Bloggers and the First Amendment: More on Cyber Free Speech

March 31, 2008 | Insights



Since the law often plays catch-up to technology, the blogosphere may be getting an answer soon to the question recently posed in this postcard by my partner, Chip Babcock. Chip asked what would happen when blogs are sued for content. Would first amendment defenses apply to a traditional type libel suit against a blog and a blogger?

Rather than trying to answer Chip’s query head-on, I wanted to look at the question from a broader perspective. Let’s suppose that the courts do recognize first amendment protection for cyber content which discusses matters of public concern, public officials or public figures. What would be the effect on the marketplace of ideas?

Some might fear the result will foster a reckless environment for bloggers to leak and defame. The federal experiment in immunity for Internet service providers for third-party content posted online seems to have created just such a result. But, I believe first amendment protection for content providers of web speech about issues of public concern will have the opposite effect. First amendment protection will create more responsible discourse, because it will tend to create more responsible content providers.

The Internet is the ultimate free speech zone. Not only is the discourse free, but the web is markedly free of government regulation. Content on the web will not be regulated by agencies or administrative rules. It will be shaped by old-fashioned common law development.

As the law evolves, so will content providers. Some start as casual bloggers, in it only for the free speech outlet. Others provide web content as a business model. But even casual bloggers may progress to for-profit enterprises after attracting a regular audience and achieving staying power. Law and economics will then converge to create content providers who carry on the journalistic values of the old media.

Libel laws chill free speech. But libel laws with constitutional limits foster a responsible marketplace of ideas. The rationale for the constitutionalization of libel law by the U.S. Supreme Court in the 1964 decision of New York Times v. Sullivan was to reduce the self-censorship that comes with runaway libel verdicts.

The Internet is the ultimate free speech zone. Not only is the discourse free, but the web is markedly free of government regulation.

The Sullivan doctrine protected publishers and broadcasters from liability except in cases of knowing or reckless falsehood. The result was the rise of an institutional — but responsible — press unseen in human history. A press that exposed the tragedies and corruption of Vietnam and Watergate. A press that provided an effective counterweight and watch-dog to Big Government. A press that could be brought to account when it crossed the line.

Citizen journalists and bloggers — unfamiliar with or dismissive of the subtleties of defamation and privacy law — may find their expression chilled or silenced by litigation. Since every voice on the net is his or her own publisher, the need for real publishers employing real editors seems to be vanishing. At the same time, old media — grounded in fact checking and adherence to accuracy — may fare much better in a regime where constitutional principles temper legal liability. The art of avoiding ruinous litigations costs is well known to traditional content providers. That skill may give old media a competitive advantage in the cyber world of free speech.

One may wonder — so what if a blogger gets hit with a million dollar libel judgment? The blogger has no printing press or building that can be seized or sold at sheriff’s sale to satisfy a judgment creditor. However, any blog or citizen journalism site that transitions to an economically viable business will have an asset vulnerable to forced sale. That asset is goodwill in the form of branding and trade names and trademarks that can be seized and sold to satisfy a judgment. Protecting that asset against litigation costs will require good journalism: truth, accuracy, fairness, and balance. First amendment protection of the Internet marketplace of ideas will advantage those content providers who practice good journalism, the stock in trade of traditional media.

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.