University of Minnesota
Silha Center for the Study of Media Ethics and Law
silha@umn.edu
612-625-3421
myU OneStop


Silha Center for the Study of Media Ethics and Law home page.

Bulletin

Bloggers Gain First Amendment Victories But Still Face Issues in Online Journalism

Bloggers achieved a significant victory when the United States Court of Appeals for the Ninth Circuit held on Jan. 17, 2014 that First Amendment protections in defamation lawsuits extend to bloggers. In April 2014, a Florida appellate court held that bloggers were entitled to pre-suit notices for defamation suits under Florida law. Although the victories are welcome news to online content producers everywhere, the jailing of an Alabama blogger has raised questions and concerns among free speech advocates. Online speakers may still have obstacles to overcome before courts fully recognize that First Amendment protections apply to them.

Ninth Circuit Recognizes First Amendment Protections for Bloggers

On Jan. 17, 2014, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that bloggers receive the same First Amendment protections as institutional media in defamation lawsuits. Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014).

The case involved a dispute between Kevin Padrick, a principal with Obsidian Finance, a firm that advises financially troubled businesses, and Crystal Cox, a self-described investigative blogger. In 2008, Obsidian began working with Summit Accommodators, which was considering filing for bankruptcy. A bankruptcy court appointed Padrick as Chapter 11 trustee once Summit filed reorganization paperwork. Shortly thereafter, Cox began posting accusations of criminal activity carried out by Padrick and Obsidian in their work with the Summit bankruptcy on several different websites, including “obsidianfinancesucks.com.” After sending a cease-and-desist letter that Cox did not comply with, Padrick and Obsidian filed a defamation suit in U.S. District Court for the District of Oregon.

The district court held that only one blog post could be interpreted as containing a statement of fact, and could proceed to trial. Obsidian Finance Group, LLC v. Cox, 812 F. Supp. 2d 1220 (D. Or. 2011). The remaining blog posts were considered constitutionally protected opinions because they did not contain provable statements of fact. Cox also claimed protection under Oregon’s journalist’s shield law, but District Judge Marco A. Hernandez held that she did not meet the definitions of who can receive protection as laid out by the state statute. (For more information on Cox’s shield law claims, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 issue of the Silha Bulletin). 

Cox also made First Amendment arguments that the liability standards should be governed by the Supreme Court’s decision in Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974). In Gertz, the Supreme Court held that a private plaintiff needs to show only negligence to recover actual damages from a media defendant. But a plaintiff can only recover presumed or punitive damages upon a showing that a media defendant acted with “actual malice,” meaning that the statements were made with knowledge of falsity or reckless disregard of the truth. Gertz v. Robert Welch, Inc. Cox argued that, under Gertz, Padrick and Obsidian carried the burden of proving her negligence in order to recover actual damages for defamation. Cox also argued that Padrick and Obsidian must show that she acted with actual malice to receive presumed damages. Judge Hernandez dismissed these arguments, stating that Cox had not proven that she was a journalist. Therefore, the protections of Gertz did not apply to her.

Cox also contended that Padrick and Obsidian were public figures. Under the New York Times v. Sullivan and the Gertz rulings, public figures are required to prove actual malice before they may recover any type of damages. New York Times v. Sullivan, 376 U.S. 254 (1964). The district court judge once again dismissed this argument, stating that Padrick and Obsidian had not made themselves public figures by becoming involved with a public controversy. Rather, Cox had created the controversy.

At the conclusion of the trial, a jury returned verdicts in favor of Padrick and Obsidian. Cox moved for a new trial, which the district court denied. Cox then appealed to the Ninth Circuit Court of Appeals, arguing that the district court had ruled incorrectly on the liability standards and Padrick’s and Obsidian’s public figure status. Padrick and Obsidian filed a cross-appeal contending that the jury should have considered their defamation claims relating to the other blog posts.

In a unanimous decision, the Ninth Circuit panel reversed the district court’s judgment against Cox. The court held that Gertz’s liability rules were not limited only to situations that involved traditional media defendants. The opinion by Judge Andrew Hurwitz explained that although the Supreme Court has never ruled that the Gertz standard applied to others besides institutional media, the Court’s language in the opinion also did not limit the ruling to institutional media alone. Hurwitz wrote, “[the Supreme Court] has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers,” citing several cases in which the high court declined to create a distinction between members of the press and the general public.

As a result, the court agreed with other circuits that “the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers.” The court also noted that trying to create a distinction between institutional media and other communicators was very difficult. Therefore, the court said that the key First Amendment factor under Gertz in defamation cases was not the identity of the speaker. Rather, “the public-figure status of a plaintiff and the public importance of the statement at issue” are the key First Amendment considerations. Through this rationale, Cox, as a blogger, was entitled to the same liability standards that traditional forms of media received under the First Amendment.

In addition to determining that Sullivan and Gertz protections apply to the general public, the appeals court also rejected the argument that Gertz was limited to defamation cases involving matters of public concern. Hurwitz wrote that even if Gertz was limited to such a situation, Cox’s blog posts concerned public matters qualifying for protection.  However, the appellate court rejected Cox’s argument that Padrick and Obsidian became public officials because a bankruptcy court appointed them to oversee Summit’s affairs and provided compensation to them. The court also held that Cox’s remaining blog posts were clearly opinions. The panel concluded its decision by granting Cox’s request for a new trial.

Several First Amendment advocates and advocacy organizations praised the Ninth Circuit’s ruling. UCLA law professor Eugene Volokh, who represented Cox during the appeals process, told Associated Press reporter Jeff Barnard for a Jan. 17, 2014 article that the decision “makes clear that bloggers have the same First Amendment rights as professional journalists.” Volokh also noted that the decision followed similar court rulings that granted First Amendment protections to other writers and book authors, although this ruling appeared to be the first to grant protection to bloggers. In the same article, Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press (RCFP), said the ruling confirmed the fact that Gertz was “not a special right to the news media.” Rather, it applied to everyone. “So it’s a good thing for bloggers and citizen journalists and others,” Leslie said.

In a Jan. 24, 2014 commentary, First Amendment Center President Ken Paulson called the Ninth Circuit’s ruling a “landmark decision.” Paulson noted that given the growing financial constraints on traditional news media, many bloggers had taken on the role of the watchdog of people with power. The Ninth Circuit’s holding that bloggers deserve the same protections as traditional media was “something worth celebrating.” On the same day, Jim Rosenfeld, Ambika K. Doran and Jeremy A. Chase, attorneys with the firm Davis Wright Tremaine LLP, called the decision “a major win for individuals who blog, share, tweet, and otherwise publish their views online.” The attorneys explained that the panel’s language provided First Amendment protections to all speakers regardless of affiliation with institutional media. As a result, the attorneys said, “an individual blogger, website operator or social media users speaking publicly on the Internet enjoy the same First Amendment protections from defamation claims as traditional media publishers.”

Nevertheless, some observers have noted that the case may not be a total victory. In a Jan. 17, 2014 post, Digital Media Law Project director Jeff Hermes wrote that although the court rightly decided the case, he was concerned that the court’s statements seemed to suggest that the reason Cox’s speech was protected in some blog posts was because few people could reasonably believe that content on blogs. Hermes wrote that such assumptions about online content could devalue factual speech in the name of protecting it. “Respecting speech means evaluating it on its merits, instead of assuming that it has none,” he said.

In his Jan. 17, 2014 article, Barnard reported that Steven Wilker, an attorney for Padrick, wrote in an email statement that the court found that “there was no dispute that the statements [in Cox’s blog posts] were false and defamatory.” Wilker also explained that further options were being considered.

Blogger Entitled to Pre-Suit Notice under Florida Law

In an April 11, 2014 decision, the Florida Fifth District Court of Appeal in Daytona Beach held that a blogger should be considered a publisher under a Florida law requiring a plaintiff to notify a publisher of defamatory information before filing a defamation suit. Comins v. VanVoorhis, 2014 WL 1393081 (Fla. Dist. Ct. App. April 11, 2014). The case arose after Christopher Comins’ involvement in a May 2008 shooting of a dog that received significant media attention. Along with the media coverage, a witness posted a video of the shooting on YouTube. Comins was later charged with misdemeanor animal cruelty. Blogger Matthew VanVoorhis learned about the incident and wrote a post about the shooting based on the media reports and YouTube video. Commenters on the blog posted death threats to Comins as well as his personal and business contact information. An attorney for Comins sent VanVoorhis a letter requesting that he delete the blog post or the death threats and contact information. Comins later filed a defamation suit against VanVoorhis in a Florida trial court for Orange County in May 2009.

VanVoorhis filed a motion for summary judgment arguing that Comins had not served a pre-suit notice identifying the information that was deemed false and defamatory. Florida law requires plaintiffs to notify a newspaper, periodical, or “other medium” of statements that they believe are false and defamatory in specific articles or broadcasts at least five days in advance of filing a civil action for slander or libel. Fla. Stat. § 770.01 (2008). The trial court granted VanVoorhis’ motion for summary judgment because of Comins’ failure to comply with requirements of pre-suit notice. Comins appealed the trial court’s ruling, arguing that the law’s pre-suit notice requirements applied only to media defendants, which did not include VanVoorhis’ blog.

In a unanimous decision, the Fifth District Court of Appeal of Florida rejected Comins’ argument that VanVoorhis was not entitled to pre-suit notice and affirmed the trial court’s decision to grant summary judgment. In determining what constitutes an “other medium” under Florida defamation law, the court stated that it must examine “whether the blog is operated to further the free dissemination of information or [sic] disinterested and neutral commentary or editorializing as to matters of public interest.” Under this standard, the court determined that although it was “not prepared to say that all blogs and bloggers would qualify” for the law’s protections, VanVoorhis’ blog was considered an “other medium” under the Florida law. In the court’s view, VanVoorhis’ blog deserved protection under the pre-notice statute because it was “an alternative medium of news and public comment.”

In an April 17, 2014 commentary, Robert L. “Rob” Rogers III, an attorney with the law firm Holland & Knight, called the decision a “win for independent news gatherers and publishers in Florida.” Rogers wrote that although the language of “other medium” was relatively unique to Florida’s law, bloggers in other states with pre-suit notice laws could point to the case as a precedent for the recognition of similar protections.

Blogger Jailed for Five Months for Refusing to Remove Content

On March 26, 2014, Roger Shuler, the publisher of “Legal Schnauzer,” a blog that is self-described as “one couple’s fight against injustice,” was released after being jailed on contempt of court charges. The charges against Shuler arose after he refused to take down content from his blog that was at issue in a defamation suit filed against him. His release came when his wife removed the posts in question after Shuler had spent five months in jail.

On Jan. 12, 2014, Campbell Robertson reported in The New York Times that Shuler, who used his blog to criticize public officials, had written posts suggesting that Robert Riley Jr., the son of former Alabama Governor Bob Riley, had impregnated a lobbyist and paid for an abortion. Both Riley and the lobbyist filed defamation suits in the Alabama state court in Shelby County against Shuler and his wife, Carol, and sought an injunction against the posts. Riley v. Shuler, 58-CV-2013-00236 (Cir. Court of Shelby County, Ala. 2013). The judge issued a temporary restraining order that prohibited the Shulers from posting defamatory content about Riley and the lobbyist. The order also required the Shulers to remove the posts at issue in the defamation suit. The court issued a preliminary injunction with similar stipulations. Riley v. Shuler, 58-CV-2013-00236 (Cir. Court of Shelby County, Ala., Oct. 1, 2013) available online at http://www.scribd.com/doc/174165240/Rob-Riley-Injunction. The judge also sealed the court records. Shuler ignored the orders and was subsequently arrested on civil contempt charges. Riley v. Shuler, 58-CV-2013-00236 (Cir. Court of Shelby County, Ala., Oct. 7, 2013) available online at http://www.scribd.com/doc/176691465/Rob-Riley-Order-Contempt.

In a Nov. 14, 2013 hearing, a judge ruled that Shuler could not post any further content about Riley or the lobbyist that involved an affair, abortions or payoffs. The judge ordered that Shuler must remove any offending posts. Riley v. Shuler, 58-CV-2013-00236 (Cir. Court of Shelby County, Ala., Nov. 14, 2013) available online at http://legalschnauzer.blogspot.com/2013/11/nov-14-court-hearing-in-legal-schnauzer.html. The judge also unsealed the court records, but Shuler remained jailed because the offending content remained on his blog. On April 1, 2014, Kent Faulk reported for AL.com, the Alabama Media Group website, that a judge ordered Shuler’s release after Carol Shuler made good faith efforts to remove material about Riley and the lobbyist. The judge also stated that the permanent injunction from the November 14 ruling remained in effect.

Many commentators have raised First Amendment concerns over the Alabama court’s injunction against and jailing of Shuler. Faulk reported that the American Civil Liberties Union (ACLU) of Alabama had filed a friend-of-the-court brief in support of Shuler. The ACLU’s Nov. 1, 2013 brief argued that the court’s use of a temporary restraining order and an injunction was an unconstitutional prior restraint. The brief also argued that the judge’s sealing of records went against well-established First Amendment precedents of court openness. On Nov. 6, 2013, the RCFP wrote a letter to the district judge in support of Shuler. In the letter, Executive Director Bruce Brown wrote that “the process by which the court made that determination [to grant a preliminary injunction] seem[ed] problematic.” Brown also wrote that the decision amounted to a prior restraint.

Some commentators have criticized Shuler’s approach to confronting officials on his blog as well as his behavior toward the court. Robertson’s reporting for The New York Times characterized Shuler’s blog as “a hothouse of furious but often fuzzily sourced allegations of deep corruption and wide-ranging conspiracy” that were “frequently salacious.”  Ken White, an attorney and writer for legal blog “Popehat,” criticized Shuler in a Nov. 17, 2013 post for calling the court “a joke” and stating that it had no jurisdiction over him during the November 14 hearing. White suggested that Shuler’s actions could help create a precedent for future plaintiffs seeking injunctions. Nonetheless, White told Robertson in The New York Times story, “I think you can say what the court is doing is unconstitutional and troublesome and also that Shuler is his own worst enemy.” In a Jan. 14, 2014 commentary for Salon, Natasha Lennard took issue with The New York Times’ description of Schuler. “The characterization of the blogger as a gossip-monger with himself somewhat to blame for his predicament does disservice to the gravity of Shuler’s situation,” Lennard wrote.

In an April 2, 2013 article after Shuler’s release, Faulk reported that Shuler told him that he “was thankful to be out of jail,” but that he viewed the injunction as “a classic prior restraint.” In an April 8, 2014 article by Al Jazeera America reporter Wilson Dizard, Shuler said his recent experience could have a “chilling effect on Web communication in general.” Other commenters also noted the possible First Amendment problems that the Shuler case raised. In the same article, Society of Professional Journalists President David Cuillier told Dizard that Shuler’s case was an “extremely dangerous” development. “If [Shuler] did wrong, then there are recourses in civil court,” Cuillier said. “But the government should not throw people in jail for expressing themselves.” Dizard also reported that Kurt Opsahl, a senior attorney with the Electronic Frontier Foundation, a digital rights advocacy group, said that Shuler’s case “was an aberration in the justice system that should not become a trend.”

Casey Carmody
Silha Research Assistant