Should the Law Treat Bloggers Like Journalists?

This week, a US District Court judge in Portland, Oregon told the self-described investigative blogger Crystal Cox that one of her posts appeared to be defamatory and she would either have to prove that her claims were accurate (which could only be done by revealing a source with the company she was attacking) or pay a $2.5 million fine.

"This should matter to everyone who writes on the Internet," she told Seattle Weekly, adding that the judgment could impact bloggers everywhere.

Indeed, it should. With more than 150 million blogs in existence today—including this one, the two I personally write, those whose guidance and editorial support InkHouse provides—what is surprising is not that a blogger has been slapped with a fine, but that it isn’t happening more.

Why? If you agree that bloggers are looser with the facts and freer with opinions—either due to time constraints or a new definition of journalism—and that the goal of many blogs is to attract attention through strong statements and opinions, it seems a recipe for libel.

Thankfully, the First Amendment allows us to express how we feel. You can say you hated a movie and blog about it. No problem. But freedom of speech does not protect us from libelous statements—defined as published words that falsely claim to be factual and may taint the image of a person, business, product, group or government. Blogging is publishing. If you post that a film director stole that movie idea from you, it could make the director look bad. But it’s only libel if you know that statement to be false. If you believe it to be true, you have a valid defense.

But the best defense against libel, of course, is the absence of malice, the title of one of my favorite journalism movies. The defense concept is this: if you made an honest mistake, and there was an absence of malice, you can apologize or correct it and move on. But if you knowingly misreported the truth and published it, it can be libel.

While most states have so-called shield laws for journalists, reporters may still be asked to reveal a source in the same way that Cox was. When I was a reporter at the Boston Globe in 2002, then-colleague Richard Knox was sued for how he characterized the role the of a doctor involved in the death of another reporter at the paper, Betsey Lehman, who was given a mistaken four-fold drug overdose at Dana Farber in 1995. The Globe ran a correction saying the doctor did not sign the drug order but the paper did not correct its report that she was chief of the team using the potent experimental cancer therapy. The doctor sued, Knox refused to reveal his source and then he and the paper had to pay fines collectively exceeding $2 million.

Media Nation blogger Dan Kennedy, an assistant professor of journalism at Northeastern University who first began blogging for the Boston Phoenix in 2002 and now also blogs for the Huffington Post, says he sees little difference between the Knox case and the Cox case.

“It’s an absolute basic principle of First Amendment law that journalists don’t have any more rights than anyone else,” Kennedy says. “Are there no rules for bloggers? Are there rules for journalists? There are good blogs that have more rules in place than anything Rupert Murdoch had in place.”