Jan 20, 2014

Bloggers and Journalists Have Same First Amendment Rights, Court Rules

Bloggers and the public in general have the same First Amendment protections as the institutional press in defamation suits over statements on issues of public concern, the federal Ninth Circuit Court of Appeals held on Friday (Jan. 17).

The ruling came in Obsidian Finance Group v. Cox, No. 12-35238 which has invoked the question of whether a blogger receives the same level of protection as journalists in two respects: under Oregon's reporters' shield law, and under the First Amendment. I have written a number of posts about the shield law issue in the case, which resulted in a ruling by the trial court that blogger Crystal Cox is not protected by the shield statute. (I should note that Cox has criticized my posts).

But the appeal, which attracted amicus briefs from the Reporters Committee for Freedom of the Press and Scotusblog, involved only the second issue: whether the First Amendment requirement, announced by the U.S. Supreme Court in Gertz v. Robert Welch, 418 U.S. 323 (1974), that liability for defamation requires a finding that the defendant had acted with at least negligence applies to bloggers as it does to the traditional media. The Supreme Court has also held that presumed damages cannot be awarded unless the plaintiff in a libel case shows that the defendant acted with "actual malice," which is knowledge that a statement was false or reckless disregard for whether the statement was true or not. The appeals court held these principles apply to bloggers discussing issues of public concern as they do to traditional media, agreeing with other federal appeals courts that have addressed the issue.
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.
slip op. at 11-12.

As a result of this ruling, the appeals court held that the trial court should have instructed the jury that it had to find that Cox acted negligently in making the post in order to award actual damages, and that she acted with actual malice in order to award presumed damages. The court also rejected Cox's argument that the plaintiffs -- a company and its principals who were appointed bankruptcy trustees -- were public figures.

The trial judge's ruling on Cox's eligibility for the shield law got a lot of attention, and led to a lot of hand-wringing. But his separate decision -- which was the subject of the appeal -- that Cox should not enjoy the First Amendment protections applicable to a libel case because she is a blogger was more significant and problematic. The Ninth Circuit has now corrected this error, reinforcing the concept that the First Amendment applies to all speakers on matters of public concern, not just the traditional media.

Obsidian Finance Group v. Cox
Obsidian Finance Group v. Cox
Obsidian Finance Group v. Cox


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