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I got rights

I got rights

I recently was referred to disparagingly as a mere “blogger,” by an attorney in a matter I was reporting about, in an email in which “reply to all” was mistakenly selected.

It was disappointing at many levels, particularly given the person the attorney was representing, but not really surprising.

Well, buddy, I got rights.

Via Eugene Volokh, Bloggers = Media for First Amendment Libel Law Purposes:

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

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: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent…. The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

  1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and
  2. libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.

But the court’s reasoning reaches the First Amendment more broadly, and correctly so …. Note, though, that the court’s reasoning is limited to First Amendment protections; it doesn’t discuss state or federal statutes that provide extra protection to the “media” or to other subsets of speakers.

Bloggers got rights. Now we need some respect.


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So the credentialed (but irresponsible) aren’t the only ones with protections? Alert the Guild!

    Not A Member of Any Organized Political in reply to Frank G. | January 18, 2014 at 2:11 pm


    We’ve got Credentials!

    Twelve for a Dollar!!!!

    Get your Credentials here!

    No one has got them cheaper than the MSM!

Midwest Rhino | January 18, 2014 at 1:27 pm

So do commenters also “got rights”?

I try to keep my outrage somewhere near the corner of “Cautious and Broad”, but it is hard not to state openly that some are “liars and crooks”.

Surely given the four Pinocchio lies that are premeditated in campaign ads, individual blog comments should be treated loosely as bar room chatter.

But when “they” bring the drones to shoot bloggers off our lawnmowers one day, it will probably be for telling too much truth. 😉

Judge David Sentelle gave a speech at Cato that nailed this sentiment.

Something I never had considered re: shield laws. The idea of banning titles of nobility. That is, the founders didn’t want anyone to be above the law therefore there is no argument for the institutional press.

Always interesting to my how easily some people pervert simple ideas.

“Freedom of the press” has NOTHING to do with protecting some cadre of approved writers.

It could have as easily been written as “freedom of the means of mass communication”, or “freedom of the pen”, since it was about giving a practical voice to “free speech”.

Anybody with the means could set up a “press” when the Constitution was drafted, and you could easily “rent” one to publish your broadside or pamphlet for a small fee.

    snopercod in reply to Ragspierre. | January 18, 2014 at 2:30 pm

    Always interesting to my how easily some people pervert simple ideas.

    The Nazis had an app for that: Gleichschaltung.

    As a totalitarian regime the Third Reich developed its own language, a perversion of the German language. The control of hearts and minds, to which totalitarian political systems aspire, necessitates such a perversion of the normal use of language. Meaning is twisted and distorted in such a way that the citizens of a totalitarian state can no longer distinguish truth from falsehood. They are reduced to such a state of confusion and impotence that they can be fully manipulated by the dictatorial government…

    …The word was meant to hide the fact that what was going on was in flagrant breach of all previous notions of freedom, civil rights and self-government.

    I see a lot of Gleichschaltung in America these days and this is but one small example.

The new amendment is a step forward for independent and non-traditional media organizations who feared that an amendment introduced to the original bill would exclude them from protections granted to the traditional press corps, including protection from revealing information and sources except in extreme circumstances.

The original amendment, as proposed by Sens. Dianne Feinstein and Dick Durbin, had limited the defnition of journalist to someone employed by or in contract with a media outlet for at least three months in the last two years; someone with a substantial track record of freelancing in the last two years; or a student journalist.

The new amendment, brokered by Sen. Chuck Schumer, significantly expands on that definition. Now, a journalist would be defined as someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist.

Moot ?

OK, but you will still be hearing from the IRS.
Just coincidently dontcha know? Nothin’ to do with your nice little blog you got there.

    Not A Member of Any Organized Political in reply to Yujin. | January 18, 2014 at 2:14 pm

    Could you type a little larger there.

    The NSA couldn’t read it all. Eye strain you know – just like those regulators at the SEC.

David R. Graham | January 18, 2014 at 1:50 pm

Respect! 🙂

Liberal Lawyer dismisses A Just A Citizen because Just A Blogger.

Liberal snobbery is so amusing.

Henry Hawkins | January 18, 2014 at 2:44 pm

Set in print next to the word journalist, ‘blogger’ looks like some tool a plumber might use, or perhaps the nickname an Aussie calls a wild animal down under.

As part of a larger PR campaign, bloggers need to come up with a better collective name.

The traditional reply to the cry of “I got rights.” is the rejoinder, “Use ’em or lose ’em.”

They had “bloggers” back in the 1700s; people who put out their own small community newspapers and broadsides. What they DIDN’T have were enormous pan-continental “official” news corporations who got exclusive access to leaders. Somewhere along the line, we let the corporate monsters elbow everyone else out of the way and put themselves up as “trustworthy” sources of information.

Congratulations and thanks to Eugene Volokh. The court’s decision seems like a no-brainer, but given that it’s the 9th Circuit . . . .

Doug Wright Old Grouchy | January 18, 2014 at 7:45 pm

Interesting! So, do we common folk also have rights when we express views that are in conflict with so-called “hate speech” codes?

I find it fascinating, and frightening, that Congress is considering codifying speech rights, and the right to not disclose sources, for supposed accredited journalists. I presume that definition only applies to “Journolists” and not to ordinary folk, so to speak.

Maybe Orwell was correct in his Animal Farm statement about some pigs being more equal than other pigs, or maybe he really meant folks.