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Bloggers Enjoy the Same First Amendment Protection as Institutional Media

One of the fundamental constitutional protections is the freedom of press.  Under the First Amendment of the United States Constitution, the press (i.e., journalists, reporters, newspapers) enjoys freedom from government censorship.  However, this right must be balanced against the individual right to privacy.  Furthermore, as an added protection for privacy, state laws provide protections against defamation.  Generally, defamation proceedings have included claims against traditional journalists—namely, journalists working for newspapers and other printed publications.  However, since a 2011 Ninth Circuit decision, the free press standards have been expanded to include bloggers as well as traditional print journalists.  The growth of the Internet empowers more people to discuss and spread the news.  Therefore, this expanded protection will need to continue balancing free press considerations with individual privacy considerations.

What Are the Principles Considerations for a Defamation Claim?

To establish a claim for defamation, a party must show a: (1) knowing, (2) publication, (3) of a false statement of fact, (4) concerning the party, (5) that tends to harm the party’s reputation.  Generally, there must also be evidence that the publication was a result of negligence or malice.  For example, a claim for defamation likely would not stand if the party did not know that the information was actually false.  There are two forms of defamation—libel, which applies to written defamation, and slander, which applies to oral defamation.  Defendants who are accused of defamation may raise a defense if the publication is true.  However, it is often difficult and expensive to litigate and prove truth since it requires extensive discovery into the facts of the publication.  Additionally, publications that are opinions may also be free from the threat of defamation.  Still, simply labeling a publication an “opinion” will not automatically protect it from defamation.  The courts will look to see whether a reasonable reader or listener would consider the publication as fact or opinion.  As this example demonstrates, defamation claims often turn on the specific circumstances of the cases—i.e., the nature of the statement, the parties involved, whether the truth of the statement can be proven, and how a reasonable person would perceive the statement.

How Has the Ninth Circuit Decision In Obsidian Financial Group, LLC v. Cox Changed Defamation Law?

In Obsidian Financial Group, LLC v. Cox, the Ninth Circuit ruled that a blogger enjoys the same free speech protections as a traditional print journalist.  Therefore, a blogger cannot be held liable for defamation unless she acted negligently.  The court added that it was “unworkable” to continue to distinguish between institutional speakers (i.e., traditional journalists) and other speakers (e.g., bloggers).  Eugene Volokh, a professor at UCLA School of Law, explains that this decision is especially important in light of the growth of online news content.  More and more non-professionals publish information over the web.  It is becoming increasingly more difficult to distinguish who will enjoy the free speech protections the Constitution reserves for members of the press.

At the Law Offices of Salar Atrizadeh, we are knowledgeable and experienced in a wide range of areas dealing with defamation and online publication.  To further discuss the legal implications of the freedom of press over the Internet you may contact us to speak with an attorney.