Bloggers & the Law: Has Blogging Killed the First Amendment?

Above the Law via Scott Graham of Legal Pad brings our attention to the recent  IP panel discussion by Alex Kozinski,  Chief Judge for the United States Court of Appeals for the Ninth Circuit (“Chief Judge”). The Chief Judge believes blogging has killed the first Amendment:

[Kozinski] argued that technology has rendered the First Amendment obsolete. As incidents ranging from Wikileaks disclosures to Barbra Streisand’s house have demonstrated, it’s no longer possible for the government or individuals to suppress speech in an age of distributed self-publishing via blogs and social networks.

“How do you sue a blogger who may be anonymous, or may be posting from Uzbekistan?” Kozinski asked. “And assuming you somehow get service of process and prove that he acted with malice, so what? How do you collect a judgment against a guy whose principal assets are an iMac and a genuine autographed poster of ZZ Top?”

Before I send you all off to read the full article on Above the Law, notice the Chief Judge’s point on “service of process.” For my non-legal readers, here’s the scoop.



1. You/Your Business gets sued.
2. For that to happen, the Plaintiff (the business or individual suing you) first completes, serves and files a complaint and summons, typically, with the court in the county where you reside.
3. What next? US laws generally says you can’t just sue someone and not notify them. “Due process” requires they know about it. What does that mean? It means the Plaintiff must serve you/your business with notice that you are being sued so you can have your lawyer show up in court and defend you, among other things.

The legal business is highly driven by notice requirements. You miss a notice deadline or do not properly notify parties in a lawsuit about a case, it is a bad thing. If your lawyer who represents you misses these deadlines, it is a very bad thing. If you represent yourself, you can easily lose your case or have it dismissed, depending on the facts or circumstances.

4. The point the Chief Judge raises is how hard it is to find people to serve this notice when they are bloggers and especially where they are also anonymous bloggers. I acknowledge the challenge but do not believe this eviscerates the First Amendment. On the contrary. It is now much easier to track people’s IP addresses, even anonymous personalities on the web, discover who their Internet Service Providers are and track them down to serve them. Further, I believe the Chief Judge’s view is indicative of not truly understanding what the law can do with social media.

A defendant can be served via FACEBOOK or TWITTER. See The Pirate Bay Case; see also the Australia Ruling on Service via Facebook.

Social media can be used as a tool to serve notice on parties. Attorneys, especially those who understand social media, must be prepared to roll their sleeves, think through policy issues and the long term impact of these first impression cases, if and when they file suits on behalf of their clients, in redefining and/or expanding the current rules on service of process to fit with modern times. We have work to do.

In my perspective, if a defendant in a jurisdiction (state) like California cannot be found to serve notice of a lawsuit but such defendant has a twitter, myspace, facebook or blogger etc. account, then electronic service notifying of the lawsuit against such defendant should suffice.

Having said the above, I am NOT oblivious to the issues still present even when service by social media takes place. For example, if the defendant lives abroad and the Plaintiff  is in the USA, can the defendant be  forced  to come into a USA court  to answer to  the lawsuit? I raised this conflict of laws and personal jurisdiction issues in Leila Djansi v. Chris/Ghana case.

Either way, it is all new territory and the legal industry should be prepared to take it on.

Alright, enough of my thoughts. Check out the article here.