Friday, April 18, 2014

Neumann v. Liles, Or: Court of Appeals 2014

"CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon domestic limited liability company, Plaintiffs-Appellants Cross-Respondents,
CHRISTOPHER LILES, Defendant-Respondent Cross-Appellant."

"Second, relying on federal cases, defendant asserts that his statements are not defamatory because, in his view, the context of the statements demonstrates that they are figurative, rhetorical, or hyperbolic. See Obsidian Finance GroupLLC v.Cox, 812 F Supp 2d 1220, 1222-25 (D Or 2011), aff'd in part, rev'd in part on other grounds, 740 F3d 1284 (9th Cir 2014) (describing test used by the Ninth Circuit to determine whether a statement is opinion or fact for defamation purposes under its First Amendment jurisprudence, and noting several examples of non-actionable hyperbole, figurative language, and rhetoric).

To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant's statements, as a whole, are hyperbolic. True, some of what defendant says in the challenged post is opinion and is hyperbolic (
e.g., "worst wedding experience of my life!").

However, the bulk of the post is nonrhetorical and factual (
e.g., "[t]he owners did not make the rules clear"; "when they saw something they didn't like they waited until the day of the wedding to bring it up"; "[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately"; "[t]he `bridal suite' was a tool shed that was painted pretty, but a shed all the same"). Those factual details demonstrate that defendant's statements are not mere hyperbole and, more to the point, would not be brushed off as mere hyperbole by a reasonable reader of those statements. See Wheeler v. Green, 286 Or 99, 104-06, 593 P2d 777 (1979) (analyzing whether recipient of statements would have understood statements to defame the plaintiff in order to determine whether statements were defamatory)."


Thursday, April 17, 2014

Obsidian Finance v. Crystal Cox; EQUALITY for ALL Bloggers to that of Institutional press, main stream media, traditional journalist.

"I was forwarded an article by Jeff Barnard of the AP opining on a recent Federal Court decision from the 9th Circuit regarding the 1st Amendment–the very first federal appellate ruling affording bloggers, such as myself,  legal protections similar to those of journalists generally.

While I’ve been threatened, to no result, multiple times, with lawsuits and other random attempts to dull my pen, this decision impacts beyond my desk to anyone giving wide circulation about an injustice, or an opinion on a “public issue.”

Some frame of reference.  A series of blogs I posted early last year received widespread attention, including commentary by the Miami Herald, R Street Institute and others. Not so much because of what I wrote, but…because someone I wrote about tried to stop me.

The series of articles narrowed to a public adjuster upset at my observation that his firm’s name  appeared intended to make people think he was with the government. His threat:

“…cease and desist and remove our name right away.  Failure to do so will result in a suit, naming you for damage to our reputation and name.”

Incredulous, I did no such thing.

Just the opposite. I published additional research demonstrating that his firm might be violating both state and federal law. 

In my published response (Freedom of Speech & the USA), I offered to print his full unedited reply should he care to offer one. He didn’t. I now find the links I provided to his website no longer work.

Retained counsel during the episode provided advice, much of which, if followed, would’ve restricted me from mentioning anyone by name and merely citing applicable statutes without stating that someone, anyone, may be in violation thereof–cogent but, impractical, especially when exposing that a specific name may be in violation of a specific statute. A broader application could handcuff exposing some entities committing far more egregious acts and deceptions.

In 2010, Crystal Cox, a self described “investigative blogger” published posts attacking   Obsidian Finance Group and its partners. She accused them of tax fraud, money laundering, and more. Her posts were published on websites with names like “”
Obsidian and one of its partners sued for defamation.

The Ninth Circuit in Obsidian Finance v. Crystal Cox  used convoluted language to isolate a simple proposition–even though someone might not write for the “institutional press,” they’re entitled to protections the Constitution grants journalists.

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.”

One AP article quotes Gregg Leslie of the Reporters Committee for the Freedom of the Press saying the ruling affirms what many have long argued: “Standards set by a 1974 U.S. Supreme Court ruling, Gertz v. Robert Welch, apply to everyone, not just journalists.”

“It’s not a special right to the news media,” he said. “So it’s a good thing for bloggers and citizen journalists and others.”

To me the real beauty of this decision, is not that millions of bloggers just like me were right  but, that we now have the media’s freedom to be wrong."


AN IMPORTANT VICTORY for FREE SPEECH. "In an important victory for free speech advocates, the Ninth Circuit has joined other courts in establishing that authors protected by the First Amendment need not be journalists to have such robust protections."

"In Obsidian Finance Group, LLC v. Cox, — F.3d —- (2014) (filed Jan. 17th, 2014), the Ninth Circuit overturned a lower court decision that limited certain First Amendment protections to institutional journalists. The Court explained that “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.”

In aligning the Ninth Circuit with other circuits which have addressed the issue, the court reaffirms that negligence is the minimum legal standard for any case involving matters of public interest (and possibly all cases). To receive general damages without suffering specific harm and to receive punitive damages, the plaintiff must establish that the defendant published the statements with actual malice, meaning intentional knowledge of falsity or reckless disregard of the truth.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court established the modern First Amendment framework. Public officials must prove actual malice to prove liability. Curtis Publishing Co. v. Butts, 388 U.S. 130, (1967), then extended this standard to public figures. A decade later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974), the Supreme Court held that the First Amendment required a negligence standard for private defamation actions. Significantly less than the actual malice standard, it nonetheless established that there could not be liability without fault.
In Obsidian Financial Group, the Ninth Circuit does not suggest the defendant is blameless:
Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. SeeDavid Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations.
The accusations and statements, however, were difficult to view as factual assertions. Where there were assertions of fact, the court explains, the plaintiff must establish the negligence of the statements.
The Ninth Circuit also sidestepped the issue whether the Gertz negligence standard applies to matters of purely private concern. It noted the unresolved question, when it stated that “the Supreme Court has ‘never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.’” (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 757 (1985) (plurality opinion)).
Instead, the Ninth Circuit noted that the blog was made available to the public at large, just as every blog does. Moreover, the court noted that “public allegations that someone is involved in crime generally are speech on a matter of public concern.” So instead of answering whether the negligence standard applies to private matters, the court expanded the realm of public discourse to almost any public accusation.
This strategy has the effect of expanding the negligence standard to almost any claim. It may leave certain personal matters personal, though this is unclear. It could also leave certain formats, such as personal emails, texts, and friends’ lists as matters of purely private concern, but undoubtedly many of allegedly defamatory posts on such platforms will also be matters of public concern.
The distinction between matters of public concern and purely private matters has less and less meaning, and the distinction is likely to continue to erode in the context of defamation, though perhaps remain relevant in some issues involving privacy.
Nonetheless, the case is an important victory for free speech interests. Of course, this does not mean anything can be published with impunity. Negligence is not a terribly difficult test to meet and those plaintiffs who have truly been harmed will still have their day in court. It is difficult to be the subject of online attacks, but the rules of law should apply equally to all speakers, journalists, bloggers, and citizens alike. In the Ninth Circuit, it now does."


"“This case is the first one from a federal court of appeals that specifically protects the rights of bloggers,” said UCLA constitutional law professor Eugene Volokh, who represented Cox without charge on appeal.

Crystal Cox held her ground and held on to this Appeal, for the Greater Good of ALL whistleblowers, citizen journalists, and anti-corruption bloggers.

"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.


“This case is the first one from a federal court of appeals that specifically protects the rights of bloggers,” said UCLA constitutional law professor Eugene Volokh, who represented Cox without charge on appeal.

He said the ruling would also protect other individuals, including those who leaflet and who speak out on behalf of politicians or activist groups.