"It makes clearer the change in thinking that the Internet is going to have to bring to the question of publication," says Erlinder, who says he plans to appeal the Minnesota Supreme Court's ruling to the U.S. Supreme Court. "Until recently, authors have had to depend on some means of publication to deliver their message to where they wanted it to go. But the law has not yet figured out what to do about people who attack other people on the Internet.
"It's a really interesting balance of concerns," he goes on. "You don't want people to be afraid they're going to be sued every time they get into a flaming discussion on the Internet. But on the other hand, if someone says something on the Internet harming someone where they live and knowing that's where they live, it does not change the fact that they were trying to do harm in that state."
Jane Kirtley, the University of Minnesota's Silha Professor of Media Ethics and Law, says she isn't sure whether the U.S. Supreme Court will choose this as its test case, but she is convinced that the issue will have to be decided at that level. She argues that there must be some legal forum for individuals who feel they've been defamed online. For the moment, though, there may be more questions than answers when it comes to drawing the lines.
"More and more of us live in a virtual community," Kirtley offers. "Do we have a right to reputation there? And where are you going to sue? In cyberspace?"
And indeed, for those who run online forums, the concerns are practical. "Any well-organized discussion forum has to be concerned about the implications of defamation," says Steven Clift, board chair of Minnesota E-Democracy, which runs a number of e-mail discussion groups focused on local political issues. "Defamation often comes when it becomes personal, instead of issue-oriented. When it becomes personal, it degrades the value."
And although E-Democracy tries to establish ground rules of decorum in order to maintain a useful discussion, Clift says, the threat of legal actions, both in other states and other countries, is a serious one. "Give us one or two lawsuits, and we're gone," he says. "It doesn't matter whether we win or lose. We're a fragile, all-volunteer, no-budget organization."
Which is exactly Kirtley's point: While the law is being formed, those who participate in online forums--and those who organize them--should still consider the ramifications of their statements on the Internet. "I'm amazed that people believe they can publish anything on the Internet without any liability," Kirtley says. "The courts have never said the Internet gets more protection than other media.
The old guard of the Internet, she says, would prefer that people not be liable for online speech. "But that's not how the world works. We live in a litigious society, a litigious world."