Free At Last: Federal Court Hands Bloggers Legal First Amendment Protections

At long last we get a proper ruling on the First Amendment status of bloggers, one affording them the same legal status as “real” journalists; this from the Ninth Circuit Court in California, no less.

The Ninth Circuit is often derided as the “Ninth Circus” because its rulings are almost invariably left-wing and anti-American. But this time the court made a sensible ruling, for sure.

Lawyer Eugene Volokh reports that the ruling in Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) holds that, “all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment.”

The relevant section in the ruling is as follows:

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: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue–not the identity of the speaker–provide the First Amendment touchstones.

I’d suggest that this “advent of the Internet” bit is superfluous in fact, but may be necessary for a benchmark to grasp that the ruling relates to bloggers and Internet-based information.

Still, it is superfluous nonetheless. The founders didn’t need an Internet to be the “bloggers” of their day nor did they need newspaper training or imprimatur to legitimize their writing. They printed their own pamphlets by the millions and flooded the country with their opinions. And, yes, they used newspapers to disseminate opinion, too, but they did so more often with letters to the editor than as “reporters” working for the newspaper itself.

Our founders understood that their ideas of free speech pertained to political speech most especially, too. After all, that was the whole point of their protections when they fashioned the Constitution. It was to protect political speech.

Remember, the founders came from oppressive England where any utterance the crown did not like could be and often was prosecuted as treason. So, when they fashioned our Bill of Rights they specifically focused on freedom of political speech as one of those rights protected from prosecution.

Also of note was that nearly every state had speech codes and the founders writing the Constitution were not concerned with those often religious-based laws. They were really only interested in political speech. They wanted to make sure that political discourse was not criminalized.

Regardless, as the decades have moved onward “free speech” has become a more expansive right and now, with the “advent of the Internet” we need to assure that writing electronic pamphlets is protected under the U.S. Constitution and all too often courts and governments have been wanting claim that bloggers and Internet-based publishing isn’t covered under free speech protections.

It has always been clear that those that want to make Internet-based speech a punishable offense are doing so because they want to eliminate competing political ideas and this goal could not be more un-American.

So, let’s applaud the Ninth Circuit decision. It is the correct ruling.

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  • jim_m

    Freedom of speech continues to be protected. That will piss off the left.

  • Walter_Cronanty

    I’m appalled. First Amendment protections should only be afforded to highly trained elite journalists, such as the NYTs’ reporters, who have layers of fact checking editors when reporting on hideous Neanderthals, like New Jersey Governor Cuomo.

  • Paul Hooson

    I applaud all victories for 1st Amendment rights. But, you need to note that this ruling has roots in the liberal philosophy of law, that the constitution is a living and evolving document. So with the more recent advent of the Internet and blogging, as a new form of journalism and news reporting, this ruling reflects that this new form of news reporting is of equal value to the traditional printed press that existed in the days of The Founding Fathers. – I’m unsure if the more conservative view of law would always be willing to view favorably view the journalistic freedoms of bloggers to be equal to that of the traditional press reporter.

    Bloggers face an additional hurdle as well. Being journalism on a shoestring means relying on “fair use” of quotes as well as pictures to be used in part as reference and information for feature pieces. Congress has attempted to weaken “fair use” by means of claimed copyright reforms legislation. Over at the old Wizbang Blue where I ran an entertainment piece on bad celebrity impersonators, one British talent agency once tried to demand that I pay them a huge royalty to post some pictures of some bad lookalikes they had they attempted to market as celebrity impersonators. I chose to remove the pictures from the piece rather face some international lawsuit between British copyright laws and U.S. ones, where in Britain the copyright holder felt that he had greater rights to prevent my “fair use” of the photos for a journalism or news reporting piece. In this case it seemed more economical to back down than to face some court action, and legal costs to decide to what extent an American blogger had as opposed to British copyright law.

    Because bloggers claim to be a form of news reporter, and generally don’t charge for this journalism, or are paid for this journalism, they seem to make good use of any copyright infringement argument as being a legitimate news reporting that is allowed the same ‘fair use’ standards as the traditional press. However, any author publishing a book, even if it’s of a news reporting nature, will find themselves in another area of this “fair use”, generally with weaker rights, because of the commercial nature of selling the book, where a greater standard of seeking releases for photos or documentation quotes may exist.
    “Fair use” remains one of most problematic areas for many bloggers, where copyright holders routinely request removal of materials they feel that they own, not always viewing blogs as a form of news reporting, but merely as copyright infringers, looking for easy use of the intellectual property of others.

    Further court decisions may help to clarify this important “fair use” standard for bloggers, as some legislation such as The Digital Millennium Copyright Act by Congress only seemed to create a lot more confusion between “fair use” rights.

    Some public news forums like YouTube face some interesting legal problems. Viewers of the site as well as copyright holders both post materials on the site, which seem to be a form of entertainment reporting or even publicity for some entertainment items. Items remain posted until someone makes a complaint that their copyright rights have been infringed. YouTube only acts when they are informed of a copyright violation, because of some copyright holders also using the site for the purposes of their own advertisement or promotion of their own works. This creates a confuse legal environment.

    • jim_m

      this ruling has roots in the liberal philosophy of law, that the constitution is a living and evolving document.

      Bullshit. How many j-schools existed in the 18h century? The authors spoke about freedom of the “press” because they could and did get their own stuff printed for distribution. Only an idiot thinks that “press” meant what we today call the press and journalists.

      This is not about copywrite you dolt. This is about the freedom to communicate and distribute ideas. You seem to have totally missed that part.

      This ruling is not liberal activism from the bench or defining new rights and freedoms in a so-called living constitution. This is about getting back to the original point of the 1st amendment and freeing it from the restrictions that today’s left are trying to impose upon it.

      • Paul Hooson

        Jim, by definition strict constructionist judges claim to be looking at only the original intent of the Constitution and Bill Of Rights, But, a more liberal view of law views these documents as living and evolving documents, that have a flexible nature as society enters modern times with new forms of mass communication, presenting new legal questions and challenges.

        • jim_m

          Honestly, Paul. Your original comment is one of the most ignorant and self serving explanations I have ever heard as to why a defeat for the left is actually a victory.

          If you click through to This Link you will see that the position that the 9th Circuit takes is also the position of the majority of the Supreme Court when they passed the verdict in Citizen’s United. The left hates that decision with nearly the same passion they reserve for Sarah Palin and Gearge W Bush.

          Go read something (you do read things other than pornography don’t you?) like the article I link. You will see that this verdict is the strict constructionist verdict.

          What you are trying to do is make a bogus, bullshit claim that actually adhering to the intent of the framers is in reality some sort of judicial activism finding new rights in the text.

          Go back to making vulgar, racist jokes on the caption contest. You look smarter there than you do here. (and that is really hard to do given the quality of your so-called “jokes”)

          • jim_m

            As I noted, the leftist view point is that freedom of the press means professional hournalists and this is what the obama admin has argued, what the dems in Congress are trying to create statutory law around and what the left had tried to accomplish with Citizen’s United.

            What I find hysterically funny is that you think it is something new to declare that people have the right to express their political views and that this is some sort of judicial activism promoted by the left.

            Nothing could be further from the truth. Wake up, educate yourself and stop saying stupid things.

          • Walter_Cronanty

            What is especially reprehensible about what the leftists in Congress are attempting to do is that, under the guise of “protecting the press,” they trying to throttle the speech of the ordinary individual. Thus, they protect their fellow political travelers who serve as their propaganda outlets, while silencing their political enemies – all while posing as friends of the First Amendment.
            Dumb asses like Paul don’t understand this.

    • Walter_Cronanty

      “I’m unsure if the more conservative view of law would always be willing to view favorably view the journalistic freedoms of bloggers to be equal to that of the traditional press reporter.” Wrong.

      Leading up to our revolution, many of the Founding Fathers published anonymously, or under fictitious names. An anonymous author was not, and is not, a “traditional press reporter.” Yet he is afforded First Amendment protection. see, McIntyre v. Election Comm’n , and especially Justice Thomas’ concurring opinion. Your interpretation of what a “conservative view of the law” is relies on erroneous stereotypes, not fact.

      The internet is simply a medium of communication. Your statement is akin to saying the “conservative view of the law” would not protect political tracts written on a computer, as opposed to being written by quill or printed on a hand press.

      Today, the “conservative view of the law” in the First Amendment area is more classically liberal than a leftist’s view of the law – see, academe’s numerous speech codes.

  • stan25

    This ruling will make the Dan Blathers and the Ted O’Baxters of this country a bit miffed. These are the people that thought up the J-schools and having press credentials at major news events. They did not want anyone beating them to the story or in the case of the state controlled media, the deconstruction of their propaganda spiel.

  • So now does this mean all my nasty truthful comments about the Obama Regime will no longer await moderation before they post it.

  • Am I always last but not least on Wizbang? Greta leaves comments in the right order. Oh well doing my best, if that isn’t good enough so be it.

  • Lawrence Westlake

    Not that details or contexts matter on the Internet, and not that bloggers would know defamation law from damnation, given the horrible demographics of most bloggers, but this was a fairly sophomoric decision and it had nothing to do with politics. The underlying context of this opinion was a garden variety libel claim and a jury’s award of damages. The underlying kerfuffle involved a financial services company and a bankruptcy. There were no politicians on this particular event horizon. The legal issue involved basic elements of defamation/1st Amendment law, which go back decades. The reason why there’s not already a whole body of law saying the obvious — that bloggers have the same legal protections as do regular journalists in connection with libel and slander cases — is because not too many bloggers are being sued for defamation. If for no other reasons than the ironic fact that not too many people out there pay any real attention to blogs. This is a nice feather in the cap of Gene Volokh (one of the extremely few law professors who actually practices law), but this case is not one for the ages.

    • Walter_Cronanty

      You, sir [and I use the term loosely], are a horse’s ass.
      I know the difference between defamation and damnation. Damnation is an eternity spent reading your vacuous comments.