Bloggers Get First Amendment Protections in Defamation Lawsuits

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The 9th Circuit Court of Appeals has issued an important ruling in a case that centers upon the rights of bloggers sued for defamatory blog posts. With salacious gossip about celebrities and other public officials increasingly being traded on the Internet, the appellate court focused on whether bloggers can hold the First Amendment up as a defense to the same extent as trained journalists.

In a defamation case against Crystal Cox, a district court judge said they couldn't. On Friday, the appeals court rejected that assessment.

In a blog post, Cox accused Obsidian Finance Group and its co-founder Kevin Padrick of committing tax fraud while administering the assets of a company in a Chapter 11 reorganization. At trial, a jury awarded the plaintiffs a total of $2.5 million over false assertions.

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Before the case got to trial, however, Cox pointed to landmark judicial opinions, including New York Times Co. v. Sullivan, to make the argument that because the blog post involved a matter of public concern, the plaintiffs had the burden of proving her negligence in order to recover for defamation. Alternatively, she asserted that Padrick and Obsidian were public figures, and as such, they needed to show she acted with "actual malice."

The trial judge responded that she had failed to submit "evidence suggestive of her status as a journalist."

The decision set off a firestorm of concern through Internet quarters and finally reached the 9th Circuit for opinion Friday.

In the ruling (read here), 9th Circuit Judge Andrew Hurwitz writes that while there is a paucity of rulings in his appellate circuit examining the First Amendment and defamation in the age of blogging, there are a host of big rulings, including Citizens United v. FEC as well as rulings from other circuits, that reject the notion that the institutional press has First Amendment advantages that individual speakers don't.

"We agree with our sister circuits," writes the judge. "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. … 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 judge goes on to say that the blog post was a matter of public concern, though the plaintiffs were not public officials. As such, the case is remanded for a new trial that will focus on whether Cox was negligent in what she wrote.

Twitter: @eriqgardner