Monday, January 25, 2016

YES the First Amendment DOES apply to Anti-Corruption Bloggers, Citizen Journalists and Whistleblowers. Don't let a DIRTY Judge tell you any different. Stand UP for your RIGHTS.

"Bloggers enjoy First Amendment protection against libel suits

"A website that castigates others as “evil doers” and “thugs” has exactly the same First Amendment protection as USA TODAY and the New York Times – and that’s a good thing.

In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media.

At issue were the blog posts of Crystal Cox, who accused Bend, Oregon attorney Kevin Padrick and his firm Obsidian Finance Group of misconduct in connection with his role as a trustee in a bankruptcy case. A jury awarded the plaintiffs $2.5 million in damages.

But the U.S Court of Appeals for the Ninth Circuit saw things differently, deciding that Cox’s allegations were matters of public interest and to sue her successfully, Padrick would have to prove her negligence – the same standard that applies when news media are sued.

“The protections of the First Amendment do not turn on whether the defendant was a trained journalist,” Judge Andrew Hurwitz wrote.

While the Supreme Court has previously observed that the lines between traditional news media and native web content have become blurred, this makes the first time that federal appellate court has essentially said that journalists and bloggers are one and the same when it comes to the First Amendment.

But we already knew that. The purpose of the free press clause of the First Amendment was to keep an eye on people in power and maintain a check on corruption. Given the cutbacks in traditional media, bloggers have taken up the slack, serving as watchdogs with attitude.

And of course, traditional reporters now blog daily, and prominent bloggers show up in traditional media.

Yet we still see a condescending and uninformed attitude from some lawmakers and judges who seem not to understand that digital and social media deserve the same respect as newspapers, magazines and broadcasters.

There is still resistance to including bloggers in a federal shield law, and as recently as 2012 a federal court judge concluding that “liking” a Facebook page was not protected free speech, a flawed decision overturned in September.

Speech doesn’t get much more free than blogs and comments on websites, and long-established principles protecting opinion and hyperbole help to keep it that way. In this case, the Ninth Circuit upheld a lower court’s decision to toss out other libel claims against Cox, despite her assertions that her targets engaged in corruption, fraud, deceit, money laundering, harassment and illegal activity. She called them immoral “evil doers” and “thugs” and alleged that a hit man had been hired to kill her.

The appellate court concluded that Cox’s post were so outrageous that no one would take them seriously and these hyperbolic attacks couldn’t be the basis of a lawsuit. Apparently it also helps to name your site “obsidianfinancesucks.com.”

The decision in a nutshell: Bloggers saying libelous things about private citizens concerning  public matters can only be sued if they’re negligent, and if you do decide to attack someone online, make sure you go over the top.

Ironically, the federal court’s decision protecting bloggers was based on Gertz v. Welch, a landmark Supreme Court case now in its 40th anniversary year. In lieu of cake and candles, we have a brand new case applying the case’s landmark decision to the most contemporary of media.

As abusive and derisive as some bloggers may be, they’re direct descendants of the first generation of Americans, who used pamphlets and politically-driven newspapers to attack their political rivals.  It was then that the nation’s founders ratified the First Amendment, paving the way for robust discussion of public issues, regardless of medium. That’s something worth celebrating."

Source
http://www.firstamendmentcenter.org/bloggers-enjoy-first-amendment-protection-against-libel-suits

The Crystal Cox Case is a Landmark Decision and it is a Game Changer for all New Media.

"Bloggers Gain First Amendment Victories But Still Face Issues in Online Journalism

Bloggers achieved a significant victory when the United States Court of Appeals for the Ninth Circuit held on Jan. 17, 2014 that First Amendment protections in defamation lawsuits extend to bloggers. 

In April 2014, a Florida appellate court held that bloggers were entitled to pre-suit notices for defamation suits under Florida law. Although the victories are welcome news to online content producers everywhere, the jailing of an Alabama blogger has raised questions and concerns among free speech advocates. Online speakers may still have obstacles to overcome before courts fully recognize that First Amendment protections apply to them.

Ninth Circuit Recognizes First Amendment Protections for Bloggers

On Jan. 17, 2014, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that bloggers receive the same First Amendment protections as institutional media in defamation lawsuits. Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014).

The case involved a dispute between Kevin Padrick, a principal with Obsidian Finance, a firm that advises financially troubled businesses, and Crystal Cox, a self-described investigative blogger. In 2008, Obsidian began working with Summit Accommodators, which was considering filing for bankruptcy.

A bankruptcy court appointed Padrick as Chapter 11 trustee once Summit filed reorganization paperwork. Shortly thereafter, Cox began posting accusations of criminal activity carried out by Padrick and Obsidian in their work with the Summit bankruptcy on several different websites, including “obsidianfinancesucks.com.” After sending a cease-and-desist letter that Cox did not comply with, Padrick and Obsidian filed a defamation suit in U.S. District Court for the District of Oregon.

The district court held that only one blog post could be interpreted as containing a statement of fact, and could proceed to trial. Obsidian Finance Group, LLC v. Cox, 812 F. Supp. 2d 1220 (D. Or. 2011).

The remaining blog posts were considered constitutionally protected opinions because they did not contain provable statements of fact. Cox also claimed protection under Oregon’s journalist’s shield law, but District Judge Marco A. Hernandez held that she did not meet the definitions of who can receive protection as laid out by the state statute. (For more information on Cox’s shield law claims, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 issue of the Silha Bulletin).

Cox also made First Amendment arguments that the liability standards should be governed by the Supreme Court’s decision in Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974). In Gertz, the Supreme Court held that a private plaintiff needs to show only negligence to recover actual damages from a media defendant.

But a plaintiff can only recover presumed or punitive damages upon a showing that a media defendant acted with “actual malice,” meaning that the statements were made with knowledge of falsity or reckless disregard of the truth. Gertz v. Robert Welch, Inc. Cox argued that, under Gertz, Padrick and Obsidian carried the burden of proving her negligence in order to recover actual damages for defamation.

Cox also argued that Padrick and Obsidian must show that she acted with actual malice to receive presumed damages. Judge Hernandez dismissed these arguments, stating that Cox had not proven that she was a journalist. Therefore, the protections of Gertz did not apply to her.

Cox also contended that Padrick and Obsidian were public figures. Under the New York Times v. Sullivan and the Gertz rulings, public figures are required to prove actual malice before they may recover any type of damages. New York Times v. Sullivan, 376 U.S. 254 (1964). The district court judge once again dismissed this argument, stating that Padrick and Obsidian had not made themselves public figures by becoming involved with a public controversy. Rather, Cox had created the controversy.

At the conclusion of the trial, a jury returned verdicts in favor of Padrick and Obsidian. Cox moved for a new trial, which the district court denied. Cox then appealed to the Ninth Circuit Court of Appeals, arguing that the district court had ruled incorrectly on the liability standards and Padrick’s and Obsidian’s public figure status. Padrick and Obsidian filed a cross-appeal contending that the jury should have considered their defamation claims relating to the other blog posts.

In a unanimous decision, the Ninth Circuit panel reversed the district court’s judgment against Cox. The court held that Gertz’s liability rules were not limited only to situations that involved traditional media defendants. The opinion by Judge Andrew Hurwitz explained that although the Supreme Court has never ruled that the Gertz standard applied to others besides institutional media, the Court’s language in the opinion also did not limit the ruling to institutional media alone. Hurwitz wrote, “[the Supreme Court] has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers,” citing several cases in which the high court declined to create a distinction between members of the press and the general public.

As a result, the court agreed with other circuits that “the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers.” The court also noted that trying to create a distinction between institutional media and other communicators was very difficult.

Therefore, the court said that the key First Amendment factor under Gertz in defamation cases was not the identity of the speaker. Rather, “the public-figure status of a plaintiff and the public importance of the statement at issue” are the key First Amendment considerations. Through this rationale, Cox, as a blogger, was entitled to the same liability standards that traditional forms of media received under the First Amendment.

In addition to determining that Sullivan and Gertz protections apply to the general public, the appeals court also rejected the argument that Gertz was limited to defamation cases involving matters of public concern. Hurwitz wrote that even if Gertz was limited to such a situation, Cox’s blog posts concerned public matters qualifying for protection.  However, the appellate court rejected Cox’s argument that Padrick and Obsidian became public officials because a bankruptcy court appointed them to oversee Summit’s affairs and provided compensation to them. The court also held that Cox’s remaining blog posts were clearly opinions. The panel concluded its decision by granting Cox’s request for a new trial.

Several First Amendment advocates and advocacy organizations praised the Ninth Circuit’s ruling. UCLA law professor Eugene Volokh, who represented Cox during the appeals process, told Associated Press reporter Jeff Barnard for a Jan. 17, 2014 article that the decision “makes clear that bloggers have the same First Amendment rights as professional journalists.” 

Volokh also noted that the decision followed similar court rulings that granted First Amendment protections to other writers and book authors, although this ruling appeared to be the first to grant protection to bloggers. In the same article, Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press (RCFP), said the ruling confirmed the fact that Gertz was “not a special right to the news media.” Rather, it applied to everyone. “So it’s a good thing for bloggers and citizen journalists and others,” Leslie said.

In a Jan. 24, 2014 commentary, First Amendment Center President Ken Paulson called the Ninth Circuit’s ruling a “landmark decision.” Paulson noted that given the growing financial constraints on traditional news media, many bloggers had taken on the role of the watchdog of people with power. The Ninth Circuit’s holding that bloggers deserve the same protections as traditional media was “something worth celebrating.” 

On the same day, Jim Rosenfeld, Ambika K. Doran and Jeremy A. Chase, attorneys with the firm Davis Wright Tremaine LLP, called the decision “a major win for individuals who blog, share, tweet, and otherwise publish their views online.” 

The attorneys explained that the panel’s language provided First Amendment protections to all speakers regardless of affiliation with institutional media.

As a result, the attorneys said, “an individual blogger, website operator or social media users speaking publicly on the Internet enjoy the same First Amendment protections from defamation claims as traditional media publishers.”

Nevertheless, some observers have noted that the case may not be a total victory. In a Jan. 17, 2014 post, Digital Media Law Project director Jeff Hermes wrote that although the court rightly decided the case, he was concerned that the court’s statements seemed to suggest that the reason Cox’s speech was protected in some blog posts was because few people could reasonably believe that content on blogs.

Hermes wrote that such assumptions about online content could devalue factual speech in the name of protecting it. “Respecting speech means evaluating it on its merits, instead of assuming that it has none,” he said."

Source
http://silha.umn.edu/news/WinterSpring2014/SILHACENTERBloggersFirstAmendmentUniversityofMinnesota.html

“The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,”

"Blogger Crystal Cox Wins Her Right Under the First Amendment To Post Her Opinions About Obsidian Finance Group

"A federal appeals court unanimously overturned a defamation award against a blogger Friday, ruling that 1st Amendment protections for traditional news media extend to individuals posting on the Web. “The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,” Judge Andrew D. Hurwitz wrote for a three-judge panel of the U.S. 9th Circuit Court of Appeals....The case was brought by Obsidian Finance Group and one of its principals, Kevin D. Padrick. Writing on several websites she created, blogger Crystal Cox accused them of fraud, corruption and other misconduct."

"SAN FRANCISCO -- A federal appeals court unanimously overturned a defamation award against a blogger Friday, ruling that 1st Amendment protections for traditional news media extend to individuals posting on the Web.

“The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,” Judge Andrew D. Hurwitz wrote for a three-judge panel of the U.S. 9th Circuit Court of Appeals.

The panel said its holding was the first of its kind within the 9th Circuit but that other circuit courts already have extended protections for journalists to individual speakers."

Source and Full Article
http://parentadvocates.org/nicecontent/dsp_printable.cfm?articleID=8583


Keep in mind that Crystal Cox never had criminal charges or a criminal investigation of any kind. Crystal Cox did NOT have a history of seeking a payoff. These words of the Ninth Circuit Judges were based on the "opinion" of a New York Times reporter.  And not based in Fact nor in the record of the lower court trial of which Ninth Circuit Judges are to get "Record" for Ninth Circuit Appeals.

You are NOW All Media as a Matter of Law. Report on Corruption and Unethical Behavior in your area, your courts, your Judges, your cops, and corporations. Provide links to documents of fact, videos, depositions, audios. BLOW the Proverbial Whistle.



You are now Media as of a Matter of Law Due to the Crystal Cox Case. So, start a blog, tell your story, report the news in your town, area of expertise or news you know.

"Bloggers = Media for First Amendment Libel Law Purposes

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,
"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. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.”Citizens United, 558 U.S. at 352. 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."
I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that
  1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and
  2. libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.
But the court’s reasoning reaches the First Amendment more broadly, and correctly so (again, see the Freedom for the Press as an Industry, or for the Press as a Technology? article, which sets out the historical evidence). Note, though, that the court’s reasoning is limited to First Amendment protections; it doesn’t discuss state or federal statutes that provide extra protection to the “media” or to other subsets of speakers."
Source
http://volokh.com/2014/01/17/bloggers-media-first-amendment-libel-law-purposes/

Obsidian v. Cox ~ Ninth Circuit Blogger First Amendment Case


The Crystal Cox Case is a Game Changer. NOW you are MEDIA as a Matter of Law and Higher Court Precedence.

"What the Crystal Cox case means for digital media

The case, which threatened to turn a great deal of business journalism into a crime, made its way to the California Court of Appeals. In 2006, the court ruled against Apple and for the websites. Journalism was also a winner.


That affair came to mind this week when a federal judge in Oregon, ruling in a libel case, came to a different conclusion. In deciding that blogger Crystal Cox's blistering attack on an investment firm and its co-founder was defamatory, he said she was not a journalist and therefore could not keep her source's identity secret under that state's shield law. Even if she had met that standard, he wrote, she'd still have had to divulge the identity of her source for the post.

In reaching that conclusion, the judge relied on wording in the law that makes no mention of digital media. And, following a laundry list of what he considered acceptable journalistic credentials and practices, he concluded she met none of his criteria and therefore was not part of the news media."

Source  and Full Article
http://www.theguardian.com/commentisfree/cifamerica/2011/dec/08/crystal-cox-case-digital-media

BLOGS are MEDIA. And Bloggers NOW have Equal Rights as a Matter of Law because of the Crystal Cox Case Ninth Circuit Win.