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Court of Appeals Reconfirms that Bloggers have First Amendment Rights
January 18, 2014
Thomas Mennecke
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Did you know that if you're a blogger and someone tries chill your speech with defamation law, your rights are protected by the First Amendment? Considering the flurry of litigation, specifically the whole "blogger vs. real journalist" legal debate, one might be well inclined to believe that bloggers live in an anti-constitutional bubble, where the rights, privileges and immunities granted to every other believer in the First Amendment bounces off this imaginary bubble like water of a ducks back. But there's good news from the 9th circuit Court of Appeals.

Thus begins our story of Ms. Crystal Cox, Internet blogger who posted articles on her now defunct blog, accusing two bankruptcy officers "of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy." At the district court level, Cox actually did well for representing herself. All but one of her blog posts in contention were found to be protected as they merely contained hyperbolic speech. But the one article at issue here was different, as it "fairly specific allegations[that] a reasonable reader could understand . . . to imply a provable fact assertion" about the officer's alleged failure to pay taxes. The story that follows is familiar - a demand to remove the articles was refused by Cox and litigation ensued in Obsidian Financial Group v. Cox.

One of the major issues of this case is dealing with the level of scrutiny the court will apply to Cox's speech. In other words, what do the plaintiffs (Obsidian) have to prove in order to win a defamation suit against Ms. Cox? The court has two landmark cases to sort through, New York Times Co. v. Sullivan and Gertz v. Robert Welch. The Times case gives us the rule for defamation involving public officials, while Gertz gives us the rule for defamation involving private individuals. Gertz offers slightly less protection, but ultimately, both cases give strong First Amendment protections, no matter who you are.

And that's another major issue that confronted the court. Remarkably enough, this specific issue here was a matter of first impression before the 9th circuit - "What First Amendment protections are afforded a blogger sued for defamation?"

Here's what happened at trial court level. Instead of Ms. Cox getting the Gertz or New York Times level of protection, the court instead gave this jury instruction: "Defendant’s knowledge of whether the statements at issue were true or false and defendant’s intent or purpose in publishing those statements are not elements of the claim and are not relevant to the determination of liability.”

What's wrong with applying the district court's standard to a First Amendment issue? Well, it's almost the same standard a court would apply to determine liability stemming from someone's failure to salt a frozen sidewalk. The problem behind the district court's instruction is that it forced the jury to consider this case as a matter of strict liability - or not examining the individual's intent before the commission of a legal wrong. In other words, you're liable whether you intended to commit the act or not. Cox was found liable and the two officers were awarded $1.0 and $1.5 million in damages.

How can such a low standard be applied to a First Amendment case, you may ask? It can't. The First Amendment is one of the fundamental rights granted to all persons that step on US soil, and it can't be taken away with a defamation lawsuit that resembles a general tort action. And the Court of Appeals agrees. As per the Gertz decision, when dealing with defamation of a private figure, state laws governing defamation cannot allow for punitive damages based on strict liability - intent based on actual malice must be proven first. When no punitive damages are at issue, then the negligence standard applies, which although is not as strong as the New York Times standard (also actual malice, but with no monetary delineation), this standard still requires getting inside the mind of the alleged transgressor. Since Ms. Cox was found liable and held to punitive damages, and because the jury was improperly instructed regarding the negligence or actual malice analysis, those parts of the original decision were vacated and the case is being sent back (remanded) for a new trial.

The court here settled, hopefully once and for all, the blogger vs. journalist issue by recasting the issue as not a question of which entity receives more constitutional protection. Rather the court looked at it from this perspective - does a journalist have greater First Amendment privileges simply because they are a journalist? The answer is no - all people in the US have (in theory) equal protection under the First Amendment, stating, "We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants."

Interestingly, the Citizens United case (controversial decision which in essence says that corporations and campaign contributions are protected speech) makes a few appearances. In fact, the case provides considerable foundation to the court's proposition that no one entity is entitled to more First Amendment protection than others: "...the line between the media and others who wish to comment on political and social issues becomes far more blurred."

So in a way, Citizens United has become the DMCA of the First Amendment world - both loved and hated depending on the paragraph you read.

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