For Defamation, Blogger and Journalist Are the Same

A blogger has the same First Amendment rights as a traditional journalist and to prove defamation for a post, a plaintiff must show some degree of negligence by the blogger, the Ninth Circuit found.

The case involved one of several blog posts by Crystal Cox.  That post accused the plaintiffs, who were trustees in a bankruptcy matter, of fraud, corruption, money-laundering, and other illegal activities.  The trial court had found that all but one of the defendant’s blog posts were constitutionally protected opinions “because they employed figurative and hyperbolic language and could not be proved true or false.”  As to the remaining post, the trial court ruled that the plaintiffs were not required to show that Cox acted with some degree of fault, either negligence or actual malice, as would be required of a media defendant under the First Amendment.

On appeal, Cox argued that she should be entitled to First Amendment protections, including the requirement that plaintiffs show she acted with negligence in order to establish liability.

The opinion, which noted that the Ninth Circuit had never previously addressed the question of whether First Amendment protections apply to bloggers, concluded that the First Amendment did extend to bloggers.

“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,” the opinion stated.  “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.”

The appellate court remanded the case for a new trial, requiring plaintiffs to prove that Cox acted either negligently or with malice in making the posting.

The appellate court agreed with the trial court that the other posts were merely opinions and not defamatory because they were posted on “obsidianfinancesucks.com,” were almost stream-of-consciousness statements that read more like a diary, used extreme language, and were not sufficiently factual to be proven true or false.  The appellate court noted that the defendant “apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.”

Obsidian Finance Group LLC et al v Crystal Cox, Ninth Cir. No. 12-35238, issued January 17, 2014.