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Why a U.S. court ruled bloggers and journalists should be equally protected

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Bloggers should enjoy the same legal protection as journalists.
Harry Roque Jr.
This was the recent ruling of the U.S. Court of Appeals in the case of Obsidian Finance Group v. Cox.

In the aforementioned case, Crystal Cox, an American blogger, claimed that Obsidian finance company was guilty of tax fraud. The U.S. District Court earlier found Cox guilty of defamation and awarded the finance company US$ 2.5M in damages. The lower court issued its ruling anchored on the assumption that, since Cox is a blogger and not a journalist, a complainant in a defamation suit is entitled to the presumption of “legal malice or a presumption that the defamatory statement is presumed malicious.”
Further, Cox, as a “mere” blogger is not entitled to invoke the definition of actual malice established in the New York Times vs. Sullivan case. The 1964 US Supreme Court ruling set the precedent for the rule that journalists can only be held liable for false information if they knew of its falsity or in utter disregard of the same. Ten years after Sullivan, the U.S. Supreme Court ruled in Gertz v. Robert Welch that the First Amendment required only a “negligence standard for private defamation actions.”
The First Amendment refers to an amendment to the Constitution of the U.S. that guarantees the right to free expression that includes freedom of speech, freedom of the press; or the right of the people to peaceful assembly, and to petition the government for a redress of grievances.
By ruling that bloggers are entitled to the same protection as journalists, the US Court of Appeals covering the jurisdiction of California ruled that the case involved an intersection between Sullivan and Gertz “an area not yet fully explored x x x in the context of a medium of publication—the internet—entirely unknown at the time of those decisions.” C
Citing the U.S. Supreme Court, the Appellate Court ruled:” that a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media. . .the line between the media and others who wish to comment on political and social issues becomes far more blurred.”
The dilemma is precisely because of a lack of precision on who are, in fact, in the law defined as journalists. In fact, a separate definition on who a journalist is indicates a lack of consensus even from those who profess to practice the profession. 
For instance, the United States Congress, in a draft of a Federal shield law, defines a journalist as “one who works for a traditional media organization for pay or gain,” a definition adopted as well by the UNESCO. This excludes bloggers altogether from the protection of the proposed shield law. 
On one hand, the Human Rights Committee in its General Comment, defines it as “a function shared by a wide variety of actors, including professionals, full-time reporters, and analysts, as well as bloggers and others who engage in forms of self-publications in print, on the internet, or elsewhere.”
But outside the definition of who a journalist is, the actual distinction between a regular media outfit and bloggers is the existence of a hierarchy of editorial controls to ensure accuracy in the news and fairness in commentary. This is why traditional journalists themselves sometimes scoff at the notion that “just about anyone can be a journalist.”

In fact, Philippine jurisprudence even distinguishes between the amount of latitude given to the media in making factual errors depending on whether it is a “weekly” or a “daily,” with the latter being given wider latitude for mistakes.
All these miss the point, though. There is protection accorded by the bill of rights not just to freedom of the press, but to freedom of expression in general. 

The normative values of these two freedoms are identical: to discern the truth and to facilitate “open, robust and even virulent discussion of public issues.” If both freedoms have the same normative content, why should the courts distinguish between an input to the market place of ideas coming from one who earns a living by it and one who does so anyway as a public duty?
The U.S. Court of Appeal’s decisions, in my view, correctly refused a distinction between institutional media and bloggers because to recognize such would also violate the equal protection clause. This is another constitutional guarantee that those similarly situated will be treated alike. 
Had the court limited the protection of freedom of expression to professional journalists alone, it would send the message that only professional journalists can contribute to the public debate on public issues. This is contrary to the basic tenet that freedom of expression is a human right, not just a right of journalists.
In any case, the fact that journalists are paid and bloggers are not does not constitute a real basis for distinction.

In Abrams, Holmes wrote; “the true test of truth is the power of a thought to be accepted in the market place of ideas.” Certainly, Holmes did not write that only paid journalists could contribute to this market. — KDM, GMA News 

Prof. Harry L. Roque, Jr. is an Associate Professor at the UP College of Law and the chairperson of the Center For International Law. This piece originally appeared on The Vera Files. We are re-posting it with the author's permission. 

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