{"id":7695,"date":"2014-02-08T07:54:18","date_gmt":"2014-02-08T12:54:18","guid":{"rendered":"http:\/\/www.l-a-k-e.org\/blog\/?p=7695"},"modified":"2014-02-08T08:16:04","modified_gmt":"2014-02-08T13:16:04","slug":"free-speech-for-bloggers-as-journalists-reaffirmed","status":"publish","type":"post","link":"http:\/\/www.l-a-k-e.org\/blog\/2014\/02\/free-speech-for-bloggers-as-journalists-reaffirmed.html","title":{"rendered":"Free speech for bloggers as journalists reaffirmed"},"content":{"rendered":"

\r\nThis should have been obvious already from\r\n\r\nthe Open Government Act of 2007<\/a>,\r\namong other laws, but now a court has reaffirmed it.\r\n

\r\nDan Levine wrote for Reuters 17 January 2014,\r\n\r\nBlogger gets same speech protections as traditional press: U.S. court<\/a>,\r\n

\r\n

\r\nA blogger is entitled to the same free speech protections as a\r\ntraditional journalist and cannot be liable for defamation unless\r\nshe acted negligently, a federal appeals court ruled on Friday.\r\n<\/p>\r\n

\r\nCrystal Cox lost a defamation trial in 2011 over a blog post she\r\nwrote accusing a bankruptcy trustee and Obsidian Finance Group of\r\ntax fraud. A lower court judge had found that Obsidian did not have\r\nto prove that Cox acted negligently because Cox failed to submit\r\nevidence of her status as a journalist.\r\n<\/p>\r\n

\r\nBut in the ruling, the 9th U.S. Circuit Court of Appeals in San\r\nFrancisco said Cox deserved a new trial, regardless of the fact that\r\nshe is not a traditional reporter.\r\n<\/p>\r\n

\r\n\r\n<\/a>\r\n“As the Supreme Court has accurately warned, a First Amendment\r\ndistinction between the institutional press and other speakers is\r\nunworkable,” 9th Circuit Judge Andrew Hurwitz wrote for a unanimous\r\nthree-judge panel.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nHere’s the actual ruling:\r\n\r\nObsidian Finance Group, LLC; Kevin D. Padrick v. Crystal Cox<\/a>,\r\nUnited States Cour tof Appeals for the Ninth Circuit,\r\n17 January 2014,\r\n

\r\n

OPINION<\/H4>\r\n

\r\nHURWITZ, Circuit Judge:\r\n

\r\nThis case requires us to address a question of first impression:\r\nWhat First Amendment protections are afforded a blogger sued\r\nfor defamation? We hold that liability for a defamatory blog post\r\ninvolving a matter of public concern cannot be imposed without\r\nproof of fault and actual damages.\r\n<\/blockquote>\r\n

\r\nThe ruling cites numerous precedents, starting with this one:\r\n

\r\nThe Supreme Court\u2019s landmark opinion in\r\nNew York Times Co. v. Sullivan<\/strong>\r\nbegan the construction of a First Amendment framework concerning\r\nthe level of fault required for defamation liability.\r\n376 U.S. 254. Sullivan<\/strong> held that when a public official\r\nseeks damages for defamation, the official must show\r\n“actual malice”—that the defendant published\r\nthe defamatory statement “with knowledge that it was false\r\nor with reckless disregard of whether it was false or not.”\r\nId. at 280. \r\n<\/blockquote>\r\n

\r\nThe court’s opinion points out at some length that this protection\r\napplies not just to statements about public officials, rather to\r\nmatters of public concern:\r\n

\r\n

\r\nPublic allegations that someone is involved in crime generally are\r\nspeech on a matter of public concern. See, e.g., Adventure Outdoors,\r\nInc. v. Bloomberg<\/strong>, 552 F.3d 1290, 1298 (11th Cir. 2008) (noting that\r\naccusations of “alleged violations of federal gun laws”\r\nby gun stores were speech on “a matter of public\r\nconcern”); Boule v. Hutton<\/strong>, 328 F.3d 84, 91 (2d Cir. 2003)\r\n(holding that allegations of “fraud in the art market”\r\ninvolve “a matter of public concern”). This court has\r\nheld that even consumer complaints of non-criminal conduct by a\r\nbusiness can constitute matters of public concern. See Gardner v.\r\nMartino<\/strong>, 563 F.3d 981, 989 (9th Cir. 2009) (finding that a business\r\nowner’s refusal to give a refund to a customer who bought an\r\nallegedly defective product was a matter of public concern);\r\nManufactured Home Cmtys., Inc. v. Cnty. of San Diego<\/strong>, 544 F.3d 959,\r\n965 (9th Cir. 2008) (treating claim that a mobile home park operator\r\ncharged excessive rent as a matter of public concern).\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nThe ruling goes further into what a matter of public concern is,\r\nand appears to say that it’s pretty much anything published to the public:\r\n

\r\n

\r\nUnlike the speech at issue in Dun & Bradstreet<\/strong> that the Court found\r\nto be a matter only of private concern, Cox’s December 25 blog post\r\nwas not “solely in the individual interest of the speaker and\r\nits specific business audience.” 472 U.S. at 762 (plurality\r\nopinion). The post was published to the public at large, not simply\r\nmade “available to only five subscribers, who, under the terms\r\nof the subscription agreement, could not disseminate it further . .\r\n. .” Id. And, Cox’s speech was not “like\r\nadvertising” and thus “hardy and unlikely to be deterred\r\nby incidental state regulation.” Id. Because Cox’s blog post\r\naddressed a matter of public concern, even assuming that Gertz is\r\nlimited to such speech, the district court should have instructed\r\nthe jury that it could not find Cox liable for defamation unless it\r\nfound that she acted negligently. See Gertz, 418 U.S. at 350. The\r\ncourt also should have instructed the jury that it could not award\r\npresumed damages unless it found that Cox acted with actual malice.\r\nId. at 349.\r\n<\/p>\r\n<\/blockquote>\r\n

\r\nThe court even rejected the defendant’s argument that the\r\nplaintiffs were “tantamount to public officials”\r\nyet upheld First Amendment protections for the blogger\r\nbecause her posts were about matters of public concern.\r\n

\r\nSo for bloggers who post facts with evidence\r\nand opinions that are clearly opinions,\r\nthe First Amendment is a powerful protection.\r\n

\r\n

\r\nAmendment I\r\n<\/H4>\r\n\r\n<\/a>\r\nCongress shall make no law respecting an establishment of religion,\r\nor prohibiting the free exercise thereof; or abridging the freedom\r\nof speech, or of the press; or the right of the people peaceably to\r\nassemble, and to petition the Government for a redress of\r\ngrievances.\r\n<\/blockquote>\r\n

\r\n -jsq\r\n<\/p>","protected":false},"excerpt":{"rendered":"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 […]","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"_links_to":"","_links_to_target":""},"categories":[19,20,3,3197],"tags":[7434,7433,7431,7435,3540,1273,3532,8701,8709,7432,8702,8710,12,7,4091,8700,1836,6,8866],"class_list":["post-7695","post","type-post","status-publish","format-standard","hentry","category-history","category-law","category-transparency","category-weblogs","tag-actual-malice","tag-andrew-d-hurwitz","tag-blogger","tag-defense","tag-evidence","tag-first-amendment","tag-free-speech","tag-georgia","tag-history","tag-journalist","tag-lake","tag-law","tag-lowndes-area-knowledge-exchange","tag-lowndes-county","tag-protection","tag-transparency","tag-truth","tag-valdosta","tag-weblogs"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p585fK-207","jetpack_sharing_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/posts\/7695","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/comments?post=7695"}],"version-history":[{"count":4,"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/posts\/7695\/revisions"}],"predecessor-version":[{"id":7699,"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/posts\/7695\/revisions\/7699"}],"wp:attachment":[{"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/media?parent=7695"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/categories?post=7695"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.l-a-k-e.org\/blog\/wp-json\/wp\/v2\/tags?post=7695"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}