Written by:  David Karl Gross

The widespread use of Facebook, Twitter, and other social media forums, has caused the amount of information being exchanged to hit unprecedented levels.  A culture has developed where it is noteworthy to share the minutia of everyday living, including what you had for dinner, where you are traveling, and who may have said what to whom.  Websites that publish “totally useless facts,” like the fact that a crocodile cannot stick out its tongue, are abundant.

This cultural perception that all information must be shared, no matter how mundane, has spawned a new phenomenon:  the blogger.  A blogger is a person who creates a website to share one’s own experiences, observations, and opinions.  Many of these blogs can be quite entertaining and helpful, discussing topics such as food, travel, movies, health and fitness, and sports, just to name a few.  Blogs can play a very positive role in society.  For example, Birch Horton’s blog was created to share stories about those who work at Birch Horton; to discuss changes in the law; and to comment on the ever-changing legal landscape.  Our goal is to provide the community with interesting stories and useful information.

However, there are some blogs that are not about exchanging information in an effort to help but are more designed to harm.  These blogs strive to portray themselves as legitimate sources of news; instead, they are used as platforms to harm, harass, and embarrass.  The information promulgated by these blogs is not for the purpose of educating the reader about a particular issue, but to spin the facts in a manner that will harm certain members of the community.  While it is unclear whether these blogs were created as a means to hurt those that the blogger dislikes or to seek revenge for some past harm, what is clear is that these mean-spirited bloggers work in the gray area between defamation and the protections afforded by the First Amendment.

Defamation is a cause of action that will allow a person to recover damages when it is demonstrated that a blogger has posted something that is untrue and has caused personal harm.  Defamation is an important legal remedy because it provides people with a significant recourse when the words of another have caused harm to their careers, reputations, or finances.  In some cases, defamatory statements have been so harmful that they have caused health issues.  Thus, the law has armed the victims of bloggers with a means to not only stop the blogger (injunctive relief), but to require the payment of damages to compensate the victim for the losses they have suffered.

The law of defamation, however, is not without limits and often intersects with laws that protect free speech.  The First Amendment to the United States Constitution provides that the government shall make no law that abridges the freedom of speech or the freedom of the press.  This fundamental legal principle was included in our Constitution to ensure that people may speak freely without fear of reprisal.  This creates a delicate balance between a person’s right to speak freely and a person’s right to be free of harmful comments.

Determining whether a blog is constitutionally protected speech or defamation, requires a close and careful look at the statements made.  If a blogger can demonstrate that the statements at issue are true, the speech is protected.  No one can be punished for speaking the truth, no matter how ugly, or harmful, it may be.  Opinions, however, are murkier territory.  The United States Supreme Court declined to create a blanket protection for all opinions.  Instead, the Court held that if a statement of opinion could be proven false, a defamation claim would be proper.  For example, in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Court determined that a news article expressing the opinion that a wrestling coach lied under oath was not protected speech and could therefore be the basis for a defamation claim.

Public figures are put in a separate category and will have a harder time bringing a defamation claim.  This is true, in part, because the public figure is able to use their access to the media as a means to refute the statements or to clear their name, whereas a private figure does not have a platform to address the false statements.  In this regard, it is possible for a public figure to transform back into a private figure when this access is lost.  The United State Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964), held that for a public figure to prevail in a defamation action, they must prove actual malice, meaning that the blogger either knew the statement was false or acted with reckless disregard for the truth.  The line between public and private figure is often blurred.  Clearly, a politician or celebrity would be considered a public figure, while an everyday person would not.  The United States Supreme Court has handed down a number of opinions seeking to create a formula for determining if a person is a public figure or a private individual, but oftentimes these decisions have created more confusion.

When a blogger is publishing stories about a person, especially a story about a private individual, there is a real threat that they could be held liable for defamation.  With this, bloggers would be well advised to make sure that the statements they are making, including opinions, are factually correct.  If the statements can be proven false, it is possible a private figure can file an action for defamation.  Because the intersection between defamation and the First Amendment can be confusing, it is always best to consult an experienced attorney prior to setting up a blog and prior to posting controversial stories.

Leaving the legality of blogging aside, it is also important that prior to posting a story, bloggers ask themselves what is the point of the story.  Are they trying to report helpful information or cause harm to another?  If it is the latter, there is a real possibility that the blogger is stepping over a moral and legal line, such that the victim could have a successful defamation claim.  At the end of the day, the need to exchange information is important, but there must also be a limit and bloggers must try to have some measure of journalistic integrity.  Not everything is a “must read.”  Some things are best left unsaid.