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United States of America

Constitutionally Protected Blogging

By Craig Martelle | April 26, 2006

The U.S. District Court for South Carolina made a ruling less than two weeks ago that is earth-shattering for the blogging community. But it is earth-shattering in both protection and designation, a positive news story for bloggers - that's why you haven't seen it in the MSM. For reference, the First Amendment states the following.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added)

The First Amendment has been defined and redefined throughout our past 200 plus years and is the subject of innumerable volumes of legal discussion. The key elements are emphasized "freedom of speech OR the press." The Constitution specifically does not say that freedom of speech is limited to the press. So any argument that blogging is not protected as "press" is non sequitur in the free speech debate. Press has some judicially defined protections against defamation and these specifically regard the status of the person(s) written about. If the person is a public entity - the person who has been thrust or thrust him/herself into the public eye, then he/she is fair game for any citizen or the press. If the person is private, then there is debate whether the blogger is an alternative media source and protected from the tort claim of defamation (libel).

But this is where bloggers and the press, in my opinion, must exercise restraint of the hard-earned liberty of free speech. If you are making libelous statements maliciously or willfully, then you are morally wrong. But the judiciary, over the years has determined that the press has the ultimate in protections. In the famous New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the court ruled that the NY Times would not be liable for negligently published defamatory material, but would be liable for willful or malicious (and malice was specifically defined as "reckless disregard of the truth") publication. Mere negligence was not sufficient to establish liability for the press, whereas a private citizen would be liable if publishing defamatory statements negligently. So the debate goes on, but little known in the world is the most precedential ruling to date regarding the legally protected status of bloggers and the ruling was published less than two weeks ago.

Bidzirk, L.L.C. v. Smith, 2006 U.S. Dist. LEXIS 19116 (2006) - this case has the strongest and clearest ruling to date (ruling published April 10, 2006) from the U.S. District Court of South Carolina. I'll quote the legal holding in the Judge's decision.

The Plaintiffs specifically object to Magistrate Judge Catoe's finding that they are not entitled to a preliminary injunction enjoining Smith from using BidZirk's trademark on the blog because his "use of [BidZirk's] trademark was in news reporting or news commentary." (Report and Recommendation 7 (internal quotation marks omitted).) The Plaintiffs object that the article is not news reporting or news commentary, but is nothing more than "cybergriping, a practice in which an individual often a disgruntled customer, complains (or flames) a business or a businessperson on the internet." (Objections 6 (internal quotation marks omitted).) Further, the Plaintiffs allege that Smith's article goes beyond news gathering and offers suggestions to the Plaintiffs on how to run their business. [*5] (Id. 6.) Moreover, the Plaintiffs submit that Smith's adversarial and vindictive approach towards the Plaintiffs indicates that the function of Smith's article on his blog is "to injure BidZirk and its principals."

And the following is another excerpt, very applicable in that it notes that the content of the blog defines its status as journalism and not the format.

However, under § 1125©(4)©, no "forms of news reporting and news commentary" are actionable under § 1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist. However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs, which examines the content of the material, not the format, to determine whether it is journalism.

This article by David L. Hudson, Jr. is cited in BidZirk. It is a compelling piece regarding pornography on the internet as protected free speech. Its arguments are applicable in the MilBlogging debates every bit as much.

John Cornyn, R-Texas makes the following comments regarding bloggers.

“At our last hearing, one of our witnesses described bloggers as the modern-day equivalent of the revolutionary pamphleteer who passed out news bulletins on the street corner,” Cornyn said. “However, the relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information.”

Cornyn covers both sides of the issue in two sentences, taking neither side and placating what he calls the "brick and mortar" journalists who answer to an editor. What editor would that be? The New York Times? The Dan Rather news crowd? Journalists and news people who identify themselves as nearly 90% liberal (yet unbiased)? John! Look to who you are calling to task for self regulation. Thus, the so-called alternative media is finding a protected voice. Why? Because "reporters" like Matt Drudge broke the Monica Lewinsky scandal and others broke Rathergate, the Swift Boat Veterans, and many, many more. The authority of responsible reporting has established credibility for the bloggers. It is our responsibility to maintain that credibility. We accept the responsibility and not lightly so. The story we tell as bloggers and as policy analysts is one that needs to be told by those who may have more insight on a specific issue than career journalists. Obviously our ability to write and write well is not in question. And we support our own, but we do not protect wrongdoers from within our ranks (see the story on the Washington Post's conservative blogger - woe to him discredited by the NY Times).

Another case, Bynog v. SL Green Realty Corp., 97 Fair Empl. Prac. Cas. (BNA) 709 (2005) resulted in Plaintiff's failure to get an injunction to stop the blogger from making statements on his website because the Plaintiff could not show irreparable harm.

Also, Cahill v. Doe, 879 A.2d 943 (2005) - ISP ordered to reveal anonymous bloggers identities because of defamatory statements thereon. Note that a trial was still required under defamation as the Plaintiff would still have to prove that the Defendant "knowingly" published false material.

The end result for the blogging community is to quote BidZirk often and forcefully. Although the ruling is from a U.S. District Court, it is still a federal court and the highest court to make such a ruling. Until overruled or redefined, this ruling stands as the established law. The legal term is "stare decisis," or the "thing is decided." And remember the ruling is that content, not format, defines whether it is journalism and therefore protected under the First Amendment. This will undoubtedly send shock waves through the establishment - if you write pieces to keep the public informed, you have just become a journalist, no other credentials or secret handshakes needed...

Other legal references on blogging:
Bloggership: How Blogs Are Transforming Legal Scholarship