When blogging became mainstream, many wondered if blogging would have an effect on the legal protections afforded to professional journalists.
Would courts treat every blogger as a journalist? Or would the influx of bloggers undermine the protections afforded to the press by landmark court rulings and state shield laws?
Happily, courts seem to have moved toward expanded First Amendment protection for non-journalists, rather than diminishing protection for the traditional press. A notable example is the Ninth Circuit's recent opinion in Obsidian Finance Group, LLC v. Cox.
In Obsidian Finance, defendant Crystal Cox had published blog posts accusing Obsidian and Kevin Pradick, its principal, of fraud in connection with a bankruptcy case. Cox was not a professional journalist, and the appeals court would later note, citing to a New York Times column about Cox, that she “apparently had a history of making similar allegations and seeking payoffs in exchange for retraction.” (Cox has since asked the court to amend its opinion to remove this statement, which Cox says is not supported by adjudicated evidence and is not an accurate representation of the New York Times column.)
Obsidian and Pradick sued Cox for defamation. A jury awarded the plaintiffs $2.5 million, and Cox appealed.
The main issue on appeal was whether Gertz v. Robert Welch, Inc. applies only in cases brought against the traditional press. Gertz established that states are free to set standards of liability for defamation claims brought by private individuals, but must at least require a showing of negligence—they may not impose strict liability for defamation.
The district court found that the Gertz standard applied only to institutional media defendants, and instructed the jury not to consider whether Cox knew whether the statements at issue were true or false, or her intent or purpose in publishing the statements.
On appeal, Cox argued that the Gertz standard should not be limited to cases involving institutional media defendants, citing the 2010 Supreme Court opinion in Citizens United v. Federal Election Commission, which notes that the Court has "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."
The Ninth Circuit agreed with Cox, finding that "the holding in Gertz sweeps more broadly" and is "not limited to cases with institutional media defendants."
The panel found that "[t]he protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities," but instead, the public-figure status of a plaintiff and the public importance of the statement at issue will "provide the First Amendment touchstones."
The court found that Cox's statements were a matter of public concern, reversed the district court judgment and remanded for a new trial.
Obsidian Finance suggests a trend toward greater First Amendment protections for non-journalists, and while the question of who counts as a journalist will continue to arise in cases involving shield laws, for the purposes of applying Gertz, that question is now settled, at least in the Ninth Circuit.