By now, many of you have heard about the dust-up at W. Blake Gray’s The Gray Market Report. (Full disclosure- Blake is a member of the Palate Press Editorial Board.) If you haven’t, you can read about it HERE. I will not comment any further on that specific matter. However, as the resident attorney at (as well as Publisher of) Palate Press: The online wine magazine, this strikes me as an opportune moment to renew the discussion previously presented at the 2009 Wine Bloggers Conference, Legal Issues for Wine Bloggers. In this edition, I will address the First Amendment, subpoenas, and defamation. If it appears this is of interest to people, perhaps we will write more about copyright, trademark, and more.
Bloggers and the First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Are bloggers members of the press, so that the First Amendment applies to them?
As a blogger, I would like to simply say “yes.” As an attorney, I cannot answer a simple question with a simple answer, for it is not really that simple. Sorry.
Courts have hinted, and in some cases stated, that blogs can be considered press, or akin to press. Here are a couple of examples:
The public and whatever press have any interest, including newspapers, freelance writers, bloggers and anyone else, ought generally to be able to see what is going on in courtrooms, including sentencing hearings.
…news about his new Wal-Qaeda designs was reported in the press and on blogs, and almost all of the sales of Smith’s Wal-Qaeda items occurred within a month of the first publicity that followed upon the press and bloggers discovering those designs.
Plaintiff also created press releases for public access. Hofmann Decl. Exhs. A & B. At least three media outlets reported on the documents, including a blog that members of the public used for discussion.
In support of the Motion, Defendant … presented the court with hundreds of pages of articles from various print and other media outlets, including The Cedar Rapids Gazette, The Des Moines Register, The Dubuque Telegraph-Herald, The New York Times, The Iowa Independent and the “State 29” blog. 
Clearly, blogs can be considered press for the purposes of the First Amendment, but only if they are functioning as press. In all the cases cited above, the blogs being discussed were, in some way, reporting or discussing news. One can editorialize and still be considered “press.” Almost every newspaper in the country has an editorial page. However, a blog that is truly nothing more than a personal diary for all to see is likely to not get the benefit of the First Amendment as a member of the press.
Defamation and Opinion
What is defamation? In general, it is a false statement, either published (libel) or spoken (slander), that injures another’s reputation or good name. There are two “levels,” for lack of a better phrase, of defamation, defamation per se and defamation per quod. Defamation per se is something so egregious that the words themselves are assumed to have caused injury, and the Plaintiff need not show any injury. The classic examples include calling somebody a criminal or maligning a lady’s sexual morality. Defamation per quod is a statementthat, on its face, is not presumed to be injurious. A Plaintiff alleging defamation per quod must also show injury.
Why do I say “in general?” Because every state has its own defamation laws. They all follow the basic construction described above, but how they are applied varies from state to state.
Okay, now that we have a general understanding of what defamation is, how does it apply to wine bloggers? Excellent question. The most obvious way it can apply to defamation, or to its cousin, commercial disparagement (think defemation of a business, rather than an individual, and we’re close enough to talk about it), is in wine reviews. Look at these two different reviews. Are either of them defamatory?
One winemaking technique is to add flavoring to wine. As an experienced winemaker and wine taster, I can say without a doubt that _________ wine has added oak extract for artificial oak flavor, as well as Mega Purple for color.
Wood defeats fruit.
Sticky vanilla oak juice.
Too much is too little.
The first makes a statement that can be shown to be either true or false. The second is an opinion.
Okay, that was easy. How about this, on a website run by a person that holds herself out as an expert and who has lots of wine-related initials after her name:
This tastes like the winemaker added oak extract for artificial oak flavor, and Mega Purple for color.
Harder, isn’t it? On the one hand, “this tastes like” sounds like an opinion. On the other, the initials say “expert” to readers, and also say that this is more than mere opinion, but perhaps also a statement of fact teased out by the expert palate.
There is one other interesting quirk to consider in defamation actions. Who you are makes a difference in how you can be defamed. If you are a private person, the simple rules described above apply. But if you are a “public figure,” either a public official or somebody who is otherwise in the public eye, different rules apply. When the alleged victim of a defamatory statement is a public figure, they usually have to also demonstrate that the person making the statement knew it was false. That may not sound like a big deal, but it can be. Take the last example, above. Would it make a difference if the winemaker was some John Doe you never heard of, or if a well-known wine personna made it? Indeed, it might.
What can you, the wine blogger, take from this discussion? The closer you get to a specific statement, and the more you present yourself as an expert, the greater caution you must exercise in your writing. This should not discourage anybody from writing about wine. Just remember, the ease of blogging, and sometimes the anonymity of blogging, does not make you immune from the common rules of society we have all followed for centuries.
Anonymity on the Internet
Some people blog anonymously. They might do it because their blog might create problems with an employer, or because they don’t want the public personna to be part of their private life. Anonymous commentary is a tradition older than the United States. The Federalist Papers were published anonymously. Thomas Paine first published Common Sense anonymously. Anonymous bloggers are in good company. Courts have even gone so far as to recognize the internet as a “particularly effective forum for anonymous speech.” Sony Music Entertainment, Inc. v. Does. They also enjoy the same protections, and limitations, of anonymous pahmpleteers and campaigners.
The Supreme Court of the United States has stated that “an author’s decision to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Commission. This is because “the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.” The Supreme Court has also held that there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to … [the Internet] medium.” Reno v. ACLU. Based upon those Supreme Court rulings, other courts have said things like, “[i]t is clear that speech over the internet is entitled to First Amendment protection” and that “[t]his protection extends to anonymous internet speech.” Doe v. Cahill.
Anonymous speech, whether on the internet or elsewhere, does not have absolute protection. Where an anonymous speaker crosses the line from protected speech, such as in copyright infringement, trade secrets infringement, or defamation, a plaintiff can seek to identify them. Note, please, the use of the word “seek,” for it is important. The plaintiff is going to have to do more than just make the accusation, for courts are sensitive to the use of legal process as a form of coercion or intimidation. A plaintiff alleging a claim that allows them to pierce a writer’s anonymity will have to meet certain conditions before they can succeed.
What are the conditions? That depends upon where you live. This is an evolving area of law. Some states and federal courts have addressed the issue, others have not. There are four-factor tests, seven-factor tests, and tests based upon existing legal standards like a “prima facie cause of action” or “facts sufficient to defeat a summary judgment motion.” They all boil down, though, to one basic issue- ‘is there really a claim there, or is the plaintiff just trying to shut the author down through the intimidating power of the legal system?’
Even bloggers who blog under their own names might sometimes have to deal with anonymous comments. The first question a blogger needs to deal with is whether she should permit comments, and if she does, how they should be moderated. This is a potential trap. It sounds a bit odd, but the more you moderate, the greater the potential liability.
The key phrase is “internet content provider.” An internet content provider is a person responsible, “in whole or in part,” for “creation or development of information provided through the Internet.”  An internet content provider can be held responsible for content they publish on their site, but not necessarily content published by somebody else, even if they provide the forum. The relevant statute says, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 
Unfortunately, the statute defines the white and the black of the issue, but does not tell anybody when the lighter shade of gray counts as white, or the darker shade of gray as black. Drawing those lines, doing the dirty work of interpreting the statute, falls to the courts. A few courts have had the opportunity to address the matter, and this is what they have said:
“The “development of information” therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication.” 
the “exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content” do not transform an individual into a “content provider” within the meaning of sec. 230. 
What does this mean for a blogger accepting comments on their website? As you can see, the law is still evolving, but based upon the statute and the cases, the important thing is to be sure that moderation is to keep out spam and bad language, and to edit for length, but not to take any actions that can be interpreted as approving a comment. That means not just publishing the comments you like, for doing so can make you the “internet content provider” of the comment. In the same vein, avoid editing for anything other than length, for if you edit for content, you risk becoming the “internet content provider” as well.
Anonymous comments enjoy the same First Amendment protections as anonymous blog posts. The blogger can be put in the unusual position of an intermediary. Plaintiffs claiming they were defamed, or attempting to protect copyrights or trade secrets, have to go through the blogger or the website host to get to the commenter. That means a blogger can be part of a lawsuit, even if not a party to the lawsuit.
What is a blogger to do when faced with a demand to identify who published a comment, or even with a subpoena? One choice is to give the information, let the commenter take care of himself.
Another choice, though, is for the blogger to protect the commenter. Even though not a party, courts have ruled a blogger or website host has the right to protect the anonymity of commenters, even though they are not a party to the lawsuit. There are two different reasons. The first is that the commenter would not be on notice of the suit and would not have the ability to protect themselves. The second is that the publication itself has an interest in being able to protect anonymity, in the interest of the publication and future comments. Therefore, a blogger has the right to file a motion to quash a subpoena or to refuse to provide identifying information.
Everything above describes what the law is for bloggers, and what arguments might apply to certain issues if they find themselves in a court of law. The best advice, though, is to avoid a court of law. A blogger will have to pay somebody to make those arguments, somebody who charges by the hour. Hopefully, being fully informed about the laws related to blogging will help people avoid the pitfalls that can land them in court.
David Honig will discuss this topic live and take questions in The Palate Press Forum on Tuesday evening, October 5th, from 9-10 pm Eastern.
 U.S. v. Biagon, 122 F.3d 837 (9th Cir.1997).
 Smith v. Wal-Mart Stores, Inc., 983 F.2d 1068 (6th Cir. 1992),
 Electronic Frontier Foundation v. Office of Director of Nat. Intelligence, 2008 WL 2331959 (N.D.Cal. 2008)
 U.S. v. Agriprocessors, Inc., 2009 WL 2255728, N.D.Iowa, July 27, 2009.
 Sony Music Entertainment, Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y.2004).
McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342, 115 S.Ct. 151, 131 L.Ed.2d 426 (1995).
 Reno v. ACLU, 521 U.S. 844. 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005).
 Telecommunications Act of 1996, 47 U.S.C. 230(f)(3).
 Telecommunications Act of 1996, 47 U.S.C. 230(c)(1).
 Batzel v. Smith, 333 F.3d 1018, 1041, C.A.9 (Cal.),2003.
 Zeran v. America Online, Inc., 129 F.3d 327, C.A.4 (Va.),1997.
David Honig, the Publisher of PALATE PRESS: The Online Wine Magazine, is a shareholder with the lawfirm Hall, Render, Killian, Heath & Lyman, in Indianapolis. He is licensed to practice in Florida, Illinois, and Indiana, as well as before several federal court districts, courts of appeal, and the United State Supreme Court. Mr. Honig is a litigator and has appeared in trial courts, and before courts of appeal, in many states including Florida, Indiana, Illinois, Michigan, Alabama, New Hampshire, New York, and Georgia.