Blogging And The First Amendment

265 Stanley Park Lane Franklin, TN. 37069

THE LAW OFFICE OF KEVIN THOMPSON

T (615) 412-9876 F (615) 807-3048 [email protected] www.lawofficekt.com

DEFAMATION A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987). The defendant must have known or should have known that the communication was false. The statement must also have been a statement of fact. Defamation Per se Some statements are so defamatory that they are considered defamation per se; and the plaintiff need not prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease. What Constitutes Injury to Reputation? The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982). Libel-proof plaintiffs Some plaintiffs have such poor reputations to begin with, they are considered “libelproof.” A plaintiff is "libel-proof" when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff's reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985). Defenses to Defamation Truth is an absolute defense. If the communication is designed as a parody where a reasonable audience would not confuse it as factual, it is not actionable. Falwell v. Hustler Magazine. In Falwell, the Supreme Court held, “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty –

and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions." In the mid-80s, Hustler magazine printed a satirical advertisement talking about Jerry Falwell’s “first time” with liquor. The advertisement was a play on words that made it seem like Jerry was talking about his “first time” with a woman. Since the advertisement was clearly a parody and one where a reasonable audience would know that the statements were not factual, Jerry Falwell lost his lawsuit. “Actual Malice” If the Plaintiff is considered a Public Official or Public Figure, they have to prove that the Defendant acted with malicious intent to harm the Plaintiff. It’s an extra element that makes it more difficult for public figures to file suit against their detractors. What’s a Public Figure/Official In general, Public Officials are individuals that hold public office while public figures are individuals that are in the forefront of particular issues. Large, publicly traded companies are typically treated as “public figures” for purposes of First Amendment cases. If a citizen lashes out at Comcast and communicates false statements. Comcast would have the additional burden of proving that the individual acted with malicious intent to harm the company. Opinion defenses The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. A statement is an opinion when: (1) the statement is genuinely believed; and (2) that there is a reasonable basis for that belief; and (3) that the speaker is not aware of any undisclosed facts tending to undermine the accuracy of the statement. Prefacing a sentence with “in my opinion” is not always the cure. Statements of opinions can be actionable when one of the above factors is absent. Tortious Interference with business relationships can implicate First Amendment issues If a company views a communication as part of an effort to undermine their business, tortious interference claims are always available. The elements of tortious interference with a business relationship are: (1) the existence of a valid business relation or expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) an intentional interference

inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship has been disrupted. "Tortious interference with business relations may be caused by defamatory statements." Id. A public figure plaintiff must still allege sufficient facts to show that the alleged statements were made with actual malice. Id. ANONYMOUS BLOGGING This is such a new area in the law! John Doe v. Cahill, a case out of Delaware, is a much referenced case on the subject of anonymous blogger liability. “The Cahill Standard” requires that the plaintiff seeking discovery of the identity of anonymous online speakers first gives notice to the speaker. Also, the plaintiff must satisfy a “summary judgment” standard and show that the statements were “statements of fact” and that all the elements of the claims are met. Huh? If an anonymous blogger/commenter/tweeter, etc makes a false communication about a person or company, and the statement was presented as a statement of fact, the injured party can file a lawsuit against “John Doe” defendants and eventually obtain the identity. What’s a “Statement of Fact?” Generally, a statement is a “statement of fact” if it’s capable of being proven true or false. Whether a product works or doesn’t work, for example, is provably true or false. Anonymous Speech First, the First Amendment protects anonymous speech. See Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 200 (1999). The Supreme Court has noted that “Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995). Indeed, “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.” Second, the protections of the First Amendment extend to the Internet. See Reno v. ACLU, 521 U.S. 844, 870 (1997). Courts also recognize that anonymity is a particularly important component of Internet speech. “Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas [;] … the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2 The Mart.com, Inc., 140 F.Supp.2d 1088, 1092, 1097 (W.D.Wash.2001).

Third, the right to speak anonymously is not absolute. “Certain classes of speech, including defamatory and libelous speech, are entitled to no constitutional protection.” Doe v. Cahill, 884 A.2d 451, 456 (Del.2005). “Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.” In re Subpoena Duces Tecum to America On-Line, Inc., No. 40570, 2000 WL1210372, Jan. 31, 2000). These principles make clear that there is nothing wrong with anonymous writing. It is, like other forms of publication, protected by the First Amendment. HOWEVER, the right is not absolute and must be weighed against the injured party’s need for identities to redress alleged wrongs. To ensure that the First Amendment rights of anonymous speakers are not lost unnecessarily, courts now require the injured party to demonstrate that they’ve got a legitimate claim before obtaining the speakers’ identities. So what does all this mean? Plaintiffs (the people that are injured by the statement) must plead enough facts to survive a motion to dismiss…In other words, plaintiffs must demonstrate that they have a legitimate claim by showing that the statements are presented as factual (not opinion), inaccurate, and damaging. If there’s a hint of legitimacy, the court will order the I.S.P. to disclose the identity of the bloggers. Practical Methods to help Reduce Liability, Whether You’re Anonymous or Not Link to the source! Investigate the facts Refrain from knowingly using unreliable sources. Retain records of your investigation. Save your emails. Cite your sources in the article. Avoid conclusory language. If you write that someone is “dishonest” without providing a factual background, it may lead to trouble. Counterbalance your biases.

BONUS section: FTC, truth in advertising The revised FTC guidelines over the use of testimonials and endorsements will go into effect on December 1, 2009. The FTC exists to ensure truth in advertising and fair competition in the marketplace. Standards that have been reserved in the past for televised advertisements will now extend to the masses. We’re all marketers now! If you’re a blogger and you’re making a paid endorsement or giving a testimonial, it’s now important to disclose the relationships between yourself and the advertiser. “What’s an endorsement?” Endorsements “must reflect honest opinions, findings, beliefs or experience of the endorser.” They “cannot convey any express or implied representations that would be deceptive if made directly by the advertiser.” Taken from the FTC guidelines, section When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser. Simply put, err on the side of more disclosure. Yes, there exists a double standard between bloggers and traditional media (they never disclose when a company pays them for a story). But as a small agency with limited resources, the FTC will be hard pressed to regulate the vast expanse of the internet.