A business development professional from a mid-size West Coast law firm emailed me with with a question about ghost blogging.

Ghost law blogging, if you’ve not heard of it, is practice where some lawyers and law firms hire people to write blog posts for lawyers and hold the posts out as being written by the lawyer.

The business development professional acknowledged that ghost blogging is legally unethical, but wondered if there may be some middle ground between ghost blogging and the attorneys publishing their own blog content. Perhaps having him write the post or just holding out the post as written by the firm. He was concerned about lawyers maintaining the blog.

My answer got into the brass tacks of what makes for law blogging success so I thought I’d share it with you.

I first explained that I believe I saw FindLaw selling ghost blog posts to lawyers at one time, but rather than represent that the post was written by the lawyer (in the byline author field of the post), the byline read that the post was on “behalf of the lawyer.” A cheesy solution, but different than other firms which unethically misrepresented that the lawyer wrote the post when they did not.

The real key to the dilemma though is to make blogging a fun and rewarding experience for the lawyers who are going to blog. Blogging will not feel like a chore and getting posts up will not be a challenge.

How so? Begin with the lawyers understanding what blogging is and what the goal is. The goal is not necessarily to bring traffic to the website. The goal is building word of mouth and relationships, the same things that built his firm. The Internet has not changed this.

Keep clear that we’ll measure success by an increase in revenue. Establish a goal and then measure how much has revenue jumped for the lawyers/area involved? It can be very significant.

Knowing that, identify the areas the firm is looking to grow or sees an opportunity. Do you have a lawyer or lawyers who want to build a name in the area and want learn to use the Internet to do so?

Who wants to become a star – to do the type of work they’d love to do, for the type of clients they want to do that work for and not worry about where business is coming from. Why not? Many, many other lawyers have done so through blogging.

Know that not every lawyer wants to blog. Ask who is excited to blog. Do not end up with an editorial calendar where it’s a chore for the lawyers and the person chasing them down. If lawyers say they are not excited, that’s okay.

The blog will be on one niche area the firm excels in or is looking to grow. Could be tighter than a practice area such as estate planning, i.e., a type of trust in estate planning. The blog will become a must read by a niche audience, the lawyers will know it and they’ll see “why blog.”

Niches are critical. Niches do not limit work, they expand the work coming through trust and name recognition.

Educate the blogging lawyers that we are not talking articles. We are talking blogging. Depending on the niche, you may reference and share news and developments, heavily using block quotes, and offer your take/why you shared it.

The lawyers will be referencing other bloggers (law and industry), reporters and association news – you’ll make a list of about 20 influencers that fall in this group that they’ll be following in a news aggregator (Feedly). It’s like pressing the flesh. You get known and your blog posts get cited and shared by others. Posts may be as brief 250 to 500 words. Think about the emails between lawyers in the firm and to clients that already do this. It’s not much different.

You can expand, once the blog gets known, to having guest posts of people with whom you want to build relationships and to four question email interviews of referral sources, business associates and the like.

Any help the blogging lawyers may need, and most do not, is in proof reading, titling a post and putting in a picture.

Begin with the premise that we’ve always networked to build a name and relationships, now we’re going to learn how to use the Internet to do so. We’ll get a lawyer or two started who can become blog/social media champions and be a viral positive from whom other interested lawyers in the firm can learn.

The blog will be the first social media used by the blogging lawyers, maybe 2 to 4 posts a month, and then the lawyers can learn how to use other social media personally – Twitter, Facebook and LinkedIn, with the understanding that the blog content is currency for relationships there.

You know my take on ghost posts. Don’t go down that road. If you’re a real lawyer or real law firm, you’re better than that.

The Indiana State Bar Association held its annual meeting last week. There was one session on social media and online networking.

I would never have noticed, but for the title of The Indiana Lawyer’s story as reported by Olvia Covington, “Social media create potential for ethical violations.” Rather than cover the benefits of social media — to lawyers and the public, via lawyers engaging the public — bar associations tend to focus on the perils of social media.

Though the Indiana presenters, Attorney Judy Woods and library manager, Howard Trivers, reportedly focused on ways legal professionals could get the most out of social media for research, the session, from Covington’s report, went on to warn of the perils of social media in general.

The perils, per Covington’s report:

  • Lawyers — especially those who frequently use social media — should heed an ABA opinion, concerning judges, to draw a line between their personal and professional online lives.
  • Legal professionals should become increasingly cautious when they log into various sites.
  • Attorneys should use caution when discussing their work online in that doing so can lead to ethical problems.
  • Social media posts can, at times, constitute legal advertising, which can get attorneys in ethical trouble.
  • Attorneys should list all states where they are admitted on every social media site they maintain so that they never give the impression that they are trying to solicit work in a state where they are not admitted.
  • Warned that even law firm employees who are not licensed attorneys can find themselves in violation of ethical standards based on their social media use.

Sure there’s truth in the above and other cases cited by Woods, but reading the warnings, I couldn’t help but wonder how regularly Woods and Trivers use Facebook, which 96% of the public uses, and Twitter, which leading lawyers, including in-house counsel, are using to engage other lawyers, the public, bloggers and the mainstream media.

The answer, unfortunately, is not that much, if at all.

This spring, I was speaking on an ABA section panel on social media with three other lawyers. None of the three blogged nor used Facebook, Twitter or LinkedIn, other than as a resume and digital rolodex.

The outcome was a one hour session that would scare the heck out of any lawyer who didn’t know any better about social media. I tried, but I was outnumbered.

Sure, bar associations ought to highlight ethical risks associated with social media. But when doing so in presentations to lawyers, bar associations ought to have lawyers who regularly use social media in their professional life (becoming a better lawyer, business development, professional networking, engaging with the public) and personal life.

Only then would the professionals presenting have a context of the potential of social media and understand that the networking being done via the phone in a lawyer’s pocket or purse is the most powerful networking the world has seen.

Only then would the professionals and the bar associations appreciate the power of social media for lawyers to establish trust with the people and make legal information and legal services more accessible.

Trivers and Woods, from what I read, are extremely talented professionals. I have no axe to grind with them, nor should anyone else.

Legal professionals, and the public we serve, just deserve experienced professionals when it comes to counsel on something as important as social media.

 

If you are a lawyer looking to blog to demonstrate your knowledge of the law, enhance your reputation in your field and grow your business as a result, your blog belongs on a standalone site outside of your law firm website.

If you are a lawyer looking to advertise your services, akin to television or yellow page ads, through “blogging,” then you have a page or section of your website, indistinguishable from the other sections in layout and features, designated as a “blog.”

That’s the gist of a Final Opinion just released by the State Bar of California Standing Committee on Professional Responsibility and Conduct (“Bar”).

By its very nature, blogging raises First Ammendment free speech issues. As with newspaper and magazine articles, practice guides, books, law review articles, and presentations, lawyers could reasonably expect that blogging would not be subject to the restrictions which govern lawyer advertising.

The Bar agreed.

Most “traditional” blogs expressing the blogger’s knowledge and opinions on various topics and issues, legal and non-legal will be regarded as core or political speech.

But what about blogs placed inside of websites to garner website traffic or showcase knowledge along side lawyer bios or practice group descriptions?

The Bar had already decided that a website and any information included in it to be an advertisement.

Professional websites maintained by attorneys and law firms consistently have been found to concern their availability for professional employment and, thus, are attorney advertising subject to regulation.

The Committee further expressed the belief that “this conclusion is not altered by the inclusion in the web site of information and material of general public interest.”

Accordingly, the Bar found that blogs inside of websites to be advertising.

What’s the big deal? Just throw the disclaimer that your blog is attorney advertising at the bottom.

From Avvo’s General Counsel, Josh King:

…[I]f a blog is subject to bar regulation as “advertising,” lawyers suddenly need to worry about their expression being regulated under the lesser standard of intermediate scrutiny. Their competitors can file grievances with the bar over what would ordinarily be editorial content, and as “advertising” that writing will also be open to attack on publicity rights grounds. 1 Lawyers likely lose the protection of California’s anti-SLAPP law to defend their free speech rights, as well as most fair use defenses to copyright actions. In short, they’ll need to consider the fact that anything they write is putting their license at risk. Under such a regime, it’s a fair bet that many legal bloggers will censor themselves.

More important is acknowledging that blogs inside of a website are not as effective when it comes to business development.

Again from King:

…[In] my view legal blogs are more authoritative and have more opportunity to develop a “voice” when they live somewhere other than a staid old law firm website. 1 If lawyers need an ethics-based excuse to move to that structure, so much the better.

Law blogs are effective because they establish a lawyer as a reliable and trusted authority. Trust, engagement and relationships are stifled when you place text called a blog inside of a website.

Most lawyers have grown their business through relationships and word of mouth, not advertising. If you’re one of these lawyers, you don’t place your blog inside a website so as to begin advertising.

Now the largest legal ethics body even tells you so.

Image courtesy of Flickr by Kainet

Earlier this week I received a courtesy copy of the New York State Bar Association’s Social Media Ethics Guidelines.

The Guidelines were adopted by the New York State Bar Association Commercial and Federal Litigation Section. The rules will be considered by the New York State Bar Association’s house of delegates this weekend.

Though nice to receive a copy of the guidelines, I couldn’t help but wonder if this was simply down the rabbit hole for New York’s lawyers.

Were the rules needed or were existing ethics rules sufficient? Did the lawyers on the committee (almost 40 strong here) all have a practical grasp of social media? Would we get into the impractical and bizarre, i.e.) discussing disclaimers on tweets, as the committee did here?

Though the section did not do too bad in their draft, I still question laying a set of special guidelines on top of what we already have. If we did it for the fax machine and cell phones, I missed it.

Can we expect new guidelines to be drafted everytime we have something new? Social media was not even a term of art seven or eight years ago. What will we need to address in five years?

Mandating knowledge and lawyer competency of social media seems a little foolhardy. Yet that’s what the committee did. From comments to guideline one on attorneys’ social media competence:

Lawyers… need to be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use. This is a serious challenge that lawyers need to appreciate and cannot take lightly.

Though perhaps well intentioned, this is a stretch to say the least.

Take the audience of lawyers taking in a social media panel I was on at the Texas State Bar Annual Meeting Friday afternoon. If I told them they would be required to be conversant with all of the social media we were discussing or be subject to ethics violations, they would have started laughing at me.

And from the very limited use and knowledge of social media I saw from the group, they would have had every reason to laugh.

The committee also sees lawyers drawing a clear line between the professional and personal use of social networks. That’s not that easy and requiring that you retain a copy of every social networking and social media communication in your professional use is quite a burden.

These social media ethics guidelines will become the heart of every CLE powerpoint presentation on social media and ethics for New York Lawyers for the next next five years. The guidelines are going to seed and spread fear of social media.

Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines, the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?

Blogging, social media, social networking and the like are learned through trial and error. A lawyer’s common sense, good judgment and a working understanding of existing ethics rules guide them.

Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.

Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.

Maybe I am totally missing something here. I know and have met some of the New York lawyers who were part of the group drafting the guidelines. Good people and fairly knowledgeable on social media.

But why do we need all these guidelines? Where do we benefit? Haven’t New York lawyers networking online for the past 25 years done fine without such guidelines? Where will New York lawyers and New Yorkers be harmed without them going forward?

Image courtesy of Flickr by Tom Simpson

Robert Ambrogi (@bobambrogireported this week that Massachusetts is the 14th state to require lawyers to stay abreast of technology as a condition of licensure.

Massachusetts ethics rules will now include the following provision, adopted in part from the ABA Model Rules for Professional Conducts.

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.

Interesting that the requirement is only “should,” not “shall.”

That aside,  you would think lawyers would want to be technology competent so as to better serve clients and attract the clients they would like to serve through networking online.

But as is the case with many people, the goal of many lawyers appears to be to do as little as possible to get buy — or to hope to get to retirement before they need to fully incorporate technology into their lives.

I found technology and the Internet as a practicing lawyer almost 20 years ago out of necessity.

I wanted people to know what my trial law team and I could do and to build a word of mouth reputation. The AOL message boards under the keyword, legal, where I answered thousands of questions were our savior. We also helped a boat load of people, for free, along the way.

I knew not a lick about technology other than how to find the Internet with my computer and how to use the Internet to help people.

As a result, the Saint Paul Pioneer Press called my small law office among the most tech savvy law firms in the country. USA Today said if we did not stop doing what we were doing, we would give lawyers a bad name.

I don’t share this to impress you, but to impress on you and lawyers that tech neophytes can use technology effectively if they want to and they care about the public we serve.

I wouldn’t look at the adoption of regulations requiring lawyers to stay abreast of technology as a step forward for our legal profession. I’d look at it as a sign that many, if not the majority, of our legal profession lack commitment and care.

That’s a little sad.

It sure looks like it upon reading the recent State Bar of California Ethics Opinion on blogging.

Locating law blogs on an independent site separate and apart from your website is common sense if you are looking to enhance your reputation as a lawyer and grow your influence online.

Now lawyers are getting an ethical shove to get their blogs off their websites. Blogs inside of websites will be construed as advertising in California.

From attorney and author, Carolyn Elefant (@carolynelefant) writing “California Bar Offers A Reason to Keep Your Website and Blog Separate.”

…[A]recent California ethics decision offers yet another reason for lawyers to maintain their blog’s independence. The California decision addresses whether blogs constitute advertising, and analyzes a couple of different fact patterns. The California bar concludes that a freestanding blog offering informational or educational materials that is free standing, intended to enhance the lawyer’s education in the community and doesn’t include any “call us now for help” solicitations is not subject to bar advertising rules. By contrast, that same blog, if included as part of a law firm website would be deemed advertising essentially be association and subject to the same regulations as the parent site.

The Bar acknowledges that “Most attorney blogs are maintained at least in part to enhance the authoring attorney’s professional reputation and visibility, with an eye to increasing the attorney’s business.”

But “…[T]he fact that a blog is economically motivated does not, in and of itself, mean that it is “commercial speech” subject to regulation by the State Bar as advertising.”

The Bar clearly differentiates between what it describes as a “Stand-Alone Blog” and a “Blog Included on a Professional Website.” A stand-alone blog on which a lawyer shares insight, commentary, and helpful info will not be governed as advertising so long as the lawyer is not giving a call to action that people contact the lawyer in their blog posts. While a blog in a website with comparable posts will be looked at as advertising.

As a I told a reporter when they called me about the opinion, I have always told lawyers to be safe with their blogs. Consider them advertising.

But lawyers who penned good stand-alone blogs routinely disagreed. They did not see their blogs as commercial speech and subject to advertising restrictions. Looks like these lawyers were right — at least in California.

Read the Bar’s opinion. They’re far ahead of other states when it comes to their understanding of good law blogging. I wouldn’t be surprised to see other states take California’s lead.

In any case, you have another reason to not place your blogs in your law firm website.

Image courtesy of Flickr by Randy Heinitz

I am proud as heck of what most of us do as lawyers, but at some point you can be over-lawyered.

The latest example comes via New York City Attorney Catherine Foti (@catherinefoti) who asks in a piece at Forbes whether social media for lawyers is good business or an ethical minefield.

Foti acknowledges that social media offers lawyers “an extraordinary means for professional and personal networking and self-promotion, and for researching personal and professional contacts.”

She then goes on to to discuss the risks of violating the ethical rules that govern attorney advertising by using social media for professional self-promotion.

An example of one of the rules, or guidelines, Foti says lawyers need to comply with comes from the New York State Bar Association (“NYSBA”) which issued “Social Media Ethics Guidelines” requiring “Tweet Disclaimers.”

…[E]ven a “Tweet” used to promote a lawyer’s services — which can be no longer than 140 characters — must contain the information required in attorney advertisements, which can be provided using commonly recognized abbreviations. So, a Tweet used to advertise a lawyer’s services might just need to end with this 90 character message: “This Tweet contains attorney advertising. Prior results do not guarantee a similar outcome.” Although there are commonly recognized abbreviations for the words “attorney advertising,” PRDNGSO is unlikely to be considered an abbreviation common enough to replace “Prior results do not guarantee a similar outcome.” (emphasis added)

I understand the “Tweet Disclaimer” is only a guideline, not a rule mandating compliance. Maybe a “Tweet Disclaimer” is only required when a lawyer touts case successes? Maybe disclaimers aren’t required when you share bits of legal insight or links drawing attention to yourself, website or blog.

But neither Foti nor the guidelines give it the “Oh Shucks, Twitter disclaimers would only be needed in extreme cases, don’ worry about it.”

Social media is a gift — to lawyers and the public we serve. Social media enables lawyers to connect with the public in a real and meaningful way. Get enough lawyers effectively using social media and we may even restore a little of the public’s faith in lawyers and our legal system.

Rather than chill lawyers from using social media, we in the legal profession ought to be encouraging lawyers to use social media every chance we get.

I am sure Foti is a heck of lawyer and that her intent here is sound — to wisely tell lawyers to be careful. But to cite guidelines requiring “Tweet Disclaimers” as something that lawyers realistically need to be concerned with is over-lawyering things.

Come to think of, has anyone seen a “Tweet Disclaimer.” If you can find one, send it my way and I will share it here.

Sorry lazy lawyers and marketing professionals selling ghostwritten blog posts. Lawyers and many other professionals are coming close to a consensus that ghost-blogging is unethical. The most recent discussion took place on Facebook and Twitter this week.

Until now it was like talking religion or politics with the flak I received when expressing my belief that using a ghostwriter for your law blog was unethical. “Lawyers are too busy, they ought to have someone else write their blog posts. Law firms hire copywriters to do their website copy, they can do the same with blogs. Lawyers don’t write all their own briefs and pleadings, what’s wrong with having someone else blog for you? Lawyers write legalese, journalists can pen stories that’ll break you out of the pack.”

These folks, of course, miss that a blog, likely to be construed as advertising, cannot include misrepresentations such as “I wrote this blog post, as evidenced by the the byline, when in fact I did not.”

Columbus employment lawyer, Kailee Goold (@kaileemgoold) penned a nice summary of the twitter discussion and an analysis of why ghostwritten blogs raise ethical concerns on the Ohio Legal Ethics Blog.

We begin with Josh King (@joshuamking), General Counsel and Vice President, Business Development for Avvo, who identifies the two ethical rules in play in ghost-blogging – 7.1 and 8.4.

Though a blog is arguably pure free speech, I’ve always taken a conservative view and assumed states will construe law blogs as advertising under ethics rules. Gould agrees.

Although there is debate over the extent to which the First Amendment protects attorneys’ blogs, I believe most blogs are commercial speech and thus can be regulated. (Most practicing attorneys who blog do so to get business). Regardless, when you pay someone to write the content your blog is commercial speech.

Back to the misrepresentation point, per Gould, ghost-blogging violates Rule 7.1. Ohio rule 7.1 (similar to other states):

A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment 1 clarifies: “Whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

So:

Placing your name as the author of a blog post on a post you did not author is a false and misleading communication about you and your services to the public at large. The false part doesn’t need much analysis. You are simply saying you authored a post you did not author.

……

…[C]ommon sense rules here. You’re claiming authorship of something you didn’t author – a misrepresentation of fact.

In addition to saying you penned something you did not, a ghostwritten blog can be a misleading communication about a lawyer’s abilities.

The ghost-written post may be better written, funnier, or just plain different than the attorney’s own work product. Even worse, the post may have a completely different perspective or contain better ideas than what the attorney is capable of.

Either way, this mislabeling is material because attorneys’ names carry weight. Attorneys have stricter ethical rules than other professions precisely because they are viewed differently. Thus—right or wrong—almost anything with an attorneys’ name on it is subject to higher standards and reliance in the public’s eye. Not to mention the fact that the clients rely on blog posts when selecting an attorney.

If it’s not enough that ghostwritten blogs violate rule 7.1, Rule 8.4 (c) provides it’s professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

For the same reasons discussed above, having someone’s name appear as the author who did not in fact author the post is a misrepresentation or an act of dishonesty. In fact, it may be easier to argue that this Rule is violated because the misrepresentation need not be material to constitute misconduct under Prof.Cond.R. 8.4(c).

I don’t expect ghostwritten law blogs to go away. Lawyers are unlikely to report another lawyer to the bar or ask the bar for an advisory opinion.

Capitalism drives it as well. Lawyers who have little idea what blogs really are just want one to keep up with their competitors. And as with websites and SEO, marketing companies never let a thing like a customer’s license being at stake get in the way of a buck.

Image courtesy of Flickr by Jon Feinstein

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Attorneys Richard Raysman and Peter Brown write in the New York Law Journal that online advertising, a $20 billion industry for just half of 2013, raises a number of ethical challenges for lawyers.

Topping the list of online advertising was the blog, which Raysman and Brown believe could be the “most useful tool in one’s online arsenal to advertise an area of expertise in the law and to solicit prospective clients.”

The article goes on to discuss lawyers using Groupon, buying online leads, and advertising on Facebook.

Raysman and Brown do a nice job summarizing court decisions and bar rulings that have addressed lawyers use of the net, if that was there goal. But why throw blogs in with things that are closer to buying billboards and television ads?

Am the only one who sees blogging as a form of networking? Networking not unlike that done by lawyers before the Internet. Networking that really has nothing to do with advertising.

Sure, if you want to use the Hunter case in Virginia as an example of lawyer advertising, do so. But don’t use the case as guidance on ethic’s rules applying to blogs.

Hunter was a situation where a lawyer called some pages on his website a blog and bragged about his prowess and results, soliciting you to give him a call. Nothing could be further from a blog than what Hunter was doing.

Raysman and Brown, though finding blogs effective for business development, see hurdles for lawyers in blogging.

This practice has already run into obstacles, as courts and bar associations have confronted whether this practice comports with the notions of ethics and propriety that purportedly undergird the practice of law.

Hunter and a New York case, also cited in the article, raising the question whether blogs should be retained under retention of records rules hardly create hurdles for lawyers looking to blog.

But more importantly, lawyers discussing advertising rules and blogs need to get to the art of the issue. True blogging may not advertising at all. Sure other ethics’ rules, as they apply to any activity, apply to blogs. But not advertising rules.

If I listen to a conversation at a networking function and then engage others, is that advertising? True bloggers ‘listen’ to what is being written and then engage by referencing the conversation. It’s networking through the Internet.

If I write a law journal article or a book, to advance knowledge, is that advertising? Hardly, even if I do so to further enhance my reputation as a trusted and reliable authority in my field.

Sure, there will be lawyers involved in content marketing and getting content onto something they call a blog, whether they write it or not, in hope of garnering web traffic. As something closer to a billboard, that’s advertising.

Raysman and Brown acknowledge that in both cases they addressed the governing body ruled in favor of lawyers utilizing blogs.

That’s great. But let’s get to the heart of the matter. Blogs are a means of networking, and networking is not regulated as advertising by courts or bar associations.

Image courtesy of Flickr by starmanseries

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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.