On the information superhighway, the guardrails protecting the institutional press also protect the rest of us. An Opinion earlier this year on the other side of the country confirmed once again that bloggers and, for that matter, any private citizen making their opinion known on a street corner or at a cocktail party, must be treated exactly the same way as a journalist for First Amendment purposes. The content of the speech, not the speaker’s identity, is what matters.
So for example, anyone making a statement on a matter of public concern will benefit from First Amendment protection in a defamation lawsuit. This means the plaintiff will have to prove both that the speaker actually caused damages and acted with fault, not from a mere good-faith mistake. (If the speech addresses a matter of public concern and is directed at a public person, the standard is even higher.)
In the California case we opened with, a blogger accused a bankruptcy trustee of various forms of malfeasance. The trustee had the unenviable task of gathering a company’s assets for the benefits of clients the company had cheated out of large sums of money. The blogger was found liable but the trial court did not require the plaintiff to show fault or damages. This was reversed on appeal, the West Coast joining most of the country in rejecting barriers separating the press from other speakers.
This of course is no free pass for misbehaving online. The defendant in the case that motivated this post has a history, the court noted, of making wild accusations only to offer retraction for a fee. If that is what happened, she will likely be found liable again – that time, under the proper standard. And this matters, because only by protecting the worst can the rest of us enjoy our constitutional freedoms. The role of any good attorney will be to recognize where those end and illegal behavior begins.