Bloggers Feel a Chill

The Supreme Court took a 'pass' yesterday on a First Amendment case, effectively raising roadblocks for poli-bloggers. By letting stand the Pennsylvania Supreme Court's October, 2004 ruling in Norton vs. Glenn (pdf), bloggers may find it harder to call to task public figures who say outrageous things - something that blogs do rather well. A handful of MSM outlets are running with the story, including the LA Times:

The case turned on whether the 1st Amendment's protection of the freedom of the press includes a "neutral reporting privilege." Most judges around the nation have said the press does not enjoy this privilege. Lawyers for more than two dozen of the nation's largest press organizations, including Tribune Co., which publishes the Los Angeles Times, had urged the court to take up the Pennsylvania case and to rule that truthful news reports on public figures deserved to be shielded. They said politicians have been hurling false and damaging charges at their rivals throughout American history. The press cannot do its duty to inform the public if it is not free to report what public figures say, they argued. But the Pennsylvania Supreme Court said the press has never "enjoyed a blanket immunity" from being sued over stories that print falsehoods that damage a person's reputation. The law "has placed a burden (albeit a minimal one) on the media to refrain from publishing reports that they know to be false," the Pennsylvania court said.

MSM reporters will be affected too, but they're better able to handle any increase in tactical libel cases by public officials trying to shield themselves from their own stupidity. Despite all of the mud that's been slung at Karl Rove, the party out of power seems likely to benefit more from a strategy of stoking the libelous rumor mill while suing those who report such statements directly (i.e., blogs). In such a climate, how far are we away from political speech restrictions that look like this?

The only other blog I can find covering this at the moment is Captains Quarters - a surprise and a disappointment given the number of excellent lawyer-bloggers out there and the magnitude of the First Amendment rights just lost. Where are Hugh Hewitt, Powerline and Professor Bainbridge when we need 'em? In light of comments like this from Democratic standard-bearer-of-the-moment John Kerry, conservatives have cause to worry:

...the mainstream media, over the course of the last year, did a pretty good job of discerning. But there's a subculture and a sub-media that talks and keeps things going for entertainment purposes rather than for the flow of information. And that has a profound impact and undermines what we call the mainstream media of the country. And so the decision-making ability of the American electorate has been profoundly impacted as a consequence of that. The question is, what are we going to do about it?

UPDATE I: Michelle Malkin has this take on another front in the budding war against bloggers:

Even if we wanted to give fewer legal protections to bloggers than to "real journalists,"... it's not clear that such a policy could be implemented given the blurring between blogs and Big Media.

UPDATE II: Others are noticing this now, though I'm still hoping the blogger-lawyers weigh in. From Right Wing Nuthouse:

Does this mean I can’t call John Kerry a lying, sniveling, traitorous weasel anymore? Probably... Am I missing something here? Is it really this complicated? How can you interpret the First Amendment so narrowly? Politicians have been calling each other names for 217 years in this country.

UPDATE III: Right Wing News is now on the case as well:

So let me get this straight: members of the media are supposed to listen to what politicians say, apparently use some sort of super-power that allows us to determine whether a statement is libelous without the benefit of a court case, and then just black out any news that isn't true. That sounds fun and easy right? Moreover, whatever happened to the public's "right-to-know"? I find it ironic that every deeply personal detail of a politician's life is fair game for the press, but if that same politician stands on a stage full of reporters screaming that his political enemies are "liars," "queers" and "child molesters," that there are judges who think it should be ILLEGAL to let the public even know what was said.

UPDATE IV: Ace of Spades makes a good point, admitting that this is not a one-sided issue:

Yes, it is important for the public to know about even the false claims made by politicians -- and sometimes, of course, sunlight exposes those lies for what they are -- but on the other hand, just because someone libels you, should the press amplify that libel ten-thousand-fold by repetition and wide dissemination and take no responsibility for the additional injury to person's character?

Personally, I think there's more and more sunlight. Let the mud be slung. Let the sun dry it out.