On January 17, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled, as a matter of first impression, that First Amendment defamation rules apply equally to both the institutional press and individual speakers and writers, such as bloggers.
Because this was the core issue in the case, I’ll focus on this issue, rather than on the underlying factual dispute between the parties (a blogger named Crystal Cox, and several companies that Cox had criticized publicly.)
The Ninth Circuit narrowed the statements at issue in the case to a single one, noting that the other statements at issue were statements of opinion, which are always First-Amendment-protected.
Then, as to that single remaining statement, the Court confronted the issue of whether a blogger like Cox enjoys the same First Amendment protections that journalists do.
The Ninth Circuit held that Cox did, indeed, enjoy those same protections. (In contrast, the district judge had required Cox to produce “evidence of her status as a journalist” in order for her to be allowed to invoke those same First Amendment protections.)
In reaching this conclusion, the Ninth Circuit analyzed two key prior Supreme Court precedents: New York Times v. Sullivan (public official seeking damages for defamation must show “actual malice” as defined as a showing that
the defendant published the defamatory statement with knowledge that it was false, or with reckless disregard as to whether it was false or not) and Gertz v. Robert Welch, Inc. (First Amendment requires only a negligence standard for private defamation actions). Notably, Gertz involved an institutional media defendant, and the Gertz Court invoked the need to shield “the press and broadcast media from the rigors of strict liability for defamation.” Yet neither New York Times nor Gertz, as the Ninth Circuit noted, were expressly limited to the institutional press. Moreover,a number of other Supreme Court cases have rejected such a limitation: Bartnicki v. Vopper; Cohen v. Cowles Media Co.;
In the Future, the Line Between Bloggers and Journalists Will Surely Blur Even Further
In the future, the line between bloggers and journalists will likely be ever hazier. It used to be that journalists could be recognized by an institutional affiliation, even including, at times, a press pass, and a prestigious journalism degree that opened doors. Now, all that is required is writing and reporting that commands an audience. The change in the profession is both good and bad. The increased access gives a plethora of voices a chance to be heard, but fact-checking and the hard work that long-form pieces require may all too often be, for some journalistic outlets at least, luxuries that can be dispensed with.