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Court Victory Gives Blogger Same Speech Protections As Traditional Press 137

Posted by Soulskill
from the take-that-traditional-journalism dept.
cold fjord writes "Reuters reports, 'A blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless she acted negligently, a federal appeals court ruled on Friday. Crystal Cox lost a defamation trial in 2011 over a blog post she wrote accusing a bankruptcy trustee and Obsidian Finance Group of tax fraud. A lower court judge had found that Obsidian did not have to prove that Cox acted negligently because Cox failed to submit evidence of her status as a journalist. But in the ruling, the 9th U.S. Circuit Court of Appeals in San Francisco said Cox deserved a new trial, regardless of the fact that she is not a traditional reporter. "As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable."... Eugene Volokh, [a] Law professor who represented Cox, said Obsidian would now have to show that Cox had actual knowledge that her post was false when she published it. ... "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."' Further details are available at Courthouse News Service."
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Court Victory Gives Blogger Same Speech Protections As Traditional Press

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  • by Anonymous Coward

    A great victory for the blogosphere

    • Re:yes! (Score:5, Insightful)

      by Anonymous Coward on Saturday January 18, 2014 @09:41PM (#46002233)

      How can anyone be entitled more free speech than others??? everyone is entitled the same free speech, journalist, blogger or bum.

      • Re:yes! (Score:5, Interesting)

        by MrBigInThePants (624986) on Saturday January 18, 2014 @09:50PM (#46002275)

        I totally agree with you.

        I would argue the distinction has ALWAYS been unworkable its just that the internet has made it more obvious.

        Although I am sure corporate media organisations will disagree...but fuck them.

        And if this gets overturned or is not the case in other countries I would suggest that bloggers form a collective media organisation - Independent Media United. :)

        As a side bonus they could use it as a blogging community, buy hosting in bulk or whatever....

        • Re: (Score:1, Interesting)

          by sycodon (149926)

          Obsidian would now have to show that Cox had actual knowledge that her post was false when she published it

          Something about this just seems wrong. How may times have people had their lives ruined by false accusations in the Press only to have the accusations shown to be false. Richard Jewel [nytimes.com] is a good example. Seems to me that just being a notable person should not be a free pass for folks in the Press to ruin them, accidentally or otherwise.

          • Nevertheless, why would it be ok for an "official" journalist to do this?

            For example Fox news in every second one of their stories....

            You are arguing a different point here....

            • by Anonymous Coward

              Now now, fox lies through their teeth, but so do the others..

            • Um, Fox corroborates their stories before they air them.

              YOU might not like what they say, (and really it boils down to that, doesn't it), and YOU might find their sources suspicious, but
              I suspect you had no problem believing CBS [washingtonpost.com].

              • by garyoa1 (2067072)

                I guess you've never watched a political speech first and then went to fox to see what they do to it. Quite often going off in a tangent about something that was never even in the speech. If you want to head to fox first, fine. But do yourself a favor and then go to youtube and watch it "uncensored". They're usually posted there a while later.

                Remember, fux is NOT an American company. The owner (Rupert Murdoch) is out for the money. Sensationalism is how he sells news world wide.

                But the main problem with al

                • by icebike (68054)

                  First, off, I don't head to Fox first, or even CNN, and certainly not NBC. I'm generally aware of most stories before they even break on the national news. I watch the BBC, CBC, I surf newspapers from all over the world, even Al Jazeera, Pravda, etc.

                  However, every time one of my (way ot liberal) friends starts the liberal Fox New Lies rant, I invite them over to watch the nightly news.
                  We each start with 10 bucks on the coffee table.

                  Every time they call something a lie, they have to prove it with an un-imp

              • I am not an american. I don't watch ANY of your 24 hr news feeds for my news. They are all corporate driven media and biased in their own way.
                Try watching BBC or some other respected non-US news source once in a while to see what else is out there - you may be very surprised.

                And taking your smear to the full extent I feel compelled to say I also don't like either of your 2 political parties either - I think they are both complete shit and find your whole political system a complete farce and a bad joke as d

                • by icebike (68054)

                  Not that any of them (countries or news orgs) are perfect but none of them are as blatantly biased as Fox news.

                  Well a I have to assume you are speaking from total ignorance here. Why? Because you said so yourself:

                  I don't watch ANY of your 24 hr news feeds for my news.

                  I can get the BBC here, as well as the CBC, Al Jazeera, and I am internet close to anything else.
                  If you think Fox is biased, you clearly haven't seen MSNBC. Oh! My! God!

                  • Like I said "that I could think of".

                    I am sure there are much more shitty news orgs out there. Probably none of them with the viewership of Fox news....

                    And I am not speaking from ignorance. I used to flick back and forth between Fox and BBC when they were on after midnight to compare.

                    The difference was mindblowing....

          • by icebike (68054)

            Obsidian would now have to show that Cox had actual knowledge that her post was false when she published it

            Something about this just seems wrong. How may times have people had their lives ruined by false accusations in the Press only to have the accusations shown to be false. Richard Jewel [nytimes.com] is a good example. Seems to me that just being a notable person should not be a free pass for folks in the Press to ruin them, accidentally or otherwise.

            True, Obsidian would normally under these circumstances, have to show negligence, either that the information
            was false or that she had no information at all, and was merely slandering Obsidian.

            However, Cox (apparently) tried to hide behind journalism privilege, without providing evidence in court,
            perhaps trying to protect her sources, or perhaps because she really never had any verifiable
            information. Its not clear from TFA.

            But had she substantiated her claims, that's when journalistic protections should ki

          • by Sique (173459)
            If that were true, you were not allowed to talk anyway, because if everything you say would have to be provable true, you had to shut up completely (read some Karl Popper for the reasoning). So how do you determine which speech is protected by the First Amendment, and which not?

            The criterion that you are not allowed to knowingly tell outright lies seems reasonable to me. And when do you lie? When you know the thing you say is false. And exactly this is the criterion the court used here: Mrs. Cox didn't pr

        • Re:yes! (Score:5, Insightful)

          by lgw (121541) on Sunday January 19, 2014 @02:18AM (#46003429) Journal

          I would argue the distinction has ALWAYS been unworkable its just that the internet has made it more obvious.

          That's exactly it. The Supreme Court said

          âoeWith 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.â

          Guess where they said it? Citizens United, 558 U.S. at 352. Yes that Citizens United. How that decision became popularized as "corporations are evil because the system is corrupt" I can't figure. Protection of First Amendment freedoms is good, full stop.

          • Re:yes! (Score:5, Interesting)

            by penix1 (722987) on Sunday January 19, 2014 @02:34AM (#46003475) Homepage

            Yes that Citizens United. How that decision became popularized as "corporations are evil because the system is corrupt" I can't figure. Protection of First Amendment freedoms is good, full stop.

            What makes it evil is it equated money with speech as well as said corporations are entitled to the same rights as people in a much stronger stance than any other decision. By allowing anonymous donations to political campaigns, there is no saying where the money actually came from be it local or from a foreign nation seeking to upset our political arena.

            • by lgw (121541)

              But that's just it - the finding was that if a person has freedom of speech and of the press, then a group of people have the same freedoms, whether incorporated or otherwise. In the modern world, any attempt to get your ideas heard in the national conversation requires money, unless you are a professional journalist with a soapbox provided for you. If we are to believe that freedom of speech and of the press are not something restricted to professional journalists (as I strongly believe), then you cannot

              • Re: (Score:2, Insightful)

                by Uberbah (647458)

                In the modern world, any attempt to get your ideas heard in the national conversation requires money, unless you are a professional journalist with a soapbox provided for you.

                Yes, that's the same bullshit rationalization that they used. The problem that you and they are ignoring is the fact that the you can suppress someone else's speech by overwhelming the room with your money.

                • by lgw (121541)

                  The problem that you and they are ignoring is the fact that the you can suppress someone else's speech by overwhelming the room with your money.

                  Those who can personally buy a newspaper company or TV station already have this ability. You don't make it better by forbidding a group of people to pool their resources to compete with the richest few! How would that even make sense?

                  Look, you can either have political speech only by the most wealthy, you can allow groups of people to act in concert to air their collective view (which in the modern world means a financial entity designed to pool money: a corporation), or you allow the government itself t

              • Re: (Score:2, Interesting)

                by Anonymous Coward

                Corporations are not 'groups of people'. It's like saying that your plumber can use your house to post political ads in your front yard, because the contract you signed for his job makes you two a 'group of people'. This is the problem with that decision. It's a nice 1st amendment statement, but applied in a nonsensical way.

                You might say, "well, public entities sometimes incorporate exactly to promote a common position!". Yes. And those are entirely different categories of organizations.

                • by lgw (121541)

                  The corporation Citizens United was very much a group of people who had pooled their money to air a film critical of Hillary Clinton. How is that in any way not political speech by a group of people, peaceably assembled?

                  Would you have the ruling be that some corporation can and other can't have political speech? As selected by the government? Wouldn't that be convenient for those in power!

        • by icebike (68054)

          And if this gets overturned or is not the case in other countries I would suggest that bloggers form a collective media organisation - Independent Media United. :)

          As a side bonus they could use it as a blogging community, buy hosting in bulk or whatever....

          This. Probably the best idea in the whole thread.

          Seriously, one or more associations, unions, collectives would be great. Hosting them in on place, no so much.
          But having an organization that has to at least pay lip service to keeping their bloggers members honest, and not
          involved in shake-downs (Cox was accused by the Judge of this very tactic: Retraction for Money) would go a long
          way.

          The organizations would not even have to be view-point neutral. Just Organized and encouraging SOME sort of
          standards in r

      • It's not just free speech, but the meaning of freedom of the press, as that is called out as a separate "line item" if you will in the first amendment. What does that mean in a context distinct from speech? In the rare situation that circumstances make it impossible for everyone to be in a given location - for example, in a courtroom, on Air Force One, etc. - it makes sense to designate a "pool reporter" to take that spot in exchange for agreeing to share the information with everyone else. Often it's li

        • Quite literally, freedom of the press meant the right to own and operate a printing press. There was also a separation in the treatment of libel and slander by printing press owners as opposed to speech. Which is why you still see distinctions in their treatment by law today. And for today, everyone pretty much has a printing press (as I, or at least Slashdot and their hosting company) at hand. Nearly everywhere you want to be (that's a joke).
      • by russotto (537200)

        How can anyone be entitled more free speech than others??? everyone is entitled the same free speech, journalist, blogger or bum.

        Indeed. But most powerful people don't like free speech. They'd like to clamp down on it entirely, but many traditional journalists also had powerful backing. So the compromise was reached that free speech would be restricted but there'd be exceptions for bona fide (anointed by the powerful) journalists.

    • Re:yes! (Score:4, Interesting)

      by cold fjord (826450) on Saturday January 18, 2014 @10:00PM (#46002331)

      A great victory for the blogosphere

      Very much so. And I will also point out that Eugene Volokh [ucla.edu] is quite an interesting fellow with a great blog [volokh.com]. Lots of interesting commentary there. Legal Insurrection [legalinsurrection.com] is another great legal blog.

      Volokh worked for 12 years as a computer programmer. He graduated from UCLA with a B.S. in math-computer science at age 15, and has written many articles on computer software. Volokh was born in the USSR; his family emigrated to the U.S. when he was seven years old.

      Because child prodigy is no longer in Soviet Russia, free speech comes to you!

      • Volokh Consipracy is awesome. There's plenty of kibitzing in the comments section (personal attacks and snide commentary that would get -1'd here) but they track (and participate in, as with OP) a lot of legal decisions with constitutional impact.

    • by Anonymous Coward

      It's not a coincidence that anonymously-printed hand bills, distributed, in London, in the 1600s and 1700s, were often referred to as 'libels'; they challenged the status quo and those whom maintained dominance.

      Clearly when the Founders sought to protect ownership of printing presses, they also sought to protect libelers, as one man's libel was another man's free speech and a third man's entertainment - they did not see fit to decide for those men, or their peers.

      When I was reading a book on the CIA's cocai

  • by Noishkel (3464121) on Saturday January 18, 2014 @09:07PM (#46002041)

    Better luck pissing on inalienable rights next time. Why not try banning the second amendment again. That'll make you feel better.

    • Better luck pissing on inalienable rights next time. Why not try banning the second amendment again. That'll make you feel better.

      I like your wording better than the headline. She did indeed have that right all the time and the court forced the rest of the government to recognize that fact.

      • by Noishkel (3464121) on Saturday January 18, 2014 @10:47PM (#46002547)

        I like your wording better than the headline. She did indeed have that right all the time and the court forced the rest of the government to recognize that fact.

        Well I made that quip because Feinstein purposed an amendment a while back that would strip certain journalistic protections under the first amendment UNLESS you worked for an established news organization. Which would give the federal government an avenue to attack anyone they didn't like the message of.

        • She's a fascist. And what does say about her voters. Bunch of fucking sheep they are!

          • by Noishkel (3464121)

            She's a fascist. And what does say about her voters. Bunch of fucking sheep they are!

            Well... I loath to throw the 'F' word around excessively. But given her voting record it honestly is a good fit. Very hawkish, very pro federal power, very anti liberty.

            I... also hate to go so far as to call her supports sheep. But I just don't have a nicer way to put it. Perhaps it's the divisiveness of politics here in the US. A lot of people get it in their mind that if it's 'Right' it ain't right! And no one in he

  • by Anonymous Coward

    I think you mean "restores"? After they tried to take it away? [eff.org]

    • by Anonymous Coward

      I prefer the word "recognizes". This is not only more accurate from a more philosophical perspective, but it also places the point on the fact that court cannot give or restore anything--that stems from the power vested by the people into the legislature (and times executive). It is the job of a court to interpret and recognize the law for the sake of justice. And, of course, at times it is the place of courts to recognize when the law is unjust and corrupt and those who work against the legislature and/

  • I find it hard to believe that there is a judge in the USA who has the common sense to actually let this happen.
  • What about EULA's and copyright issues?

    As one that ban bad press about X item / person / corporation?

  • There have been numerous accounts of secondary school students censored or reprimanded as well as public university students who have felt the heavy hand of administration for having their say online.

  • by Bob9113 (14996) on Saturday January 18, 2014 @10:35PM (#46002511) Homepage

    "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."

    It's easy to distinguish those who are members of the institutional press; they never ask challenging questions of the wealthy and powerful, reliably support one of the overly simplistic two-party positions on all wedge issues, and don't publish stories like the Snowden trove until the non-traditional press has left them no other choice. These are the very reasons that the non-traditional press needs as much or more protection than the mundane, risk-averse mainstream media.

    • by AthanasiusKircher (1333179) on Sunday January 19, 2014 @12:06AM (#46002861)

      These are the very reasons that the non-traditional press needs as much or more protection than the mundane, risk-averse mainstream media.

      I absolutely agree with you. However, I'm not sure that this particular blogger is the best representative of the "non-traditional press." From TFA:

      Cox's blogging activities have attracted their share of controversy. According to the court's opinion, Cox has a history of making allegations of fraud and other illegal activities "and seeking payoffs in exchange for retraction."

      Further, if you start doing any basic internet searches, you'll find all sorts of sordid claims about this blogger. If stuff on this link [popehat.com] is true, for example -- this blogger is the kind of person who registers the domain names of not only enemies, but the children of her enemies, and then posts horrible stuff about them (apparently sometimes made up), and then sends letters asking for money if they want it taken down.

      I have no idea if all of this is true, but it's clear from a number of stories -- both on blogs [wordpress.com] and in the "institutional press" that you accuse of not asking the hard questions, like the NY Times [nytimes.com] -- that the blogger at the center of this case is not just a "non-traditional press" representative or journalist. This appears to be someone who deliberately posts offensive material about people in order to extort money.

      So, is this really a victory for the "non-traditional press," or an invitation for a new kind of "shake-down" scheme where the mob comes after your business and acts for "protection" money? (I haven't been following this story, so I don't know the answer to this, but this is the kind of stuff I've found with a few quick searches, so it appears more complex than a simple "freedom of the press" victory.)

      • I think the court's opinon was this:
        - the blogger made statements which were factually incorrect
        - the blogger, in his blog postings, while making his point, frequently employed hyperbole
        - a reasonable reader would conclude that this author is exaggerating for rhetorical effect, not claiming actual facts
        - therefore, the defamation suit is without merit, and the rantings of this blogger are protected free speech
        - You also, can say that the members of Duck Dynasty are liars committing fraud, even on a blog tha

        • - a reasonable reader would conclude that this author is exaggerating for rhetorical effect, not claiming actual facts
          - therefore, the defamation suit is without merit, and the rantings of this blogger are protected free speech
          - You also, can say that the members of Duck Dynasty are liars committing fraud, even on a blog that many read, and have confidence the US courts will protect your right to say it. Provided you don't sound like anyone who's making factual statements.

          I haven't read the court decision (yet), but if what you say is true, the story here and its portrayal in the media is a complete and utter distortion.

          If the judge only ruled in favor of the blogger because she came across as a lunatic or that no reasonable person would believe her, then this is not at all a victory for "journalists," whether of the traditional kind or bloggers -- it's merely a victory for trolls and other people who say random crap that no one believes. I fail to see what that would hav

          • If the judge only ruled in favor of the blogger because she came across as a lunatic or that no reasonable person would believe her, then this is not at all a victory for "journalists," whether of the traditional kind or bloggers -- it's merely a victory for trolls and other people who say random crap that no one believes. I fail to see what that would have to do with "journalism" or freedom of the press at all.

            The standard for defamation is that it be a factually incorrect statement, known to be factually

  • isn't saying much these days.

    People in the free press are meeting with "accidents" and the "misfortune" if your article covers bankers, their cronies mischief in the NSA.

    -Hack

  • by MarkvW (1037596)

    The Ninth Circuit totally gets it right. Any other ruling would be massively un-American.

    If you limit First Amendment rights to professional reporters, then what you are REALLY doing is limiting First Amendment rights to the people who employ those reporters.

  • by sirwired (27582) on Sunday January 19, 2014 @09:10AM (#46004547)

    This victory is important, and handily demonstrates the impartiality of the circuit court judges involved, and Eugene Volkoh's intestinal fortitude. Why? Chrystal Cox is, to be frank, a horrible person. A nutjob. A known extortionist. The trial that will now take place will be a waste of everyone's time and money (she's going to lose), and it's unlikely the plaintiff's will be able to recover they now-extensive legal costs and the damages they are almost certainly due.

    Example: She decided to go on a vendetta against Marc Rendazza (who, ironically, is a well-known civil-liberties attorney)... First, she asked Marc Rendazza to pay for her "reputation management services." When he hold her to take a hike, she got revenge by posting all sorts of utterly made-up horrible things about his 3-year-old daughter.

    Make no mistake, when this does go to trial, she's going to lose, and she's going to lose hard. All she won here was an acknowledgement that despite being a horrible person, and despite the fact she's being sued for doing the exact same sort of thing she's done in the past, the defamation has to be proven in a court instead being assumed because she isn't a professional.

    Now that the 1st-amendment issues have been settled, will Volkoh now drop her like a hot potato?

    On one hand, I can see what the court is getting at here, but in terms of practical effect, it could be ugly. As if we needed more reasons to not trust anything we read on the internet.

    • by russotto (537200)

      This victory is important, and handily demonstrates the impartiality of the circuit court judges involved, and Eugene Volkoh's intestinal fortitude. Why? Chrystal Cox is, to be frank, a horrible person. A nutjob. A known extortionist.

      And this case upholds your right to say such things about her without positively demonstrating them to be correct.

  • The First Amendment isn't there to protect speech you like; it's there to protect speech you detest. Remember Larry Flynt's statement:

    "If the First Amendment will protect a scumbag like me, then it will protect all of you. Because I'm the worst."

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