First Amendment Doesn’t Distinguish Between Bloggers and Press, Court Says

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• Ninth U.S. Circuit Court of Appeals

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By
• Joe Palazzolo
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Reuters

In defamation cases, the First Amendment applies equally to bloggers, dead-tree journalists and anyone else who is speaking to the public, a federal appeals court ruled Friday.
The Ninth U.S. Circuit Court of Appeals ordered a new trial for Montana blogger Crystal Cox, whom a jury found liable for defaming an investment firm and one of its lead partners. Ms. Cox, in her appeal, didn’t dispute the jury’s finding that fraud and other allegations she made in a 2008 blog post were false and defamatory.
She argued, rather, that the jury could find her liable for defamation only if it also found she acted negligently. And the jury couldn’t award damages unless it found that Ms. Cox knew the post was false or acted with reckless disregard of its truth. The trial judge gave neither instruction to the jury.
Obsidian Finance Group LLC and partner Kevin Padrick, who won a $2.5 million judgment against Ms. Cox, argued that only “institutional media defendants” deserved such First Amendment protection.
Judge Andrew Hurwitz, writing for the unanimous panel of the Ninth Circuit, said Ms. Cox’s status as a blogger was irrelevant.

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…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.

Eugene Volokh, Ms. Cox’s lawyer, said the decision was right ”as a matter of First Amendment principle but also as a matter of history and precedent.”
A lawyer for Obsidian and Mr. Padrick, Steven Wilker, emailed us this statement:

While we are obviously disappointed in the ruling, we do note that the court concluded that there was no dispute that the statements were false and defamatory.  We also note that the Court  describes Ms. Cox as apparently having “a history of making similar allegations and seeking payoffs in exchange for retraction.”  Ms. Cox’s false and defamatory statements have caused substantial damage to our clients, and we are evaluating our options with respect to the court’s decision.