"As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable."
That's the money quote from Judge Andrew Hurwitz's opinion for the Ninth Circuit panel, which held that bloggers enjoy the same free speech protections as traditional journalists, and under Gertz v. Welch, cannot be liable for defamation absent proof of negligence regarding the truth of the allegedly defamatory material.
That's true even if, as the court explicitly noted, the blogger "apparently has a history of making similar allegations and seeking payoff in exchange for retraction."
Crystal Cox: Voice for the Voiceless, or Corrupt Blogger and SEO Wizard
What takes Crystal Cox's case from interesting to fascinating is the blogger herself. Cox will argue that she fights corruption online via her various blogs, and that she is only guilty of unearthing and publicizing the truth about the plaintiffs, Kevin Padrick and Obsidian Finance Group.
In fact, here's Crystal Cox in her own words:
A New York Times article, cited by the Ninth Circuit, would beg to differ. The Times' David Carr weaves a tale of a corrupt woman, with major SEO skills and hundreds of domains at her disposal, who launches character assassinations online.
In this case, she seized upon the bankruptcy of Summit Accommodators, an intermediary company in Bend, Oregon, that holds cash during property transactions. The company folded, executives were indicted, and Padrick was appointed as trustee. Cox claims that Padrick and Obsidian were involved in bribery, tax fraud, money laundering, payoffs, theft, and more.
Carr, as well as Padrick and his attorney, claim that Cox offered to back off in exchange for payment.
Most of Padrick and Obsidian's claims were tossed by the district court, as Cox's posts were apparently so hyperbolic and ridiculous that no reasonable person could believe them.
However, one bankruptcycorruption.com post (via Internet Archive) on December 25, 2010, had sufficient factual allegations to make a reasonable reader understand that Cox was making a factual assertion of tax fraud. The jury found on Obsidian and Padrick's behalf, awarding a total of $2.5 million in damages.
Cox, who initially represented herself, asserted that proof of negligence was required, or in the alternative, that the Times v. Sullivan actual malice standard applied, and that Padrick and Obsidian were public figures. The district court rejected both arguments because Cox had failed to submit "evidence suggestive of her status as a journalist," and that neither plaintiff was a public figure in any regard.
The court further emphasized to the jury that, under Oregon law, "Defendant's knowledge of whether the statements at issue were true or false and defendant's intent or purpose in publishing those statements are not elements of the claim and are not relevant to the determination of liability." The court also advised jurors that damages were presumed under the law for harm to reputation, humiliation, and mental suffering.
Bloggers Are Journalists Too
Who would've thought it? The allegedly corrupt blogger actually had a better grasp of the law than the judge, at least somewhat. As indicated, the Ninth Circuit joined a number of its sister circuits in holding that Gertz's requirement of negligence in defamation claims applies to nontraditional bloggers, as well as the institutional media.
Then again, after reviewing the blog post at issue, as well as obsidianfinancesucks.com, we can see how the judge was mistaken as to the merits of Cox's claims of being a journalist.
And though Cox represented herself initially, and had the better legal argument, by the time she reached the Ninth Circuit, she had even more capable representation, UCLA Law Professor Eugene Volokh, standing next to her.
"In this day and age, with so much important stuff produced by people who are not professionals, it's harder than ever to decide who is a member of the institutional press," Volokh told Reuters. He knows all about blogging, by the way: The Volokh Conspiracy is a legend in the blawgosphere.
- Obsidian Finance Group v. Cox (FindLaw's CaseLaw)
- Inhale Inc. Gets Smoked by Starbuzz in Hookah Copyright Dispute (FindLaw's U.S. Ninth Circuit Blog)
- Letter Besmirching Kozinski Asks: Can a Chief Judge Be a Litigant? (FindLaw's U.S. Ninth Circuit Blog)