A terrifying blow to free speech. Those who think John Ashcroft is the biggest threat to their free-speech rights are about to get a terrifying awakening. The High Court of Australia has ruled that a mining mogul can file a libel suit against Dow Jones in the Australian court system, even though the offending article -- in Barron's magazine -- was published in New Jersey. The rationale: the article was posted on the Web. Thus the court ruled that the article was "published" in Australia just as surely as it was in the United States.
And what is the deal with this bit of nonsense from the usually stalwart Jonathan Zittrain, a Harvard Law School professor who's an outspoken advocate of online freedom? Zittrain told the AP that the ruling was no big deal, explaining, "Their words are their product and if they export it internationally they know how to work the cost of litigation into the sale of their product." Huh? One of the most important qualities of Internet journalism is that it gives independent, alternative voices the power to go up against Big Media. Dow Jones may be able to afford the cost of defending itself against an Australian libel suit. An independent operator, on the other hand, is going to have to stay out of Australia -- or avoid writing anything controversial in the first place.
As an example of how the Australian ruling could affect free speech on the Internet, First Amendment lawyer Floyd Abrams told the Wall Street Journal (also owned by Dow Jones): "If Dow Jones is subject to a Singapore court ruling on things communicated from one American to another within the U.S. because it related to Singapore, then the very availability of the Internet as a place where people can communicate will be imperiled." (No link; subscription required.)
David Schultz, the lawyer who represented a consortium of media companies that supported Dow Jones's defense, told the New York Times (a member of that consortium): "In a nutshell, what the court said was that there is nothing wrong with an Australian court hauling Dow Jones into Australia to go to court.... If that becomes the law of the Internet, the problem isn't that individuals will be suing all over the world -- though that is a problem. The problem is that rogue governments like Zimbabwe will pass laws that will effectively shut down the Internet."
Abrams and Schultz are right. But by reaching for the extreme examples of anti-speech, authoritarian regimes, they actually manage to play down the problem. The US has the freest press in the world, guaranteed by the First Amendment. Our libel laws are far more favorable to publishers than are libel laws in democratic countries such as Canada, Britain, Germany, France, and, of course, Australia -- never mind Singapore and Zimbabwe. And there's not a damn thing the ACLU can do about it.
The reaction to this dangerous ruling is just beginning.