Two years ago, a federal judge in Oregon made a shocking ruling that sent chills down the spine of all bloggers.
Crystal L. Cox, a blogger from Eureka, Mont. who now lives in Port Townshend, was sued for defamation by attorney Kevin Padrick when she posted online that he was a thug and a thief in the handling of bankruptcy proceedings by him and Obsidian Finance Group LLC.
Padrick, of Bend, Ore., was a trustee in a bankruptcy case involving Summit Accommodators, a company that helped property owners conduct real estate transactions in a way to limit taxes. Three company executives faced federal fraud and money laundering indictments.
Cox said she considered herself a journalist, producing more than 400 blogs over the past five years, with a proprietary technique to get her postings on the top of search engines where they get the most notice.
But on December 7, 2011, U.S. District Judge Marco Hernandez ruled that as a blogger, Cox was not a journalist and cannot claim the protections afforded to mainstream reporters and news outlets.
A jury in 2011 awarded Padrick and Obsidian $2.5 million.
Cox must have appealed — and successfully appealed — for on Jan. 17, 2014, a federal appeals court ruled that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove negligence to win damages.
Jeff Barnard reports for the AP that the 9th U.S. Circuit Court of Appeals ordered a new trial in a defamation lawsuit brought by an Oregon bankruptcy trustee against a Montana blogger who wrote online that the court-appointed trustee criminally mishandled a bankruptcy case.
The appeals court ruled that the trustee was not a public figure, which could have invoked an even higher standard of showing the writer acted with malice, but the issue was of public concern, so the negligence standard applied.
Judge Andrew D. Hurwitz wrote: ”Because Cox’s blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently. We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.“
The appeals court upheld rulings by the District Court that other posts by Cox were constitutionally protected opinion.
Gregg Leslie of the Reporters Committee for the Freedom of the Press said the ruling affirms what many have long argued: Standards set by a 1974 U.S. Supreme Court ruling, Gertz v. Robert Welch Inc., apply to everyone, not just journalists. “It’s not a special right to the news media,” he said. “So it’s a good thing for bloggers and citizen journalists and others.”
Though Cox acted as her own attorney, UCLA law professor Eugene Volokh, who had written an article on the issue, learned of her case and offered to represent her in an appeal. Volokh said such cases usually end up settled without trial, and it was rare for one to reach the federal appeals court level. He said Judge Hurwitz’s ruling “makes clear that bloggers have the same First Amendment rights as professional journalists. There had been similar precedents before concerning advocacy groups, other writers and book authors. This follows a fairly well established chain of precedents. I believe it is the first federal appeals court level ruling that applies to bloggers.“
An attorney for Padrick, Steven M. Wilker, said in an email that while they were disappointed in the ruling, they noted the court found “there was no dispute that the statements were false and defamatory. 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.”
Score one for the First Amendment!
Dr. Eowyn is the Editor of Fellowship of the Minds.