Free Speech for Some and Blogger’s First Amendment Protection

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February 14, 2000 By Edwin J. Feulner, Ph.D.

The First Amendment says “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble and to petition the Government for a redress of grievances.” Liberals think they can improve on that.

The Liberal’s First Amendment would read “Congress shall make no law … abridging the freedom of speech, etc. … providing such speech or activities do not offend. If any offense is taken, citizen whiners, being necessary to the security of a politically correct state, shall from time to time suppress the offender’s free speech rights by any means necessary, including, but not limited to, required sensitivity training, ‘re-education,’ and loss of income.”

That, at least, is how many liberals have interpreted the First Amendment lately-and it’s both hypocritical and scary.
It’s hypocritical because liberals often praise what they consider the crowning achievements of free speech in this country, such as freedom for strip clubs to operate in residential neighborhoods. Or freedom for “musicians” to peddle CDs that advocate rape, murder and other acts of enlightened citizenship. Or freedom for artists to use taxpayer money to create works whose sole purpose is to offend taxpayers.

Yet many of these same liberals want to shut up conservatives whose ideas they don’t agree with-and do so in ways akin to the techniques the Soviets used during their 70-year reign of terror. That’s the scary part. Examples of liberalism’s disdain for certain types of free speech include:

A group of 100 left-wing religious leaders who have vowed to hound all presidential candidates until they stop mentioning religion and God on the campaign trail. It just won’t do, you see, to have candidates declaring themselves “born again” or praising faith-based organizations for their success at solving social ills. The liberal churchmen say all that God-speak detracts from an “in-depth” debate on the issues. They see nothing wrong, however, in trying to silence the views of politicians and others who take their faith more seriously.

Columnist Dan Savage, who tried to muzzle presidential candidate Gary Bauer because of Bauer’s views on gay marriage. In an article in the online magazine Salon, Savage recounts his efforts to infect Bauer with the flu and keep him out of the New Hampshire primary. According to Savage, he was suffering from the flu himself. Instead of getting some bed rest, he decided to infiltrate Bauer’s Iowa campaign office and cough on everything in sight. He claims he even licked doorknobs and handed Bauer a pen he had salivated on. Savage admits his gonzo form of biological warfare was “mean-spirited,” but justified it by saying Bauer’s position on gay marriage was just as mean. Whatever you think of Bauer’s position, he certainly has a right to express it. Savage would have none of it, and this from a “journalist” whose very job depends on free speech.

The thugs who disrupted the World Trade Organization conference in Seattle. By threatening violence against those who disagreed with them, the protestors showed that while free trade may bother them, what they really hate is free speech-in this case, the idea that global trade benefits Americans.

Other examples of the Left’s intolerance abound. What they do on university campuses-burning newspapers, banishing the works of Plato, Shakespeare and other Dead White Males-fills entire books, for example.

All Americans, liberal or conservative, must be free to speak their minds without fear of harassment, violence-or the flu. Suppressing any idea makes democracy sick.

Edwin J. Feulner, Ph.D. is president of The Heritage Foundation, a Washington-based public policy research institute.
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Bloggers enjoy First Amendment protection against libel suits
free press
January 24, 2014 by KEN PAULSON PRESIDENT, FIRST AMENDMENT CENTER

A website that castigates others as “evil doers” and “thugs” has exactly the same First Amendment protection as USA TODAY and the New York Times – and that’s a good thing.

In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media.

At issue were the blog posts of Crystal Cox, who accused Bend, Oregon attorney Kevin Padrick and his firm Obsidian Finance Group of misconduct in connection with his role as a trustee in a bankruptcy case. A jury awarded the plaintiffs $2.5 million in damages.

But the U.S Court of Appeals for the Ninth Circuit saw things differently, deciding that Cox’s allegations were matters of public interest and to sue her successfully, Padrick would have to prove her negligence – the same standard that applies when news media are sued.

“The protections of the First Amendment do not turn on whether the defendant was a trained journalist,” Judge Andrew Hurwitz wrote.

While the Supreme Court has previously observed that the lines between traditional news media and native web content have become blurred, this makes the first time that federal appellate court has essentially said that journalists and bloggers are one and the same when it comes to the First Amendment.

But we already knew that. The purpose of the free press clause of the First Amendment was to keep an eye on people in power and maintain a check on corruption. Given the cutbacks in traditional media, bloggers have taken up the slack, serving as watchdogs with attitude. And of course, traditional reporters now blog daily, and prominent bloggers show up in traditional media.

Yet we still see a condescending and uninformed attitude from some lawmakers and judges who seem not to understand that digital and social media deserve the same respect as newspapers, magazines and broadcasters. There is still resistance to including bloggers in a federal shield law, and as recently as 2012 a federal court judge concluding that “liking” a Facebook page was not protected free speech, a flawed decision overturned in September.

Speech doesn’t get much more free than blogs and comments on websites, and long-established principles protecting opinion and hyperbole help to keep it that way. In this case, the Ninth Circuit upheld a lower court’s decision to toss out other libel claims against Cox, despite her assertions that her targets engaged in corruption, fraud, deceit, money laundering, harassment and illegal activity. She called them immoral “evil doers” and “thugs” and alleged that a hit man had been hired to kill her. The appellate court concluded that Cox’s post were so outrageous that no one would take them seriously and these hyperbolic attacks couldn’t be the basis of a lawsuit. Apparently it also helps to name your site “obsidianfinancesucks.com.”

The decision in a nutshell: Bloggers saying libelous things about private citizens concerning public matters can only be sued if they’re negligent, and if you do decide to attack someone online, make sure you go over the top.

Ironically, the federal court’s decision protecting bloggers was based on Gertz v. Welch, a landmark Supreme Court case now in its 40th anniversary year. In lieu of cake and candles, we have a brand new case applying the case’s landmark decision to the most contemporary of media.

As abusive and derisive as some bloggers may be, they’re direct descendants of the first generation of Americans, who used pamphlets and politically-driven newspapers to attack their political rivals. It was then that the nation’s founders ratified the First Amendment, paving the way for robust discussion of public issues, regardless of medium. That’s something worth celebrating.

http://www.firstamendmentcenter.org/bloggers-enjoy-first-amendment-protection-against-libel-suits

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