The First Amendment Applies to Everyone

Upon reading the title of this particluar post, you probably thought, "duh."

Well, it's not that simple. Until about 15 years ago, the only way to reach large groups of people was via the printing press, or television or radio broadcast equipment, all of which required a substantial amount of cash to own and operate.

The advent of the Internet led to the rise of the web log ("blog" for short) and the blogger. This leveled the playing field for the little guy. Now anyone could be a source of news and information; all they needed was access to the Internet.

As with everything, government lags behind, and it was only recently that the 9th Circuit Court of Appeals leveled the legal playing field.

Lawyer and blogger Eugene Volokh represented another blogger, Crystal Cox, in a defamation suit brought against her by Obsidian Finance Group. Cox lost in part because a lower court refused to treat her as a journalist.

However, on appeal, the 9th Circuit found differently. Many have decried the Citizens United decision which struck down parts of the federal campaign finance laws. However, in that decision, the Supreme Court of the United States (SCOTUS) noted, "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."

The 9th Circuit noted that the SCOTUS, "has not directly addressed whether First Amendment defamation rules apply equally to both the institutional press and individual speakers."

Citing various other decisions, the 9th Circuit Court ruled that, "The protections of the First Amendment do not turn on whether the defendant was a trained journalist..." In other words, bloggers are no different from any other media outlet.

This is very good news for the public, as it ensures that alternative sources of news are afforded the same protections as the more traditional sources.

For example, in Obsidian Finance v. Cox, Cox was sued and lost a $2.5 million judgment. If every blogger lost lawsuits like this, there would be no more bloggers. Our news and information would continue to be filtered through traditional mass media outlets, which are often owned by the very institutions they claim to oversee (think NBC and GE).

As good as it is, you've probably not heard about this decision.

Why?

If your business model is being challenged by some upstart competitor, would you tell everyone about it? The traditional media - newspapers, radio and television - are and have been in decline, due in part to the rise of the Internet and the availability of news and information from other, independent sources - like bloggers.

Let us know if you hear about this important decision on the 6 o'clock news, but we're not holding our breath.

h/t to Eugene Volokh and The Volokh Conspiracy.