9th Circuit: First Amendment media protections apply to bloggers, too

posted at 11:31 am on January 18, 2014 by Ed Morrissey

Should bloggers have the same legal protection as other media outlets? One might think that the lack of a requirement for credentialing in the First Amendment would mean yes, but a federal district court disagreed in 2011. In a case involving a blogger crusading against what she saw as fraud in a bankruptcy-counseling firm, a judge ruled that the plaintiffs in the libel suit did not have to prove malice to win punitive damages. Yesterday, the Ninth Circuit unanimously overruled that decision:

A federal appellate court ruled Friday that the author of a blog post deserves the same treatment in a defamation case as “institutional media.”

The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections. …

“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable,” Hurwitz wrote.

The subject of Cox’s blog posts were a matter of public concern, the court held, so in order to prove defamation, the plaintiffs would have to show she acted with negligence or malice in making false statements against them.

Eugene Volokh, who argued for the blogger in the appeal, notes the victory (via Instapundit):

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

  1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and

  2. libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.

Well, of course he’s right, although it was disturbing to see a district court get this so wrong. The media protections that have developed by legal precedent under the First Amendment must apply equally, as does the First Amendment itself. In fact, the media protections should probably apply equally to all speakers, and not just those who publish their works via paper, broadcast, or the Internet. One can make the argument that the media has to put itself in a more vulnerable position in order to function as communication sources and therefore should have more leeway, but that applies to bloggers at the very least as well as newspapers and television news outlets. It might apply even more, since bloggers are much less apt to have legal resources readily available and are much more vulnerable to intimidation.

Volokh notes, though, that the court stuck to the First Amendment, and not ancillary statutes on the state and federal level that offer additional protections to the “media.” Will those apply to bloggers as well, even if the statutes don’t explicitly include them? We’ll see, but this precedent will make a pretty good argument for their inclusion if a legal fight arises.  That may be especially true if this gets appealed to the Supreme Court and make for an even broader precedent (assuming it’s upheld), but the plaintiffs may choose to pass on an appeal and wait for the new trial ordered in this decision instead.

This, however, does not let the original respondent off the hook in the lawsuit.  The First Amendment protection does not mean that bloggers (or anyone else) are completely immune to libel suits. The original court case determined that one of the posts in question did not fall cleanly under the category of opinion but asserted factual knowledge that turned out to be false. This time it will take a finding of both falsity and either malice aforethought or reckless disregard for the court to grant a large punitive award, rather than just proving her allegations false. A reading of the court opinion suggests that such an argument may be available:

Kevin Padrick is a principal of Obsidian Finance Group, LLC (Obsidian), a firm that provides advice to financially distressed businesses. In December 2008, Summit Accommodators, Inc. (Summit), retained Obsidian in connection with a contemplated bankruptcy. After Summit filed for reorganization, the bankruptcy court appointed Padrick as the Chapter 11 trustee. Because Summit had misappropriated funds from clients, Padrick’s principal task was to marshal the firm’s assets for the benefit of those
clients.

After Padrick’s appointment, Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.  See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations. This defamation suit ensued.

The district court held that all but one of Cox’s blog posts were constitutionally protected opinions because they employed figurative and hyperbolic language and could not be proved true or false. Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232–34 (D. Or. 2011). The court held, however, that a December 25, 2010 blog post on bankruptcycorruption.com made “fairly specific allegations [that] a reasonable reader could understand . . . to imply a provable fact assertion”—i.e., that Padrick, in his capacity as bankruptcy trustee, failed to pay $174,000 in taxes owed by Summit. Id. at 1238. The district judge therefore allowed that single defamation claim to proceed to a jury trial. The jury found in favor of Padrick and Obsidian, awarding the former $1.5 million and the latter $1 million in compensatory damages. …

Cox does not contest on appeal the district court’s finding that the December 25 blog post contained an assertion of fact; nor does she contest the jury’s conclusions that the post was false and defamatory. She challenges only the district court’s rulings that (a) liability could be imposed without a showing of fault or actual damages and (b) Padrick and Obsidian were not public officials.

This is an important decision, and a win for bloggers. The core case, though, should serve as a cautionary tale. When a blogger or a reporter goes on a crusade, especially against targets who are not “public persons” (the appellate court rejected Cox’s appeal on that point), he or she had better take care to get the facts right or at least demonstrate a responsible approach to finding them.


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Comments

Somewhere an Obamacrat weeps that an individual still has a right that the government cannot suppress.

Fenris on January 18, 2014 at 11:36 AM

Something else for Obama to lecture to the Supreme Court justices at the State of the Union speech.

ThePrez on January 18, 2014 at 11:37 AM

The future must not belong to those who slander the prophet of Islam.

rogerb on January 18, 2014 at 11:46 AM

As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable,” Hurwitz wrote.

This implies that if a “workable” distinction could be found they would uphold it.

That would be very far removed from:

The media protections that have developed by legal precedent under the First Amendment must apply equally, as does the First Amendment itself.

(My emphasis)

This entire case should have stopped right there.

We live in very dangerous times.

Difficultas_Est_Imperium on January 18, 2014 at 11:47 AM

The media gets stuff “wrong” all the time. Would a correction/retraction suffice to get the blogger out of hot water? Lying is wrong but everyone should be held to the same standards. Good luck with that.

Cindy Munford on January 18, 2014 at 11:49 AM

This one is such a no-brainer that I’m surprised the 9th Circuit got it right. I’m sure we can count on good ol’ boy John Roberts to overturn it though.

besser tot als rot on January 18, 2014 at 11:49 AM

The media protections that have developed by legal precedent under the First Amendment must apply equally, as does the First Amendment itself. In fact, the media protections should probably apply equally to all speakers, and not just those who publish their works via paper, broadcast, or the Internet.

Yes!

davidk on January 18, 2014 at 11:49 AM

This “media” distinction is a post-Founding Fathers invention.

The First Amendment applies to the spoken and written word. The written word is “the press”, so named because printing presses were the most commonly used means of mass producing the written word. However, anyone who could afford one could buy one, print up whatever they wanted, and distribute it. They could even give away what they printed for free if they so chose. In lieu of having an actual “press” they could write down whatever they wished, manually produce as many copies as they wanted to hand out, and freely distribute them.

If “the press” is given a special definition and exemptions and freedoms under the First Amendment that everyone else does not have the freedom of everyone else to communicate freely has been limited. An elite class now defined by politicians has the freedom to “freely” communicate in ways that ordinary citizens do not. This is a form of government control over the “press” or “media”. A government limitation of the freedom of ordinary citizens to communicate.

farsighted on January 18, 2014 at 11:51 AM

Should bloggers have the same legal protection as other media outlets?
======================================================================

YES!

canopfor on January 18, 2014 at 11:57 AM

What has happened to the 9th Jerket Court of Schlemeils lately?

Lanceman on January 18, 2014 at 12:02 PM

Claim: Boehner Calls Steve King ‘A**hole’ for Fighting Amnesty for Illegal Immigrants

http://tinyurl.com/owpxpu4

davidk on January 18, 2014 at 12:03 PM

For once the 9th Circus Court got one right. Their percentage is still worse than the Houston Astros.

bw222 on January 18, 2014 at 12:10 PM

Chee! Tanks fellers *Whew* Imma glad ya’ll think we deserve our natural rights tooooo….

/

Tired of being held hostage by people in black robes…. :/

-Wasteland Man.

WastelandMan on January 18, 2014 at 12:12 PM

davidk on January 18, 2014 at 12:03 PM

Really? So would I be wrong if I called Boehner a two bit, four flushing, cheating, conniving, lying, manipulating, calculating, alcoholic, donor whore?

thatsafactjack on January 18, 2014 at 12:13 PM

Did I leave out chiseling an sniveling?

Yep I did.

Okay… Boehner’s a two bit, four flushing, cheating conniving, lying, manipulating, calculating, alcoholic, chiseling, sniveling, donor whore.

There. I think that just about covers it.

And, if course, it goes without saying that he’s willing to sell his fellow American citizens, the constitution, the rule of law, national sovereignty, and the very value of citizenship, down the tubes for that donor money.

Have another drink, Boehner. Have many.

thatsafactjack on January 18, 2014 at 12:21 PM

if…of … danged finger thingies.

thatsafactjack on January 18, 2014 at 12:23 PM

thatsafactjack on January 18, 2014 at 12:23 PM

You left out Obama’s chain-smoking golf buddy.

Fenris on January 18, 2014 at 12:26 PM

Fenris on January 18, 2014 at 12:26 PM

lol! I did! How could I have left that out? Thanks for the addition. :)

thatsafactjack on January 18, 2014 at 12:28 PM

if…of … danged finger thingies.

thatsafactjack on January 18, 2014 at 12:23 PM

Schadenfreude on January 18, 2014 at 12:31 PM

Bill O’Reilley and Goldberg, two dumbos, hardest hit!

Schadenfreude on January 18, 2014 at 12:32 PM

OT

Schadenfreude on January 18, 2014 at 12:32 PM

When a blogger or a reporter goes on a crusade, especially against targets who are not “public persons” (the appellate court rejected Cox’s appeal on that point), he or she had better take care to get the facts right or at least demonstrate a responsible approach to finding them.

Teh-heh, NYTs, crusaders for obama, die in his azz, fools. It’s not Beluga caviar. Suffocate from what you consume.

How come they get away with it?

Schadenfreude on January 18, 2014 at 12:36 PM

Has the NYT retracted their big fat lie on Benghazi?

Schadenfreude on January 18, 2014 at 12:39 PM

When will the LATs publish obama’s particulars?

Schadenfreude on January 18, 2014 at 12:40 PM

Blogs are traditional broadsides in another form, but not in another category.

So of course blogging is part of the Media and they are the basic type of journalists.

Thomas Paine is the godfather of bloggers.

profitsbeard on January 18, 2014 at 12:53 PM

Claim: Boehner Calls Steve King ‘A**hole’ for Fighting Amnesty for Illegal Immigrants

http://tinyurl.com/owpxpu4

davidk on January 18, 2014 at 12:03 PM

davidk: Speaking of *A-Holes*!:0
=================================

January 16, 2014, 12:05 pm
Biden to Ford: ‘Thank you for saving our ass’
VIDEO:
*********

Vice President Biden on Thursday gave a colorful thank-you to the Ford Motor Company for not seeking a government bailout during the financial crisis.

“Thank you for saving our ass,” Biden told Ford executive chairman Bill Ford Jr. while touring the Detroit Auto Show, according to a pool report.
(More…)
=========

http://thehill.com/blogs/ballot-box/195680-biden-declares-american-century-for-manufacturing

canopfor on January 18, 2014 at 12:54 PM

Who would of thought the Ninth Circus would have ruled this way,Shocka!Benedict Roberts will be the swing vote voiding it though.

jeffinsjvca on January 18, 2014 at 12:55 PM

This was a bit obvious wasn’t it? Only a dolt like a Senator or President could think otherwise.

pat on January 18, 2014 at 12:58 PM

Schadenfreude on January 18, 2014 at 12:31 PM

lol! I’ll keep mine, thanks. They aren’t that bad. :)

thatsafactjack on January 18, 2014 at 1:01 PM

They aren’t that bad. :)

thatsafactjack on January 18, 2014 at 1:01 PM

Indeed, and not implied at all.

Schadenfreude on January 18, 2014 at 1:04 PM

OT – simply superb read

Schadenfreude on January 18, 2014 at 1:24 PM

Schadenfreude on January 18, 2014 at 1:04 PM

lol! I knew that! :)

thatsafactjack on January 18, 2014 at 1:53 PM

he or she had better take care to get the facts right or at least demonstrate a responsible approach to finding them.

Kinda like the folks at MSNBC right? Hahaha.

scalleywag on January 18, 2014 at 2:30 PM

I’m a little confused. Because a blogger is “media”, they’re held to a lower standard for libel?!? Because it sounds like they decided that if Bubba is just an average schlub, who goes around passing out flyers to everyone he meets repeating something he read which says “X has done Y, and is a nasty person because of it”, he can be found guilty of libel and hit with punitive damages, even if he relied on someone else’s research. But, if Bubba’s a “reporter” doing this can only be hit with libel if they did it knowing it was false?!? Doesn’t that seem somehow backward?

Or, did I misread this somehow. (And, don’t get me wrong, I think everyone should have freedom of “the press”.)

GWB on January 18, 2014 at 2:31 PM

Should bloggers have the same legal protection as other media outlets?

I find it astonishing and enormously worrying that we even have to ask this question.

rrpjr on January 18, 2014 at 2:40 PM

The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections. …

TAL KOPAN (politico.com) on 1/17/14 at 5:01 PM

.
Who are these three people … and what did they do with the REAL “Ninth Circuit Court”?

listens2glenn on January 18, 2014 at 2:45 PM

O T :

OT – simply superb read

Schadenfreude on January 18, 2014 at 1:24 PM

.
Yes, indeed is it is.

Kudos. K J !

listens2glenn on January 18, 2014 at 2:54 PM

9th Circuit: First Amendment media protections apply to bloggers, too

And, commenters?

*pouting*

Thrown to the wolves, again…

Fallon on January 18, 2014 at 4:08 PM

Yeah, IDIOTS

………..just like Single shot shotguns, “”"”"”"”"”"”ASSAULT WEAPONS”"”"”"”"”"”"”"”" AKA your normal capacity 223 rifle and yes, machineguns are also protected by the right to KEEP AND BEAR ARMS.

SHALL

NOT

BE

INFRINGED

AND!

Congress shall make no law respecting an establishment of religion, or ….abridging the freedom of speech, infringing on the freedom of the press………

APPLIES to every individual!

( JACKASSES !)

I didnt seen these foolasses at the 9th who are MEN to tell me what it means. It F’inG says what it means.

CONGRESS
SHALL
MAKE
NO
LAW ! !

( DAMNIT !)

TX-96 on January 18, 2014 at 4:35 PM

9th Circuit: First Amendment media protections apply to bloggers, too

The 9th Circus has to issue at least one correct ruling a year, they might as well get it done right away in January. Now they can continue their craziness as normal for the rest of the year.

RJL on January 18, 2014 at 4:59 PM

9th Circuit: First Amendment media protections apply to bloggers, too

…especially liberal…socialist…communist…progressive…. bloggers!

KOOLAID2 on January 18, 2014 at 5:49 PM

As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable,”

Scary thing about that: They wanted to do it. They looked at it long and hard. But, alas, they just couldn’t find a way to make that work.

Buddahpundit on January 18, 2014 at 9:41 PM

When a blogger or a reporter goes on a crusade, especially against targets who are not “public persons” (the appellate court rejected Cox’s appeal on that point), he or she had better take care to get the facts right or at least demonstrate a responsible approach to finding them.

And, as Schadenfreude on January 18, 2014 at 12:36 PM has asserted, these rules/guidelines should also be followed by the main stream media. In fact, they should be held to an even higher standard, since the profess to be accredited “journalist”.

Rovin on January 19, 2014 at 6:54 AM

Blogs are traditional broadsides in another form, but not in another category.

So of course blogging is part of the Media and they are the basic type of journalists.

Thomas Paine is the godfather of bloggers.

profitsbeard on January 18, 2014 at 12:53 PM

needs repeating. People tend to forget this. The founding fathers were not part of the government, were writing things that the british crown wanted to surpress. IT is the reason that the 1st amendment was written in the first place to ensure that NO government would ever again trample on the rights of the PEOPLE nor the media nor would our government be able to stamp out the truth.

The fact that we are now debating the SAME topics that our founding fathers debated and puit to bed 200+years ago with many now supporting the right of government to trample those rights speaks volumes of the dangers our country faces of losing ALL our freedoms.

unseen on January 19, 2014 at 10:41 AM