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Bloggers and the ‘institutional press’

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The Ninth Circuit ruled on Jan. 17 in Obsidian Finance Group v. Cox that bloggers -- and other members of…

The Ninth Circuit ruled on Jan. 17 in Obsidian Finance Group v. Cox that bloggers — and other members of the public — are governed by the same decades-old defamation jurisprudence as the "institutional press” when speaking about matters of public concern.

Crystal Cox wrote blog posts alleging a bankruptcy trustee and his company committed fraud, corruption, and money-laundering. The trustee, Kevin Padrick, and company, Obsidian Finance Group, sued for defamation.

One question before the court was whether the New York Times v. Sullivan and Gertz v. Robert Welch line of cases applied to Cox, as a blogger, or whether the rules set forth under those cases only applied to the “institutional press.”

The court noted that “a First Amendment distinction between the institutional press and other speakers is unworkable.” Quoting Citizens United, the court further noted that, with the prevalence of online commentary, the “line between the media and others who wish to comment on political and social issues becomes far more blurred.”

Because Gertz applies to Cox, she should have only been found liable for defamation if she acted negligently, and a jury should not have awarded presumed damages without first finding that she acted with “actual malice” (that is, that she knew her statements were false or acted with reckless disregard for the truth).

The court also ruled that her blog post was on a matter of public concern, as “public allegations that someone is involved in crime generally are speech on a matter of public concern,” the court wrote.

However, the court further ruled the bankruptcy trustee was not a public figure, as Cox had argued, based solely on the fact he was appointed by the court to serve as trustee.

The Reporters Committee filed a friend-of-the-court brief in this case, arguing that both who is considered a journalist and what is a matter of public concern should be defined broadly.

This story was first reported on our website on Jan. 17.

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