U.S. Court: Bloggers Are Journalists, even when they're libeling you | Hacker News Reader

U.S. Court: Bloggers Are Journalists, even when they're libeling you

theatlantic.com

109 pointsmilesf19 comments

This is an interesting and important case; the limits of the first amendment being tested by a true scoundrel.

Crystal Cox was clearly, unambiguously running a protection racket, where she publishes scurrilous claims about somebody and then offers to remove them in exchange for a "reputation management" fee. She turned this racket on her former lawyer Marc Randazza -- a lawyer famed for his first-amendment efforts -- after he recused himself from her case. You can get a taste of how ugly this woman behaves here:

http://www.popehat.com/2012/03/30/investigative-journalist-c...

http://randazza.wordpress.com/2012/12/17/this-domain-name-se...

Note that she is now represented by Eugene Volokh, another highly esteemed champion of the first amendment.

Crystal Cox never really denied that the things she wrote were false and damaging; she merely claimed that she can't be held liable for anything she writes because she's a journalist.

The appeals court decided that she does indeed qualify as a journalist in this case. It did NOT let her off the hook for defamation. This is very important. Journalists can still commit defamation. The district court convicted her of that, but it used the wrong test because it assumed that she's not a journalist.

So what does this decision mean exactly? For Crystal Cox it means that the case will be retried in district court, this time using a more precise definition of libel. I think it is highly likely that her conviction will stand.

For the rest of us it's a precedent that modernizes first-amendment protections for the Internet age, the attainment of which was well worth the defense of a scoundrel.

she merely claimed that she can't be held liable for anything she writes because she's a journalist

This sounds like S&P and Moody's arguments about why nobody should listen to (or hold them liable for) their Credit Ratings. The question of acting in good faith or with malice, however, seems to be still an open point. That is after all, the difference of expressing your opinion and shouting 'fire' in a movie theatre.

If I may pick a nit, the test to be used in this case is not malicious intent, but negligence. In other words, in order to convict her of defamation, the jury must only be convinced that she acted negligently, i.e., that she failed to take a reasonable level of care to determine whether her published statements were true.

In contrast, the malicious intent test looks for either "reckless disregard" for a statement's veracity, or positive knowledge of its falsity (is that a word?). This is a much stronger test reserved for situations where the victim is a public official, which the appeals court found was not the case here.

This is a useful clarification.

> Crystal Cox never really denied that the things she wrote were false and damaging; she merely claimed that she can't be held liable for anything she writes because she's a journalist.

Actually, she claimed that she can't be held liable because the alleged victims were public figures, and that the required standard of proof for defamation charges where the alleged victim is a public figure were not met.

> The appeals court decided that she does indeed qualify as a journalist in this case.

No, it, explicitly did not. It said that the test for libel against public figures articulated by the Supreme Court does not rest on a determination of whether the person accused of the defamation is a journalist or not, it depends on whether the subject of the claim is a public figure and the matter under discussion is one of public interest.

It's not about Cox getting some special journalistic privilege, its about the Ninth Circuit rejecting -- as every other circuit that has heard similar cases has rejected -- the idea that the Supreme Court rule on defamation of public figures is a special journalistic privilege at all.

The whole "journalist" misrepresentation is the institutional media pretending that the courts are simply (and implicitly unacceptably) adjusting the scope of a special privilege that belongs to the institutional media, rather than rejecting, again, the idea that the First Amendment creates special privileges that belong to the institutional media.

I strongly agree with your underlying point, but I think you're trying to have a semantic argument over sloppy language. The word "journalist" in lay writing (like that of the Atlantic article, and mine as well) is too vague to be picked apart like this. And in fact the appeals court decision gives some credence to the common bloggers' refrain that "we're all journalists now".

Using more precise terms, you might say that the court did not decide that Crystal Cox is a member of the institutional media. If this is your actual assertion then you needn't have bothered, because we can read it for ourselves in the opinion:

We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants.

If we're not bound by the traditional but increasingly outdated definition of the word "journalist", then I think you and I are saying the same thing. Let me illustrate with another bit of pedantry (on the part of both of us):

> "Actually, she claimed that she can't be held liable because the alleged victims were public figures"

Yes, but that only works if she qualifies for first amendment protections commonly (and now perhaps erroneously) understood to belong to institutional journalists. Which she now does. So what do we call her? A non-institutional journalist? A blogger? Tomato? Tomahto?

None of the appellate court decisions in the issue have ever held that the protections applied based on who was speaking, whether they were in the institutional media or not. They've always been based on the status of the subject on the content of the material. The institutional media interpretation is an invention of the institutional media itself that has been rejected by every circuit court where it has been raised.

The self-regard of journalists never ceases to impress me. What other profession would believe that they have priveliged claim to the most fundamental of the rights enumerated in the Bill or Rights?

But, but... they took college classes. And they have a badge or something.

As usual in cases where journalists report on first amendment issues raised by other people, the headline (and some of the text of the article) here is a misrepresentation based on the myth of special privilege for journalists under the First Amendment: the 9th Circuit, here, did not find that "bloggers are journalist", it found that the First Amendment protection of the "freedom of the press" protects a freedom of the people generally to publish information; "the press" referred to being the act of publishing -- as by use of a printing press -- just as freedom of "speech" refers to the act of speaking.

Institutional journalists want to see "the press" in "freedom of the press" to be read in the sense of "institutional journalists" rather than "the act of publishing information", and want it to be a basis of special and superior rights for those in their profession over the masses, which is an understandable, self-interested desire.

What is more problematic than that desire is the way they misrepresent the courts, every time the courts explicitly reject that interpretation in favor of interpreting the First Amendment as protecting rights of the people generally, as the courts accepting the idea of special rights for journalists, but including some other group in the definition of "journalists".

The Court didn't say bloggers are journalists, it said being a journalist isn't the basis of First Amendment protection, saying "The protections of the First Amendment do not turn on whether the defendant was a trained journalist [...]" and "In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue--not the identity of the speaker--provide the First Amendment touchstones."

The quote from Judge Hurwitz says it well:

'The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. 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.”'

The interesting part about that quote is that it appears to allude to the much reviled Citizens United v. FEC decision:

>"the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable"

I never understood why people revile that decision, any time you side with the silencing of speech of another person or organization is just inviting them to silence you.

That is the important part of the First Amendment people forget, freedom of speech must apply to even people or groups you disagree with, especially those you really really disagree with.

A quote I read here or similar summed it up nicely, I despise the WBC ...

"Handing the power to silence the WBC to the government because I disagree with them is handing the government the power to similarly silence me."

The text of the ruling does not in any way say that bloggers are journalists, it says that it's irrelevant whether someone is a journalist for purposes of libel.

Note also that earlier courts had rule that Cox was not entitled to protections she claimed under state journalist shield laws. As far as I can tell, this still stands -- what she was doing was not "journalism" within the meaning of those laws.

Maybe they already had the interesting version of the article written before the ruling came down, but there's no way you can twist a case that ruled some particular blogger was not a journalist but "public figure" rules aren't just for journalists into "bloggers are journalists".

Solidly good news for all concerned and not remotely surprising, as others have commented there's never been an apparent appetite by the Supreme to distinguish Institutional vs other speakers in treatment of first amendment rights.

Amusingly I think the article title completely misses the point - bloggers are not journalists because being a journalist doesn't afford any special protection. May as well say journalists are bloggers.

I do wonder if there needs to be a conversation about reach or dissemination potential of published comments for both private and public individuals. Certainly rumour and speculation can be hugely damaging for both personal and private individuals when spread to a sufficiently large audience. Malice could be a very grey area when, with a sizable audience, speculation still wounds. I don't know if this is taken into consideration by courts following Sullivan and Gertz?

Great decision. I hope it sticks. This is especially important in light of the government trying to limit the protections of even traditional journalism, let alone of those who they say "aren't trained journalists".

I remember Feinsten was trying to do something like this by disguising a law that would seemingly increase "trained journalist" protections a little, but was really about not recognizing anyone else as a journalist, and make it explicit in the law that they won't get any protections.

Agree, at least in this case it's become clearer that you don't need to be employed by a group of specific companies to get the protections of a journalist. What an absurd idea.

This issue would make my short list of things I believe critically need to be codified into accepted legal standing this decade. I'm not sure if it's possible to overstate how important this type of ruling is (and getting more like it).

This is not good news for Chris Kluwe then.

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