On blogging, [in]correct claims and the Constitution
Bloggers have long identified themselves as having the same right to express their opinions through reportage as do traditional journalists writing for newspapers, AKA “the mainstream media,” even though they may have had no formal journalistic training, and no editors or fact-checkers are around to make sure they get their facts straight.
Now, the Ninth Circuit Court of Appeals, based here in San Francisco, apparently agrees. In a ruling that hasn’t attracted the attention it should, they threw out most of a lawsuit against a blogger, Crystal Cox, who had been sued for defamation by a investment consulting company, Obsidian Finance Group, after Cox accused them of “fraud, corruption and other misconduct” on her blog, crystalcox.com.
A self-described “investigative blogger,” Cox, who defended herself in the lawsuit, argued [as she wrote on her blog] that “Bloggers have Equality [sic] with reporters such as the New York Times” and that, in essence, if a newspaper like the Times can make allegations against public officials or corporations, so can she, as an “Anti-Corruption Blogger[s], Whistleblower[s], and Citizen Journalist[s].”
That stance is what the Court of Appeals agreed with. The Court determined that “The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities.”
No one disagreed that Cox’s blog postings were, in the Los Angeles Times’ words, “rants [to the] extreme.” Rather, the Court ruled that, since Cox did not act with “actual malice,” she had the right to express herself.
I have no idea if Cox is correct or not; that’s not the point. But journalists and First Amendment defenders no doubt will celebrate this ruling. I do; I would not want to see a blogger self-censor herself, out of fear of being sued by a big, wealthy, bullying corporation. But this case does raise troubling questions.
Granted that a blogger has the right to publish her rants, does that give him or her credibility?
Ought the public to believe “investigative blogging” in which no editor or fact-checker is present as a balancing restraint, as is the case with newspapers?
How can the public determine the accuracy of blogs, a medium notoriously devoid of traditional ethical and publishing standards (e.g., the reporter has to have multiple sources for each assertion, and there has to be a bright line between editorial, on the one hand, and opinion, on the other)?
Can the public know for sure that a blogger does not have ulterior motives? Newspaper reporters are much less likely to have hidden agendas precisely because their work is scrutinized by editors, and they ultimately are answerable to (and fireable by) a publisher.
Better yet, how can we educate the public to be discerning when they digest the content of blogs?
These questions become even more poignant when we consider that traditional journalism is being challenged by blogs and other forms of self-publishing on the Internet and “alternative media,” in this post-Citizens United atmosphere. The First Amendment to the U.S. Constitution mandates that “Congress” [i.e. the Government] “shall make no law…abridging the freedom of speech, or of the press…”). “The press” later was defined, by the U.S. Supreme Court, as “every sort of publication which affords a vehicle of information and opinion.” It was this sweeping definition, which obviously includes blogs, that the Court of Appeals apparently subscribed to in their decision.
But we are entering into dangerous waters when we have an increasingly powerful “Press” that is devoid of traditional restraints against unproven and unresearched allegations. I hardly need point out a growing section of the American population that believes nothing the Mainstream Media says–and turns instead to “journalistic sources” (including blogs) that are patently nothing more than mouthpieces for (often unidentified) corporate, political and personal interests, regardless of whatever claims they make of serving the public interest.
The balancing act American journalism must tread is one between First Amendment rights, including the right to self-publish a blog, and the preservation of some standard of truth by which to judge published claims. We should celebrate diversity of opinion, of course, but we also should insist on a strict adherence to facts and their correct interpretation.
No easy task.