Updated, Wednesday, 11:45 a.m.
One of the great questions of our time came closer to resolution last week, when a federal court ruled that bloggers are journalists—at least when it comes to their First Amendment rights.
The Ninth Circuit ruled as such on Friday in Obsidian Finance Group v. Crystal Cox, a complicated case first decided in 2011. The court found that even though someone might not write for the “institutional press,” they’re entitled to all the protections the Constitution grants journalists.
Background That Is Not About Are Bloggers Journalists
In 2010, Crystal Cox—an “investigative blogger”—published a series of angry posts about Obsidian Finance Group and its partners, alleging tax fraud, money laundering, and other crimes. The posts appeared on a set of aptly (and memorably) named websites, including “obsidianfinancesucks.com.” Obsidian and one of its partners, Kevin Padrick, sued Cox, alleging defamation.
Only statements of apparent fact can be ruled defamation. When the case went to trial, Oregon district court Judge Marco Hernandez ruled that most of Cox’s entries were too hyperbolic to count as anything but opinion, and thus could not be considered defamation—except for one post, which the Oregon district decided was sufficiently factual. A jury awarded Obsidian and Padrick $2.5 million in damages for the libel.
The New York Times’s media reporter David Carr wrote about the case that year, ruling it less about journalism than Right and Wrong: “She didn’t so much report stories,” he said of Cox, “as use blogging, invective and search engine optimization to create an alternative reality.”
Other things were going on in the case. Cox claimed that her sources for the tax fraud claim were secret, and that Oregon’s media shield law protected her from revealing them. Hernandez decided that she did not qualify for shield protection under the law, partly because she had offered to take down the offending posts for $2,500 per month.
But this new appeal ruling, the one on Friday, turned on something else—the intersection of two pre-existing piece of case law, New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. Both dictate what kinds of speech qualify as defamation.
In the landmark 1964 Sullivan, the Supreme Court ruled that public figures can only seek claims for defamation if false information was published with “actual malice.” That phrase—actual malice—means that, to qualify as defamation, information must either be known to be false at publication or published with blatant disregard for the truth*. In 1974’s Gertz, meanwhile, the same court ruled that false information about private individuals qualified as defamation if it was negligently published.
Taken together, the two cases establish a meshing precedent: To count as defamation, false information about public figures must be published . False information about private figures, meanwhile, must merely be published negligently.