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January 01, 2013

Freedom of Speech: First Amendment Caste System

Charles D. Tobin

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In decision after recent decision, courts have muddled generations of egalitarian constitutional jurisprudence that clearly told me my speech is as protected as CNN’s or Fox’s.

Consider what has happened in the past couple of years:

An Oregon federal court rejected any application of First Amendment principles in an investment firm’s defamation trial against a blogger.

The U.S. Court of Appeals for the Second Circuit announced a complicated, multipart test to determine who may benefit under what was previously the simplest journalists’ privilege law in the country.

An Iowa judge decided to send a publishing-on-demand company to trial under a strict liability standard in a defamation lawsuit.

Each of these cases is disturbing because the courts refused to balance the individual rights of the communicator against the plaintiff’s right to redress. Collectively, they raise anew a basic question we thought the legal system had settled years ago: Does the First Amendment protect some more than others?

The U.S. Supreme Court has flatly told us that the First Amendment provides journalists with no preferred position. In Branzburg v. Hayes, 408 U.S. 665 (1972), a majority of the Court supported the notion that “every man”—and that includes every journalist—must testify if a grand jury comes calling. In Pell v. Procunier, 417 U.S. 817 (1974), and in Saxbe v. Washington Post, 417 U.S. 843 (1974), the justices told us that the press has no special rights to interview prisoners. In Cohen v. Cowles Media, 501 U.S. 663 (1991), the Court said that if journalists violate commitments to sources, the law can punish them. And in Wilson v. Layne, 526 U.S. 603 (1999), it held that journalists accompanying police into people’s homes are intruders.

These decisions teach that the First Amendment is no more or less resilient for journalists or unaffiliated speakers. Yet last year, Crystal Cox learned that she had no shield at all against a $2.5 million defamation verdict for her Internet posts about an Oregon bankruptcy proceeding. Her confusing rants on called the courts corrupt and accused the plaintiffs of serious wrongdoing. Because she is a one-woman crusader, the federal court barred her from any enhanced protections that usually apply in defamation cases involving media defendants. Obsidian Finance Group v. Cox, No. 3:11-CV-00057-HZ (D. Or. Nov. 20, 2011).

The judge found Cox was not “the media,” as she had failed to demonstrate: that she had a journalism education; that she was affiliated with a “recognized news entity”; that she had followed “journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest”; that she kept notes; that she and her sources had agreed to confidentiality; that her blog was “an independent product rather than” an assembly of others’ posts; or that she had “contact[ed] ‘the other side’ to get both sides of the story.” Because Cox flunked his litmus test, the judge held that her writings warranted no heightened protection under the Constitution. She went to trial with no protections at all and with all legal presumptions against her, and she lost—big-time—against wealthy and powerful opponents.

The Oregon federal court is not alone in the recent wave of decisions creating a colossally confusing First Amendment caste system. Last year, the Second Circuit ordered an award-winning filmmaker to turn over outtakes of a commissioned documentary to lawyers in Ecuadorian civil and criminal litigation arising from accusations that an oil company polluted rain forests and rivers. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011). Second Circuit journalists’ privilege law has long been among the most protective in the federal courts. But here, the court distinguished away all prior privilege rulings on the ground that the law protects only “the role of the independent press.” (The emphasis is the court’s.) The shield might have protected the documentarian in other circumstances, but not here, because he had been “commissioned to publish” and could not demonstrate “editorial and financial independence.”

The commissioned nature of a publisher’s work is also the subject of a pending decision in the Iowa Supreme Court. In Bierman v. Weier, No. 10-1503 (Iowa, argued Jan. 25, 2012), the court will decide whether a publish-on-demand company hired to print memoirs deserves no First Amendment protections at trial. Because the vanity press “is a business which contracts to publish documents for private authors,” the trial court held, it “is not the New York Times or any other media entity” and its rights “have nothing to do with the First Amendment.” If the publisher loses, its trial will be governed under a strict liability standard.

Contrast these decisions with the decision in a criminal case in Maryland, U.S. v. Cassidy, No. RWT 11-091 (D. Md. Dec. 15, 2011), extending the First Amendment—and comparing the expression at issue to the Federalist Papers—to a really creepy speaker. The federal court dismissed an indictment brought under an anti-stalking statute that proscribes the use of an interactive computer service to “cause substantial emotional distress” to a victim. The defendant had been charged for anonymously blogging and tweeting disturbing statements about the leader of a religious group. The court held that because the posts and tweets were published to a mass audience, the victim could have averted her eyes to the expressions. Further, the court found, the subject matter touched on religion. For these reasons, the speech deserved the full protection of the First Amendment, and the indictment could not stand.

All of this has to leave us wondering: Under the courts’ various litmus tests, does my speech occupy a higher First Amendment caste if I am less independent, or more mainstream?


Charles D. Tobin

The author, a senior editor of Litigation, is with Holland & Knight, Washington, DC.