Bloggers = Media for First Amendment Libel Law Purposes (good news, for a change)

volokh.com ^ | January 17, 2014 | Eugene Volokh

[ransomnote]

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

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.” Citizens United, 558 U.S. at 352. 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.

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (SNIP). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must SNIP

[ransomnote]

another two paragraph at the link

A win for a court case that favors the definition of "freedom of the presses" in the first amendment to mean the presses, not just for speshul snowflakes (people who are members of the press).

[freerepublicchat]

The average person should have more protection from libel than a professional, IMO.

This ruling helps a little, but it's still odd that those whose job it is to state the facts get a pass when they're in error, while the average person is at risk.

[FredZarguna]

It's quite hard to see how they could sensibly rule any other way. At the time the Bill of Rights was verified, journalists were not credentialed in any serious way. A lot of the political speech during that time and in the run-up to the Revolution was done by pamphleteers, and by nailing essays in public places. "The press" meant literally anyone with access to a printing press. Pretty much what the Internet and other media are now.

Such a slam dunk even the Ninth Circus could not phuq't'up.

[TChad]

Thank you, Eugene Volokh! A big win, and in the Ninth Circus!

[ransomnote]

So erm...what’s with the ninth circus..er...circuit? I am not the legal type but note that I sometimes read of this cir...cuit

[ransomnote]

From the comments section:

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Fred Bernstein
• 3 hours ago

Congratulations, Eugene, on the win. The court decided the case correctly. But I find the “matter of public concern” reasoning weak. Doesn’t there have to be at least some truth to a statement before it qualifies? Otherwise, I could accuse a important person of criminal behavior, entirely falsely, and then claim the “matter of public concern” defense.

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EugeneVolokh Conspirator Fred Bernstein
• 2 hours ago

Thanks! But as to the public concern point: Indeed, if you accuse an important person of criminal behavior, entirely falsely, you are protected by New York Times v. Sullivan (if he’s a public official or a public figure) or Gertz v. Robert Welch (if he’s a private figure). You’re not absolutely protected; he can still win if he can show negligence (under Gertz as to proven compensatory damages) or recklessness/knowledge of falsehood (under Gertz as to other damages, or under Sullivan if that applies). But he can’t avoid the need to show this mens rea by just showing that the statement was false (whether partly or entirely) — the whole logic of Gertz, Sullivan, and similar cases is that some false statements will be protected so that true statements won’t be unduly deterred.

That a statement is on a subject that’s of public concern is the threshold for having Gertz and Sullivan apply. But once the subject matter is of public concern, those cases do apply, and do indeed shield even some false statements. Thus, for instance, the Dun & Bradstreet lead opinion begins by saying,

In Gertz v. Robert Welch, Inc., we held that the First Amendment restricted the damages that a private individual could obtain from a publisher for a libel that involved a matter of public concern. More specifically, we held that in these circumstances the First Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows “actual malice,” that is, knowledge of falsity or reckless disregard for the truth.

Thus, even if a statement is proven to be “false and defamatory,” Gertz applies “for a libel that involved a matter of public concern.” That analysis wouldn’t be consistent with the view that falsehood strips the statement of “public concern” status.

[denydenydeny]

It’s more than a little scary that there is even an opposing view here. Any other ruling would have established “the press” as official state-run media in all but name.

[TChad]

So erm...what’s with the ninth circus..er...circuit?

This article should answer your question:

http://archive.frontpagemag.com/readArticle.aspx?ARTID=17583

[conservatism_IS_compassion]

At the time the Bill of Rights was verified, journalists were not credentialed in any serious way.

They aren’t now, either. They have “Codes of Ethics,” it’s true - but they claim to be objective.

Now claiming to try to be objective is entirely unobjectionable, even laudable if it is sincere. But claiming actually to be objective is sophistry. Why? Because “sophistry” comes from the term “Sophist” - Greek for “wise man.” The Ancient Sophists used claims of their own superior wisdom to suppress debate. Debates are pretty unsatisfactory if they go, “I am wise and you are not. Therefore I am right and you are wrong.” The classical response to this line of “argument” was to claim to love wisdom but to eschew claiming actually to be wise. That’s the source of the term “philosopher” - philo = lover of, sophy = wisdom.

That is, the philosopher’s position was, “Spare me the ad hominem attacks and the arrogance, and let’s get down to the facts and logic as they relate to the issue at hand.” And that is the appropriate response to the journalist’s claim of objectivity, which is intended to suppress your willingness and ability to stand up for the truth when the journalist is lying (whether by commission or by omission).

De facto, a claim of objectivity is no different from a claim of wisdom. Either is sophistry.

[Alberta's Child]

On principle this is a good ruling, but when you look at the facts of the case it may not be so good.

The person in this case admittedly posted an inflammatory and defamatory statement in an online blog, and was sued by the target of the attack. The plaintiff was awarded substantial damages, and the blogger then tried (successfully) to hide behind his or her First Amendment rights as a "journalist" in appealing the award.