Crystal Cox Ninth Circuit; "Bloggers have rights, too: Column"

"A website that castigates others as "evil doers" and "thugs" has exactly the same First Amendment protection as USA TODAY and The New York Times— and that's a good thing.

In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media.

At issue were the blog posts of Crystal Cox, who accused Bend, Ore., attorney Kevin Padrick and his firm Obsidian Finance Group of misconduct in connection with his role as a trustee in a bankruptcy case. A jury awarded the plaintiffs $2.5 million in damages.

But the U.S Court of Appeals for the 9th Circuit saw things differently, deciding that Cox's allegations were matters of public interest and that to sue her successfully, Padrick would have to prove her negligence — the same standard that applies when news media are sued. "The protections of the First Amendment do not turn on whether the defendant was a trained journalist," Judge Andrew Hurwitz wrote.

While the Supreme Court has previously observed that the lines between traditional news media and Web content have become blurred, this makes the first time a federal appellate court has said that journalists and bloggers are one and the same when it comes to the First Amendment."

Source and Full Article
http://www.usatoday.com/story/opinion/2014/01/21/first-amendment-blogging-scotus-column/4733781/

More on the Crystal Cox Ninth Circuit Case

https://www.facebook.com/pages/Ninth-Circuit-Crystal-Cox/1427423480823829

http://ninthcircuitcrystalcoxappeal.blogspot.com/

"Bloggers = Media for First Amendment Libel Law Purposes". Crystal Cox Ninth Circuit Appeals Case

"So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

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.” Citizens United, 558 U.S. at 352. 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.

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc.rules, which are that

1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and
2. libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.

But the court’s reasoning reaches the First Amendment more broadly, and correctly so (again, see the Freedom for the Press as an Industry, or for the Press as a Technology? article, which sets out the historical evidence). Note, though, that the court’s reasoning is limited to First Amendment protections; it doesn’t discuss state or federal statutes that provide extra protection to the “media” or to other subsets of speakers."

Source

http://www.volokh.com/2014/01/17/bloggers-media-first-amendment-libel-law-purposes/

Crystal Cox Case; "US appeals court rules bloggers, public have same First Amendment protection as 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."

"Though Cox acted as her own attorney, UCLA law professor Eugene Volokh, who had written an article on the issue, learned of her case and offered to represent her in an appeal. Volokh said
such cases usually end up settled without trial, and it was rare for one to reach the federal appeals court level.

"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."

Source
http://www.startribune.com/politics/national/240917881.html

Obsidian Finance Group v. Crystal Cox; Crystal Cox Case; "Blogger gets same speech protections as traditional press: U.S. court"

"SAN FRANCISCO (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, 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," 9th Circuit Judge Andrew Hurwitz wrote for a unanimous three-judge panel.

Steven Wilker, an attorney for Obsidian and the trustee, pointed out the 9th Circuit still concluded that there was no dispute that Cox's post was false.

"Ms. Cox's false and defamatory statements have caused substantial damage to our clients, and we are evaluating our options with respect to the court's decision," Wilker wrote in an email.

Eugene Volokh, a UCLA School of 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."

Source
http://www.chicagotribune.com/news/sns-rt-us-usa-blogger-ruling-20140117,0,7794290.story

Obsidian v. Cox, Crystal Cox Case; "Court of Appeals says bloggers may enjoy same free speech protections as journalists"

"The 9th U.S. Circuit Court of Appeals unanimously ruled today that a blogger should enjoy the same free speech protections as a journalist, and ruled that the blogger, Crystal Cox, deserved a retrial on her defamation case.

“As the Supreme Court has accurately warned,” the court said, “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,’” said the court, citing the Citizens United case (PDF).

“Because Cox’s blog post addressed a matter of public concern… the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently.”

The case at the center of the ruling involved the blogger Crystal Cox who wrote accusing a bankruptcy trustee and Obsidian Finance Group of tax fraud. A lower court ruled that because Cox failed to provide evidence that she was a journalist that she was not protected in the same way a reporter would be – that is, the person would have to prove that the author knowingly knew the information was false when it was published."

Source
http://www.talkingnewmedia.com/2014/01/17/court-of-appeals-says-bloggers-may-enjoy-same-free-speech-protections-as-journalists/

"Bloggers get the same libel protection as traditional journalists, federal court rules"

"What’s the difference between a blogger and a journalist? Congress is still debating that question, but today a federal appeals court ruled that there’s no difference when it comes to defamation.

In 2011, blogger Crystal Cox lost a trial when an Oregon judge denied her a First Amendment protection traditionally reserved for the press. She claimed that Obsidian Finance Group was guilty of tax fraud — a statement with no basis in fact — and a jury awarded Obsidian $2.5 million in damages. Normally, Obsidan would have had to prove that Cox was negligent to recover some of that money, and that she acted with “actual malice” to get the rest. However, those rules came from Supreme Court cases that only applied to journalists — cases that predated blogging — and the Oregon judge decided she didn’t have the credentials of a journalist.

Today, however, the appeals court decided it doesn’t matter whether Cox is part of the traditional press. Wrote Judge Marco Hernandez:

“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.”

“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,” added the judge.

Source
http://dewaynenet.wordpress.com/2014/01/18/bloggers-get-the-same-libel-protection-as-traditional-journalists-federal-court-rules/

"9th Circuit: First Amendment media protections apply to bloggers, too"

".. a case involving a blogger crusading against what she saw as fraud in a bankruptcy-counseling firm, a judge ruled that the plaintiffs in the libel suit did not have to prove malice to win punitive damages."

"Should bloggers have the same legal protection as other media outlets? One might think that the lack of a requirement for credentialing in the First Amendment would mean yes, but a federal district court disagreed in 2011. In a case involving a blogger crusading against what she saw as fraud in a bankruptcy-counseling firm, a judge ruled that the plaintiffs in the libel suit did not have to prove malice to win punitive damages. Yesterday, the Ninth Circuitunanimously overruled that decision:

A federal appellate court ruled Friday that the author of a blog post deserves the same treatment in a defamation case as “institutional media.”

The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections. …

“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,” Hurwitz wrote.

The subject of Cox’s blog posts were a matter of public concern, the court held, so in order to prove defamation, the plaintiffs would have to show she acted with negligence or malice in making false statements against them.

Eugene Volokh, who argued for the blogger in the appeal, notes the victory (viaInstapundit):

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and

2. libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.

Well, of course he’s right, although it was disturbing to see a district court get this so wrong. The media protections that have developed by legal precedent under the First Amendmentmust apply equally, as does the First Amendment itself. In fact, the media protections should probably apply equally to all speakers, and not just those who publish their works via paper, broadcast, or the Internet. One can make the argument that the media has to put itself in a more vulnerable position in order to function as communication sources and therefore should have more leeway, but that applies to bloggers at the very least as well as newspapers and television news outlets. It might apply even more, since bloggers are much less apt to have legal resources readily available and are much more vulnerable to intimidation."

Source and Full Article
http://hotair.com/archives/2014/01/18/9th-circuit-first-amendment-media-protections-apply-to-bloggers-too/

"Did you know that if you're a blogger and someone tries chill your speech with defamation law, your rights are protected by the First Amendment? "

"Did you know that if you're a blogger and someone tries chill your speech with defamation law, your rights are protected by the First Amendment? Considering the flurry of litigation, specifically the whole "blogger vs. real journalist" legal debate, one might be well inclined to believe that bloggers live in an anti-constitutional bubble, where the rights, privileges and immunities granted to every other believer in the First Amendment bounces off this imaginary bubble like water of a ducks back. But there's good news from the 9th circuit Court of Appeals.

Blogger Crystal Cox

Thus begins our story of Ms. Crystal Cox, Internet blogger who posted articles on her now defunct bankruptcycorruption.com blog, accusing two bankruptcy officers "of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy." At the district court level, Cox actually did well for representing herself. All but one of her blog posts in contention were found to be protected as they merely contained hyperbolic speech. But the one article at issue here was different, as it "fairly specific allegations[that] a reasonable reader could understand . . . to imply a provable fact assertion" about the officer's alleged failure to pay taxes. The story that follows is familiar - a demand to remove the articles was refused by Cox and litigation ensued in Obsidian Financial Group v. Cox.

One of the major issues of this case is dealing with the level of scrutiny the court will apply to Cox's speech. In other words, what do the plaintiffs (Obsidian) have to prove in order to win a defamation suit against Ms. Cox? The court has two landmark cases to sort through, New York Times Co. v. Sullivan and Gertz v. Robert Welch. The Times case gives us the rule for defamation involving public officials, while Gertz gives us the rule for defamation involving private individuals. Gertz offers slightly less protection, but ultimately, both cases give strong First Amendment protections, no matter who you are."

Source and Full Article
http://www.slyck.com/story2272_Court_of_Appeals_Reconfirms_that_Bloggers_have_First_Amendment_Rights

"May Plaintiff Cut off a Poor Defendant’s Appeal, by Having the Sheriff Sell off Defendant’s Right to Appeal?" Eugene Volokh on Obsidian Finance Group V. Crystal Cox, as Plaintiff Obsidian Finance Group, Kevin Padrick, David Brown and their Attorneys Steven Wilker and David Aman of Tonkon Torp Law Firm Attempt to SEIZE the "Appeal Rights" of Defendant Crystal Cox.

"That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit.

For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions are).

Here’s the matter in a nutshell, and somewhat oversimplified:

1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
   
2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
   
3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of ... Cox’s right to appeal.
   

That’s right: Plaintiff’s plan is to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights to drop the appeal. No more appeal; the judgment is final; end of story.

Of course, if plaintiffs can do this to Cox, any plaintiffs who win a judgment against a defendant who can’t afford a supersedeas bond can do the same. Poor civil defendants’ rights to appeal would thus be lost, and so would the rights to appeal of plaintiffs who weren’t poor at the outset but face a ruinous judgment that they can’t afford to stay.

To be sure, in practice poor civil defendants often can’t appeal in any event, because they don’t have the money to hire a lawyer. But right now at least they can sometimes get pro bono counsel who is interested in the legal issue, or hire a lawyer with the promise to pay if they win the appeal and their assets are thus freed up, or get help from a lawyer friend, or appeal themselves if they are legally trained, or appeal pro se even if they aren’t legally trained. If the plaintiffs’ stratagem is accepted, though, such defendants’ appeal rights could be categorically cut off.

I know what you’re thinking — you’re thinking, “Yowza!” Yes, that’s what I thought as well, and I wrote a motion and accompanying memorandum all about it. You can now read my Memorandum in Support of the Motion to Make the Judge Say, “Yowza!,” Too, and also the plaintiffs’ response, filed this afternoon. I just finished the rough draft of the reply, which is due tomorrow afternoon; I will post it here some time tomorrow evening. [UPDATE: The reply has now been posted.]

And this coming Tuesday morning, I’ll be in beautiful Portland, Oregon, arguing this very matter in federal district court. As I always say, there’s no practice like pro bonopractice."

Source

http://www.volokh.com/2013/01/11/may-plaintiff-cut-off-a-poor-defendants-appeal-by-having-the-sheriff-sell-off-defendants-right-to-appeal/

" Blurred Lines: Ninth Circuit Applies Same First Amendment Protections to Bloggers as Traditional Media"

"01.23.14

By Jim Rosenfeld, Ambika K. Doran and Jeremy A. Chase

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. "

"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."

"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.” Under this reasoning, an individual blogger, website operator or social media users speaking publicly on the Internet enjoys the same First Amendment protections from defamation claims as traditional media publishers.

At the same time, the Ninth Circuit’s affirmance of the district court’s dismissal of Plaintiffs’ claims as to most of Cox’s statements continues a judicial trend of taking the context and atmosphere of the Internet into account in distinguishing opinions from factual statements. "

" It is imperative that courts learn to view libel allegations within the unique context of the Internet.”) (quoting Sandals, 86 A.D.3d at 44)"

Source of Above Quotes on Obsidian v. Cox Case and full article"http://www.dwt.com/Blurred-Lines-Ninth-Circuit-Applies-Same-First-Amendment-Protections-to-Bloggers-as-Traditional-Media-01-23-2014/