The big hurt (someday, maybe) coming for journalists

Robert A. Arcamona, who writes the blog Protecting the Source, recently reported on a lawsuit filed against Wikipedia by a German man. The man is completing a 15-year sentence for murder, and he claims that discussion of his conviction on Wikipedia “severely [impacts]” his “rehabilitation and his future life outside the prison system.” The suit requests that Wikipedia suppress the convict’s name, according to The Register.

In closing his post, Arcamona writes:

I find it unlikely that an Internet company like Wikipedia could find it economically sustainable to limit what is said on Web pages accessible in Germany according to one set of laws, while permitting other sorts of information on Web pages accessible in another countries according to different legal standards. The net effect of this could be to bring Internet speech on trans-national Web sites, like Wikipedia, down to the least acceptable common denominator.

Let me stress at the outset that I have no evidence to suggest Arcamona’s hypothesis will turn out to be correct. Regardless, I find it an interesting thought experiment to imagine what would happen were it to come true; specifically, the reaction from American journalists who would have to abide by the speech rules of other countries.

Journalists are not immune to the tendencies described by Mary Ann Glendon in Rights Talk: The Impoverishment of Political Discourse. Glendon argues that Americans are unique in the degree to which they describe their rights in atomistic terms, with little reference to responsibility to one’s communities or the competing views of others.

For example, in a 2006 article in Editor and Publisher (since placed behind a paywall), Joe Strupp, the magazine’s editor, criticized a local politician’s proposal to ban reporters from entering the property of newly-grieving family members. The proposal’s rational was that the family members deserve privacy during a difficult time. They could still approach reporters themselves–and Strupp noted that some families indeed do want to talk to the media–but reporters wouldn’t be able to make the first move.

Strupp argued that the law was an unfair restriction on the rights of reporters. Most journalists were nice people, Strupp wrote, and the stories resulting from meetings with family members were good yarns. Note Strupp’s lack of reference to those whom the law was to aid?

American journalists take their First Amendment rights seriously. But, their conviction often increases their hostility towards speech laws found in other countries.

I use Strupp’s argument to demonstrate how strong the response would probably be to any change in the direction Arcamona hypothesizes. However, American journalists would also face more serious consequences than the ones at issue in the above example.

One example is libel law. As Alan Rusbridger, editor of the UK’s Guardian newspaper, described in The New York Review of Books, British libel law is tougher on media outlets than is American law. Rusbridger’s article describes the costs facing the Guardian during a serious libel lawsuit–costs that only a few major media companies can afford, let alone small, new-media outlets (on this point, also see the discussion at Harvard’s Nieman Lab of single-serving libel protection for smaller publications*). Were American journalists to suddenly confront libel law less protective of themselves than they enjoy now, we probably would witness a “chilling” effect on speech, justifiably or not.

So, is there a future in what Arcamona calls an “international First Amendment”? If so, should we expect such laws to trend toward American interpretations, or those of other countries? What would be the expected consequences of such laws?

* Disclaimer: I have written an as-yet unpublished article for the Nieman Lab as a freelancer.