Should the First Amendment Apply to Bloggers?

Sheerlan Jones

JRN-655-Final Project

 

Should the First Amendment Apply to Bloggers?

The culture of blogging was first introduced online in the early 1990’s, when Justin Hall a student at Swarthmore College, “created what is considered to be the very first blog “Links.net”. Some industry trackers cite the first blog as belonging to David Winer, “Scripting News” (webopedia.com). However, blogging very much similar to diaries and journals, a series of opinionated entries regarding topics of personal interest. However, in this new technological world, blogging has now become a prominent source of breaking news, and often sought to be creditable information regarding reports about important members of the world. Often blogs follow closely national news such as presidential elections, and often cite political views and opinions. However, the question is can these opinions be protected by the First Amendment rights?

 

Due to the fact that the stipulations for freedom of speech and freedom of the press does not state specifically where bloggers stand within the present guidelines of free speech. Determining guidelines for this new method of free speech can be quite difficult as the law was created in a time where bloggers were not called bloggers, and there were most definitely no computers or internet for this information to be shared and broadcasted to millions of people daily. Justices of the highest Court agree stating, “even if they could determine with certainty what the words of the First Amendment meant in 1791, that meaning would not be relevant nearly 225 years later” (Trager, Russomanno, Ross 51).  In turn, the Court decides rather or not certain forms of speech are protected under the First Amendment. The initial intention behind the inclusion of the First Amendment was not to place limitations on the speech but instead with the intention to, “prevent the U.S. government from adopting the types of suppressive laws that flourished in England during the 300 years following the introduction of the printing press in 1450” (Trager, Russomanno, Ross 53). The First Amendment introduced for so as protection of the citizens from the government. Rightfully giving justification that bloggers should be protected by the First Amendment.

 

Over the years, as technology has evolved so has the world of blogging. Certain media companies have turned to blogging to broadcast news and as the demand for news to travel faster so has the demand to include bloggers. However, where does the First Amendment rights belong within all of this, how blogging can be considered justified and protected by this Amendment. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (Trager, Russomanno, Ross 50). According to the First Amendment as stated blogging would be protected by the freedom of speech in which bloggers engage in. However, what provisions currently stand limiting what information can and cannot be published on blogs?

 

A blog is defined by the Merriam-Webster dictionary as, “a web site that contains an online personal journal with reflections, comments and often hyperlinks provided by the writer” (Merriam-Webster.com). The definition of blog states that statements found on an online blog are essentially reflections and opinions of the writer. However, similar to journalist opinions and reflections can often be taken out of content, or can defame the name or character of an individual prominent to the community or not if certain statements are considered to be factual statements. However, it has been found that the First Amendment, “protects people’s right to say offensive, unkind and even ugly things to each other” (Trager, Russomanno, Ross 110). Often citing justifications for people to have, “the ability to vent anger in words rather than in physical violence is a primary value of free speech” (Trager, Russomanno, Ross 110). However, at what point are these words, often harmful intentional can be considered defamation of character if facts printed are considered to be factual. A supporting case study New York Times Co. v. Sullivan in The Law of Journalism and Communications, justices on the case stated, “that general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions” (Trager, Russomanno, Ross 179). The  Court later determining that, “we are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct” (Trager, Russomanno, Ross 178). Although the ruling at the time was regarding a media group in a case against libel the same protections for private citizens stand, although many bloggers now in the twenty-first century are both bloggers.

 

However, bloggers have not been exempt from subpoenas for the purposes of entities attempting to control or remove the reporting of certain controversial and it is not uncommon for a blogger to be called to Court based on the opinions and statements made on their blogs. Real world law content in the text The Law of Journalism and Communications examples how a blogger Chris Elliott was subpoenaed to Court in a case where he had posted content regarding information posted on his blog regarding the Transportation Security Administration’s controversial airline security pat-downs. The subpoena was later withdrawn, after Elliot’s lawyer stated they would challenge the subpoena.  

 

Although, bloggers can be summoned by the court as witnesses, or subpoenaed bloggers should be protected by First Amendment rights because there is an understanding that bloggers and the content posted online by a blogger is believed to be the opinions and ideas of the individual posting the items. These ideas and opinions although posted about public officers, and often celebrities in the limelight.  However, what has become a difficult task for courts regarding subpoenas is that bloggers are often not considered journalist if they are not afflicted with a media organizations. Even though, bloggers are called upon by the Courts, several cases shown in the text show that bloggers have been protected within the rights of the First Amendment. There are limitations and restrictions of what bloggers post , the First Amendment does not protect all speech especially speech deemed to be harmful, certain speech and post written by bloggers would be considered unprotected if they were to fall under other laws. Such as, cases related to defamation, cases involving statements pertaining to a crime that was commented. Information posted regarding criminal acts could be subpoenaed as they would be had the individual spoken the words, or a journal was discovered regarding the information.

Examples of cases throughout the years both written and now with the emergence of video blogging added to the traditional written blogs most recently the headlines are often littered with these sort of free speech protections. A most recent headline example would be the video ‘blog’ of Matthew Cordle confessing to a hit and run of another Ohio man, posted on YouTube confessing to the crime he had committed. Although Matthew Cordle had posted a video of his confession his rights to free speech as protected in the sense that he is free to speak out about what he had done, however, there is no protection regarding the crime he speaks of. Freedom of speech is not a protection against what is written or posted by bloggers but a protection against the laws the government may attempt to enforce over this form of speech and other forms of speech. Bloggers would be considered protected by the First Amendment right in most cases because as stated by the Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (Trager, Russomanno, Ross 50). The task of the Court if brought to the attention of the Court is to determine and interpret which forms of speech within a ‘blog’ is deemed as a part of the First Amendment or if it has crossed a line to where it is no longer protected by the regulations of the First Amendment.