Ninth Circuit Extends Defamation Protection to Internet Bloggers

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 31, 2014

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Online news analysis and reporting through blogs, tweets, or social media posts has experienced a rapid growth in popularity, but remains distinguished from traditional media outlets such as newspapers or TV networks.  The gap is closing, however, and online publishers took another step towards legitimacy this week when the Ninth Circuit Court of Appeals determined that bloggers are afforded the same protection from defamation lawsuits as institutional media outlets enjoy.

Ninth Circuit Grants First Amendment Protection to Bloggers

In Obsidian Finance Group v Cox, the US Court of Appeals for the Ninth Circuit seems to have settled the question of blogger liability for defamation by offering internet writers the same protections historically afforded to traditional media.  Obsidian emerged as a case between Obsidian Finance Group and blogger Crystal Cox over blog posts published by Cox accusing Obsidian of fraud, money laundering, and other financial crimes when the company filed for Chapter 11 bankruptcy.  Although most of the statements made by Cox were constitutionally protected as opinion, one statement accusing Obsidian of tax fraud resulted in a $2.5 million judgment against Cox for defamation.

The judgment was possible because the trial court determined that Ms. Cox failed to “submit evidence suggestive of her status of a journalist,” which means she was not provided the same protection against libel that newspapers and other traditional media sources have. On appeal, the Ninth Circuit disagreed, and determined that the First Amendment protections offered to institutional media apply also to individual speakers who assert their statements via non-traditional media outlets such as blog posts.  Holding that the identity of the speaker was not important in defamation cases, the Ninth Circuit rejected the notion that institutional press has First Amendment protection that individual speakers, such as bloggers, do not.

This decision is in line with a trend towards blurring the line between bloggers and traditional media that the Supreme Court started in 2010’s Citizen United v Federal Election Commission (FEC), a case used by the Ninth Circuit in arriving at the Obsidian decision.  When Citizens United declined to give constitutional privileges to institutional press that private speakers do not enjoy, it became apparent that the law was moving away from distinguishing between traditional and non-traditional media in constitutional matters.  Now, the Ninth Circuit has answered question of whether or not the identity of the writer matters in defamation lawsuits with a definitive “no” by deciding that any internet post – be it from a blogger or a newspaper – is afforded First Amendment protection.

Blogger Defamation Law after Obsidian

The rule on defamation between private parties, for bloggers as well as traditional media, comes from the 1974 Supreme Court decision in Gertz v Robert Welch, Inc.  In Gertz, the Supreme Court determined that when a private figure, such as a person or a business, brings a defamation suit, it must prove that the defendant was negligent, and can only recover damages if the defamation included statements about matters of public concern.

In its Obsidian ruling, the Ninth Circuit determined that Ms. Cox’s allegations of tax fraud were considered matters of public concern, and thus she could be liable for defamation if the company proved her blog was negligent in its allegations.  The Ninth Circuit’s decision means the case will be retried, but this time Obsidian must prove that Ms. Cox was negligent in her accusations of tax fraud – an element the company was not required to prove the first time because the trial court did not grant Cox the First Amendment protections as applied in Gertz.  Although the Ninth Circuit does not control the entire American legal landscape, the case sets a strong precedent that bloggers are given the same protections under Gertz that traditional media has always enjoyed: if a private entity is to prove defamation, it must show that the blogger, or tweeter, has written on a matter that is a public concern and has been negligent in making statements or accusations.  This is a difficult standard to meet, and internet communicators have scored a large victory against the threat of defamation lawsuits.

Obsidian also Protects Internet Communication as Opinion

Although not a unique element of the decision, it is worth noting that Obsidian upheld an ongoing trend of protecting most internet speech from defamation lawsuits by considering it opinion rather than statements or allegations of fact.  Most of Obsidian’s claims against Ms. Cox were dismissed under the legal position that internet communication is generally characterized as freewheeling opinion, and it is recognized as such by readers.  Opinion is often protected from defamation because readers are able to differentiate it from fact, and thus it is less harmful to the party being targeted. 

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