be enforced equally across media. (Task Force Report 54-55) In so doing, the Report "demonstrate[d] that the harms it recites are real and its restriction will in fact alleviate them to a degree." Florida Bar, 515 U.S. at 626 (quotation marks omitted).

Accordingly, we conclude that even acknowledging that differences among media may be significant in some First Amendment analyses, they are not so in this case. Three aspects of the Supreme Court’s analysis in Florida Bar are of particular relevance to our determination that the harms identified in that case, and put forth by Defendants in this case, are just as compelling with respect to targeted attorney advertisements on television, radio, newspapers, and the Internet as they are in justifying a ban on targeted mailings of attorney advertisements.

Alexander v. Cahill, Slip Op. at 27-30 (citations omitted),

Construing Section 92 in a defamation action brought by a discharged employee, the appeals court concluded that "Massachusetts law … recognizes a narrow exception to [the defense of truth]: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with ‘actual malice" in publishing the statement.’

The federal district court in Massachusetts dismissed the employee’s claim that the employer was liable for defamation for distributing an e-mail to 1,500 other employees detailing the reasons for the employee’s dismissal. The district court held that the statements in the e-mail were true, and that in any event no evidence of "actual malice" had been shown by the employee.

On appeal, the First Circuit first upheld the dismissal but then reversed itself, concluding that under Section 92, even a true statement can be the basis for a libel claim in a private plaintiff case, if the plaintiff shows "actual malice." Now, "actual malice" is a term of art in defamation law, a term that refers to the publication of an untrue statement about a public figure, with knowledge, or a reason to know, of its falsity. But the First Circuit concluded that the term "actual malice" in Section 92 refers to "common law" actual malice, i.e., "actual malevolent intent or ill will" on the part of the speaker. The court drew that conclusion based on the fact that the statute in its present form was enacted in 1902, before the U.S. Supreme Court had developed the current definition of "actual malice" as applied to public figures.

Thus construing the term "actual malice," the appeals court examined the record in the case and concluded that the discharged employee had sufficiently alleged facts on which a jury could base a conclusion that the employer acted with "actual malevolent intent or ill will" toward the employee when the e-mail detailing his discharge was distributed, i.e., that he had been "singled out … in order to humiliate him" and to harm his reputation.

The ruling contained virtually no discussion of the constitutionality of the Section 92 because the appeals court deemed the issue to have been waived:

This exception to the truth defense is not constitutional when applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998). In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time. See Johnson v. Mahoney, 424 F.3d 83, 96 (1st Cir. 2005).

The employee’s defamation claim was remanded for trial.

The response to the appeals court opinion included the filing of a petition for rehearing, and the submission of an amicus brief to which numerous newspapers, media companies and advocacy organizations signed on, from the Associated Press to the Washington Post. On March 19, however, the First Circuit denied the petition for rehearing, reiterating its conclusion that the issue of constitutionality was not properly raised, and that in any event there was no showing that the statute was so obviously unconstitutional that the court should have acted sua sponte to strike it down. The court commented that the employer "still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern."

This is not the first Congressional run at the subject, which is of particular interest to authors and media companies that publish online and thus are more likely to be susceptible to claims of harm caused in distant locations. Indeed, authors and publishers of print works that may be sold online to offshore purchasers should be concerned as well, as a foreign court may predicate jurisdiction on even a small number of such sales.

The panelists testifying before the Subcommittee commented on the provisions of H.R. 6146, which passed the House Judiciary Committee late last year but failed to get to a floor vote before the end of the 110^th Congress. Presumably Rep. Steve Cohen (D. Tn.) who sponsored H.R. 6146 and chairs the Subcommittee, is preparing to introduce the same or similar legislation in the current 110^th Congress, although no bill has yet been filed.

The first panelist was Rachel Ehrenfeld, whose experiences with libel litigation in the U.K. prompted the introduction of H.R. 6146 and the enactment of the Libel Terrorism Protection Act by the New York Legislature last year, as detailed more fully in my post on the PBS MediaShift blog. Her statement to the Subcommittee detailed the lawsuit brought against her in the U.K. for publication of a book in the U.S. alleging that a Saudi businessman financially supported terrorism. The U.K. court based jurisdiction in the case on the sale there of 23 copies of the book via the Internet, and the availability of a chapter of the book on a Web site accessible in England.

What would the enactment of H.R. 6146 have accomplished? The bill would have provided a defensive remedy against the enforcement of foreign libel judgments. The provisions of the bill are quite simple, providing that notwithstanding other provisions of state or federal law, “a domestic court [i.e., either federal or state] shall not recognize or enforce a foreign judgment for defamation that is based upon a publication concerning a public figure or a matter of public concern unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States.” In other words, a plaintiff that obtained a libel judgment in a foreign court would be unable to enforce that judgment in U.S. courts unless there was a finding that the judgment met U.S. first amendment standards.

That sounds like a lot, and it is, but according to one panelist, Prof. Linda J. Silberman of New York University Law School, the principle set out in the legislation already reflects U.S. law, citing, e.g., Sarl Louis Feraud International v. Viewfinder, Inc., 489 F.3d 474 (2d Cir. 2007) (expressing the principle that a foreign judgment that does not conform to U.S. first amendment standards is unenforceable on grounds of public policy). She did comment favorably on the provisions of H.R. 6146, however, to the extent that enactment of those provisions would establish a clear federal policy on non-enforcement of judgments that violated the first amendment, as opposed to the more general “public policy” grounds under existing law.

The subject that yielded divided opinions on the part of the panelists concerned the extent to which legislation addressing libel tourism should be limited to the type of defensive provisions contained in H.R. 6146, or whether an affirmative remedy should be provided. In Ehrenfeld’s case, her attempt to preemptively obtain a judgment declaring the U.K. libel judgment unenforceable failed when courts ruled that there was no jurisdiction over the foreign libel plaintiff under New York law.

The specific provisions discussed were those contained in two companion bills in the 110^th Congress, H.R. 5814 (Rep. King) and S. 2777 (Sen. Specter and Sen. Lieberman), which would have provided for long-arm jurisdiction and a federal cause of action including both injunctive relief and damages against a foreign plaintiff that filed a defamation action in a foreign court with respect to speech disseminated in the U.S. that did not constitute defamation under U.S. law. Prof. Silberman commented that she is “highly critical” of those proposals, which she characterized as failing to “extreme and ultimately unsustainable remedies” that would be “much too aggressive an assertion of U.S. jurisdiction even in those situations where U.S. interests might be found to be compelling.”

Another panelist, Laura R. Handman, detailed the range of libel actions brought in overseas courts and the chilling effects they have had on U.S. publishers, Handman argued for amending any proposal based on H.R. 6146 to include a declaratory judgment provision including an award of fees and costs.  Handman also pointed out that the irony that it is American celebrities who are “some of the most frequent libel tourists,” detailing actions brought by Harrison Ford, Britney Spears, Cameron Diaz and Marc Anthony and Jennifer Lopez, among others. Panelist Bruce D. Brown similarly argued for expanding the provisions of H.R. 6146 to incorporate affirmative remedies against libel tourists.

The hearing adjourned without further discussion of a bill introduction, so though it appears likely that some legislation will be introduced, the shape it will take remains uncertain.