This summer the Spokesman-Review, the local paper for Spokane, Wa and its surrounding area, found itself making national news and it wasn’t for winning a Pulitzer. The paper maintains a blog, like many news outlets do, and in February of this year a picture of then candidate Rick Santorum’s visit to Idaho was posted. The paper notes that “a freewheeling online discussion about politics, including derogatory remarks about the candidate’s jeans and a sweater vest and the attire of others in the photo” followed. As part of the comments, one anonymous blogger intimated that a local leader of the county GOP had stuffed some missing monies in her blouse. By June, the local leader was suing for defamation and asking a federal judge to order the newspaper to reveal the identities of the commentators. Without the name of the commentators, there can be no suit for subjecting the local politician to ridicule and potentially harming future job prospects (she is a bookkeeper).
The initial comments were only visible for 2 ½ hours when the mediator of the blog deleted them. The comments by ‘almostinnocentbystander’ were followed by requests for more information and then ‘almostinnocentbystander’ provided information about the missing monies from the local GOP county committee. In July, Judge John Patrick Luster of the Kootenai County District Court ordered the Spokesman-Review to provide the names of the anonymous bloggers.
Now, the newspaper will not appeal the decision and ‘almostinnocentbystander’ is expecting notification of a civil suit for defamation. The newspaper decided not to appeal because their likelihood of success was low. The case, though relatively obscure, highlights some interesting First Amendment problems that will need serious attention. First, Judge Luster determined that the blog, even though attached to a news-outlet, was not journalistic. And, any right to anonymous free speech is limited by the rules of libel. Other states have had similar cases. For example, in Minnesota an appeals court overturned a damages award because the court found that the critical post was accurate even though the post cost someone a job. Earlier this year in Oregon, a federal judge denied a blogger the same protection as a journalist under shield laws.
Both state and federal courts are grappling with the question of how far free speech and press protections extend in this digital age. What separates a blog from journalism? Clearly some blogs are not journalistic in nature yet they do report on events. For example, a personal favorite of mine is “Lowering the Bar” where you find a case law hall of fame with fabulous quotes from judicial opinions and more regular posts that highlight legally abysmal claims. The purpose is humor. However, the cases are real. Information is provided. Is it journalism? Does it deserve free speech or press protections? And if so, what level of protection should be provided? Do we need a new test that is below strict scrutiny for bloggers and their anonymous commentators? Or will each and every situation need to be litigated to find if there was truth and/or malice involved?