Wednesday, August 27, 2014

"The Freedom to Blog – Obsidian Finance Group v. Cox"

"Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, is a very interesting recent decision coming out of the Ninth Circuit Court of Appeals. The case involved a “self-styled” “citizen journalist” blogger who was not affiliated with any media organization.

The blogger, Crystal Cox, was a former Real Estate Agent who took issue with some business transactions going involving sale of certain properties through a trustee. Her blogs were critical of the sales and the persons involved including Obsidian Finance Group and their principal, Kevin Padrick. Obsidian sued Ms. Cox for defamation for the statements she made in the blog posts.

Ms. Cox claimed that, because the issues discussed in the blog were a matter of public concern and she was merely reporting on these issues, the plaintiffs needed to show some fault (or “malice”) before liability could be established for defamation. The defendants argued that all they needed to show was that she was negligent in making the statements. A jury trial was held and Ms. Cox was hit with a $2.5 Million judgment. Cox appealed.

The Ninth Circuit Court of Appeal reversed the judgment and remanded the case back to the District trial court. The court held that Cox’s blog addressed a matter of public concern because it questioned whether the business transactions involved were protecting the interests of the investors. It further ruled that the lower court should have instructed the jury that Cox could not be held liable for defamation unless it found she acted negligently.

The court relied on prior decisions such as Gertz v. Robert Welch, Inc. and even cited to the much debated Citizens United v. Federal Election Commission to state that there is now a strong tendency with Federal law to blur the lines of “media v.s non-media” for purposes of interpreting First Amendment freedom of speech rights. In pertinent part, the ruling stated as follows:

“…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 the story.”

The Significance of This Decision for Bloggers and Internet Free Speech
While one cannot draw too much from any one decision, this case does seem to provide some, significant freedom of speech protections to bloggers and other people who contribute content to the internet and may not, necessarily, be formal “reporters”.

Under the reasoning of the court, people who blog, tweet, or otherwise put out content on the internet by way of articles or social media shares are afforded the same First Amendment protections as more traditional “media” outlet authors, like newspaper reporters. It also followed a line of case rulings by the Ninth Circuit that distinguish between people simply providing their “opinion” on a subject via the internet vs. verifiable facts. All of this provides legal clarification for all of us “individuals” who share information via the world wide web that we have the right to do so (within reason) without fear of being held legally liable for defaming someone!"