A NEW GENERATION OF YELLOW JOURNALISM: New Media, Censorship, and the First Amendment Part I

Over the past few months I have not been able to go a single day without hearing about fake news; Facebook’s and Google’s confirmation bias bubble; and the polarization that these have created in the wake of the election of President Donald Trump.   However, this is not anything new. We have heard stories recently about how a fake news story about the Clintons led a person to shoot up a pizza parlor in Washington D.C.; how fake news stories about both candidates potentially affected the outcome of the election.

Yet, in the late 19th century fake news was at the heart of a fierce competition for readership between two New York papers: Joseph Pulitzer’s New York World and William Randolph Hearst’s New York Journal. Both would use fantastical headlines and patently fake news stories to try and out sell the other. This came at time when tensions with Spain over Cuba and the Philippines were high. Most of the stories were focused on a growing anti-Spanish sentiment culminating in a story about a sinister plot by the Spaniards to sink the U.S.S. Maine. This era of yellow journalism ended shortly after the Spanish American War. Heart’s paper the New York Journal published an editorial calling for President McKinley’s assassination shortly before it occurred. There was no significant tie between the editorial and the assassination, yet it shocked both Hearst and Pulitzer out of their sensational attention grabbing head line phase.

Why did the government allow both news-papers to publish false stories?

The First Amendment forbids Congress (and through the Fourteenth Amendment, States and local governments) from making any law that abridges the freedom of speech and the press.  The Supreme Court on multiple occasions has protected these freedoms stating that the only cure for false speech is true speech. Even if it wanted to the government is unable to protect the public from fake news because of the strong prohibition on any limitations of speech by the government. The same prohibition does not apply to private entities. Thus, social media sites such as Facebook and Twitter can and do censor speech. Facebook will censor and or remove anything that is obscene, considered hate speech, overly offensive and or a call to violence.  Facebook primarily relies on the user community to report posts which are then reviewed by subcontractors who decide as to whether the offending post should be taken down. This is something that only a private entity could do, because as stated above (with a few exceptions) the government would be unable to censor these posts.

The question remains, is having Facebook, Twitter and other such entities censor speech a good thing? Should it be treated like yellow journalism was in the 19th Century, allow fake news to run its course and wait for the market place of ideas to correct itself? I will pick this up next time.


U.S. Diplomacy and Yellow Journalism, 1895–1898
A Time Line of Yellow Journalism
President William McKinley: Assassinated by an Anarchist
Whitney v. California, 274 U.S. 357 (1927)
Justice Brandeis’ Concurring Opinion


The Future of SEO: Impact Google May Have on Future Online Advertising

Advertising has greatly evolved with the expansion of the internet. Years ago, advertising consisted of taking out a billboard, calling the local newspaper, taking out a section or a page, the yellow pages, etc. However, advertising has recently expanded to the internet with the use of websites, search engines, and even social media.

When we are interested in a specific product, we might go online, open google, and give them a quick search. We look for websites, google places page, reviews, and maybe even look at websites such as Yelp if we’re really looking for something.

Companies use ‘search engine optimization,’ or SEO, to increase their appearance in search engine results. These searches pick up a company’s website, social media profiles and channels, articles, and news articles. One way to increase visibility online is by the use of a Google product known as AdWords. AdWords is a pay-per-click program which allows a company to advertise on Google search results using specific keywords related to their business. When someone searches for that keyword in a local area, the company website appears first in the results. The company, however, only ‘pays for the click’ if the website is clicked on. Seems simple. Well it is, but could be expensive for the company owner.

SEO companies specializing in expanding their clients’ presence online have found ways to optimize while using non-ad Google search results. e-ventures Worldwide, LLC, an SEO company doing just this, however, has filed a lawsuit against Google for manually removing a total of 365 websites belonging to their clients from search results. By going around the algorithm and not advertising with AdWords itself, e-ventures Worldwide was able to save money for their client while still enhancing the company’s name online. Google, as you can imagine, was not happy.

According to their complaint, e-ventures Worldwide claims Google had an anti-competitive, economic reason for manually banning their clients’ websites from appearing in Google searches. Such claim was plausible enough to prevail in a Motion to Dismiss filed by the plaintiffs. Google claims that their ban is because e-ventures Worldwide violated guidelines set in place to prevent manipulations of the search rankings. However, Google claims that they have a right to remove any website at their own discretion. Under Google’s broad power of removal, “any website owner that attempts to cause its website to rank higher, in any manner, could be guilty of ‘pure spam’ and blocked from Google’s search results, without explanation or redress.”

Such discretion given to Google seems too broad. Google could have discriminatory reasons to remove a company from search results, without the company being aware or given notice of such removal. This decision could have a great impact on small, local businesses trying to make a name for themselves. e-ventures Worldwide may not be the only company manipulating the algorithm to increase their presence online in order to avoid paying AdWords. Google, if successful in this suit, could control the future of advertising.

Cyber Law and the Tallinn Manual 2.0

The desire for mankind to become more interconnected has posed a multitude of new legal issues that cross multiple jurisdictional boundaries. Internationally, cyber topics have gained notoriety as humanity has developed new technologies used in the cyber realm. The cyber world is rampant with reports of child pornography, human-trafficking, and child grooming. There are an abundance of computer crimes like purchasing anonymous credit cards, bank accounts, encrypted telephones, and false passports, or identify theft. And these are only increasing in frequency as humans become more technologically interconnected. Even more concerning to some is the threat of the takeover of information networks and computers through cyberspace to execute acts of terrorism.

The legality of many issues within cyberspace are undefined and uncertain when compared to other international legal practice areas. In fact, common definitions for many cyber terms are malleable like: cyber security, cybercrimes, cyber defense, cyberattacks, and cyber warfare. As this field develops, there have even been disagreements about the proper terms themselves. The biggest questions surround the lack of a unique international legal framework to identify what is and is not acceptable behavior in cyberspace.

The Tallinn Manual, written by a group of international experts, examines how international law applies to cyber conflicts and cyber warfare. The project was initiated by the NATO Cooperative Cyber Defence Centre of Excellence though it does not represent the views of the Centre, the sponsoring nations, or NATO. The Tallinn Manual focuses particularly on jus ad bellum and international humanitarian law. Jus ad bellum, the law of wars, are those ‘rules’ to consult before engaging in war, whereas international humanitarian law focuses on jus in bello, the limitations to acceptable wartime behavior. The scope of the Tallinn Manual also touches on related subjects such as the law of state sovereignty, and the law of sea within the context of cyber topics.

The excitement for this practice area comes with the expected release of the Tallinn Manual 2.0. This second edition is planned to focus on providing guidance on applying existing international norms to the cyber context, similar to the first Tallinn Manual. However, it will expand the scope considered in the original Tallinn Manual and it will address cyber issues during peacetime international law. The focus here will be the challenges of daily cyber operations that do not rise to the level of armed attacks. It will touch on related subjects such as State responsibility, the law of the sea, international telecommunications law, space law, diplomatic and consular law, and human rights law within the context of cyber topics.

The Director of both editions is Professor Michael Schmitt, a Senior Fellow at the Centre, from the United States Naval War College in Newport, RI, and the University of Exeter in the United Kingdom. Professor Schmitt is an international law scholar, with a long list of accolades and contributions to international law.

The Tallinn Manual 2.0 is expected to be released in the latter part of 2016.