Ninth Circuit Affirms That Bloggers Are Journalists…Why This Matters

Image courtesy Pima County Public Defender's Office

The Ninth Circuit Court Of Appeals has ruled that bloggers enjoy the same journalistic protections as traditional print and broadcast media when commenting on matters of public concern. Financial blogger Crystal Cox now won’t have to pay a $2.5 million jury award to an Oregon attorney and his financial services firm, whom she had accused of fraud and money laundering. Why does this First Amendment victory for a finance blogger matter to the future of the Second Amendment? . . .

Because up until now there was no clear rule on which legal standard should apply when bloggers and other new media were sued for vague ‘presumed damages’ for defamation. Should the plaintiff have to prove merely that the blogger’s statements were factually incorrect and harmed their reputation? Or should the plaintiff have to prove that the blogger acted with negligence (no fact-checking or verification) or malice (let’s screw the bastards!) in making the false and defamatory statements?

The 9th Circuit ruled that bloggers are treated as full journalists for purposes of defamation laws. Because the court found that Crystal Cox was blogging (even if extremely inaccurately) about a matter of ‘public concern’, she should have been treated just like any other journalist. Journalists cannot be liable for defamation unless the plaintiff proves that they acted with negligence when speaking about a private figure, or with malice when speaking about a public figure.

This case makes it clear that when bloggers like TTAG report on matters of public concern like gun control, they can’t be silenced by lawsuits from pissed-off plaintiffs unless they prove the bloggers were more than just wrong. They have to prove negligence or malice, just as though they were suing Rachel Maddow or Piers Morgan.

In the end this is likely to be a bigger win for the 2A crowd than it will be for the anti-2A crowd. Why? Because while Gun-Toting Hypocrite Dianne Feinstein and Billionaire Mike Bloomberg have CNN and MSNBC in their pockets, bloggers and New Media are about the only media that supports the Second Amendment. It’s a good thing that we’ll be treated the same from here on out.

Cox was represented on appeal by UCLA law professor Eugene Volokh, who happens to be a blogger himself. His blog The Volokh Conspiracy is an outstanding legal resource for defenders of liberty in all its forms. Notable pro-2A law professor David Kopel also blogs for Volokh, as well as running his own Law And Liberty blog.

If you care about liberty and you don’t bookmark these two blogs already, it’s time to start.

Source: Volokh Conspiracy.

comments

  1. avatar RandallOfLegend says:

    Are there any downsides? More responsibility? What separates you with your website and me with my blogger account?

    1. avatar Dustin Eward says:

      I would suggest tha there is no separation. I have a really crappy blog on my really crappy website. I type stuff on it, sometimes… That makes me a blogger. Why? Because, if I take the time to write it, I’m doing it for the same reason that the media does it, and in the same interests. Freedom of the Press, unlike Diane Feinstein’s desire to limit it to her big money agenda interests, is for EVERYONE. She hates every other essential Right outlined in the Bill of Rights, too. Big surprise…

    2. avatar Jus Bill says:

      I agree with Dustin. The first American newspapers were single page, one-sided “broadsides” that were the equivalent of today’s blog posts in many ways.

      Carry on…

    3. avatar CA_Chris says:

      One can argue that no figure represents American journalism at the time of the founding of this nation better than Benjamin Franklin, and Franklin was far more like a modern blogger than like the “traditional” journalist of whom our law enforcement and some courts had tried (and failed) to argue were the only journalists deserving of 1st Amendment freedom of the press.

      I’m glad that the 9th seems to have gotten this one right. We have a right to speak, and to spread our speech so long as we do so in good faith (by a very open definition), even if one is incorrect.

    4. avatar Nigil says:

      As I understand it, things like libel and slander and freedom of the press/speech apply to everyone, all the time. If you stand on a street corner with a microphone, you have the freedom of speech, but that doesn’t mean you can tell malicious lies all day long about your neighbor. You can hand out pamphlets you printed at home, but if it’s full of negligent untruths about your community leaders then you’re committing libel. The same standard (should) apply at every level of speech and press. The difference between a big newspaper and your blog is more about how many people are affected, and therefore how much damage you are really doing to a person’s reputation, which in turn affects how much you should punished for slandering them.

  2. avatar silverwarloc says:

    Please, fix the link to The Volokh Conspiracy. I was able to find it myself…just wanted to make sure TTAG is up to date.

  3. avatar Phil in NYC says:

    Thanks for this. FYI, your first link for the blog “The Volokh Conspiracy” (Paragraph six, first link) is bad. It takes you to a TTAG embarrassed page. Second one’s good, though.

    Phil in NYC

  4. avatar Sixpack70 says:

    This ruling is a big deal and a big duh. It is a poke in the eye of idiots like Dianne Frankenstein who wanted to create a definition of what a journalist is that only included people who were actually in the employ of Big media.

    1. avatar Noishkel says:

      Ahh, didn’t notice that someone had posted about this already.

      Yeah… this totalitarian troglodyte just can’t stand that idea of power that isn’t sanction and controlled by the Federal Government.

    2. avatar Accur81 says:

      Not only does she hate the 2nd and 4th Amendments (judging by her anti 2A and pro-spying actions), but she hates the 1st as well.

      1. avatar CA_Chris says:

        The evidence suggests that she hates everything, and everyone.

  5. avatar BTinAfghan says:

    One more step forward for the first amendment.

  6. avatar Noishkel says:

    Well if nothing else it pisses off Feinstein. She pushed a law to revoke this very tight. She just didn’t like it that just anyone could report the news.

    1. avatar Sixpack70 says:

      Great minds think alike. lol

  7. avatar Dustin Eward says:

    Interestingly, how does it affect a Blogger who reports the truth with malice?

    I hate the [colorful metaphor] out of neo-soviet scum. But, I can do it with absolute accuracy and easily proven facts…

    Ok, I’m just being an ass. Nothing new about that…

    1. avatar Cliff H says:

      But are you being an ass with malice aforethought?

    2. avatar CA_Chris says:

      The part about malice only applies to falsehoods and statements lacking supporting evidence.

      For instance, you might see the senator eating live kittens, but unless you had some evidence such video or receipts for large purchases of kittens, then you should sit on the story until you can back it up. Not to say that any senator eats kittens, to my knowledge .

      1. avatar Nigil says:

        Actually, I think that your personal testimony counts in your favor, even without evidence. If I saw you murdering someone, the cops wouldn’t ask me for video before arresting you. And if I personally saw you cheating on your spouse, I would not be out of line to tell the public that, even without hard evidence. It would simply be my obligation to make a point of the fact that my only ‘proof’ was my personal witnessing of the event.
        If it later turned out I was lying the whole time, then that’s malicious intent.

  8. avatar maynard biggs says:

    What?! The 9th Circuit came out with an opinion that I agree with?!

    What’s next? Human sacrifice. Dogs and cats living together. Mass hysteria…

    1. avatar Excedrine says:

      Perhaps they may even change course on 2A! [Insert wishful thinking anecdote here.] The end is nigh!

      1. avatar Jus Bill says:

        Maybe they’ve seen enough attempted totalitarianism. Everyone has their limit.

    2. avatar peirsonb says:

      Not to mention 35 foot twinkies…..

  9. avatar Excedrine says:

    Gotta’ love a happy ending.

    Though it’s still a shame that Ms. Cox was dragged through the mud, she still had her day in court and came away a winner. 😉

    1. avatar Chris Dumm says:

      Ms. Cox has less than a sterling reputation for the accuracy of her reportage, and she’s not out of the woods yet.

      Professor Volohk’s advocacy did win her another trial, where the jury will have to decide if she was negligent (in which case she loses again) or merely incorrect (she wins.)

      1. avatar John L. says:

        But at least then a loss would be for the right reasons.

  10. avatar Bob says:

    Defamation laws are illegitimate. No-one owns his/her reputation. If someone accuses someone wrongly, then that negatively affects the reputation of the false accuser. There is no need for these laws.

    1. avatar Cliff H says:

      “A reputation is like a china plate – once cracked it is never successfully mended.” Benjamin Franklin

      Your argument is incorrect, Bob. Your reputation, other than your very life, may be the only thing you legitimately own. It may be the entire source of your livelihood and personal esteem. To say that anyone who wants to can publish falsehoods that tarnish the reputation you have worked your whole life to establish is regrettably foolish. Libel and slander laws are in place to punish (and hopefully deter) people from disseminating lies and falsehoods about a person or company that can cause personal and economic harm. To say that the defense should be, “If you point one finger at me you have three pointing back at yourself,” is hardly a consolation when your life has been destroyed by false accusations printed through pure negligence or intentional malice.

      You should have absolutely no legal defense about anyone saying, printing or otherwise distributing the truth, no matter how uncomfortable you may find it, but to do the same with lies or untruths or even rumors is despicable and needs to be addressed by the legal system.

      1. avatar Bob says:

        Here’s some information about the problem with libel laws.

        How many times has someone used the government with these laws to punish someone who told the truth about someone? Many times. The law hurts the innocent far too often.

        And more…

    2. avatar Sam Spade says:

      Franklin’s plan to check the power the press uses to damage a person’s repution is, I think, the best:

      My proposal then is, to leave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel to go with it pari passu. Thus, my fellow-citizens, if an impudent writer attacks your reputation, dearer to you perhaps than your life, and puts his name to the charge, you may go to him as openly and break his head.–Franklin: Freedom of the Press.

    3. avatar James says:

      Bob, your argument would only carry weight in a land where people pay attention to facts, instead of listening to the loudest BS artist. I once had someone make provably false and malicious accusations of criminal wrongdoing against me, bringing me under police investigation and dragging my name through the mud. Stress-filled weeks passed while I waited to discover what the hell the bullshit was about. After I finally got the chance to see and refute the alleged evidence against me (in an interview with an Arizona DPS detective), I promptly went to an attorney who dealt in libel cases. To my frustration, he told me that I would certainly win a libel suit, but pointed out that my chances of successfully collecting a significant judgment from the scumbag who unleashed the crap were slim to none.

      We need MORE severe penalties for those who falsely dishonor others, not less severe.

  11. avatar BTinAfghan says:

    The UN passed an Internet Regulation treaty in Dec 2012; which would allow governments to censor what is put on the internet. This would essentially shut down most blogs if the government didn’t like what you blogged. The US did not sign the treaty, but what is to say in the future a president signed on then claim International Treaty had to be observed. Google already censors content in other countries. This and the UN attempts to regulate gun ownership.

    1. avatar Cliff H says:

      Like the U.N. (Useless Nations) anti-gun treaty I do not believe that by any stretch of legal consideration the existence and singing of such a treaty would trump, even slightly, The Constitution of the United Sates of America. I further suspect that to believe it would and to actively campaign for such a result would be a direct conflict with the oath every elected official takes to preserve and protect the Constitution. It may even rise to the level of treason.

      We belong to the United Nations, god knows why, but we are not subordinate to that body or any of the third world socialists that inhabit it and ratify this garbage. As far as guns or freedom of speech/Internet, one comment – “Molon Labe!” And please wear the nice blue helmets and drive the white APCs, they make such SWEET targets.

      1. avatar BTinAfghan says:

        I agree completely, but all it would take is a few more liberal activist judges and we would be screwed.

        1. avatar Jus Bill says:

          Naah. Even if some other President would be dumb enough to sign it, Congress would still have to ratify it for it to be binding. Fat chance! With the mood of the tech biggies toward preserving and growing their revenue streams, it would be political suicide for anyone to do that.

        2. avatar Drew says:

          by that reasoning all it would take is any man or woman in office deciding to pass a law without abiding by the rules and regulations in place.

          If you feel that is a likely scenario you certainly don’t need to suppose foreign influence.

          Quite simply if such a treaty were signed it would not carry the weight of law. Politicians manipulate the law regularly but rarely simply ignore it. if that were remotely feasible any number of presidents would have simply made their opinions law by now.

  12. avatar Skyler says:

    Well if you were in the ninth circuit you would be protected by this ruling. Last I saw you physical presence is in the fifth circuit.

    1. avatar Cliff H says:

      But it does establish a precedent and the 9th Circus is about the most Liberal of the courts, so that is encouraging. Additionally, if one or more other courts render conflicting opinions it establishes cause to appeal to the SCOTUS. (For what that’s worth.)

    2. avatar Chris Dumm says:

      Not mine. I work from Washington state.

  13. avatar Tom in Oregon says:

    This is great. Especially from the Ninth circus. Let’s hope it doesn’t get appealed.

  14. avatar Dirk Diggler says:

    so this means Shannon Watts’ protests about me posting her home, I mean corporate, address will go no where? 🙂

    1. avatar Dave the dude says:

      Hopefully only a flaming bag of dog poop on her front porch.

      I know, take the high road. *sigh*

  15. avatar michael nieto says:

    Robert do you realize that this blog probably gets more viewers than cnn and msnbc combined

  16. avatar Model 31 says:

    Me thinks they’re hedging their bets that big media is on the decline and being replaced by bloggers. The court doesn’t want these liberal bloggers sued by big business when their bloggers simply make up stuff and refuse to do even rudimentary research.

  17. avatar Model66 says:

    Wait, wait, wait….
    Did you just correlate Piers Morgan to being a real journalist!?
    HA!

  18. avatar Timbo says:

    Is there an advantage to defending our 2A rights using the First Amendment? In other words, buying a EBR is a political statement regarding our rights to defend ourselves from .gov?

      1. avatar Nigil says:

        Interesting article. It’s a shame about that blatant racism on the sidebar, I can’t really support that kind of thing.

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