"In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238, 12-35319 (9th Cir. Jan. 17, 2014), the Ninth Circuit held that First Amendment protections under the Supreme Court’s landmark opinion in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), applied to a blogger, not just the institutional media. In Obsidian, a blogger accused a Chapter 11 bankruptcy trustee of fraud and other illegal activities in the bankruptcy case.
The trustee sued for defamation for several of the blog posts. The district court allowed one of the trustee’s claims to go to trial on the grounds that the blog post at issue had made false factual assertions.
The Ninth Circuit reversed, holding that the blog post was protected by the First Amendment under Gertz, in which the Supreme Court held that private defamation suits against the media require proof of negligence and actual damages.
The Court refused to distinguish between the institutional media and private individuals, explaining that First Amendment protections for the media “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.”
The Court noted that the Supreme Court had not decided whether Gertz onlyapplied to matters which are of no public concern, but the Court said that made no difference in the instant case because the blog topic raised issues that were clearly of public interest, namely allegations of criminal activity and fraud in a bankruptcy case.
Nonetheless, the Court did not adopt all of the blogger’s arguments; it notably rejected the defense that the bankruptcy trustee was a public official, highlighting that the trustee was not elected or appointed to a government position and was paid by the debtor’s estate, not the court."
Source
https://www.lexology.com/library/detail.aspx?g=41ae20be-a102-4ede-ae4b-51690a82e23b
BLOGS are the ONLY "Medium of Communication" those Exposing Corruption Have. START a BLOG, Expose Corruption. You are Media; You are a Journalist, Speak Up, Post Facts, Documents and Proof. ~ You No Longer Have to Fear the MONOPOLY of FREE Speech in which Institutional Press has so long held. ~ News By the People for the People, BLOGS.
Saturday, October 21, 2017
"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."
"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."
Source
https://www.lexology.com/library/detail.aspx?g=a096ac52-39f6-4f3d-a57d-811236d47be8
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."
Source
https://www.lexology.com/library/detail.aspx?g=a096ac52-39f6-4f3d-a57d-811236d47be8
"Cox, the blogger, sought protection under the First Amendment, raising two standards in defense. "
"The Ninth Circuit has extended an additional level of protection for company publications that take the form of blogs. In reference to the level of fault required to prove liability for an allegedly defamatory posting, the court explained that it is irrelevant whether a blogger is a member of an institutional press corps or a private entity.
In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238 & 35319 (9th Cir., Jan. 17, 2014), the Ninth Circuit considered a defamation suit brought by a bankruptcy trustee against a blogger who falsely accused the trustee of failing to pay taxes owed by the company in bankruptcy. Cox, the blogger, sought protection under the First Amendment, raising two standards in defense.
First, citing the Supreme Court’s New York Times Co. v. Sullivan, 376 U.S. 254 (1964) decision, she argued that, because the bankruptcy was a matter of public concern, Obsidian must prove actual malice on the part of Cox. In the alternative, Cox relied on the Court’s Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) decision that identified the negligence standard for private defamation actions.
The district court denied both arguments because Cox failed to prove her status as a journalist. The court also rejected the contention that the matter was of public concern, relegating Cox to either prove the statements were true or that they did not harm the defendant. Cox appealed.
During appeal, Obsidian argued for a narrow interpretation that the Gertz standard applies only to journalists because of the need to shield “the press and broadcast media from the rigors of strict liability for defamation.” 418 U.S. at 348. According to Obsidian, because Cox was not a member of the press, she was not afforded the Gertz protection.
But the Ninth Circuit disagreed. “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.” Obsidian Finance, 12-35238 at II.B.1.
Instead, in defamation cases, the First Amendment standards turn on the public importance of the statement, not the identity of the speaker.
In addition, the court pointed out that, even assuming Gertz is limited to matters of public concern, the blog post from Cox qualified because public allegations that someone is involved in a crime generally satisfy the requirement."
Source
https://www.lexology.com/library/detail.aspx?g=4e736527-7711-4a01-bfb1-00f9f39d916a
In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238 & 35319 (9th Cir., Jan. 17, 2014), the Ninth Circuit considered a defamation suit brought by a bankruptcy trustee against a blogger who falsely accused the trustee of failing to pay taxes owed by the company in bankruptcy. Cox, the blogger, sought protection under the First Amendment, raising two standards in defense.
First, citing the Supreme Court’s New York Times Co. v. Sullivan, 376 U.S. 254 (1964) decision, she argued that, because the bankruptcy was a matter of public concern, Obsidian must prove actual malice on the part of Cox. In the alternative, Cox relied on the Court’s Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) decision that identified the negligence standard for private defamation actions.
The district court denied both arguments because Cox failed to prove her status as a journalist. The court also rejected the contention that the matter was of public concern, relegating Cox to either prove the statements were true or that they did not harm the defendant. Cox appealed.
During appeal, Obsidian argued for a narrow interpretation that the Gertz standard applies only to journalists because of the need to shield “the press and broadcast media from the rigors of strict liability for defamation.” 418 U.S. at 348. According to Obsidian, because Cox was not a member of the press, she was not afforded the Gertz protection.
But the Ninth Circuit disagreed. “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.” Obsidian Finance, 12-35238 at II.B.1.
Instead, in defamation cases, the First Amendment standards turn on the public importance of the statement, not the identity of the speaker.
In addition, the court pointed out that, even assuming Gertz is limited to matters of public concern, the blog post from Cox qualified because public allegations that someone is involved in a crime generally satisfy the requirement."
Source
https://www.lexology.com/library/detail.aspx?g=4e736527-7711-4a01-bfb1-00f9f39d916a
Blurred lines: Ninth Circuit applies same First Amendment protections to bloggers as traditional media
"The Ninth Circuit last week became the first federal court of appeals to find that bloggers are entitled to the same First Amendment protections as traditional print and broadcast media when sued for defamation. Obsidian Fin. Grp. v. Cox, -- F.3d --, 2014 WL 185376 (9th Cir. Jan. 17, 2014). The court also delivered a victory to online publishers by recognizing that their use of informal and hyperbolic language reduces their exposure to libel claims because such language is often protected opinion.
Cases involving traditional publishers set the groundwork for examining First Amendment issues in the digital age. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that public officials must show actual malice—that the speaker/defendant knew or acted with reckless disregard as to whether a statement was false—to prevail on a defamation claim. Courts later expanded that holding to public figures. Ten years later, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), established that private figure defamation plaintiffs must prove negligence, and may only recover actual (not presumed or punitive) damages with respect to statements about matters of public concern. In each case, the speaker/defendant was a traditional media outlet.
But as the Supreme Court has since observed, “[w]ith 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 v. Federal Election Commission, 558 U.S. 310, 352 (2010). Indeed, the Internet, which enables the publication of content through blogs, Facebook posts, tweets, and other modes of communication, has forced courts to examine whether the identity of the speaker matters to First Amendment protections. Last week, in Obsidian, the Ninth Circuit answered that question with a resounding “No.”
Background and Court’s Decision
The case arose when Obsidian Finance Group and its principal, Kevin Padrick, sued blogger Crystal Cox for publishing posts accusing them of fraud, corruption, money laundering, and other illegal activities in connection with Padrick’s Chapter 11 trusteeship of a company called Summit Accommodations, Inc. The district court granted summary judgment in Cox’s favor on all but one statement, on the grounds that the majority of the statements were constitutionally protected opinions. Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232-34 (D. Or. 2011). At trial, the jury found for the Plaintiffs as to the one remaining statement—a post claiming Padrick committed tax fraud—and awarded $2.5 million in compensatory damages.
Ruling on pre- and post-trial motions, the district court found that Padrick and Obsidian were not required to offer proof of fault—whether negligence or actual malice—nor actual damages to establish liability against Cox because Cox failed to submit “evidence suggestive of her status as a journalist,” Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2011 WL 5999334, at *5 (D. Or. Nov. 30, 2011); Padrick and Obsidian were not public figures; and the blog post did not refer to a matter of public concern. Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2012 WL 1065484, at *4 -7 (D. Or. Mar. 27, 2012). Cox appealed, and Plaintiffs cross-appealed from the district court’s dismissal of the remaining blog posts.
The Ninth Circuit squarely rejected the district court’s first holding, finding the same First Amendment rules apply to all speakers, whether institutional media or individual speakers such as bloggers. “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.” Obsidian, 2014 WL 185376, at *5. The Court reasoned that the Supreme Court had not limited its holding in Gertz to institutional media and had repeatedly refrained from affording greater First Amendment protection to media in other contexts. Id. at *4. Most recently, in Citizens United, 558 U.S at 352, the Supreme Court noted that it has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” And while the Ninth Circuit had not addressed whether the same First Amendment defamation rules apply to individual speakers as institutional media, every other circuit to consider the question had found that they do. Obsidian, 2014 WL 185376, at *5.
With respect to the level of fault, the Court found the allegation that Padrick committed tax fraud was a matter of public concern and, under Gertz, the trial court erred by failing to instruct the jury that it must show Cox acted negligently to find her liable for defamation. (Consumer review sites and their contributors will take comfort in the Court’s statement that “even consumer complaints of non-criminal conduct can constitute matters of public concern,” likewise warranting protection under Gertz). The Court refused to consider whether the result would differ if the statement was not a matter of public concern (a question Gertz left unanswered), and affirmed the district court’s ruling that the defendants were not public figures. Thus, the Court remanded for a new trial on the lone statement for which Cox had been found liable.
The Court also rejected the plaintiffs’ cross-appeal, finding that the trial court properly held that Cox’s other statements were non-actionable opinion, applying a three-part test announced in Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). As to the first prong, the Court observed that the general tenor of the blog posts and the fact they were posted on websites with names suggesting a one-sided viewpoint (e.g., obsidianfinancesucks.com) negated the impression that Cox was asserting objective facts.
Second, Cox’s routine use of hyperbolic language dispelled any reasonable expectation that her statements asserted facts. Finally, viewed in the context of a non-professional website with hyperbolic language, the blog posts were not sufficiently factual to be proven false. Obsidian, 2014 WL 185376, at *7.
Takeaways
Obsidian is a major win for individuals who blog, share, tweet and otherwise publish their views online. While the Court initially framed the question as “What First Amendment protections are afforded a blogger sued for defamation?” (emphasis added), its decision applies the First Amendment protections it has bestowed on “institutional media” to all “individual speakers” or “other speakers.” The Court stated that the applicability of such protections does 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.” Id. at *5. Under this reasoning, 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."
Source
https://www.lexology.com/library/detail.aspx?g=70eecbf8-59ac-46b1-8a8a-253e26d7b843
keep in mind that ANY financial or Tax Information Cox posted, SHE had an inside source, a CPA whistleblower who gave her financial information.
Cases involving traditional publishers set the groundwork for examining First Amendment issues in the digital age. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that public officials must show actual malice—that the speaker/defendant knew or acted with reckless disregard as to whether a statement was false—to prevail on a defamation claim. Courts later expanded that holding to public figures. Ten years later, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), established that private figure defamation plaintiffs must prove negligence, and may only recover actual (not presumed or punitive) damages with respect to statements about matters of public concern. In each case, the speaker/defendant was a traditional media outlet.
But as the Supreme Court has since observed, “[w]ith 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 v. Federal Election Commission, 558 U.S. 310, 352 (2010). Indeed, the Internet, which enables the publication of content through blogs, Facebook posts, tweets, and other modes of communication, has forced courts to examine whether the identity of the speaker matters to First Amendment protections. Last week, in Obsidian, the Ninth Circuit answered that question with a resounding “No.”
Background and Court’s Decision
The case arose when Obsidian Finance Group and its principal, Kevin Padrick, sued blogger Crystal Cox for publishing posts accusing them of fraud, corruption, money laundering, and other illegal activities in connection with Padrick’s Chapter 11 trusteeship of a company called Summit Accommodations, Inc. The district court granted summary judgment in Cox’s favor on all but one statement, on the grounds that the majority of the statements were constitutionally protected opinions. Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232-34 (D. Or. 2011). At trial, the jury found for the Plaintiffs as to the one remaining statement—a post claiming Padrick committed tax fraud—and awarded $2.5 million in compensatory damages.
Ruling on pre- and post-trial motions, the district court found that Padrick and Obsidian were not required to offer proof of fault—whether negligence or actual malice—nor actual damages to establish liability against Cox because Cox failed to submit “evidence suggestive of her status as a journalist,” Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2011 WL 5999334, at *5 (D. Or. Nov. 30, 2011); Padrick and Obsidian were not public figures; and the blog post did not refer to a matter of public concern. Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2012 WL 1065484, at *4 -7 (D. Or. Mar. 27, 2012). Cox appealed, and Plaintiffs cross-appealed from the district court’s dismissal of the remaining blog posts.
The Ninth Circuit squarely rejected the district court’s first holding, finding the same First Amendment rules apply to all speakers, whether institutional media or individual speakers such as bloggers. “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.” Obsidian, 2014 WL 185376, at *5. The Court reasoned that the Supreme Court had not limited its holding in Gertz to institutional media and had repeatedly refrained from affording greater First Amendment protection to media in other contexts. Id. at *4. Most recently, in Citizens United, 558 U.S at 352, the Supreme Court noted that it has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” And while the Ninth Circuit had not addressed whether the same First Amendment defamation rules apply to individual speakers as institutional media, every other circuit to consider the question had found that they do. Obsidian, 2014 WL 185376, at *5.
With respect to the level of fault, the Court found the allegation that Padrick committed tax fraud was a matter of public concern and, under Gertz, the trial court erred by failing to instruct the jury that it must show Cox acted negligently to find her liable for defamation. (Consumer review sites and their contributors will take comfort in the Court’s statement that “even consumer complaints of non-criminal conduct can constitute matters of public concern,” likewise warranting protection under Gertz). The Court refused to consider whether the result would differ if the statement was not a matter of public concern (a question Gertz left unanswered), and affirmed the district court’s ruling that the defendants were not public figures. Thus, the Court remanded for a new trial on the lone statement for which Cox had been found liable.
The Court also rejected the plaintiffs’ cross-appeal, finding that the trial court properly held that Cox’s other statements were non-actionable opinion, applying a three-part test announced in Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). As to the first prong, the Court observed that the general tenor of the blog posts and the fact they were posted on websites with names suggesting a one-sided viewpoint (e.g., obsidianfinancesucks.com) negated the impression that Cox was asserting objective facts.
Second, Cox’s routine use of hyperbolic language dispelled any reasonable expectation that her statements asserted facts. Finally, viewed in the context of a non-professional website with hyperbolic language, the blog posts were not sufficiently factual to be proven false. Obsidian, 2014 WL 185376, at *7.
Takeaways
Obsidian is a major win for individuals who blog, share, tweet and otherwise publish their views online. While the Court initially framed the question as “What First Amendment protections are afforded a blogger sued for defamation?” (emphasis added), its decision applies the First Amendment protections it has bestowed on “institutional media” to all “individual speakers” or “other speakers.” The Court stated that the applicability of such protections does 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.” Id. at *5. Under this reasoning, 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."
Source
https://www.lexology.com/library/detail.aspx?g=70eecbf8-59ac-46b1-8a8a-253e26d7b843
keep in mind that ANY financial or Tax Information Cox posted, SHE had an inside source, a CPA whistleblower who gave her financial information.
Subscribe to:
Posts (Atom)