"A federal appeals court ruled Friday that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove negligence to win damages."
USA Today
The internet has revolutionized how information is shared, and it is hard to imagine life before the 'world wide web'. It was sixteen years ago that Jorn Barger coined the term "weblog". Not long after that, Peter Merholz wrote the following in a sidebar on his weblog's home page: (link)
"For What It's Worth: I've decided to pronounce the word "weblog" as wee'- blog. Or "blog" for short."
Blogging may have had a slow start, but in recent years it has really taken off! Perhaps you are wondering how many blogs exist. Eric Pangburn conducted some research and recently shared his findings:
Tumblr.com shows it has over 101.7 Million blogs with 44.6 Billion blog posts
WordPress.com has over 63 Million blogs
Livejournal reports to have 62.6 million blogs with
Weebly states it has over 12 million blogs
Blogster has over 582,754 blogs
Obviously, blogging is here to stay…
In case you haven't heard, an important ruling was handed down last Friday by a federal appeals court that directly impacts all bloggers. According to Reuters:
A blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless she acted negligently…
Here is some background information. A blogger named Crystal Cox made online accusations of 'fraud, corruption and other misconduct' against Obsidian Finance Group. The company and one of its principals, Kevin D. Padrick, sued Cox.
The Los Angeles Times reported:
A district court in Oregon held that all but one of Cox’s posts were constitutionally protected opinion. But the judge allowed a trial on a post that accused Padrick, in acting as a bankruptcy trustee, of failing to have paid taxes for a company that had filed for Chapter 11 reorganization.
Cox represented herself at trial, and the jury awarded the plaintiffs a total of $2.5 million in damages.
Cox appealed. She did not contest the jury’s finding that her post was false and damaged reputations, but she argued she could not be held liable unless it was shown she had acted with negligence.
An Associated Press article in USA Today revealed:
Because Cox's blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently," Judge Andrew D. Hurwitz wrote. "We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."
The USA Today piece explained that a law professor at UCLA named Eugene Volokh, who had written an article on the issue, found out about Crystal Cox's case and offered to represent her in an appeal. The law professor explained that these kinds of cases are usually settled without trial and to see one reach the federal appeals court level was rare.
After the ruling in favor of Cox, her attorney (Volokh) had this to say:
"It makes clear that bloggers have the same First Amendment rights as professional journalists," he said. "There had been similar precedents before concerning advocacy groups, other writers and book authors. This follows a fairly well established chain of precedents. I believe it is the first federal appeals court level ruling that applies to bloggers."
The 9th Circuit (which made this final ruling) contended that the jury should have been required to find that Cox had acted negligently because her posts involved a matter of public concern. Furthermore, the appeals court ruled that monetary damages could not be awarded for unproven damage to those about whom she wrote unless it could be proven that she acted with malice, "posting information she knew was false or with reckless disregard for the truth".
Eugene Volokh, who represented Crystal Cox pro bono, affirmed:
“This case is the first one from a federal court of appeals that specifically protects the rights of bloggers."
Update: Thursday 1/23
- For an an article that TWW wrote on how the Bible defines slander, click here.
- For an article at Calvary Chapel Abuse on how this ruling affects the Bob Grenier lawsuit, click here.
Lydia's Corner: Isaiah 66:1-24 Philippians 3:4-21 Psalm 74:1-23 Proverbs 24:15-16
FIRST POST!!!! YEAH!!!!!!
In the spirit of Mullah Piper I guess I was predestined to have that urge in my gut and check the computer before bed! 😛 Deebs…we make quite a team!! 😀
Deb, a blogger Facebook friend of mine posted this story a couple of days ago. One thing I’ve heard over and over for years (especially in the world of sports) is how bloggers are a bunch of crude, uninformed clowns who say anything they want without regard for truth or research (unlike journalists). Profanity online. There may be that element out there, but I’m not aware of it, and if I see something like that, I ignore it. So…I read bloggers who make some sort of sense and make good arguments, even if I disagree with them.
Which brings me to… “publish.” What, really, is the difference between a journalist who writes for the newspaper or magazine, and a blogger? The two realms have blended together. Newspapers and magazines have blogs and plenty of internet stuff, and have always had…gulp…comments. The two ideas really are fairly similar. So, why shouldn’t they be treated the same?
This ruling was likely from the start of blogging and enshrines common sense as well as the law. However, it is a ruling in the Ninth Circuit, the court most overruled by the Supreme Court. We will have to see if someone brings this issue to the SCt, whether by getting a contrary ruling out of another circuit or by appeal of this ruling. But I would not bet that the SCt would rule either way on this. Our current SCt is extremely unpredictable.
@ Eagle: Stay warm there near D.C. and congrats! 🙂
Steve Scott wrote:
Great questions! Have you heard of Twibel? These are indeed interesting times with the technology that has transformed how we communicate.
I am glad to hear that another potential tool for silencing their critics has been taken out of the hands of the authoritarian pastors. Prior to the internet it was so much easier to keep the sheep muzzled!
Steve Scott wrote:
Well, there is also a large number of rubbish “newspapers” and “news channels” out there.
I am glad that we common people have the same rights as those who “buy ink by the barrel.”
I do believe that negligence should be the standard and not actual malice or reckless disregard of the truth. Too many media types have hidden behind that to smear people.
But whatever the standard, so long as First Amendment freedoms are protected and those protections apply to all of us, we will enjoy a substantial amount of freedom.
Being a blogger myself and being well, a little out there from time to time, I welcome the ruling. I never mention names, and try and use “alleged” a great deal, it’s good to know the 1st Amend. applies to us as well….
@ K.D.:
We also use the term 'alleged' quite a bit. Dee and I are grateful that we have this forum to air our ideas and concerns.
Hey all
I have added a couple of links to relevant posts at TWW and Calvary Chapel Abuse in an update in the article. I am procrastinating…
When people make themselves public figures, by advertising, being on TV, speaking often in public, running for office, etc., they create a higher standard for claims of defamation. Pastors of mega churches, seminary presidents, and those of them who frequent the conference circuit, publish books, make controversial public statements, etc., subject themselves to the higher standard for defamation. And the higher standard is basically intent rather than negligence.
dee wrote:
Don't add to the jitters of the day, now . . . bustling awaits you. Hope it is a wonderful event and all are blessed!
I’m always slightly conflicted over this, because despite the fact that specious and false accusations of “gossip” are indeed part of the standard toolkit of abusive wolves in sheep’s clothing, that doesn’t mean there’s no such thing as gossip. Lesley and I know all too well the power of both, because we were ourselves the subject of false accusations of gossip by a leadership that itself engaged in a campaign of gossip against us.
Now, I have no opinion on Crystal Cox or Obsidian Finance Group as I know nothing about either of them. But in general, a person is not innocent just because they’re small or poor, nor guilty just because they’re high-profile or rich. And if enough people call an innocent man or woman “allegedly” guilty then it becomes impossible for him/her to get a fair trial. This has been borne out in recent years in the UK by some infamous miscarriages of justice.
Overall, I agree with @ Anonymous that proof of negligence should be the standard for someone wanting to silence an allegation. In short, if I’m going to publish allegations against someone, on a blog or in a The Times editorial, then I must be able to demonstrate that I have reasonable grounds for making those allegations. And if there is a genuine “public interest” element, then it is right that journalists/bloggers should have correspondingly more freedom.
Definitely a win for mom’s basement!
In other news, I had one of those moments this morning where you really need to sneeze, and are convinced you’re about to, but then don’t. It was deeply unfulfilling.
But I’m not complaining.
sniff
sniff
sniff
sniff
…. pah!
Great win for the Bloggers!!!
Great coverage on the issue Team TWW!
Well, I laughed a number of times in the past months when major media outlets published quotes from my blog articles on hot news stories just like I was a legitimate media source (Driscoll/Schlueter plagiarism and Doug Phillips Vision Forum stories).
Right after I was sued, I was searching around for defamation cases and came across Cox’s story and nearly had a heart attack when I learned that in her first case, she represented herself and lost. The damages were in the millions. I knew I had to lawyer up and fast!
Crystal actually contacted me after my case hit the media and offered support and encouragement. We have been in contact off and on and she sure as heck got a congratulatory e-mail from me last week! This is great news for bloggers and I hope Bob Grenier is peeing in his pants.
@ Julie Anne:
How encouraging that Crystal Cox reached out to you. You are an inspiration to many Julie Anne!
Crystal Cox is one of those horrible situations where us 1st Amendment buffs have to back an otherwise shady plaintiff with really questionable business practices because the alternative is so much worse.
Ken White, who writes for the libertarianish lawyer blog Popehat, has written about Cox. He’s no fan of hers but definitely sees the need for the appellate decision as rendered. (Because the district court’s decision was very dangerous for bloggers.)
http://www.popehat.com/tag/crystal-cox/ (White goes into a bit of detail about Cox’s business practices.)
Not that we all have endless amounts of time, but Popehat is a good blog to follow if you’re interested in 1st Amendment and Internet issues. Sometimes White will even represent someone in trouble, or put up the “Popehat signal” to find someone counsel on these 1st Amendment issues.
Southwestern Discomfort wrote:
I’d say Southwestern Discomfort is right on in this statement. It doesn’t take much digging to see a lot of evidence that she is not the courageous, do-gooder she might otherwise appear to be in the case.
That link you shared was eye-opening and disturbing.
Lest you think she’s a free speech advocate, notice that every page and video she puts up has the comments disabled. She’s all for her free speech. Not so much for everyone else.
Of course, though, the court decision is the right one, and I applaud the decision for bloggers everywhere.
I know many of you have a problem with the blogger who won their First Amendment case, especially the fact they limit or have no comments.
As a blogger, you would be amazed at some of the email, messages I receive. People condemning me to Devil’s Hell ( BTW: Good Baptists), people hoping my wife is raped, when my son was flying to Korea during the Christmas holidays, I had people hoping his plane crashes into the Pacific. I’ve blocked these people from sending me messages, especially if the attack becomes personal..look, it is a two way street. Most people read and comment on my blog are civil, especially disagreeing with me. And I hate to say this, but the more connected to a church in some way, staff, deacon, ultra-churchy, the more un-civil they are. Surprising, but so true. It seriously surprises me what is said from time to time from the church crowd.
I applaud the decesion…but to an earlier question about the difference of traditional journalism and blogging-I’d say this…
Most blogs do not employ journalistic discipline (first hand quotes, on the record, first hand interviews with those involved with the story) that most tradiotional media outlets try to adhere. Most blogs (mine included) are usually personal in nature or personal opinion. It doesn’t mean that we bloggers don’t have anything good to share ( we do), or that bloggers don ‘t do journalism (many do)-it’s just a generalization that I find to be true.
On my own blog-I’ve had people accuse me of being a biased journalist (because they don’t like my opions or personal experiences)-but I try to be clear that my blog is not an investigative news source and I don’t claim to be so.
Anyway…my 2 cents on the topic.
@Deb – warm and D.C. are two words that don’t go together right now.
@Nick – last week when I had a cold, it was of great amusement to the two-year-olds that I teach whenever I sneezed. I got a lot of giggles and a lot of imitations of my sneezes. Glad my cold amused someone. 🙂
Southwestern Discomfort wrote:
Ah, the other side. Thank you S.W., Ms. Cox appears to have a spirit of attack and criticism – not necessarily based upon full information.
@ Seneca “j” Griggs.:
I like this statement:
I know I shouldn’t feed the troll, but really? Transparent claim that Cox’s practices = all spiritual abuse blogs, made solely by innuendo. Evidence is usually part of “full information,” and then you present none of it. Bonus points for just enough vagueness to claim that’s not really what you meant when someone calls you on it. Pot, meet kettle.
That being said, Cox does sound crazy…though that still doesn’t save Jimmy’s “argument.”
Former CLC’er wrote:
Your sneezes sound like they were quite fulfilling then! Giggles signify the two year-olds were joyful and one person’s giggles usually brings joy to those around them too.
@ Bridget:
That comment was in reply to your sneeze comment @ Former CLC’er:
Wow! – I hit reply button to Former CLC’er and got that name but part of Seneca’s comment . . .
That is very strange!!
Hester wrote:
Hester, I do love you. SJG
@ Seneca:
Glad to hear it.
Bridget wrote:
You win the prize for the day. You found a bug in the comment system.
Clicking on the “Reply w/Quote ….” will quote whatever text is high lighted. It can be from anywhere. Not just the comment where you clicked.
I wonder if the person who wrote this plug in knows and will fix it. Off to do some research.
If you just want to reference another comment without quoting click on the right hand smaller button.
GBTC
Thanks GBTC! You’re the BEST!
@ GuyBehindtheCurtain:
Hmm. I do understand the button functions. I didn’t know I had highlighted any text. I must have highlight that section and didn’t realize it. Maybe someone will fix that little quirk.
Good to know that bloggers and internet commenters have the same constitutional rights as all other Americans.
Its good we have the freedom to blog.
The big-media makes big money off of defaming the ordinary average poor man named Joe.
You can find the homeless, disabled and retired persons making income from blogging at http://www.bubblews.com