"Our liberty depends on the freedom of the press, and that cannot be limited without being lost," wrote Thomas Jefferson to Dr. James Currie in 1786.
Liberty was to be more valued than the dangers of defamation, a lesson that President Jefferson would learn for himself when mud began to be slung his way.
James Madison, 1st Amendment advocate/Wikipedia
That freedom and its supporting structures have become the air we breathe, ingrained institutionally and psychologically with the public and legally within our country's basic body of law.
Bloggers and website hosts can be thankful for their extensive protection from defamation lawsuits, like the attempts by former franchisor Mark Golob and personal injury attorney Nikolaus Reed, to two seismic events that have moved America farther down the road and further away from other countries in what it means to have a free press—New York Times Co. v. Sullivan andSection 230 of the Communications Decency Act of 1996.
Newspapers had been weighed down by libel lawsuits from southern states that had a chilling effect on journalists reporting about civil rights violators.
They acted as a news deterrent because the press feared that they would incur a defamation lawsuit by those cast in an unflattering light. The 1964 U.S. Supreme Court ruling changed all that. According to Justice William Brennan in the landmark U.S. Supreme Court ruling ofNew York Times Co. v. Sullivan, the First Amendment to the U.S. Constitution was to provide that "debate on public issues ... [should be] … uninhibited, robust, and wide-open." It created a "malice standard." It didn't matter if a journalist made errors in reporting.
What mattered was if a report was reckless in its disregard of truth because of malice, which is difficult to prove.
The Civil Rights movement, Vietnam and then Watergate all eroded the public's faith in government and eventually corporate institutions. Enron, Arthur Anderson, AIG and Lehman Brothers only accelerated that distrust.
For the sake of more open discussion and transparency, the public and the laws have greatly increased in toleration of attacks on reputations.
Then came Section 230 of the Communications Decency Act. Online host intermediaries like social media's Blue MauMau, Twitter, Facebook, Blogspot, UnhappyFranchisee or Yelp are not held liable for the writings and speech posted by others on their sites.
"I think Section 230 is the Internet equivalent of New York Times v Sullivan," says attorney Paul Steinberg. In essence, host providers of public forums are not liable for what people post on their site. "That fundamentally changed the game." Steinberg argues that social media couldn't exist without the legal protections of Section 230.
The win in the Superior Court of Mendocino County, California, by Sean Kelly comes just a few months after a major federal victory by another blogger."
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