Nicholas Eddy

The Internet gives unprecedented capacity for the dissemination of information to individuals who a decade ago could never have approached what was then the exclusive domain of powerful, moneyed publishing interests. The legal culture that arose in conformity with that circumstance provided considerable encouragement, in the form of civil liability, to those publishers, to conduct business with a care to avoiding damages for libel, copyright, and similar claims.

The small-fry information (or content) provider, may still possess such shallow pockets that he is not worth suing, but the fact of the Internet means that these (frequently unsophisticated) publishers can cast such long shadows that they may inadvertently attract the full weight of civil penalty. Because the previous regime placed liability for widely-disseminated harm on the shoulders of the sophisticated and financially resourceful, the system functioned reasonably well, with prudent self-censorship being the satisfactory result.

But the newness of the Internet has combined with its instantaneous technology to work against the sort of reflection-before-dissemination that helps the established media avoid harm, and there are millions of individual internet users who are flirting with potential lawsuits. When these small-fry, who lack both the professional discretion and the financial resources to avoid liability, begin to attract negative attention, the law must take heed of the changing circumstances.

The recent opinion in White House aide Sidney Blumenthal's $30 million libel lawsuit against Internet reporter/gossip Matthew Drudge ¹ illustrates the way in which existing legal conceptions of media relations may fail to capture the realities of cyberspace.

Part III of District Judge Paul Friedman's opinion answers Drudge's motion to dismiss for lack of personal jurisdiction. In asserting jurisdiction over California-resident Drudge under the District of Columbia's long-arm statute ² , Judge Friedman first concludes that Drudge's operation of the Drudge Report website, upon which the alleged libel was posted, and from which it was e-mailed to subscribers, constituted a persistent course of conduct in the District. ³ Then the Court summarily denied that the "newsgathering exception" to the District's long-arm statute is applicable to Drudge, who is described as "simply a purveyor of gossip." ⁴

These two conclusions betray an unfortunate mis-understanding of some of the fundamental ways in which the Internet differs from older media, and provide an excellent example of how the law must adapt to accommodate a radically changing media environment.

The Court found that a persistent course of conduct in the District arose because of:

As the first four factors all derive from the peculiar nature of the Internet, and of Drudge's use of it in particular, they do not contribute to the requirements of the statute. The remaining two factors will be addressed with reference to the Court's erroneous characterization of Drudge as a mere gossip.

The opinion, in illustrating the Internet's "fundamental[] differen[ce] from other forms of mass communication", quotes a law review article which, if examined further, seriously undercuts the Court's assertion of a persistent course of conduct. ⁶

The Court establishes the website's interactivity by pointing out that:

The Drudge Report website consists of numerous hypertext links to various news media websites, and a link to the Drudge Report, itself, which contains Drudge's self-produced content, and which changes numerous times each week. ⁸ On the homepage, website visitors could subscribe to Drudge Report at no charge by submitting their own e-mail addresses, and receive automatic e-mail copies of the Report, rather than have to return to the website for updates, which appear intermittently and vanish from the web page, as new Reports are produced. The opinion cites the plaintiffs' allegation that Drudge had 85,000 subscribers by 1997. ⁹ The mechanism for enrolling as a subscriber is thus entirely anonymous- even if Drudge had the desire to screen each new e-mail address before enrolling it (out of scores of thousands), he would have no hint of the subscriber's whereabouts, since e-mail domain names are not geographically contingent, typically consisting of somewhat cryptic personal designations ending in such indeterminate addresses as <aol.com>.

It is this automated subscription service which the Court mis-characterizes as "develop[ing] a list of regular readers to whom he e-mailed each new edition of the Drudge Report," ¹⁰ thus allowing the exercise of personal jurisdiction. "He" neither developed the list nor himself e-mailed each new edition, his computer merely reacted to the promptings of his readers. Had the Court absorbed the quoted Sanford and Lorenger article, it might have noted the authors' insistence that distribution or publication over the Internet is categorically unlike that done by traditional publishers and distributors, since these latter always purposefully send their material into the forum, and can furthermore prevent it from reaching a particular forum, even if distribution is otherwise nationwide. ¹¹

Because Internet publication/distribution is an all or nothing proposition, Drudge has no idea where his material will appear. To hold him thus responsible for aiming at a particular forum, when the decision of where it is downloaded is entirely in the hands of the "self-service" viewer on his own computer, is to violate the cardinal minimum contacts principle of Hanson v. Denckla: "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state." ¹²

Judge Friedman rests much weight on the quote from Cybersell, Inc. v. Cybersell Inc., that an interactive web site allows users to "exchange information with the host computer," ¹³ when he repeats the "exchange of information" formula twice before concluding that this exchange is the "epitome of web site interactivity." ¹⁴ This can only be viewed as an unfortunate failure to grasp the implications of a radically different communications technology.

This same indeterminacy principle obviously applies to factor four, the 24-hour a day availability, another irrelevancy, since it in no way points to direction towards the forum, as Drudge cannot reduce the amount of time the Report is available to the District of Columbia without doing the same for every reader worldwide.

As for factor three, the solicitation of contributions to defray maintenance costs was part of an Internet-wide appeal. ¹⁵ That 15 contributors from the District of Columbia, should have donated a total of $250 in response to a universal solicitation is happenstance, and can hardly amount to purposeful availment on Drudge's part. It strains credulity to imagine that Drudge paid much attention to return address labels as the modest checks were extracted from their mailing envelopes.

Given the apparently unstoppable progress of Internet technology, it may soon indeed be the case that some not as yet invented technology will make it possible for web surfers to be identifiable according to jurisdiction. When that day comes, web site owners such as Drudge can take appropriate steps to ensure that only precisely identified and duly screened surfers encounter his more incendiary materials, but this existing automated method of exchange of information, without the merest acknowledgement of forum on Drudge's part, cannot give rise to jurisdiction by the District of Columbia. To believe otherwise is to allow any forum to assert jurisdiction, making the whole concept meaningless. To a Court intimidated by the global reach of this new media, such an assertion of jurisdiction may seem comforting, but it conflicts with the Supreme Court's caution in Hanson v. Denckla that "progress in communications and transportation [does not] herald[] the eventual demise of all restrictions on the personal jurisdiction of state courts." ¹⁶

After conceding that Drudge does not advertise "in physical locations or local newspapers in Washington, D.C.," the Court goes on to implicate Drudge further into its forum by noting that Drudge's subject matter "primarily concerns political gossip and rumor in Washington, D.C.," and that "Drudge specifically targets readers in the District of Columbia by virtue of the subjects he covers." ¹⁷ Remarkably, this opinion was dated three months after the initial breaking of the Monica Lewinsky scandal, which clearly attracted enormous attention "beyond the beltway" and put the lie to the idea that Washington gossip and rumor is somehow of little interest outside the forum. Drudge's subscribers alone would amount to more than 14% of the District's total population, if all of them were in the forum, and the number of web surfer visitors is far higher.

Again, this is an instance of not appreciating the new medium. The virtue of the Internet lies in the fact that one doesn't have to be in on the Georgetown party circuit to learn the D.C. inside rumors, which, to a point, are of interest to anyone who votes for President or congressman. It's also the case that Drudge maintains a considerable interest in his first topic of coverage, show business, the media itself, and, curiously, catastrophic weather events. ¹⁸ Any English-reading computer user might be expected to share those interests. If the Drudge Report has covered a considerable amount of political subjects recently, a target-rich environment may be to blame.

Perhaps the most jarring error in the opinion is found in footnote 18, where Judge Friedman dismisses as meriting "no serious consideration" the argument that Drudge may be protected under the "newsgathering exception" to the D.C. long-arm statute, by citing the Complaint (!) to the effect that Drudge "himself admits" to being "simply a purveyor of gossip." ¹⁹ Indeed, in a telephone interview following the Court's opinion, Drudge exclaimed, "I'm going on the record. I'm not a journalist. I'm a kangaroo," a statement which was widely reported. ²⁰

But this humorous reference to the District Court, and references to Drudge's repeated disavowals of "Journalist" status, miss the point that Drudge would make. In an essay decrying lapsed journalistic standards, venerable Baltimore Sun reporter Jules Witcover reviles Drudge as a "reckless trader in rumor and gossip who makes no pretense of checking on the accuracy of what he reports," and quotes Slate magazine editor Jodie Allen as saying that Drudge "is the troll under the bridge of Internet journalism." ²¹ This sentiment is widely shared among elite journalists. ²²

To which the anti-elitist Drudge replies, "Screw journalism! The whole thing's a fraud anyway!" ²³ But when challenged by a pack of news reporters, "Are you a reporter?" and "Do you check sources?" "Drudge replied "I'm a working reporter who has written thousands of stories and driven dozens of news cycles...I check all my sources." ²⁴

And when challenged by Matt Lauer on the Today show, "Is it journalism or is it gossip?" and "are the facts checked and double-checked as you would in journalism...?" Drudge responded, "Oh, you mean like Richard Jewell?" ²⁵

This reference to one of many recent failures on the part of established news organizations illustrates the convergence point at which the Press finds itself. As the Internet heats up the pace of news cycles, the established press scrambles not to get caught out on fast-breaking stories, while a self-taught scribe like Drudge seeks to gain credibility by confirming his sources to the extent that he feels necessary.

It may be useful to recall that the authors of the Bill of Rights were contemplating a press that "called Washington an incompetent, Adams a tyrant, and Jefferson a fornicator," and which de Tocqueville saw as guaranteeing liberty and maintaining civilization. ²⁶

Drudge has also gained admirers among those who recognize that he may represent something of a return to those bad old days of rough-and-tumble, free-wheeling civic dialogue, before the established press, like an established church, grew too comfortable as a affiliate to the political establishment. U.S.C. Law Professor Susan Estrich views Drudge's operation as "Democratizing access to information." ²⁷

Drudge:

Here, then, is the source of Judge Friedman's error. His concern that irresponsible gossip-mongering will run roughshod over undeserving plaintiffs needs to be tempered by an awareness that the loosening of standards on journalistic behavior may entail some hazards, but that the benefits will be considerable, and perhaps essential.

In closing, the last two factors in the persistent-course-of-conduct test, the C-Span interview and the phone and mail contacts with D.C - based sources, fall clearly within the scope of accepted newsgathering activity, which will be made clear with reference to the governing decision by Judge Bork: the newsgathering

Clearly, for better or worse, the Drudge Report has reshaped the American political scene, and in the process, attracted an audience of scores of thousands of subscribers and many more occasional visitors. Their interest in maintaining that stream of occasionally outrageous information deserves the strongest possible protection, which the prudent application of settled law and jurisdictional restrain must provide.

FOOTNOTES

8. The Drudge Report, <www.drudgereport.com>, (Visited 12/06/98).

18. David McClintick, Town Crier for the New Age, Brill's Content, Vol. I, No.4, pg.112 at 117; and see "Some of Drudge's first scoops were sifted out of the trash bin at CBS in Los Angeles, where he was gift-shop manager." later he "began transmitting flashes about Hollywood career moves, box-office reports and political scuttlebutt," and "gained an audience of political and entertainment-industry insiders. Many of them began feeding him with tips by e-mail, so the momentum began to feed on itself." Harold Johnson, The Drudge Report: An Internet-age Walter Winchell Upsets Mainstream Media and the White House, Orange County Register, April 12, 1998, <www.cspc.org/Drudge/upsets.htm>, visited 12/6/98.

21. Jules Witcover, The Scandal: Where We Went Wrong, Columbia Journalism Review, March/April 1998. <www.cjr.org/search/year/97/6/drudge.asp>, visited 12/6/98.

24. Francis X. Clines, Gossip Guru Stars in Two Roles at Courthouse, New York Times, 3/12/98, <www.cspc.org/Drudge/guru.htm>, visited 12/6/98.

27. Quoted in Harold Johnson, The Drudge Report: An Internet-age Walter Winchell Upsets Mainstream Media and the White House, Orange County Register, April 12, 1998, <www.cspc.org/Drudge/upsets.htm>, visited 12/6/98.

28. James Glassman, Matt Drudge, E-Journalist, Washington Post, June 9, 1998, <www.cspc.org/Drudge/glassman.htm>, visited 12/6/98; and see Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805 at 1849 (1995)"Listeners will no longer be a captive audience to the selection that the intermediaries- publishers and broadcasters- want to feed them. Will listeners do a better job of informing themselves than the intermediaries have been doing?... I think the answer...is yes."