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January 24, 2014

The First Amendment Survives

Joe Charlebois

Bloggers, on-line columnists, alternative media journalists can all claim victory! Those who use non-traditional means of journalism have won a victory. Once again the courts have sided in favor of the individual’s First Amendment rights.


Freedom of the press is alive and well as the January 17th ruling by a three judge panel guaranteed freedom of the press to all Americans. Last Friday a three-judge panel of the 9th U.S. Circuit Court of Appeals – based in San Francisco – ruled in the matter of Obsidian Finance Group v. Cox in favor of Crystal Cox a financial industries watch-dog blogger. As with the traditional press, the panel ruled in favor of granting Ms. Cox her First Amendment protections for all but one of her posts. The one post in question was shown to have been both “false and defamatory,” which Ms. Cox does not deny.


With the technological boom of the past few decades, the alternative media continues to grow in numbers and importance. It is true that there is a great deal of misleading, misinformed and miserable individuals who write irresponsibly screeds over the Internet, but what is even more significant is the fact that a great many writers have uncovered and disseminated news that would not have been made public otherwise. The alternative media have been able to hold political leaders accountable for acts that have been detrimental to those they govern.


In the 9th Circuit ruling, Judge Andrew D. Hurwitz – who wrote the opinion – upheld that First Amendment rights fundamentally belong to individuals as well as the traditional press. Citing previous rulings that pre-dated the Internet, Judge Hurwitz pointed out that the individual has always maintained the same freedoms that the institutional press has held. He also noted that individuals are also as responsible – not more so – for what they disseminate to the public.


Speaking specifically to defamation lawsuits Judge Hurwitz wrote: “…the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers.”


He also pointed out that “…in First National Bank of Boston v. Bellotti, a case involving campaign finance laws, the Court rejected the suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by non-institutional-press businesses.”


In Citizen’s United the U.S. Supreme Court held: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”


For over 40 years the courts have held that one American with a pen is entitled to the same freedoms that the institutional press has enjoyed.


This is good news for Americans. The definition of what constitutes “the press” has changed significantly over our 200-plus years as a nation. From the early days of our nation when pamphleteers and criers held sway to the advent of today’s alternative press, we all are still entitled to the same freedoms assured by the U.S. Constitution.


Be wary of entrenched politicians that propose legislation that affects broadcast outlets like the “fairness doctrine” and the individual writer through “shield laws.” Both would infringe one of our most basic rights.


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