The Constitution: Defamation suits against bloggers
(one of a series)
Picking up on Dave Budge’s post below: “Because this is America. . .”
It will be interesting to see how the law of defamation in the blogsphere develops.
Traditionally, one who communicated to another something false and damaging against a person was fully liable for any resulting injury to that person. There was no need, in most states, to show that the defendant was negligent or intended to say anything false.
In 1964, the U.S. Supreme Court (under the guise of the First Amendment)* decided the first of a series of cases that rewrote the state law of defamation into what amounts to an elaborate national code. One of the rules in that code is that before a public official or public figure can recover for defamation he has to prove that defendant is guilty of “actual malice” – i.e., that the defendant either lied deliberately or was consciously reckless about the truth or falsity of what he said. In practice, this heavy burden of proof almost abolished judicial recourse for any public official seeking to “clear his name.”
The Court’s apparent goal was to protect news media from being severely harmed by defamation suits. Since public figures are probably the folks most often defamed, the Supreme Court’s defamation code significantly reduced the number of defamation suits overall.
However, in the blogosphere, the victim of defamation might well be a non-famous person who has merely made the defamer really angry. Given the amount of blogging that is going on, we are likely to see a quantum leap in suits for defamation (and certain related torts, such as invasion of privacy).
One wonders whether the Supreme Court will step in to raise the burden on plaintiffs, as it did to protect news outlets reporting on public figures. Among the factors encouraging the Court to do so are (1) the potential “chilling effect” on speech of such lawsuits, especially in view of the fact that most bloggers probably have modest means and no insurance and (2) a certain “assumption of the risk” that bloggers undertake in joining this rough-and-tumble medium. On the other side, though, is the fact that the Supreme Court is more cautious than it was in the 1960s about trying to rewrite state law.
Stay tuned. A pro se litigator’s defamation lawsuit against several Great Falls citizens is in progress.
[...] what Electric City Web Log says about the potential for more defamation suits against bloggers: [I]n the blogosphere, the victim of defamation might well be a non-famous person who has merely [...]
Rob – excellent background and post. Might I add that the greatest defense against a defamation/liable lawsuit is the TRUTH! To that end, let’s expound on what one finds to be insulting or defamatory is somewhat subjective. The biased nature that many are fighting with bloggers is that which was originally only fought against media outlets before blogging became so common place.
People, who were not famous or in the public’s eye, once had the ability to limit what others read, heard or knew about them. If you do something to another soul and fear that if the world finds out how cruel you were and that their knowledge of your acts might cost you a job or comfort, than perhaps you might wish to rethink the actions you subjugate the other soul too. As a society we have learned that deeply personal matters (such as family quandaries) were always kept private, hidden and out of the public eyes, ears or knowledge. Now those people who were once the under-dog or person that may have been abused, controlled and demeaned within a family, school or company have found that the Internet proves there are other people who suffer the same as they. They may also find a voice in telling their story and how the family dynamics once limited their lives to ones of suffering; now give them voice, confidence and eventually a means of forgiveness. Those who disagree and might chose a litigious means to regain power over the souls who found a way out of oppressive familiar environments would be the very people interested in “Suing Bloggers.”
For responses like that left by Kimmy Covington, the true answer may be more in learning to LOVE, HONOR & RESPECT even those you once could control (like BROTHERS). If we treat others in a loving, respectful manner, they might not choose to write about their own personal experiences for the world to read. If family members didn’t lie to friends and family in hopes of isolating the person with a new voice, then maybe names and personal information might never be given. Every action has an equal reaction. Sometimes finding Love will not be the answer, so at the very least, find a way to HONOR them for the person they are becoming. If all in this world can find a way to connect as oppose to deny, you might not wish to find legal means to argue familiar battles over the internet.
Your humble servant – Todd M Dobson