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Friday, May 17, 2024 | Back issues
Courthouse News Service Courthouse News Service


You might think that in the land of the free, I would not have to keep fighting the government simply to run a legal news service.

But it has been a long battle against court bureaucrats on one side and, on the other, politicians currying populist or business favor.

So for the last five years, I have fought, and paid lawyers a whole lot of money to help fight, against encroachment on press access by court bureaucrats. With the most stubborn, dug-in resistance coming from those civil servants most closely associated with California's powerful Administrative Office of the Courts.

But at different times during the 20-year life of Courthouse News Service we have also had to fight misguided moves by politicians.

Members of the California Legislature a few years ago proposed a law that essentially limited Internet communication to personal messages. Commercial messages, such as samples of our daily news report sent to law firms, would be verboten.

I wrote to then-Assemblywoman Carol Liu, asking why she wanted to kill a business in her district that generated a whole lot of jobs. She wrote back expressing confidence that the federal government would override the California legislation - then turned around and voted for the populist California measure.

Luckily, Congress soon enacted more sensible legislation that allowed commercial use of the Internet, and preempted the California law.

Much more recently, members of Congress serving the entertainment industry have been pushing the Stop Online Piracy Act. I wrote to my congressman, Adam Schiff, opposing the measure.

My concern was how easy it was to knock a site off the Internet with a mere accusation.

Because, early in our history, Courthouse News was accused of spamming. Even though we were in fact sending paid-for daily reports to the biggest law firms in the nation, the mere accusation that those reports were spam was enough for our Internet service provider to cut us off.

We were dead in the water.

It turned out the accusation was the result of a software program designed and sold by a guy who had himself been accused of spamming in the past. In those murky waters of accusation, we had been bitten.

So we scrambled to set up our own server and host our own site, freeing our news service from the vulnerability of an Internet host that would drop us on the merest, software say-so.

It was therefore with great interest that I read Lawrence Tribe's critique of the current federal online piracy bill.

"SOPA delegates to a private party the power to suppress speech without prior notice and a judicial hearing," wrote Tribe. "This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site being `dedicated to theft of U.S. property' - even if no court has actually found any infringement."

That's basically what happened to us - but with a different, unilateral accusation.

It takes little business acumen to realize that big and powerful companies would like to control and carve up the great marketplace that is the Internet. And it should come as no surprise that the control over the web sought for political purposes by the Chinese government would also be sought for business purposes by the American "content" companies.

They would also like to claim ownership over all kinds of stuff.

Legal publishers have tried to claim ownership in appellate opinions, for example, through the page numbers and through the head notes. Lexis has tried to control the hosting and transmittal of legal documents throughout the state of Colorado.

EMI, a member of the same "content industry" claims a copyright in Martin Luther King's "I Have a Dream," the greatest civil rights speech in American history. And for my money, second in the overall American speech category only to the Gettysburg Address.

If a company can much such claims, and enforce them with a mere notice to a host, then the basic constitutional protection of due process has either been weakened or blown up.

In a hail of opposition, SOPA has now been withdrawn from consideration.

But I have little doubt that just as the minions of government have at times worked to undermine our news service, so the forces of the government will again combine with those of great wealth in an attempt to control a place that functions as a vast and open marketplace and as the bulliest of all free speech pulpits. And in so doing, they will undermine principles forged in the revolutionary cauldron of our republic.

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