9th Circuit to bloggers: You’re all journalists now, kinda sorta

Citizen journalists on the West Coast may not want to consider Crystal Cox a member of their grass-roots club, but she has done them a considerable favor.

Cox, who describes herself as an “investigative blogger,” ran into legal trouble after publishing a series of blog posts that accused a bankruptcy trustee of “fraud, corruption, money-laundering and other illegal activities,” according to a court filing. The trustee, Kevin Padrick, sued Cox for defamation, and U.S. District Judge Marco A. Hernandez in Portland denied her a key protection against liability that journalists enjoy: He didn’t require Padrick to show that Cox had been negligent. (More on what that means in a bit.)

The judge held that many of Cox’s blog posts were protected speech because they were statements of opinion, but he held that one -- on Dec. 25, 2010 -- included what most readers would consider an assertion of fact: namely, that Padrick had failed to pay $174,000 in taxes owed by the bankrupt company. A jury subsequently awarded Padrick and his firm, Obsidian Finance Group, $2.5 million in damages in connection with that post.

On Friday, the U.S. 9th Circuit Court of Appeals threw out the jury verdict and ordered a new trial. The three-judge panel had no warm and fuzzy feelings for Cox’s methods; it wrote: “Cox apparently has a history of making similar accusations and seeking payoffs in exchange for retraction.” But it concluded that, under the 1st Amendment, it doesn’t matter whether the person accused of defamation is a professional journalist, an amateur whistle-blower or a crank with a Web page. What matters is whether the subject of the piece is a public figure and whether the topic is of public importance.

Writing for the panel, Judge Andrew D. Hurwitz supported this conclusion by citing the Supreme Court’s ruling in Citizens United, a campaign-finance case that has drawn more than its share of outrage from the blogosphere: “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.’ ”

Hurwitz is absolutely right on that point. There are more flavors of journalism, reporting and commentary being practiced these days than anyone can count. Parsing out free-speech protections based on the outlet that publishes the work, or the experience or activities of the writer, would be a nightmarish exercise.

Lawmakers may still want to try to distinguish between journalists (including those who write for non-traditional news outlets) and non-journalists when crafting “shield” laws that make it hard for police and prosecutors to identify sources, seize notes and obtain other types of evidence from writers. Or not: As The Times’ editorial board has argued, such judgments may need to be made case by case.

But back to Cox. Hurwitz also held that although Padrick was not a public figure, Cox was writing on a matter of public importance. And the rationale he used casts a very broad net. “Public allegations that someone is involved in crime generally are speech on a matter of public concern,” Hurwitz wrote. “This court has held that even consumer complaints of non-criminal conduct by a business can constitute matters of public concern.”

The bottom line is that anyone who makes a critical assertion of fact online about an issue of public importance now has the same protection that journalists have. To be held liable for defamation, they have to be found negligent.

The ruling applies only to California and the eight other states in the 9th District, but Hurwitz asserted that his ruling was in line with case law in the rest of the districts.

According to Cornell University Law School’s excellent online Legal Information Institute, negligence has several elements, including failing to exercise reasonable care and causing actual harm. And as Hurwitz wrote Friday, that means a jury cannot simply presume someone is damaged by a defendant’s words unless it finds the writer “acted with actual malice.”

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