U.S. Appeal Court Ruling Offers Bloggers Press Protection For the First Time

In light of a growing choir of Julian Assanges and Edward Snowdens, the reality is that everyone has a right to be heard.
By @FrederickReese |
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    Marco Raaphorst

    (Photo/Marco Raaphorst via Flickr)

    Crystal Cox — in a blog post in 2011 — alleged that a bankruptcy trustee was guilty of tax fraud. In the libel lawsuit that followed, Kevin Padrick, a principal with Obsidian Finance Group that was appointed trustee to the bankrupt Summit Accommodators, argued that since Cox was not a journalist and was not, therefore, justified in reporting toward the public interest, that her blogs besmirching his character was libelous. U.S. District Judge Marco Hernandez agreed and awarded Padrick and Obsidian Finance $2.5 million.

    But on Friday, a federal appeals court reversed Hernandez’s decision, ruling that a blogger has the same free speech protection as a traditional journalist. Ordering a new trial for Cox, the 9th U.S. Circuit Court of Appeals in San Francisco asserted that institutional distinctions between members of the press and other reporters cannot be feasibly enforced. As such, all news presenters must be given equal protection under the law.

    “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,” wrote U.S. Circuit Judge Andrew Hurwitz in the unanimous decision. “As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.”

    Under the new ruling, Padrick and Obsidian Finance must present evidence proving that Cox libelled them. As the distinction between traditional journalist and blogger grows blurrier with the continuing advent of digital media, this is of particular importance.

    The ruling, for the first time, makes a distinction between the speech and the speaker. Instead of proving if a writer is veritable, the ruling suggests that the speech itself is protected, and — by extension — so is the person that offers that speech.

    As reported by the New York Times, Cox, a Montana real estate agent, offered unvetted or undocumented allegations in her blog posts, which she blankets over her approximately 500 owned URLs. This gives her stories the feeling of legitimacy, as they regularly appear on the top of search engine searches.

    Padrick has no criminal record, no record of fraud, and his only attachment to wrongdoing that is publicly available is the fact that the company he was ushering through bankruptcy — Summit Accommodators — folded when three of its senior executives were indicted on conspiring to embezzle millions from their clients, with a fourth pleading guilty. Despite this, Cox flooded her URLs with posts decrying Padrick’s alleged misdoings, going as far as to post Padrick’s full name and title in order to promote her posts’ SEO ranking.

    Padrick sued Cox for multiple claims of defamation. All but one was dismissed, asserting that all of the other posts were so over-the-top that no reasonable person could conclude an allegation of fact.

    Despite this, Cox is entitled to her free speech.

    “Public allegations that someone is involved in crime generally are speech on a matter if public concern,” the ruling continued. “This court has held that even consumer complaints of non-criminal conduct by a business and constitute matters of public concern.”

    In considering how free “free speech” really is, one must accept the reality that while what is being said may not be convenient, comfortable or even palatable, it has a right to be said if it serves the public good. In light of a growing choir of Julian Assanges and Edward Snowdens, the reality is that everyone has a right to be heard.

    Even Crystal Cox.

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