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On blogging as freedom of speech



I should probably have pointed this out long ago, but it’s worth saying now: Everything I say on this blog is my own, Constitutionally-protected opinion, and does not reflect in any way the viewpoint of my employer.

Such a simple statement, such a complicated topic.

I understand that people occasionally get confused. “Is he speaking as an employee or for himself?” The answer is, I speak for myself alone: my thoughts, my opinions, my conclusions. If I’m brilliant, it’s me. If I write something unutterably stupid or erroneous, it’s me.

The Internet, and the rise of blogs and social media with all its self-publishing power, has made these issues incredibly challenging. For me, my freedom to express myself publicly, without censorship or prior restraint, is one of the most important values I hold. My ancestors—yours, too—fought and died for this freedom. America is based on this freedom. Our Constitution enshrines it; our tradition upholds it; it’s a value I am willing to defend with my life, my liberty and my sacred honor.

Have a lovely weekend!

  1. Bob Henry says:

    Let’s not overlook this distinction: our Constitution enshrines free “political” speech. Do you not have “free” commercial speech.

    We have well-established laws on slander and libel and defamation.

    And if you are a blogger, don’t overlook this timeless advice:

    Excerpts from The Wall Street Journal “Personal Journal” Section
    (May 21, 2009, Page D1ff):

    “Bloggers, Beware: What You Write Can Get You Sued”


    By M.P. McQueen
    Staff Reporter

    “Be careful what you post online. You could get sued.

    . . .

    “Bloggers are increasingly getting sued or threatened with legal action for everything from defamation to invasion of privacy to copyright infringement. …”

    “The number of blogger lawsuits is likely to keep rising as the number of people who post online continues to grow, says Sandra Baron, executive director of the Media Law Resource Center and a media-law attorney. …”

    “The jump in lawsuits is due to the phenomenal growth in online publishing and the number of people engaged in blogging and social-networking activity, experts say. …”

  2. Bob Henry says:

    Editing correction.

    “Let’s not overlook this distinction: our Constitution enshrines free ‘political’ speech. You do not have ‘free’ commercial speech.”

  3. Bob Henry,

    To say “our Constitution enshrines free ‘political’ speech. You do not have ‘free’ commercial speech” is wrong.

    First of all, you’re implying a dichotomy that doesn’t exist, i.e. that speech is either political or commercial. Speech on non-political topics, whether that be religion, science, art, literature, or wine, is protected.

    Second, the fact that you’re bringing up “commercial speech” on this blog suggests to me that you don’t know what that term means in First Amendment jurisprudence. There are many misconceptions: some people think that any speech that earns the author money (whether via royalties, advertising revenue, etc.) is commercial, but the Supreme Court has made clear that this is not the case. The usual definition is something like “speech that does no more than propose a commercial transaction,” such as advertising a product or service. Unless Steve starts writing blog posts along the lines of “click here to buy Kendall Jackson Wines!” commercial speech is simply not applicable.

    Third, even what the courts define as “commercial speech” is entitled to Constitutional protection, though the test for when that right is infringed is more generous to the government than for other forms of speech. “The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the ‘highly paternalistic’ view that government has complete power to suppress or regulate commercial speech.” Central Hudson Gas & Electric v. Public Svc Comm’n, 447 U.S. 557, 561-62 (1980).

    Your reference to libel laws is fair enough: all bloggers should be mindful of those dangers. But it doesn’t really contradict Steve’s post, as he never claimed to be immune from consequences of his speech.

  4. Bob Henry says:

    Jim B:

    The second sentence of my comment might have been inartfully phrased.

    Let me revise it by observing that “commercial speech” is given much less protection that “political speech.”

  5. Bob,

    The rephrased version is true, but again, I don’t see the relevance here. As your own source states, “The term “commercial speech” refers to speech—printed, broadcast or on the Internet—that advertises a product or service.”

    Steve’s writings about wines, winemakers, wine journalism, or pretty much anything I’ve seen posted here would be noncommercial speech. So I’m not sure what your point was or is.

  6. Bob Henry says:

    Jim B:

    My comment was not directed to Steve, but rather to his readers.

    Some (other) bloggers and “citizen journalists” think EVERYthing they say (write) is protected speech under the First Amendment.

    Irrespective of slander and libel and defamation.

    Not so.

    ~~ Bob

    Excerpt from The Wall Street Journal “Op-Ed” Section
    (April 21, 2006, Page A1f4):

    “When Blogs Rule, We Will All Talk Like —-”


    By Daniel Henninger
    “Wonder Land” Columnist

    . . . But there is one more personality trait common to the blogosphere . . . It’s called disinhibition. . . .

    In our time, it has generally been thought bad and unhealthy to “repress” inhibitions. Spend a few days inside the new world of personal blogs, however, and one might want to revisit the repression issue.

    The human species has spent several hundred thousand years sorting through which emotions and marginal neuroses to keep under control and which to release. Now, with a keyboard, people overnight are “free” to unburden and unhinge themselves continuously and exponentially. . . .

  7. Bob Henry says:

    Jim B:

    This Boston College Law Review piece penned by a retired Harvard Law School professor might interest you (and perhaps only you):

    “The First Amendment and Commercial Speech”

    ~~ Bob

  8. Bob,

    That article interests me mainly because I had no idea that Victor Brudney was (1) still alive, (2) interested in First Amendment issues; and (3) still publishing law review articles! Thanks for the blast from the past there.

  9. I agree with you that our freedom to express ourselves freely is one of the most important values, especially as a US citizen. We are incredibly blessed to live in a country that protects our rights to free speech, press etc.

    Thanks for sharing!

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