The Problem With Pre-Internet Laws

The unstated questions that have fueled much of the discussion about bloggers are two-fold: whether bloggers have the same constitutional rights as other authors or publishers, and whether bloggers should be afforded certain statutory protections that apply to mainstream media, such as retraction statutes and reporters’ shield laws.

The first question is easy to answer: the rights of free speech and press under the First Amendment does not and cannot depend on the medium through which information is exchanged. Whether the expression is conveyed by a lonely pamphleteer or the world’s most sophisticated communications company, First Amendment protections apply. The notion that bloggers have some lower standard of protection is wholly inconsistent with what the United States Supreme Court has recognized as a necessary marketplace of ideas, where one’s ability to communicate freely is not dependent on access to a printing press or broadcast equipment.

The second question is more complex, because it depends in part on the language in a particular statute, and the purpose for which it was enacted. Retraction statutes, for example, typically are intended to provide needed “breathing space” for the exercise of free speech, recognizing that sometimes mistakes will be made. Such statutes also provide an incentive for the timely correction of inaccuracies -- a purpose that benefits the subject of the story as well as the publisher. So why wouldn’t retraction laws apply to bloggers, who can – and often do -- correct a misstatement almost instantaneously? Courts have had little difficulty finding that retraction statutes apply to Web sites; the same rationale includes bloggers.

A similar analysis applies to shield laws, which protect journalists from being compelled to reveal confidential sources and other information. Because most laws were written before the Internet existed, they often refer to then-existing media -- newspapers, magazines and the like -- or simply to “journalists,” without defining who is a journalist.

More than five years ago, a California appeals court rejected the argument that the state’s shield law does not cover web publishers. The court wisely declined the invitation to evaluate whether web publishers are “legitimate journalists,” recognizing that doing so is a dangerous step for any branch of the government to undertake. Instead, the court focused on whether the website in question was actively engaged in the gathering and dissemination of information to the public.

Given the many important stories originating from bloggers, it is hard to imagine a rationale for the wholesale exclusion of those writers from the protections that shield laws provide, whether they are called “journalists” or not.

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