Fall 2003

Bloggers and Their First Amendment Protection

Web writing is a protected right, but more limits exist outside the United States.

By Jane E. Kirtley

The freewheeling world of the blogosphere seems like the last bastion of truly free speech. To publish in it doesn’t require a lot of money, an expensive printing press, or a transmitter tower. Anybody with access to a computer, a modem, and a little software can share their thoughts with the world through a Weblog. And many of the intensely personal and highly opinionated Weblogs proliferating on the Internet inhabit a world apart from the sometimes-dreary realm of meticulously sourced and fact-checked traditional journalism. Bloggers are a law unto themselves.

Or are they?

From the early days of popular use of the Internet, the rallying cry of netizens was that cyberspace was the new frontier, subject to no laws. But governments around the world, shaken by the implications of the new communication technology, quickly tried to figure out how to harness and control use of the Internet.

Securing Bloggers’ First Amendment Rights

In the United States, Congress, state legislatures and the courts have struggled to strike a balance between encouraging free speech on the Internet and protecting other competing interests, such as copyright, national security, and the right to reputation. But in its landmark 1997 ruling in Reno v. ACLU, the United States Supreme Court declared that the First Amendment applies to communications on the World Wide Web, protecting them to the same extent that they would be if published in a print medium, such as a newspaper. The high court found that cyberspace, unlike the broadcast media, is neither a “scarce expressive commodity” nor an invasive one that enters “an individual’s home or appears on one’s computer screen unbidden,” the historical justifications for government licensing and control. “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship,” Justice John Paul Stevens wrote for the majority.

This is as good as it gets in First Amendment jurisprudence. It means that those who choose to communicate on the Internet receive the highest level of constitutional protection for their speech. And it means that they will benefit from the 70-odd years of court opinions defining the scope of the First Amendment. Prior restraints are presumed unconstitutional, for example. Libel suits are subject to myriad constitutional safeguards, including requiring proof of some kind of fault on the part of the publisher before a plaintiff can recover, even if he can show that the statement was false. Most invasion of privacy suits will be rejected if the publisher can demonstrate that the subject of the story was “newsworthy.” Violations of copyright may be excused if the publication constitutes “fair use.”

And a person doesn’t even have to be recognized as a “journalist” in order to invoke these protections. As far back as 1972, in Branzburg v. Hayes, the Supreme Court said that “liberty of the press is the right of the lonely pamphleteer … as much as of the large metropolitan publisher.” The question of whether or not a blogger “qualifies” as a journalist for these purposes is largely a matter of semantics, not constitutional law.

So bloggers are entitled to claim all the benefits of the First Amendment. And they may be able to invoke statutory protection as well. Existing state laws protecting reporters’ confidential sources might or might not apply to a blogger, depending on the language of the statute. Although some statutes limit their coverage to full-time employees of for-profit traditional news media, many are expansive in scope, ensuring that they will cover anyone who engages in gathering information and disseminating it to a wide audience.

And in June, the U.S. Ninth Circuit Court of Appeals ruled that Section 230 of the Communications Decency Act, which grants providers of “interactive computer services” immunity from defamation claims arising from content provided by third parties, extends to those who operate Web sites and listservs, even if they exercise some editorial control over that material. It is logical to assume that the same analysis would apply to Weblogs. (This is only one Circuit Court’s opinion, of course, and it might be appealed. Whether the ruling would be sufficient to reassure news organizations who shy away from endorsing their reporters’ Weblogs, or who choose to prohibit them because of fears that they will be held liable for whatever the blogger publishes, remains to be seen.)

Interpreting These Freedoms Worldwide

So does that mean that bloggers are free to upload whatever they want, without worrying about being sued for it? Absolutely not.

Whatever immunity might exist for links to third party sites or to postings submitted by readers, an individual who publishes a Weblog can still be sued for any material he writes himself. Assuming the subject of a story claims that it is both false and defamatory, that means that during the course of litigation the blogger could face a protracted examination of his newsgathering techniques. For example, did he attempt to verify the accuracy of the story, or did he simply repeat an unsubstantiated rumor, as Matt Drudge admitted to doing in his report that Clinton staffer Sidney Blumenthal “had a spousal abuse past”? Did he rely on anonymous sources? Did he, in other words, act negligently or with reckless disregard for the truth? If a court finds that he did, he might lose the suit.

Granted, libel suits, at least in the United States, can only be based on false statements of fact. No one can be sued for pure statements of opinion that can neither be proven true nor false. But many blogs are a robust mixture of idiosyncratic opinion and unsupported allegations—a volatile and potentially lethal combination that can undermine invocation of the opinion privilege, which depends on showing that the underlying factual statements on which the opinion is based are true.

And once somebody’s published material goes outside our borders— which is inevitable in cyberspace—all bets are off. A blogger can brandish the First Amendment and Section 230 all she wants, but a foreign court has no obligation to pay any attention to them. Those courts will, for the most part, apply their own, often Draconian, laws to libel suits brought before them. Although this is old news to traditional journalists, who have long faced the prospect of fending off lawsuits and even criminal prosecutions brought against them in other countries where their work product is distributed, it might surprise those who publish on the Internet to learn that they are vulnerable to suit anywhere their blog is read.

That is what the Australian High Court ruled in December, when it decided that “Diamond Joe” Gutnick, an Australian national who claimed he was defamed by an article published by Barron’s, could file his libel suit in his hometown of Melbourne, Victoria, once he was able to show that a handful of readers downloaded it there. As the chief justice wrote in his opinion, “… those who post information on the World Wide Web do so knowing that [it] is available to all and sundry without any geographic restriction.”

Libel lawsuits are not the only thing bloggers need to worry about. Many countries have statutes that make it an offense, or even a crime, to “insult” or “offend the dignity” of someone, even if the criticism is absolutely true. And many countries enforce mandatory “rights of reply,” which compel publication of responses by individuals and corporations who claim that they have been the subject of inaccurate reports. The Council of Europe, in late June, published a proposed recommendation to extend these “rights of reply” to media publishing in the online world, including any “service available to the public containing frequently updated and edited information of public interest.” That sounds like your typical Weblog to me.

Some bloggers would point out that many of them already do this sort of thing voluntarily. They update their blogs, often printing retractions or modifications to erroneous postings, and freely publishing responses from disgruntled readers. They don’t need laws to make them act responsibly. But there’s a big difference between making an editorial choice because you believe it enhances your credibility and doing so under compulsion of law. It’s the difference between operating in the land where the First Amendment rules and where it doesn’t.

What about those other bloggers, who play by their own rules and who believe that doing elementary things like fact-checking would somehow compromise the spontaneity of their medium? All I can say to them is, “Good luck, keep your head down, and think twice about traveling abroad if you don’t want to get hauled into a foreign court.”

When it comes to the law, let the blogger beware.

Jane E. Kirtley is the Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota. Prior to that appointment in August 1999, she was executive director of The Reporters Committee for Freedom of the Press for 14 years. She became director of the Silha Center for the Study of Media Ethics and Law in May 2000. She speaks frequently on First Amendment and freedom of information issues, both in the United States and abroad.


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