Posted by Eugene Volokh: Optional Speech Protections: The First Amendment protects speech, and the Supreme Court has made clear that it protects Internet speech as well as offline speech. Under the logic of the Court's First Amendment cases, bloggers should be as protected as larger media speakers (whether they're offline larger media, or online, such as Slate or Salon).
But First Amendment protections have their limits. For instance, it's not clear whether the First Amendment lets journalists refuse to testify about their confidential sources; some courts of appeals say yes and some say no. What's more, it is clear that this journalist's privilege, if it exists, has its limits: If the sources' identities are really necessary for a criminal case or perhaps even a civil trial, journalists can be ordered to turn them over. Likewise, the Supreme Court has held that corporations may be barred from spending money to support or oppose political candidates; I think that decision was wrong, but the Court did decide this. And the decision's logic suggests that even media corporations could be barred from engaging in such speech. That's where optional speech protections come in: It turns out that many states have statutes (or state constitutional provisions) that do protect a journalist's privilege. The California statute, which is at issue in the recent Apple trade secret litigation, provides very broad protection: It categorically prohibits courts from holding any "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication" in contempt for refusing to name his sources, no matter how important the information may be. Likewise, federal campaign law, which generally bans certain commentary on candidates by corporations, has a "media exemption" that lets "any broadcasting station, newspaper, magazine, or other periodical publication" comment about candidates even if it is owned by a corporation. I'm going to be writing an article in the next few months on optional speech protections, and especially how they apply to the new media. But the short point I want to mention here -- both as to the California journalist privilege and the election law media exemption -- is that many of the laws already cover blogs and other online media sources. Even a purely literal reading of the laws gives us that: The law isn't limited to newspapers or magazines, but covers all "periodical publications." The law doesn't apply to one-shot publications, such as books. (Maybe it should, but it doesn't.) It doesn't apply to sporadic publications, such as occasional newsletters or posts, with some unpredictable number of months elapsing between each. It doesn't apply to communications to a few acquaintances, which probably don't qualify as publications. But if someone posts items every day, or even several times a week, and reaches a significant number of members of the public, then he's producing a periodical publication. That's just the literal, and sensible, meaning of those provisions. I realize that the drafters of these laws probably didn't envision the Internet, which wasn't a major communications medium at the time. But they used particular language that is not inherently limited to words on paper. The literal meaning of the language does include all periodical publications; unless it's changed, that's how it should be read. Nor is there, I think, any sound policy reason to read the words more narrowly, no reason to distinguish The New Republic from Slate.com, or a newspaper columnist from Instapundit. But I'm not resting the argument on policy alone: Here both the text and the policy cut in favor of equal protection for speech by offline publications, online professional publications, online amateur publications, and things in between. Finally, let me dispose of two technical objections, which I mentioned in an earlier post: (1) Some dictionaries define "periodical" as meaning less often than daily, but that's not the majority definition, and it's not apt in this context, since "other periodical publication" shortly following "newspaper" suggests that newspapers, many of which are daily, are periodicals, and therefore that "periodical" includes daily publications. (2) One can argue that "periodical" requires a fixed period between items, such as roughly 24 hours or 7 days, and that therefore blogs that sometimes have posts 5 minutes apart and sometimes 15 hours apart don't qualify. But I don't think that periodical requires such fixed intervals -- publishing at least once a day should be as periodical as publishing exactly once a day at a fixed time -- nor would such a definition make much sense. _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
