Saturday, January 18, 2014

A win for bloggers, but the responsibilities haven’t changed

On Friday, the US Court of Appeals for the Ninth Circuit handed bloggers a significant victory. A three judge panel unanimously decided that bloggers enjoy the same First Amendment rights as credentialed media. In 2011, a District Court judge decided that libel plaintiffs did not have to prove malice to prevail in a libel suit. The Ninth Circuit panel overturned that decision this week.

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.

In its decision, the Court ordered a new trial, which means that the defendant blogger isn’t off the hook just yet. While the plaintiffs could appeal to the full court, it is likely that the case goes back to the District Court for a new trial.

What does all of this mean? It means that while bloggers should enjoy the protections of the First Amendment, there is still an overarching responsibility to exercise those rights with care; insuring that the targets of controversial “investigations” are investigated with due diligence and that the truth is told without malice.’s Ed Morrissey gets it (emphasis mine):

[It] was disturbing to see a district court get this so wrong. The media protections that have developed by legal precedent under the First Amendment must apply equally, as does the First Amendment itself. In fact, the media protections should probably apply equally to all speakers, and not just those who publish their works via paper, broadcast, or the Internet. One can make the argument that the media has to put itself in a more vulnerable position in order to function as communication sources and therefore should have more leeway, but that applies to bloggers at the very least as well as newspapers and television news outlets. It might apply even more, since bloggers are much less apt to have legal resources readily available and are much more vulnerable to intimidation.

This is an important decision, and a win for bloggers. The core case, though, should serve as a cautionary tale. When a blogger or a reporter goes on a crusade, especially against targets who are not “public persons” (the appellate court rejected Cox’s appeal on that point), he or she had better take care to get the facts right or at least demonstrate a responsible approach to finding them.

So true. Last week, I mentioned the troubling case of Roger Shuler and his controversial blog, Legal Schnauzer. In that post, I also mentioned the importance of ethics when it comes to speaking out about potential wrongdoing by public figures. In the case before the Ninth Circuit, the target of the blogger was not a public figure and the plaintiff lost in her effort to argue otherwise. But public figure or not, the targets of investigative reporting—be it print, broadcast or internet reporting—must not be pursued maliciously. Investigative journalism is not a crusade. It is an effort to expose the truth and demonstrating that the truth has been told is paramount to avoiding costly and disastrous litigation such as this and the Shuler case.

There is nothing in the Ninth Circuit decision that allows otherwise. While it is indeed a win for non-traditional media, it still means, as Ed suggests, that there is no freedom to go off half-cocked, with dubious or anonymously sourced information, in a crusade against someone you oppose politically, personally or philosophically. The First Amendment is indeed a shield, but it is not an impenetrable one.

You can tell the truth, demonstrate the factual nature of the story, show that there is no malice aforethought and you might not get sued for libel or defamation.


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