Unlike the Pentagon Papers case, this case didn’t race to the Supreme Court. Instead, it stewed, no doubt in part because the district judge hearing the case understood the great risk this publication presented. The judge did stop the publication while he thought through the case. He thought for two and a half months. The publishers went to the Court of Appeals, and to the Supreme Court, asking each to hurry the thinking along. No court intervened.
Until Chuck Hansen, a computer programmer, ran a “Design Your Own H-Bomb” contest and circulated an eighteen-page letter in which he detailed his understanding of how an H-Bomb works. On September 16, 1979, the Press-Connection of Madison, Wisconsin, published the letter. The next day the government moved to withdraw its case, conceding that it was now moot. The compelling interest of the government ended once the secret was out[19].
Note what this sequence implies. There is a need for the constitutional protection that the Pentagon Papers case represents only because there is a real constraint on publishing. Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of the publication are published elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it.
So, Abrams asks, would the case be important today? Is the constitutional protection of the Pentagon Papers case still essential?
Surprisingly, Floyd Abrams suggests not[20]. Today there’s a way to ensure that the government never has a compelling interest in asking a court to suppress publication. If the New York Times wanted to publish the Pentagon Papers today, it could ensure that the papers had been previously published simply by leaking them to a USENET newsgroup, or one of a million blogs. More quickly than its own newspaper is distributed, the papers would then be published in millions of places across the world. The need for the constitutional protection would be erased, because the architecture of the system gives anyone the power to publish quickly and anonymously.
Thus the architecture of the Net, Abrams suggested, eliminates the need for the constitutional protection. Even better, Abrams went on, the Net protects against prior restraint just as the Constitution did — by ensuring that strong controls on information can no longer be achieved. The Net does what publication of the Pentagon Papers was designed to do — ensure that the truth does not remain hidden.
But there’s a second side to this story.
On July 17, 1996, TWA Flight 800 fell from the sky ten miles off the southern coast of Center Moriches, New York. Two hundred and thirty people were killed. Immediately after the accident the United States launched the (then) largest investigation of an airplane crash in the history of the National Transportation Safety Board (NTSB), spending $27 million to discover the cause of the crash, which eventually was determined to have been a mechanical failure[21].
This was not, however, the view of the Internet. From the beginning, stories circulated about “friendly fire” — missiles that were seen to hit the airplane. Dozens of eyewitnesses reported that they saw a streaking light shoot toward the plane just before it went down. There were stories about missile tests conducted by the Navy seventy miles from the crash site[22]. The Net claimed that there was a cover-up by the U.S. government to hide its involvement in one of the worst civil air disasters in American history.
The government denied these reports. Yet the more the government denied them, the more contrary “evidence” appeared on the Net[23]. And then, as a final straw in the story, there was a report, purportedly by a government insider, claiming that indeed there was a conspiracy — because evidence suggested that friendly fire had shot down TWA 800[24].
The former press secretary to President John F. Kennedy believed this report. In a speech in France, Pierre Salinger announced that his government was hiding the facts of the case, and that he had the proof.
I remember this event well. I was talking to a colleague just after I heard Salinger’s report. I recounted Salinger’s report to this colleague, a leading constitutional scholar from one of the top American law schools. We both were at a loss about what to believe. There were cross-cutting intuitions about credibility. Salinger was no nut, but the story was certainly loony.
Salinger, it turns out, had been caught by the Net. He had been tricked by the flip side of the point Floyd Abrams has made. In a world where everyone can publish, it is very hard to know what to believe. Publishers are also editors, and editors make decisions about what to publish — decisions that ordinarily are driven at least in part by the question, is it true? Statements cannot verify themselves. We cannot always tell, from a sentence reporting a fact about the world, whether that sentence is true[25]. So in addition to our own experience and knowledge of the world, we must rely on structures of reputation that build credibility. When something is published, we associate the claim with the publisher. If the New York Times says that aliens have kidnapped the President, it is viewed differently from a story with the identical words published in the National Enquirer.
When a new technology comes along, however, we are likely to lose our bearings. This is nothing new. It is said that the word phony comes from the birth of the telephone — the phony was the con artist who used the phone to trick people who were familiar with face-to-face communication only. We should expect the same uncertainty in cyberspace, and expect that it too, at first, will shake expectations of credibility.
Abrams’s argument then depends on a feature of the Net that we cannot take for granted. If there were credibility on the Net, the importance of the Pentagon Papers case would indeed be diminished. But if speech on the Net lacks credibility, the protections of the Constitution again become important.
“Credibility”, however, is not a quality that is legislated or coded. It comes from institutions of trust that help the reader separate reliable from unreliable sources. Flight 800 thus raises an important question: How can we reestablish credibility in this space so that it is not lost to the loons [26]?
In the first edition of this book, that question could only be answered hypothetically. But in the time since, we’ve begun to see an answer to this question emerge. And the word at the center of that answer is: Blog.
At this writing, there are more than 50 million weblogs on the Internet. There’s no single way to describe what these blogs are. They differ dramatically, and probably most of what gets written there is just crap. But it is wrong to judge a dynamic by a snapshot. And the structure of authority that this dynamic is building is something very new.
At their best, blogs are instances of amateur journalism — where “amateur”, again, means not second rate or inferior, but one who does what he does for the love of the work and not the money. These journalists write about the world — some from a political perspective, some from the point of view of a particular interest. But they
