Freedom of expression and the information society: A legal analysis toward a libertarian framework for libel

Web blogs, as alternate sources of political opinion and analysis, have enabled new voices that can empower netizens and democratize information access. Their larger social contribution may be that they increase manifold the ideas available in the marketplace, in theory challenging any information hegemony of an increasingly consolidating corporate media. Bloggers, citizen journalists and others of the fifth estate have joined the social conversation by acting as watchdogs of not just government but also of the corporate media.; Libel law, as a determinant of freedom of expression, also defines the democratic values of individual self-fulfillment, marketplace of ideas, and empowerment. Libel lawsuits, however, impose a chilling effect, a chill which is exacerbated for the fifth estate by the challenge of multiple personal jurisdictions---a netizen can be hauled before a court whose location, laws and procedures are hard to predict.; The dissertation addresses that express challenge by proposing a separate common jurisdiction for libel cases that emanate in the information society. Specifically, it delineates a normative, inductive, theoretical framework for that common jurisdiction after analyzing the fundamental principles of freedom of expression characterizing jurisprudence. The framework comprises (1) a proposal to extend a reconsidered actual malice doctrine to the fifth estate, (2) a set of recommendations, situated in the libertarian scholarship of Thomas Emerson and John Milton, to define a norm of freedom of expression for the information society, and (3) a model law to deliver the framework to a libel litigant of the fifth estate. The study does not describe the new jurisdiction's executive powers, or the treaty terms from which it would draw its authority. That jurisdiction, asserted by an Internet Empowerment Agency born out of international treaty, would decide information society libel cases.; The study employs traditional legal analysis and inductive reasoning to take an early step toward making libel law predictable and reliable for the fifth estate---without regulating the content or technology of the Internet. It explores whether the fifth estate fundamentally restructures the freedom of expression, and develops refinements to the actual malice and public figure doctrines among other corollaries.