02/06/2014 11:34 am ET | Updated Apr 08, 2014

Courts Affirm Bloggers' First Amendment Protections

Bloggers possess significant First Amendment protections against "prior restraint" through injunctions. A Florida Court of Appeals reversed an injunction against "... defamatory blogs in the future" in a lawsuit involving a blogging former tenant and a commercial landlord (Chevaldina v. R.K./FL Management, Inc.). The landlord obtained the name of the anonymous blogger in court ordered discovery from an Internet service provider. The landlord then sued the blogger alleging defamation per se, libel, tortious interference with contractual relationships, tortious interference with advantageous business relationships, invasion of privacy, trespass, civil conspiracy, and additionally sought an injunction. A second lawsuit alleged copyright infringement from the blogger's use of a published photograph of the landlord. The trial court granted a temporary injunction prior to a trial after determining that many of the blog posts were "arguably defamatory."

"Defamation per se" concerns false statements that are considered inherently so harmful that damage is automatically presumed to exist. These statements typically fall into one of four categories: allegations injurious to one's business or profession, allegations of a "loathsome disease," allegations of "unchastity," and allegations of criminal activity.

The Florida Court of Appeals stated that "injunctive relief is not available to prohibit the making of defamatory or libelous statements." The injunction concerning speech would be "a classic example of prior restraint on speech triggering First Amendment concerns." There is an exception to the anti-injunction rule when "the defamatory words are made in the furtherance of the commission of another intentional tort." The landlord argued that the blog posts interfered with advantageous business relationships, an intentional tort. However, the Court held that insufficient proof was presented at the trial court's injunction hearing to conclude that the blogs were "having a deleterious effect upon prospective tenants."

In conclusion, the Florida Court of Appeals noted that "angry social media postings are now common." While the medium may be new, older decisions, such as one that allowed an individual to hold a sign on a public sidewalk in front of an auto dealer, allow statements to be made without prior restraint with, however, the possibility of subsequent defamation liability.

Another recent decision by the U.S. Court of Appeals for the Ninth Circuit involved blog posts that were critical of a bankruptcy trustee (Obsidian Finance Group, LLC v. Cox). The bankruptcy trustee sued the blogger and obtained damages for defamation. The Ninth Circuit decided that proof of negligence and actual damages, required in lawsuits against institutional media defendants who communicate on matters of public concern, also applies to a blogger. First Amendment protections do not require one to be a trained journalist connected with a traditional news organization. While the bankruptcy trustee was not a "public figure" that would trigger a requirement of proving "actual malice" in a defamation case, the blogger's comments did address a matter of public concern. Consequently, the trustee would need to prove that the blogger acted negligently.

Both decisions affirm that blogging is protected by the First Amendment. Courts tend to see no distinction between a private blogger and a traditional public journalist. Court decisions involving emerging social media do not overturn established First Amendment law. A business will find it difficult to restrain critical blog posts. Additionally, many states have legislation providing procedural protections for individuals who are sued in an attempt to silence or harass them for communicating on an issue of public concern. While anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation is beyond this comment, it may also protect bloggers.