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The verdict is still out on whether the First Amendment has a strong voice of support among conservatives on the Supreme Court. Although Justice Samuel Alito says he is a staunch defender of free expression in both speech and print and that presumably includes the Internet, his recent end-of-the-term votes on two cases made it unclear just how staunch.
A few days before voting on the one hand to allow special interests to identify candidates in pre-election issue advertising and against student speech rights in certain cases, Alito said he would be reluctant to support restrictions on what people say. His statement came in response to a question about how far online bloggers and other non-traditional “journalists” should be allowed to go — a question that is bound to become of more and more concern with the rapid proliferation of Internet news.
As crucial as the election-advertising and student-speech (“Bong Hits 4 Jesus”) cases are to the protection of the First Amendment, they pale in the face of mounting concerns about the Internet, where at this stage anything apparently can be said about any one, whether or not it is true. Even newspapers are experimenting with cyber-journalism that permits their reporters to file directly to the newspaper’s Web site without the usual editing process. At one paper in Florida, reporters now work out of their cars with a laptop, filing stories from wherever they are without having their work checked — a frightening process that is fraught with potential for abuse and inaccuracy.
It is a dangerous practice that violates every tenet of serious journalism and, in its own way, is as disruptive to the First Amendment as those who would alter it through legislation or constitutional interpretation. The amendment never has been without huge obligations for those who practice professionally under its protections. The reins put on those who use its freedoms maliciously have been the laws of slander and libel. Fortunately, the Supreme Court has been for the most part “reluctant”(to use Alito’s word) to curtail the press’s right to print as long as the inevitable mistakes were not the cause of deliberate malice. Recognizing the legitimate value to the public of reporting on so-called “public figures,” the court has all but made it impossible for persons so designated to sue except in extreme cases.
These restrictions, as limited as they may seem, accompanied by a sense of integrity and fairness, do force responsible writers and broadcasters to police themselves. Most news organizations have strict ethical codes, and in the last few decades top editors, reporters and columnists have found themselves in hot water over what in the past would have gone unnoticed or treated like trivial infractions. The vast array of research material on the Internet also has added new meaning to the word “plagiarism” as writers often have been accused of cribbing, a practice routine in newspapers in bygone years.
But so far the courts have not been faced to any great degree with the seriousness of this unbridled online creativity that in some instances is even difficult to identify. There seems little doubt in the mind of most of us who have spent a lifetime abiding not only by our First Amendment responsibilities but those of accuracy and decency and fairness that the same rules should apply to those so-called citizen journalists and bloggers who now bombard the Internet with their rants and reports on every aspect of our lives.
How to make that happen, however, is a dilemma. This new online world is generally uncontrolled and so vast as to make it almost impossible to police or to police itself. It seems inevitable that a major suit of some sort will arrive — that material wholly false and so horribly damaging that it cries out for relief will find its way to the Supreme Court. We can be assured of that. When that takes place, one can only hope that the reluctance of Alito and his colleagues to violate the sanctity of the First Amendment remains strong, but that it also is tempered by the need to apply the rules governing responsible traditional journalism. It is a difficult balancing act.
Alito made it clear he would not have supplied the deciding vote on the decision to uphold a principal’s suspension of an Alaska student for his smart-aleck banner had it not been seen as advocating illegal drug use. Let’s hope that he holds firm when the bigger questions arise.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)