Bloggers Beware

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The protections guaranteed by the First Amendment are, without a doubt, some of the most heavily disputed and steadfastly guarded rights afforded to U.S. citizens.  Ringing true to this concept, the controversy surrounding a recent federal appellate case reached its peak when the court overturned a 2.5 million dollar judgment against a blogger for defamation.  The outcome of the case—Obsidian Finance Group v. Cox—is being called a “landmark decision.”  But when we take a step back and review the decisions that led to this most recent ruling, many may wonder: is it really deserving of all the hype?

The case is getting a lot of attention but, in reality, the upshot is not all that remarkable.  One aspect that has added to the case’s buildup is the fact that courts nationwide are taking similar facts and going in opposite directions: some holding a blogger liable for his or her defamatory comments; others deciding that a blogger is a protected member of the press.  In a country whose “blogosphere” is authored daily by millions, this gray area is leaving some internet commentators worried—and rightfully so.

“Who, exactly, does constitute ‘the press’?”

The Obsidian case shows how with the same set of facts, courts can end up on either side of the coin.  A recently bankrupt financial advice company, Obsidian Finance Group, brought the suit against Crystal Cox, a blogger.  In 2010, Cox had published numerous blog posts on various websites accusing the firm and its bankruptcy trustee, Kevin Padrick, of fraud, corruption, money laundering, and other illegal activities.  The firm and trustee sent Cox a cease-and-desist letter to no avail, and then proceeded to bring claims of defamation (pdf).

In federal district court, Judge Marco Hernandez refused to recognize Cox’s status as a blogger as being on par with that of a journalist.  This distinction is what led to the jury hand down the hefty judgment against Cox—$2.5 million—with only slightly over an hour of deliberation.

The blogger-journalist schism was the crucial factor in concluding that Cox would not fall under the First Amendment’s protection for “freedom of the press.”  It is the major point of controversy in many recent cases involving blogging: Who, exactly, does constitute “the press”

In most jurisdictions, if the plaintiff is a public figure or public official, he or she is required to prove actual malice—that the person who made the statement did so with knowledge of falsity or with a reckless disregard for the truth.

The importance of the characterization of the press will bring any attorney back to the memories of a first-year torts course.  A foundational concept in this area of law centers around the classification of the both plaintiff and the defendant. ¹  In most jurisdictions, if the plaintiff in the case is a public figure or public official, he or she is required to prove “actual malice”—which is that the person who made the defamatory statement did so with knowledge of falsity or with a reckless disregard for the truth.  If the plaintiff is deemed to be a private figure, he or she need only prove that the defendant acted negligently in regard to the truth. Importantly, an element of defamation is that the statement is false. True statements, no matter how harmful, are not cause for a defamation claim.

Hernandez determined that that the plaintiffs were not all-purpose or limited-purpose public figures, thereby concluding that the actual malice standard did not apply.  But Hernandez then found that because Cox did not fit the definition of a “media defendant,” she was not entitled to the negligence standard of protection either.  This minority approach of focusing on the status of the defendant skips over the public/private labeling of the plaintiff.  The categorization as either a media defendant or non-media defendant, in this minority view, is what determines whether or not the speaker is protected by the phrase “freedom of the press.”  It is essentially a more literal interpretation of this constitutional right: one that affords some degree of safeguard against defamation claims if—and only if—the defendant falls under the narrowed definition of “the press.”

In the opinion, Hernandez provides the legal reasoning behind his pretrial rulings, setting out a test by which he determined if a blogger, such as Cox, should be considered a media defendant to be protected by “freedom of the press.”  The test, enumerated by Judge Hernandez, inquires as to whether the defendant has put forth evidence of:

(1)  any education in journalism;

(2)  any credentials or proof of any affiliation with any recognized news entity;

(3)  proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest;

(4)  keeping notes of conversations and interviews conducted;

(5)  mutual understanding or agreement of confidentiality between the defendant and his/her sources;

(6)  creation of an independent product rather than assembling writings and postings of others; or

(7)  contacting “the other side” to get both sides of a story

Upon finding that Cox had put forth no such evidence, and that no prior case law addressed the issue, it was deemed that her status as a blogger did not equate to that of a journalist or other media defendant, and therefore did not warrant the First Amendment’s protection of the press.  She was subsequently held liable for defamation and was ordered to pay Obsidian and Padrick, whose damages were calculated to be in the millions.  Case closed.

“[I]nterpreting this freedom as only applicable to those in the trade or occupation of ‘the press’…would be seriously undercutting the intended purpose of this invaluable constitutional liberty.”

Case closed, but not for long.  Cox, previously a pro se defendant, was soon joined by attorney Eugene Volokh.  The defense appealed the decision, and the U.S. Court of Appeals for the Ninth Circuit issued its opinion in January of this year.

Volokh, a professor at the UCLA School of Law and fellow blogger himself, argued that the status of a blogger as a media or non-media defendant is actually quite inconsequential.  The significance that the lower court placed on this categorization was rooted in the antiquated view that the First Amendment’s “freedom of the press” refers to the press as an industry.  Volokh contended, however, that interpreting this freedom as only applicable to those in the trade or occupation of “the press”—such as those working for newspapers, television and radio stations—would be seriously undercutting the intended purpose of this invaluable constitutional liberty.

“Both sides of the debate are firing at the same question: what was the Framer’s intent when they chose to protect ‘the press’?”

In his article for the University of Pennsylvania Law Review, Volokh adheres to a broader view: “…that the ‘freedom… of the press’ does not protect press-as-an-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology.”  He notes that both sides of the debate are firing at the same question: what was the Framer’s intent when they chose to protect “the press”?

“The answer,” declares Volokh, “is that people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry.” 

“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.”  Citizens United v. FEC, 558 U.S. at 352 (2010).

By this reasoning, Cox’s use of modern technology to communicate via blog placed her safely under the umbrella of “the press” and the protections that come with it.  The Ninth Circuit embraced Volokh’s sensible analysis, and the previously misplaced emphasis on “blogger v. journalist” was set aside:

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.’ Citizens United, 558 U.S. at 352.  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.

What many consider to be the true issues of the case were brought forth, and were eventually resolved in favor of Cox.

While most of those who have followed the Obsidian case and other recent First Amendment spectacles agree that there could have been no other sound outcome than the one reached by the Ninth Circuit, it is not yet time for bloggers to let out a sigh of relief.  The fact of the matter is that the Supreme Court has not yet ruled on these types of cases, meaning that lower courts may continue to decide on either side of the fence as to who does and does not qualify as a media defendant.  It all comes down to a choice: whether or not to treat bloggers as “the press” within a defamation analysis for purposes of the First Amendment.  It is clear that in Obsidian, the district court made that choice and answered “no”; when the case reached the Ninth Circuit, the decision was made to say “yes.”

With the seemingly omnipresent status of the internet and growing popularity of blogs, it is safe to say that it will not be long before a case similar to Obsidian reaches the Supreme Court.  Until then, bloggers may be at the mercy of their jurisdiction’s interpretation of “the press”—as an industry or as a technology—to determine their protection under the First Amendment.