As reported by Dan Levine (@FedCourtJunkie), the 9th U.S. Circuit Court of Appeals in San Francisco ruled yesterday that a blogger is entitled to the same free speech protections as a traditional journalist.
A bankruptcy trustee and Obsidian Finance Group sued a Crystal Cox for defamation over a 2011 blog post she wrote accusing them of tax fraud. A lower court found that because Cox failed to prove she was a journalist she was not entitled to the same freedom of the press protection. The 9th Circuit found it didn’t matter if Cox was a traditional reporter. Per 9th Circuit Judge Andrew Hurwitz, writing for the Court:
As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.
UCLA School of Law professor and blogger, Eugene Volokh (@VolokhC), pointed out the importance of not distinguishing bloggers from traditional press today in the world where online content dominates.
In this day and age, with so much important stuff produced by people who are not professionals, it’s harder than ever to decide who is a member of the institutional press.
What protection do bloggers now have? If blogging on a matter of public interest or about a public figure, the plaintiff will need to show, at least in the 9th Circuit, that the blogger knew what they were publishing was false or published it with reckless disregard of whether or not it was false. As for Cox, the plaintiffs can proceed with their lawsuit back in the trial court. They’ll need to prove knowledge that the post was false or with negligence on Cox’s part.