ARE SOME PEOPLE FREER TO SPEAK THAN OTHERS?

The rise of blogging and 24/7 commentators, whose commentary is often much more political, controversial, or personal than those on this blog, has coincided with a rise in defamation lawsuits and questions about the extent to which the speaker is protected by the First Amendment.

Many Courts have struggled in defining who is or is not a “media defendant,” but that is putting the cart before the horse.  The first question should have been whether it matters. And the answer should have been no.  Judges might be forgiven for struggling with the onslaught of the 24/7 commentary.  And it must be admitted that the Supreme Court’s jurisprudence is not always very clear, the result of reconciling many cases brought through the years before different courts, all of which have usually struggled to come to a compromise on a sensitive topic.  And yet, I can think of no opinion stating that media defendants are entitled to more protection, or are freer to speak, than members of the institutional press.

This is not to say that everything is straightforward at the intersection of Defamation and First Amendment.   There are times when freedom of speech will trump falsity unless some form of malice can be proven.  A multitude of factors come into play in determining when that will happen.  It will depend on the nature of the speech, as speech about commercial matters is less protected than political discourse.  It will depend on who is the subject of the allegedly false statements.  Public figures, being fairly the subject of public talk, debate or speculation, must prove malice.  But it does not depend, from where I look at it, on who does the talking.  And when courts become entangled in a false debate, appeals become the tool of choice to set the law right.