Monday, January 11, 2021

"Bloggers entitled to same free speech protections as traditional journalists"

" Ninth Circuit Court of Appeals Judge Andrew Hurwitz issued an opinion in Obsidian Finance Group, LLC. v. Cox.  His opening line was as follows:

“This case requires us to address a question of first impression: What First Amendment protections are afforded a blogger sued for defamation?”

This important new decision involved a blog post by blogger Crystal Cox, in which she accused a financial firm and its bankruptcy trustee of tax fraud.  At the trial court level, the judge rejected Cox’s First Amendment arguments concerning the liability standards that should govern the case, reasoning that she had “failed to submit evidence suggestive of her status as a journalist.”

However, the Ninth Circuit Court of Appeals reversed that decision, holding that:

“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities…As the Supreme Court has accurately warned, A First Amendment distinction between the institutional press and others speakers is unworkable.”

The court then went on to quote some of the only rational language (in my opinion) from Citizens United v. Federal Election Commission:

“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.”

The Ninth Circuit ultimately held that Cox should get a new trial and the distinction between bloggers and traditional reports is irrelevant in this context.  
Eugene Volokh, a UCLA law professor who represented Cox, noted the importance of this decision in the era of online content:

“In this day and age, with so much important stuff produced by people who are not professionals, it’s harder than ever to decide who is a member of the institutional press.”

So what are some of the other important takeaways for online commentators out there?

The court reaffirmed that opinions which employ “figurative and hyperbolic language” that cannot be proved as true or false are constitutionally protected.

Additionally, “while ‘pure’ opinions are protected by the First Amendment, a statement that ‘may imply a false assertion of fact’ is actionable.”  So while opinions are usually protected as free speech, if you are making a factual claim, you should be able to provide evidence to support your claim.  For example, if you write a review on Yelp that a restaurant charged your credit card $10 more than what you signed for on your receipt, then you should be able to support this claim with a copy of the receipt and your credit card billing statement.

However, regardless of what precautions someone takes, anyone can file a lawsuit for any reason, even if it’s entirely without merit.  Luckily for those of you in about half of the states, anti-SLAPP laws have been enacted to help you get those meritless suits dismissed relatively quickly and painlessly."