On free speech and blogging: The First Amendment applies to everyone, not just journalists

When Montana blogger Crystal Cox lost her defamation case in 2011, the decision was greeted by a chorus of cheers from journalists, who were quick to argue that Cox wasn’t a journalist in any real sense of the word, and therefore didn’t deserve any protection from the First Amendment. An appeals court for the Ninth Circuit has disagreed, however: on Friday, a panel of judges overturned the original decision and said that Cox was in fact entitled to protection.

The implications of this ruling go beyond just a single defamation case. It’s another link in a chain of decisions that are gradually helping to extend the principle of free-speech protection beyond professional journalism to anyone who is publishing information with public value — and as such, it helps shift the focus away from trying to define who is a journalist and puts it where it should be: on protecting the practice of journalism, broadly defined.

Legislators who have been trying to design a “shield law” for journalists have been doing their best to specify who should be protected from government interference, but as journalism professor Jay Rosen and others have argued, it is the content itself that requires protecting, not some specific group of professional journalists who are able to fill in the correct checkboxes.

First Amendment protection is open to all


The First Amendment question was crucial to Cox’s case because under U.S. law, journalists are held to a higher standard when it comes to defamation, in the sense that an accuser has to show negligence — in other words, that the accused deliberately printed something they knew was false — and also has to prove damages. The original trial judge decided that Cox wasn’t entitled to this higher standard of protection because she didn’t meet his test for who qualifies as a professional journalist. As he described it:

“The record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law.”

The appeals court rejected this interpretation, however, and took a considerable amount of space in their decision (PDF link) to point out that the free-speech clause of the constitution is intended to cover *anyone* who happens to be saying something of public concern (as defense attorney Eugene Volokh argued in a paper he wrote about the history of the First Amendment), regardless of whether they fit some arbitrary picture of who should qualify as a “professional journalist.”

The Ninth Circuit ruling said that while the Supreme Court has never explicitly said whether a higher standard of proof should be available to anyone beyond the professional media, it has repeatedly refused to give greater First Amendment protection to members of the institutional press. As the higher court put it in Citizens United v. Federal Election Commission: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” The appeals court added:

“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.”

It’s not about who qualifies as a journalist

Man coming out of TV smart TV speech recognition

What makes this case particularly interesting is that — as David Carr pointed out in the New York Times, and Kashmir Hill noted in Forbes — Cox isn’t even close to being what most would consider a professional journalist: she engaged in what amounts to an extended online vendetta against the complainant, an executive with a refinancing company, by setting up websites aimed at discrediting him, and engaged in all sorts of other conduct that most journalists would likely consider reprehensible.

Despite her behavior, however, the appeals court still found that Cox was entitled to protection by the First Amendment because what she was writing about was “a matter of public concern.” And as legal blogger Venkat Balasubramani notes in a post about the case, whether we agree with her tactics is largely irrelevant — if her accuser actually was engaging in the kind of misconduct she alleged, it was in the public interest for her to write about it.

While Balasubramani said that the decision of the Ninth Circuit marks a victory for “the pajama-clad blogger community,” it’s actually a victory for anyone who chooses to publish something that has broad public value — in other words, journalism — regardless of whether they fit the standard description of a professional journalist.

Whether Congress likes it or not, that means it helps extend First Amendment protection to non-journalists who are publishing important information, including sources like WikiLeaks and founder Julian Assange. And therefore it’s ultimately a victory for what Yochai Benkler of Harvard’s Berkman Center for Internet and Society has called “the networked fourth estate.”

Post and thumbnail photos courtesy of Flickr user Jan-Arief Purwanto and Shutterstock / Vlue