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Bloggers Protected Like Other Journalists

What’s the difference between a blogger and an old-fashioned ink-stained newspaper reporter?

Not much, according to a January 17 court ruling from the federal Ninth Circuit Court of Appeals.

Ruling on what it called a “question of first impression” on the First Amendment protections afforded a blogger sued for defamation, the Court in Obsidian Finance Group v. Cox held that “liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.”

The Court’s ruling was not surprising. Although the Ninth Circuit had not directly addressed whether First Amendment defamation rules “apply equally to both the institutional press and individual speakers,” the Court observed that “every other circuit to consider the issue has held that the First Amendment defamation rules…apply equally to the institutional press and individual speakers.” Other courts have cited the difficulty of defining who belongs to the “media.”

The Court in Obsidian concluded, “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.” It said a First Amendment distinction between the institutional press and other speakers is “unworkable.”

While the Court’s ruling further blurs the lines between traditional and new media, it doesn’t completely erase those lines outside the defamation context. Many states, such as California, have newsperson’s “shield” laws which enable newspaper, radio and television reporters and editors to protect confidential sources and “unpublished information.” It is by no means certain that such laws protect the so-called “bloggers in pajamas,” and a proposed federal shield law is wrestling over that issue. So while the Ninth Circuit’s Obsidian ruling gives breathing space to bloggers concerned about being sued for what they say, it’s too early to herald the complete demise of all distinctions between bloggers and their brethren in the traditional media.