- The Washington Times - Friday, June 1, 2001

Who owns the news? This has been asked and answered dozens of times, in courtrooms and newsrooms across America. News reports, like most modes of communication, enjoy the constitutional protection of free speech but so does commenting on the news. Does the advent of 24-hour news television and the Internet, however, make "ownership" of any news story, from whatever source, a practical impossibility? The balance of free speech rights between reporter and commentator renders this an important question.

In 1998, The Washington Post and The Los Angeles Times sued FreeRepublic.com, an Internet-based current events bulletin board, alleging that full-text posting of newspaper stories on the web site violated copyright laws protecting the integrity of the published news stories. Like many current events-driven interactive web sites, FreeRepublic.com did indeed allow full-text articles to be posted, followed by participants´ commentary on the merits of the story. The postings continued until a Clinton-appointed federal district court judge in Los Angeles ordered them to stop, awarding $1 million in damages to the plaintiffs.

What was missing in the court decision was an exhaustive look at First Amendment free speech protections, an issue now on appeal to the Ninth Circuit Court of Appeals. The media giants who own The Washington Post and The Los Angeles Times indeed have rights which should be protected but so do the participants and managers of FreeRepublic.com.

Ironically, the parent company of The Los Angeles Times argued this month in a federal appellate court brief on the much-ballyhooed issue of the publication of "The Wind Done Gone," a parody of "Gone With The Wind," that "as a nation, we have staked our all on the proposition that certain rights, notably that of free expression, must override other interests, including even national security and fair trial rights, in all but the most extreme cases." Clearly, attorneys representing The Los Angeles Times understand the well-founded legal principle that we must protect speech over nearly all other concerns.

Yet, in an incredible display of hypocrisy, these same media conglomerates are arguing for speech restraint against FreeRepublic.com. The Internet web site´s users post articles which they have collected from other Internet news sources. User comments and discussions offer detailed and insightful criticism of both events and the nature of media coverage. The typical visitor to the site is politically conservative, and those commenting on the site have been harshly critical of former President Clinton as well as perceived liberal bias in the media.

The constitutional question presented before the federal appellate court is to what extent citizens may "use" newspaper stories "online" as a point of departure for analysis and criticism of the government and liberal "bias" of mainstream media.

While the newspaper giants claimed "economic injury" resulting from the diversion of visitors away from their own web sites, the evidence in the district court demonstrated that these claims were false. In fact, the newspapers benefited from the many thousands of adept FreeRepublic.com users referred to their web sites. The court rejected FreeRepublic.com´s fair use and First Amendment defenses and, with the award of $1 million in damages, the continuing viability of the web site has been called into question.

Political speech, particularly unpopular political speech, has traditionally been the most protected of all free speech rights. For months, FreeRepublic.com users have been speculating as to whether they, as conservatives, are "targets" for the mainstream media. There may never be an adequate answer for that question. More importantly, however, an important constitutional question about the contours of free speech rights has been raised by this case. The courts must oblige us with an answer.

As the venerable (and liberal) Supreme Court Justice Louis Brandeis wrote decades ago, " believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth … the remedy to be applied is more speech, not enforced silence." Copyright laws exist to protect the publication of ideas and the integrity of the publisher, not to silence critics of the ideas.

In early America, the tradition developed of public comment on newspapers posted on the tree in the town square, neighbors talking to neighbors about the news. In today´s Internet-driven media marketplace, it remains to be seen how our arbiters of constitutional law will define the limits of free speech. At the suggestion of the attorneys for The Los Angeles Times, we would do well as a nation to err on the side of free speech, not enforced silence.

Phil Kent is president of Southeastern Legal Foundation, an Atlanta-based public interest law firm which is participating as a friend of the court in the Los Angeles Times, et al. vs. Free Republic, et al. appeal.

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