Wednesday, August 27, 2014

"Are Wine Bloggers Like Other Wine Journalists?" the Crystal Cox Case

"I must say that I am honored to be recognized among the other finalists, and look forward to more wine blogging in the coming year.

Now on to the blogging . . . A recent case in the Ninth Circuit Court of Appeals held that bloggers enjoy the same protections as do journalists operating in more traditional media outlets.  The Obsidian Finance Group v. Cox opinion marks the first federal circuit court of appeals to so hold.

The basic issue when the First Amendment is applied to journalists often arises when a plaintiff sues a journalist for defamation, libel, or slander.  What are recognized state law tort actions, which seek to protect people against the publication of untrue statements that damage one’s character or perception in the community, run up against federal Constitutional protections for free speech and freedom of the press.

There is a long history of case law governing this tension, which starts with the 1964 case of New York Times v. Sullivan.  The gist of Sullivan provides that public figures, when positioned as plaintiffs in a defamation action, must prove that a statement made by a traditional media outlet was made with actual malice – that the statement was made with reckless disregard for its truth.

The question that has more recently been asked was whether these doctrines should be applied the same in the context of statements made in blogs, tweets, Facebook posts, and other Internet-based forums.

With the Obsidian decision, the Ninth Circuit appears to have answered the question by holding that the speech should enjoy the same protections, despite the fact that the forum is not a traditional media outlet.  Of course, there is still lots of room for the doctrines to be applied differently, but one thing is for sure: that a plaintiff will not be able to argue that Sullivan wholly does not apply to the speech simply because the forum is an Internet website rather than a traditional media outlet.

You might be wondering how this case relates to the wine business, which is the subject of this blog.  Well, my friend, you are reading the words of a wine blogger, who resides within a state falling in the Ninth Circuit.  With the recent Wine Blog Awards finalists announced, I thought it was a good time to turn the focus on us for once.  So, maybe if I or the other wine bloggers happen to taste a bad wine and later write that it tastes like they fermented the wine with garbage, such a statement will be Constitutionally protected opinion speech."