New Decision About Blogger's Speech Rights Is Not As Exciting As Reports Suggest

Yesterday, the U.S. Court of Appeals for the Ninth Circuit (the federal appellate court covering most of the West) issued a decision at the crossroads of blogging and the First Amendment.  The case is called Obsidian Finance Group v. Cox.  The result was correct: the blogger won when she should have.  From some of the press coverage, it is tempting to believe the decision is monumentally amazing or at least unexpected.  It is neither. 

My favorite headlines about the decision announce that bloggers have First Amendment rights.  Of course they do.  That is not worth much more discussion.  Moving on ...

The decision held the plaintiffs had to show negligence in order to hold Cox (the blogger) liable for defamation.  For those unfamiliar with defamation law, that might sound like a big deal, but the reality is that all defamation claims involving speech on a matter of public concern (as the speech in this case did) require at least a showing of negligence, and many require much more, such as actual malice (which means knowledge of falsity or reckless disregard for the truth), in order to establish liability and recover damages.  That rule, laid down by the US Supreme Court in Gertz v. Robert Welch, Inc., is forty years old. The fact that the Ninth Circuit finally got around to applying the Gertz rule to the Internet is pretty unremarkable and really could not have come out any other way without directly contradicting US Supreme Court precedent.  The trial court's conclusion that the plaintiffs did not even need to show negligence was obviously wrong, and the Ninth Circuit really was compelled to reverse that decision. 

Some also seem very excited by the Court's contention that, up until this decision, neither the US Supreme Court nor the Ninth Circuit had previously held that the "institutional press" has the same basic rights in a defamation case as "individual speakers."  I think that is just plain wrong ... because the issue has come up before.  For example, in the grand-daddy defamation case of them all, New York Times v. Sullivan, the Supreme Court held that its First Amendment-based rulings applied to protect the "individual petitioners" in the companion case, Abernathy et al. v. Sullivan, as well as the New York Times.  Moreover, yesterday's Ninth Circuit decision acknowledges that US Supreme Court precedent requires treating the institutional press the same as individuals in defamation cases.  And, the Court notes, it helps that "sister circuits" come to the same conclusion.   (BTW - I recognize that this case was decided under Oregon law which claims that Gertz only protects media defendants, but Oregon's take on the First Amendment simply can't be squared with US Supreme Court precedent.)

There is another reason the decision is less than exciting.  The Court held that the plaintiffs were not public officials who would have had to prove the higher actual malice standard to establish liability.  I disagree with the Court's conclusion on this point because the plaintiffs were appointed by another court to serve as bankruptcy trustees, making their status as public "officials" at least a close call.  But, apparently the blogger (Cox) also argued in the trial court that the plaintiffs were public figures (in addition to being public officials), even though she seemed to abandon that argument in the appellate court.  That's too bad, because I don't think it is a close call to say that the plaintiffs -- who were appointed by the court and subject to the court's review and control -- were at least limited purpose public figures (meaning they would have to prove liability under the onerous actual malice standard). 

Also, some are concerned that the Ninth Circuit considered some of the defendant's blog postings to be constitutionally protected opinion, particularly in light of their hyperbolic context.  That is not cause for concern.  Context has long been a hallmark of determining whether a statement is constitutionally protected opinion in the Ninth Circuit and the US Supreme Court.  Since the advent of Internet cases, courts recognize that things move faster and looser on the Internet, lending statements toward constitutionally protected opinion. 

To Alpha, NJ: Cities cannot bring defamation suits. So cut it out.

Dear Borough of Alpha, New Jersey:

I've never visited you, but from your website, you look like a lovely Garden State enclave.  Now, please show some respect for the First Amendment.

Last week, you sued a few anonymous online commentators for defamation.  The suit claims that "Save Alpha" and others slandered the "good name, reputation and public standing" of the "Borough of Alpha."  Your suit wants to end future criticism and interference with borough business.

Here's the problem:  government bodies (like you) cannot sue for defamation. 

There used to be laws to prevent criticism of the King of England.  Then we had a Revolution.  Remember that?  Your State played an honorable role in challenging the royal prerogative to be free from critical examination.

Then, in 1798, Congress made the mistake of passing the Sedition Act, which made it a crime to publish "any false, scandalous and malicious writing ... against the government ... with intent to defame ... or to bring [it] ... into contempt or disrepute, or to excite against [it] ... the hatred of the good people of the United States."  That law, which expired hundreds of years ago, is deep in the dustbin of history.

Nearly fifty years ago, the US Supreme Court held that, "although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history," due to a "broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment."

Your suit claims that your Borough was defamed by citizens' comments concerning the way Alpha functions (or fails to function).  But, I don't care what you think defamed you.  It really doesn't matter because the rule is clear.  In this country, the King cannot sue for defamation.  Neither can the US Government.  Nor can you.  You simply don't have a "reputation" that can possibly outweigh the First Amendment.

I know some of your city council members also sued.  As public officials, they have a low probability of success because of the high burdens they must satisfy in a defamation case.  I highly doubt that their suit will work out for them, but there is no question your suit is garbage.

Yours truly,
Jean-Paul Jassy