Blogger protected by 1st Amendment, appeals court says


SAN FRANCISCO -- A federal appeals court unanimously overturned a defamation award against a blogger Friday, ruling that 1st Amendment protections for traditional news media extend to individuals posting on the Web.

“The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,” Judge Andrew D. Hurwitz wrote for a three-judge panel of the U.S. 9th Circuit Court of Appeals.

The panel said its holding was the first of its kind within the 9th Circuit but that other circuit courts already have extended protections for journalists to individual speakers.


The case was brought by Obsidian Finance Group and one of its principals, Kevin D. Padrick. Writing on several websites she created, blogger Crystal Cox accused them of fraud, corruption and other misconduct.

“Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction,” the court said.

A district court in Oregon held that all but one of Cox’s posts were constitutionally protected opinion. But the judge allowed a trial on a post that accused Padrick, in acting as a bankruptcy trustee, of failing to have paid taxes for a company that had filed for Chapter 11 reorganization.

Cox represented herself at trial, and the jury awarded the plaintiffs a total of $2.5 million in damages.

Cox appealed. She did not contest the jury’s finding that her post was false and damaged reputations, but she argued she could not be held liable unless it was shown she had acted with negligence.

The 9th Circuit agreed the jury should have been required to find that Cox had acted negligently because her posts involved a matter of public concern.


The court also ruled that a jury could not award monetary damages for presumed, unproven harm to the subjects of her posts unless it found that Cox had acted with malice, posting information she knew was false or with reckless disregard for the truth.

“This case is the first one from a federal court of appeals that specifically protects the rights of bloggers,” said UCLA constitutional law professor Eugene Volokh, who represented Cox without charge on appeal.

He said the ruling would also protect other individuals, including those who leaflet and who speak out on behalf of politicians or activist groups.

An attorney for the plaintiffs said he would have a comment later Friday.


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