|Blogger Crystal L. Cox|
Indiana has a shield law which protects professional journalists. Likewise, the First Amendment has been interpreted to include a shield law for journalists. Governor Mike Pence led the way for a federal statutory shield law when he was in Congress.
But Indiana's shield law as well as the case law providing shield protection via the First Amendment are terrible dated. In an era in which anyone with a computer can effectively act as a reporter, blowing the whistle on public and private misconduct, it is unclear whether bloggers are entitled to the same First Amendment shield protection as traditional journalists.
In Obsidian Finance Group v. Cox, the 9th Circuit didn't directly address the shield issue, but rather a similar issue, whether bloggers who are sued for defamation are entitled to the same First Amendment protection as professional journalists. This protection includes the requirement that there be a showing of "actual malice," a much higher standard than mere negligence, when it comes to proving defamation.
The court first outlined the framework by which these cases had previously been reviewed:
The Supreme Court’s landmark opinion in New York Times Co. v. Sullivan began the construction of a First Amendment framework concerning the level of fault required for defamation liability. 376 U.S. 254. Sullivan held that when a public official seeks damages for defamation, the official must show “actual malice”—that the defendant published the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280. A decade later, Gertz v. Robert Welch, Inc., held that the First Amendment required only a “negligence standard for private defamation actions.” 418 U.S. 323, 350 (1974). This case involves the intersection between Sullivan and Gertz, an area not yet fully explored by this Circuit, in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions.In holding that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants the 9th Circuit stated:
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.This is certainly good news for bloggers. In addition to additional protection afforded bloggers from defamation suits, it also undoubtedly portends the likely result of other First Amendment issues such as the aforementioned issue of whether bloggers will have shield protection from being forced to reveal confidential sources.
Special thanks and congratulations to Prof. Eugne Volokh, who writes the legal blog The Volokh Conspiracy, for his work on this case.