Are Blogs Protected under the First Amendment?

Are Blogs Protected under the First Amendment?

by Corie Lynn Rosen, December 2009

With the emergence of the World Wide Web, global communication has accelerated on an unprecedented scale. It seems impossible to comprehend all that has occurred since 1989, when two inventions, the Uniform Resource Locator (URL) and HyperText Markup Language (HTML) made the first web browser possible. To put the explosive growth of the Internet into perspective, Yahoo! announced in August, 2005 that its search engine index now encompasses over 20 billion Web documents and images.

Riding the wave of the new technology is "blogging." For the first time, almost anyone can instantly publish and reach a global readership with minimal resources. It's no longer necessary to publish paper-based media, or even manufacture discs, to reach a vast audience. Blogs, (short for "web logs) allow people to convey thoughts, opinions, histories, anecdotes, and political ideas to the world, unimpeded by time and distance.

Any observer of the blogging practice might note that the Internet is being rapidly transformed into a virtual soapbox. With an instant, worldwide platform at our command, profound questions concerning social responsibility, potential malfeasance and the law are inescapable. Arguably, the quality of public discourse exhibited on the web is not keeping pace with technological change.

Based on our country's speech-supportive social history, one would think "virtual soapbox" an apt characterization; Americans pride themselves on living in a country that boasts a free press and a right to criticize their government, both in speech and in writing. In a country where the First Amendment (freedom of speech) is so close to the heart of our democracy, one would suspect that blogs, seemingly a new form of journalistic expression, would be welcomed with open legislative arms.

However, recent events have indicated that those legislative arms may be wrapped more tightly than most Americans might have previously thought. Foremost among current concerns is the Federal Election Commission's worry that blogs are being used for a variety of speech forms and so do not always reach a journalistic standard. In a recent California case one judge characterized blogs as failing to qualify as journalism.

Bradley Smith, Chairman of the FEC, has even suggested that the FEC take measures to regulate political speech in blogs---an extending a 2002 campaign finance law to the Internet. Smith has suggested that bloggers could soon invite federal punishment if they improperly link to a campaign's web site.

To many, suggestions that the FEC could in any way regulate political speech seem preposterous. First Amendment doctrine routinely points to political speech and declares, "this is the sort of speech we must carefully protect!" Perhaps even more surprising, Congress has introduced the "Free Flow of Information Act," which looks like it would limit protected categories almost exclusively to pre-internet media. With legislation, there is always room for interpretation and refinement, but at face value the Act appears at least somewhat problematic.

So why is Washington shying away from blogging in favor of more conventional channels of information? One reason is to try to protect sources from exposure. This concern seems increasingly relevant in light of the recent attacks on journalists. Yet, it would seem that the appropriate remedy would be to prevent those attacks by creating more severe penalties for the attackers, not to revamp the entire scheme of what is and is not granted journalistic weight.

Some experts speculate that these recent waves of change in America indicate a movement toward only allowing professional writers to communicate information. Such a change is dangerously speech suppressive because most professionals work for some entity and so are subject to losing their jobs, meaning that their work will be subject to the influence and so will be less objective than a private individual's blog.

Yes, it appears there are subtle whisperings of Brave New World type regulation in the future of America's media. While such whisperings may seem extreme, only time will tell whether or not they are unfounded. Today, it seems that bloggers will continue to post until Congress legislates otherwise. And if a day comes when Internet speech is indeed heavily regulated, how will these independent voices face a new world of heightened regulations? Why, bravely, of course.