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.
Cox claimed that Obsidian and its partners were public figures, an assertion the Ninth Circuit nixed. Writing for the court, Judge Andrew Hurwitz said that her posts, while about private figures, covered a topic of public concern. They fell, he said, under the domain of Gertz. The information contained in them could not be merely wrong: It had to be negligently published.
Crucially, the jury in the 2011 trial, Hurwitz said, had never been informed of such a stipulation.
The Bloggers and Journalists Part
Cox might not qualify for Gertz’s protections if she was not part of a media organization. If Cox is a blogger, not a journalist, and if only journalists are entitled to the protections of negligent publications, then Cox might not qualify for Gertz at all.
Was Cox, a self-titled blogger, in fact a journalist? On this, Hurwitz was clear.
“Although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers,” he wrote. In one case, he said, “the Court expressly noted that ‘we draw no distinction between the media respondents and’ a non-institutional respondent.”