What worth a free press?

When we say a free press we tend to mean that the members of the media are allowed to pursue stories about the gov't, and that they get to publish what they like.

It didn't used to be that way. Back when the press was new, it was seen as dangerous, a thing to be controlled. And to own one required a license from the crown. At various times restrictions on what could be published existed (Milton was the censor for Cromwell). This didn't stop someone from printing something without a permit. It didn't really stop someone from getting a press and setting up shop. But to do either of those things was risky. One might be fined, or put in the stocks. Elizabeth I, in a fit of pique, once had a man's right hand cut off, because he had published things which offended her. One's press could be smashed, thus removing one's livelihood.

That license meant one could be found. The vagaries of the day also meant that a small amount of investigation could prove, with fair reliabilty, that one had printed, or allowed, to be printed something. The only defense one could make was that one had lent, or hired out the press, and that person had committed the foul deed.

The Colonies were a trifle less stifled, in the first place, there were a lot of presses. In the second, the requirement to license presses was removed in 1694, so one could publish anonymously. John Milton argued, while he was Cromwell's censor, that there should be no restrictions, as truth will defeat falshood.

Then John Peter Zengler was tried for seditios libel, he was tried for the libel because he told truths about the Governor New York. The governor, in the trial, argued that the most damaging aspect of the libel was it's truth. It was put to the jury that the defamation, and damage to his reputation increased because the charges were true. If they were lies, went the logic, then one could discount them, and no harm was done, but the truth; that posed a real threat to his reputation, and would so affect his standing, and his ability to govern.

Edmund Burke, the English political theorist raised the press to the role of a real player in Gov't. “Burke said there were Three Estates in Parliament; but in the Reporter’ Gallery yonder, there sat a Fourth Estate more important than they all. It is not a figure of speech, or a witty saying; it is a literal fact – very momentous to us in these times. Literature is our Parliament too. Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy; invent Writing, Democracy is inevitable ... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in lawmaking, in all acts of authority. It matters not what rank he has, what revenues or garnitures: the requisite thing is that he have a tongue which others will listen to; this and nothing more is requisite. The nation is governed by all that has tongue in the nation. Democracy is virtually there.” Thomas Carlyle On Heroes, Hero-worship and the Heroic in History.

It matters not what rankhe has... the requisate thing is that he have a tongue which others will listen to.

That sums up the blogoshpere. There are those with tongues other's listen to.

Burke didn't say that those tongues needed to be harried into line. Thomas Jefferson felt rather the opposite. "The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them." letter to Edward Carrington, 1787.

He went on, in another letter, "Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it." letter to John Jay, 1786.

It allowed for all sorts of debate. Open letters (in England, and America) which included the entirety of the Federalist Papers, were published under pen names (Publius, Cato) and spread questions of how a free people are to govern themselves, and manage that government far and wide. It is a good thing.

Rep Biondi, of New Jersey, however, seems to disagree.

ASSEMBLY, No. 1327
STATE OF NEW JERSEY
212th LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2006 SESSION

Sponsored by:
Assemblyman PETER J. BIONDI
District 16 (Morris and Somerset)

SYNOPSIS
Makes certain operators of interactive computer services and Internet service providers liable to persons injured by false or defamatory messages posted on public forum websites.

CURRENT VERSION OF TEXT
As introduced.

An Act concerning the posting of certain Internet messages and supplementing chapter 38A of Title 2A of the New Jersey Statutes.

2. The operator of any interactive computer service or an Internet service provider shall establish, maintain and enforce a policy to require any information content provider who posts written messages on a public forum website either to be identified by a legal name and address, or to register a legal name and address with the operator of the interactive computer service or the Internet service provider through which the information content provider gains access to the interactive computer service or Internet, as appropriate.

3. An operator of an interactive computer service or an Internet service provider shall establish and maintain reasonable procedures to enable any person to request and obtain disclosure of the legal name and address of an information content provider who posts false or defamatory information about the person on a public forum website.

4. Any person who is damaged by false or defamatory written messages that originate from an information content provider who posts such messages on a public forum website may file suit in Superior Court against an operator or provider that fails to establish, maintain and enforce the policy required pursuant to section 2 of P.L. , c. (C.) (pending before the Legislature as this bill), and may recover compensatory and punitive damages and the cost of the suit, including a reasonable attorney’s fee, cost of investigation and litigation from such operator or provider.

I don't have section 1, because it seems the page on the New Jersey website is down. And there's more.

"In addition, the bill makes any operator or Internet service provider liable for compensatory and punitive damages as well as costs of a law suit filed by a person damaged by the posting of such messages if the operator or Internet service provider fails to establish, maintain and enforce the policy required by section 2 of the bill."

This last is strained. If I go to a printer, and ask him to print something, he isn't liable for it. A newspaper is in a different bind, because the paper publishes. But the present holding (as I understand it) has ISPs as passive providers. The newspaper, you see, excercises editorial control over everything it prints. Those letters to the editor were selected. The columns were solicited, or paid for. The reporters were hired, and assigned, the work was reviewed and chosen. Here the ISP is being nailed for not making sure I am who I say I am. Good by to free-blogging.

Let's look at Sec. 3. shall establish and maintain reasonable procedures to enable any person to request and obtain disclosure of the legal name and address of an information content provider who posts false or defamatory information about the person on a public forum website.

Any person. I don't see any means for determining the nature of the damage. It would seem I could call up the State of New Jersey, claim I had been libelled, defamed, or damaged, by someone, and request the name. One of the things about libel laws, and why libel is easier to prove (and tends to have heavier penalties, when successfully prosecuted) is that something which is published, is out there, as a physical thing, forever.

If I wrote a libel in a small paper, and ten years later the libelled person found out about it, well he can raise a stink. Might even manage to get it into court.

When I hit send, this thing will have been published in New Jersey. If this law passes, someone who lives in Maine can claim damages were done to them in New Jersey, and get my name; and my address. They aren't, however, required to use it in a court case. No. They can just demand it. This isn't benign. If one was actually proceeding to file a case, then one can get a subpoena. This avoids that little nicety. It removes the need to get a warrant to force me to reveal myself. It doesn't seem any real harm need have been done either. Just a snit will suffice, though it doesn't seem I can get someone's name because they were mean to a third party. Small mercy that.

Surface mail is still anonymous. Put a stamp on it, and off it goes. When it arrives, the recipient knows the sender has their address. All the sender knows is where the post office sent it from, and pretty vaguely at that. With a friend, it can even be sent from someplace quite removed. I could be down the way from someone. I send a package to my father, oops... "I accidentally put a letter I meant to mail in it, could you pop it in the post?" Now the letter comes from Tenn., not San Luis Obispo.

Or I can do the reverse, forward it to someone who lives near the object of my little vendetta. Now they are looking over their shoulder, worrying the cat will turn up dead on the stoop. In either case what it does it open the door for real-world stalking of internet writing. It stifles the press. It isn't packaged as that, no it's rather going to be marketed as a Jeffersonian attempt to keep the, distributed, press of the internet, "honest."

But it isn't really meant to do that, it's meant to put the chill fear of what might happen into the dark corner of everyone who posts on the internet's mind.