Saturday, January 25, 2014

"Bloggers Are Same as Media Under 1st Amendment"

"Bloggers First Amendment Rights Confirmed"

"Another court has determined that you don’t have to be part of the traditional media to be entitled to First Amendment protections.  In essence, bloggers ARE the media when it comes to the First Amendment.
What this means is, if a blogger is sued for libel on “matters of public concern,” the injured party has to prove the blogger made the statement “with negligence.”
The case involved a blogger who made some strong accusations on several blogs.   Here’s a simplified summary of the case:
  • A blogger published blog posts on sites such as BankruptcyCorruption (.com).  In one post, she accused a company and one its principals of  tax fraud.
  • Naturally, the company and the person she spoke about were none too happy.  They sent her a cease and desist letter.
  • The blogger neither ceased nor desisted.  One thing led to another,  and the blogger ended up being sued for libel.  
  • The case went before a jury. The jury found the blogger liable for defamation — and awarded a $2.5 million judgment against her. 
  • The blogger appealed, getting Professor Volokh (a blogger and eminent law professor) to represent her on appeal.
  • She didn’t deny that her statement was untrue.  Instead, she argued that the other side had to prove she made her statement “negligently” just as in the case of any journalist charged with defamation in similar circumstances. But the jury hadn’t been told to decide negligence by the judge, and so the judgment was invalid.
  • The appeals court agreed — and reversed the judgment.
"Some journalists have argued there should be a distinction between journalists and bloggers. However, that distinction carried over to the law would be an example of “bad facts make bad law.”  In other words, when it’s an ugly situation, there’s a temptation by a court to make up a new rule to solve a unique problem. But in so doing, the court just creates more issues.

Here it would have had the unintended consequence of giving someone with a title of “journalist” higher free-speech rights than the average person.

You may not agree with the blogger’s tactics in the case.  But the appeals court said that’s a not a reason to deny a freedom-of-speech protection. Let a jury decide — in a new trial — whether she was negligent when she made the untrue statement. But don’t deny her a constitutional protection just because she isn’t employed as a “journalist.”