I am taking a brief break from the Greece prayer case to discuss a new court ruling that is significant for bloggers. The Ninth Circuit U.S. Circuit Court of Appeals ruled last Friday that bloggers have the same free speech protections as journalists.
The case involved a defamation charge brought by a company Obsidian Finance Group LLC against a blogger Crystal Cox that she had repeatedly made defamatory statements about them, accusing them of fraud, corruption, money-laundering, and other illegal activities. In a jury trial, a District Court had awarded the company $2.5 million in damages. The Appeals Court overturned that verdict.
For some background, in 1964 the Supreme Court held in New York Times Co. v. Sullivan that when a public official brings a defamation charge against anyone, they must prove ‘actual malice’, in that the defamatory statement was published with knowledge that it was false or with reckless disregard for the truth, of whether the statements in question were false or not. Mere negligence was insufficient.
However, in a later 1974 case Gertz v. Robert Welch, Inc, the court ruled that for defamation cases brought by private individuals, the standard should be the lower one of negligence since private individuals had less of an opportunity to clear their names.
In the Cox case, the lower court had ruled that since she was not a ‘traditional journalist’ she was not protected from charges of defamation by the requirement that it be proved that she acted negligently. The fact that she had made provably false statements should be sufficient and that it did not matter if she knew they were false or whether she had actual malice in making them.
In their ruling, the Appeals Court judges said that drawing such a distinction between the institutional press and others was untenable, quoting the 2010 Citizens United v. FEC case that “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”
The Appeals Court went on to say:
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.” 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.
In her appeal of the lower court verdict against her in this defamation case, Cox did not contest the jury’s conclusions in the lower court that her blog posts were false and defamatory. Interestingly, what may have helped save her is that she seems to be prone to wildly exaggerated and hyperbolic language. As the opinion states (footnotes and citations omitted):
We have developed a three-part test to determine whether a statement contains an assertion of objective fact. The test considers “(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”
As to the first factor, the general tenor of Cox’s blog posts negates the impression that she was asserting objective facts. The statements were posted on obsidianfinancesucks.com, a website name that leads “the reader of the statements [to be] predisposed to view them with a certain amount of skepticism and with an understanding that they will likely present onesided viewpoints rather than assertions of provable facts.” The district judge correctly concluded that the “occasional and somewhat run-on[,] almost ‘stream of consciousness’-like sentences read more like a journal or diary entry revealing [Cox's] feelings rather than assertions of fact.”
As to the second factor, Cox’s consistent use of extreme language negates the impression that the blog posts assert objective facts. Cox regularly employed hyperbolic language in the posts, including terms such as “immoral,” “really bad,” “thugs,” and “evil doers.” (quoting blog posts). Cox’s assertions that “Padrick hired a ‘hit man’ to kill her” or “that the entire bankruptcy court system is corrupt” similarly dispel any reasonable expectation that the statements assert facts.
I am not sure what to make of this. As a blogger, I am pleased to have some protection against defamation suits. But to take full advantage of it, must I also rant and rave using hyperbolic language so that no one in their right mind would take me seriously? Seems a bit odd.
But it is nice to know that the courts seem to feel that bloggers have the same kind of protections from defamation suits as people employed by larger media organizations.
[Update: In the comments, Trebuchet pointed me to a very interesting post by Ken White at Popehat about this case and about the weird antics of Crystal Cox. Highly recommended.]