Court rules bloggers the same as journalists in defamation cases

The ruling means that plaintiffs who sue bloggers now have to prove "malice and negligence" to get a favorable judgment.

Politico:

The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections.

The case stems from a series of blog posts published in 2010 by a woman accusing a financial advice firm of fraud and corruption. One of the firm's principals was appointed as the bankruptcy trustee to a company that had misappropriated client funds, and the woman, Crystal Cox, accused him and his company, Obsidian Finance Group, of impropriety in advising the bankrupt firm in a series of online posts.

They sued Cox for defamation. The district court ruled that because Cox did not prove her status as a journalist, Obsidian did not need to prove malice or negligence on her part to win the case.

A jury found against Cox and ordered her to pay $2.5 million.

On Friday, Judge Andrew Hurwitz wrote for the unanimous court that, especially in the age of the Internet, the distinction between traditional journalist and other speakers doesn't matter in this case (opinion here).

"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," Hurwitz wrote.

The subject of Cox's blog posts were a matter of public concern, the court held, so in order to prove defamation, the plaintiffs would have to show she acted with negligence or malice in making false statements against them.

The court ordered a new trial.

Any decision that equates blogging (and other online commentary) with journalism is a step forward. Congress has been considering a journalist sheild law for years and there are several members who want to exclude bloggers from the definition of "journalist." That would be a mistake and at least one federal court agrees with that notion.

In the end, as the Supreme Court has suggested, such distinctions may be unworkable. This is especially true now that many mainstream media publications are ditching their dead tree editions and going completely online. How would a judge differentiate between online reporting by a blogger or a trained journalist? He couldn't, which makes it inevitable that the standard for bloggers will almost certainly be the same as it is for journalists.


The ruling means that plaintiffs who sue bloggers now have to prove "malice and negligence" to get a favorable judgment.

Politico:

The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections.

The case stems from a series of blog posts published in 2010 by a woman accusing a financial advice firm of fraud and corruption. One of the firm's principals was appointed as the bankruptcy trustee to a company that had misappropriated client funds, and the woman, Crystal Cox, accused him and his company, Obsidian Finance Group, of impropriety in advising the bankrupt firm in a series of online posts.

They sued Cox for defamation. The district court ruled that because Cox did not prove her status as a journalist, Obsidian did not need to prove malice or negligence on her part to win the case.

A jury found against Cox and ordered her to pay $2.5 million.

On Friday, Judge Andrew Hurwitz wrote for the unanimous court that, especially in the age of the Internet, the distinction between traditional journalist and other speakers doesn't matter in this case (opinion here).

"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," Hurwitz wrote.

The subject of Cox's blog posts were a matter of public concern, the court held, so in order to prove defamation, the plaintiffs would have to show she acted with negligence or malice in making false statements against them.

The court ordered a new trial.

Any decision that equates blogging (and other online commentary) with journalism is a step forward. Congress has been considering a journalist sheild law for years and there are several members who want to exclude bloggers from the definition of "journalist." That would be a mistake and at least one federal court agrees with that notion.

In the end, as the Supreme Court has suggested, such distinctions may be unworkable. This is especially true now that many mainstream media publications are ditching their dead tree editions and going completely online. How would a judge differentiate between online reporting by a blogger or a trained journalist? He couldn't, which makes it inevitable that the standard for bloggers will almost certainly be the same as it is for journalists.


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