Ninth Circuit: Bloggers Protected by First Amendment

January 21, 2014

On January 17, 2014, the U.S. Court of Appeals for the Ninth Circuit ruled that bloggers have the same first amendment protections as journalists when sued for defamation.  The case, Obsidian Finance v. Fox, was brought by Kevin Padrick, a bankruptcy trustee at Obsidian Finance Group, and Obsidian against blogger Crystal Cox after Cox wrote a blog post accusing Padrick and Obsidian of fraud, money-laundering, corruption, and other illegal activities.  In 2011, a jury awarded $2.5 million to the plaintiffs.  On appeal, the Ninth Circuit reversed and ordered a new trial because the district court’s jury instruction applied an erroneous standard.

‘As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.’

The legal standards for the level of fault necessary in defamation claims were set by New York Times v. Sullivan and Gertz v. Robert Welch Inc.  In those cases the U.S. Supreme Court held that the standard depends on whether the plaintiff is a public or private figure.  Where the plaintiff is a public figure, a finding of actual malice is required.  Where the plaintiff is a private figure, only a finding of negligence is required.  Both Sullivan and Gertz involved media defendants.  However, according to the Ninth Circuit, bloggers writing about matters of public concern are afforded the same benefits of these rules.
The court wrote that “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 the story.  As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.”  The court ruled that Cox’s statements were a matter of public concern, holding that “public allegations that someone is involved in crime generally are speech on a matter of public concern.”  In addition, both Padrick and Obsidian Finance Group are private figures.  Therefore, on remand, the jury must consider Gertz’s baseline negligence standard in deciding whether to find Cox liable for defamation.
This ruling is a huge win for bloggers and other online speakers.  While the rule does have its limits, because it only protects individuals writing about issues of public concern, it recognizes that individuals do not have to be associated with a media outlet to be afforded First Amendment protections.  UCLA Law professor Eugene Volokh, who represented Cox on the appeal, also warns “that the court’s reasoning is limited to First Amendment protections; it doesn’t discuss state or federal statutes that provide extra protection to the ‘media’ or to other subsets of speakers.”  So, while bloggers are not equitable to media under all laws, the Ninth Circuit ruling assures bloggers that they are protected by the First Amendment.