UPDATED: Federal Court Rules Bloggers Have Same First Amendment Protections as 'Traditional' Journalists
JANUARY 22, 2014: Last week, a U.S. federal court ruled that bloggers have the same free speech protections as traditional journalists under the First Amendment: If the topic is a "matter of public concern," plaintiffs must prove the writer was acting negligently -- even if the post is defamatory.
Writing for the 9th U.S. Circuit Court of Appeals in San Francisco, Judge Andrew Hurwitz stated that the topic Cox was writing about, accusing Obsidian Financial Group and Kevin D. Padrick, a bankruptcy trustee, of corruption, was of public concern, and that the jury in Cox's previous trial (who had ordered her to pay $2.5 million in damages) had not been instructed that negligence must be proved. The court remanded the case to a retrial.
To establish negligence, a plaintiff must show the defendant failed to "act with a reasonable level of care" upon publishing -- whether the writer of the content
made statements "in a good faith and reasonable belief that they were true."
Interestingly, the court named some basic journalistic practices that it said do not apply to Cox's case.
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: “With the advent of the Internet and the decline of print and broadcast media...the line between the media and others who wish to comment on political and social issues becomes far more blurred.” …
In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.
The court also ruled that the people Cox was blogging about were not public officials, who would have been held to an even higher standard than negligence: actual malice, meaning the plaintiff would have to prove that the blogger published with "knowledge that the information was false" or "with reckless disregard of whether it was false or not."
It will be interesting to watch the retrial to see to what level of journalistic practices Cox will be held in establishing whether or not she was negligent.
Read on for Liza's trenchant commentary on Cox's previous case. -- Julie Ross Godar
DECEMBER 7, 2011: Last week, blogger Crystal Cox was found liable for defamation in a trial before a federal judge in Portland, Oregon. The civil award was based on a blog post Cox posted, accusing Obsidian Financial Group and Kevin D. Padrick, a bankruptcy trustee, of corruption. The court awarded the plaintiffs $2.5 million dollars.
What does this mean for other bloggers?
Unfortunately, the answer is not simple. There are a number of factors bloggers need to consider.
First Issue: Is Cox a Journalist? One of the things the judge had to consider was whether or not Cox was a journalist. She claimed that she was, and that she had an inside source for her corruption allegations, but that she should not have to provide information about that source as a journalist. Cox claimed protection as a journalist under Oregon's "media shield" law.
Cox identifies herself on her site as an "investigative blogger." She runs a large number of blogs and web sites on topics ranging from whistleblowing in the real estate industry, to corruption in Montana, to alternative medicine, to nature photography.
Unfortunately for Cox, Oregon's media shield law was written before the rise of blogs as news publications, and whether bloggers are included or not is a matter of interpretation. Taken together, Oregon Revised Statutes, 44.510(2) and 44.520(1), would seem to include bloggers, but bloggers are not listed explicitly.
Those statutes read, in part, "No person connected with, employed by or engaged in any medium of communication to the public," can be compelled to disclose a source. The statute defines "medium of communication" as having "its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system."
The judge in this case found that because Cox was not employed by any of those specific types of journalistic entities, she was not a journalist.
This Means: Only 40 states have media shield laws. While the author of those laws in Washington state, Bruce Johnson, was quoted as saying that he believes the media shield law would be applied to a blogger in that state, the language clearly varies from state to state -- if your state even has one. If you consider yourself a journalist, you should look into the laws in your state.
Second Issue: Defamation: The judge addressed three important items in discussing the claim of defamation.
- First, he noted that the Oregon media shield law does not apply in the case of defamation claims, so even if Cox were a journalist, she could not claim to be protected by the media shield law.
- Next, he considered Cox's claim that the plaintiffs were "public figures" and therefore required to prove that the defendant acted with "actual malice," in other words, did Cox publish her claims with knowledge that the statements were false or in reckless disregard of whether or not they were false? The judge found that although there was some media coverage of the issues leading to Cox's accusations of corruption, the plaintiffs were not public figures, so the level of proof required to show that Cox's publications were defamation is a lower one.
- Finally, the judge considered the distinction between publishing one's opinions vs. publishing something that portrays an alleged fact. For those blog posts Cox published about the plaintiffs, which were clearly expressions of her opinions, the judge found that they were not defamatory. However, he found that one of the posts was presented as statements of fact about the plaintiffs, not qualified as the blogger's opinion.
This Means: IF you are making strong accusations about someone's bad behavior in your blog, and the accusations do not, for example, reflect something they have already been convicted of doing, making sure that you explain that those accusations are YOUR OPINION is your safest bet if you do not want to be sued for -- or lose a lawsuit in which you were sued for -- defamation.
This Also Means: Public officials, who are real public officials -- not just people who happen to be lawyers or whose businesses are discussed in a newspaper article -- are fair game, and held to the stricter standard of proof of "actual malice." Governors, mayors, members of Congress, are all clearly fair game.
Last Issue: Crystal Cox did not hire a lawyer to defend her publications. She represented herself. Now she owes $2.5 million dollars, which it seems unlikely that she has, or indeed, ever will have. She may be subject to garnishment of wages and tax refunds for the rest of her life.
What This Means: You may think you can't afford a lawyer. But you may well be a lot worse off if you don't find a way to hire a lawyer if you are sued.