A Jan. 17 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals has reaffirmed that the First Amendment's guarantee of press freedom applies to bloggers on the Internet and not just professional journalists employed by the institutional media. In the case of Obsidian Finance Group v. Cox, the court ruled that a financial services firm suing a blogger had to meet the same standard of proof of actual malice and negligence as would be necessary if they were suing a traditional news organization.
"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," Judge Andrew D. Hurwitz wrote in the unanimous opinion.
The opinion is a major victory for independent bloggers seeking to provide alternatives to the news and commentary that appear in traditional mainstream media outlets, and builds on the Supreme Court's holding in 2010's Citizens United v. Federal Election Commission that the institutional press "has no constitutional privilege beyond that of other speakers."
This is as it should be, but not always as it has been recently practiced in the nation's capital. More than a few politicians, judges and even some media organizations looking to limit the competition have tried to exclude independent voices from the national conversation. The issuing of credentials for covering the White House and Congress, for example, is controlled by the Standing Committee of Correspondents on Capitol Hill. The committee consists of journalists employed by mainstream and trade industry media outlets. Bloggers who have applied for credentials have consistently met with less-than-enthusiastic responses. The same insular attitude was reflected in Sen. Dianne Feinstein's attempt to limit protections of a proposed federal shield law for journalists to "real reporters," a definition that excluded bloggers.
University of California, Los Angeles law professor Eugene Volokh, a First Amendment expert who successfully argued the case before the Ninth Circuit and also blogs at The Volokh Conspiracy, notes that "throughout American history, the dominant understanding of the 'freedom of the press' has followed the press-as-technology model." According to that model, anybody with a printing press, or website, can publish news and opinion, subject to the same libel and defamation standards that apply to traditional media.
The explosion of independent online media in recent years has broken the institutional media's stranglehold on information, opening vast opportunities for people to obtain news and analysis from a wider variety of sources. That has also created new opportunities to spread false and defamatory information through the Internet and social media. So bloggers should understand that, although the Ninth Circuit's ruling is indeed an important step toward protecting their equal right to report and comment, it also means covering government is not a free-fire zone.