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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