"Should bloggers have the same legal protection as other media outlets? One might think that the lack of a requirement for credentialing in the First Amendment would mean yes, but a federal district court disagreed in 2011. In a case involving a blogger crusading against what she saw as fraud in a bankruptcy-counseling firm, a judge ruled that the plaintiffs in the libel suit did not have to prove malice to win punitive damages. Yesterday, the Ninth Circuitunanimously overruled that decision:
A federal appellate court ruled Friday that the author of a blog post deserves the same treatment in a defamation case as “institutional media.”The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections. …“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable,” Hurwitz wrote.The subject of Cox’s blog posts were a matter of public concern, the court held, so in order to prove defamation, the plaintiffs would have to show she acted with negligence or malice in making false statements against them.
I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that
- libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and
- libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.