Free speech for bloggers as journalists reaffirmed

This should have been obvious already from the Open Government Act of 2007, among other laws, but now a court has reaffirmed it.

Dan Levine wrote for Reuters 17 January 2014, Blogger gets same speech protections as traditional press: U.S. court,

A blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless she acted negligently, a federal appeals court ruled on Friday.

Crystal Cox lost a defamation trial in 2011 over a blog post she wrote accusing a bankruptcy trustee and Obsidian Finance Group of tax fraud. A lower court judge had found that Obsidian did not have to prove that Cox acted negligently because Cox failed to submit evidence of her status as a journalist.

But in the ruling, the 9th U.S. Circuit Court of Appeals in San Francisco said Cox deserved a new trial, regardless of the fact that she is not a traditional reporter.

“As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable,” 9th Circuit Judge Andrew Hurwitz wrote for a unanimous three-judge panel.

Here’s the actual ruling: Obsidian Finance Group, LLC; Kevin D. Padrick v. Crystal Cox, United States Cour tof Appeals for the Ninth Circuit, 17 January 2014,


HURWITZ, Circuit Judge:

This case requires us to address a question of first impression: What First Amendment protections are afforded a blogger sued for defamation? We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.

The ruling cites numerous precedents, starting with this one:

The Supreme Court’s landmark opinion in New York Times Co. v. Sullivan began the construction of a First Amendment framework concerning the level of fault required for defamation liability. 376 U.S. 254. Sullivan held that when a public official seeks damages for defamation, the official must show “actual malice”—that the defendant published the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280.

The court’s opinion points out at some length that this protection applies not just to statements about public officials, rather to matters of public concern:

Public allegations that someone is involved in crime generally are speech on a matter of public concern. See, e.g., Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1298 (11th Cir. 2008) (noting that accusations of “alleged violations of federal gun laws” by gun stores were speech on “a matter of public concern”); Boule v. Hutton, 328 F.3d 84, 91 (2d Cir. 2003) (holding that allegations of “fraud in the art market” involve “a matter of public concern”). This court has held that even consumer complaints of non-criminal conduct by a business can constitute matters of public concern. See Gardner v. Martino, 563 F.3d 981, 989 (9th Cir. 2009) (finding that a business owner’s refusal to give a refund to a customer who bought an allegedly defective product was a matter of public concern); Manufactured Home Cmtys., Inc. v. Cnty. of San Diego, 544 F.3d 959, 965 (9th Cir. 2008) (treating claim that a mobile home park operator charged excessive rent as a matter of public concern).

The ruling goes further into what a matter of public concern is, and appears to say that it’s pretty much anything published to the public:

Unlike the speech at issue in Dun & Bradstreet that the Court found to be a matter only of private concern, Cox’s December 25 blog post was not “solely in the individual interest of the speaker and its specific business audience.” 472 U.S. at 762 (plurality opinion). The post was published to the public at large, not simply made “available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further . . . .” Id. And, Cox’s speech was not “like advertising” and thus “hardy and unlikely to be deterred by incidental state regulation.” Id. Because Cox’s blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently. See Gertz, 418 U.S. at 350. The court also should have instructed the jury that it could not award presumed damages unless it found that Cox acted with actual malice. Id. at 349.

The court even rejected the defendant’s argument that the plaintiffs were “tantamount to public officials” yet upheld First Amendment protections for the blogger because her posts were about matters of public concern.

So for bloggers who post facts with evidence and opinions that are clearly opinions, the First Amendment is a powerful protection.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.