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Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

First Amendment Protects Bloggers Too. Which Is Nice.

Jan 22, 2014

In the world of libel law, there are two must read decisions – New York Times v. Sullivan and Gertz v. Welch. New York Times established the “actual malice” standard. The opinion established the rule that when a “public figure” brings a libel suit he must prove that the defendant published the alleged libel knowing that it was false, or with a “reckless disregard” for the truth or falsity. It’s a tough standard – and it nips a lot of suits in the bud. The idea is that the First Amendment requires some “breathing room” so that in iffy cases, publishers aren’t afraid to publish. 

The Gertz case expanded the New York Times actual malice standard a bit – if any libel plaintiff (whether a public figure or private figure) wants to recover “presumed” or punitive damages they too have to prove actual malice. “Presumed damages” are just that – presumed. In certain types of libel cases, the plaintiff doesn’t need to prove any damages – the jury may simply presume that the publication harmed the plaintiff’s reputation. Punitive damages also are pretty much what they sound like. In certain cases, the jury is allowed to punish the defendant by awarding a sum of money separate and apart from the plaintiff’s actual damages. 

That brings us to the recent decision by the U.S. Ninth Circuit Appeals Court in Obsidian Finance Group v. Cox. In very brief summary, Cox is a blogger who posted some unflattering remarks about two financial advisors. The advisors sued and recovered presumed damages in the amount of $1.5 million and $1 million respectively. The trial court ruled that Cox, a blogger, and not a representative of the “institutional press” was not entitled to the protections of New York Times and Gertz.

On appeal the Ninth Circuit reversed. It noted that, while the defendants in both the New York Times and the Gertz case happened to be members of the “institutional press,” there is nothing in either opinion to suggest the holding was so limited. And the Ninth Circuit noted that in other cases, the Supreme Court has been reluctant to carve out “special rights” for the “institutional press.” 

I think the Ninth Circuit got it right. The holdings in New York Times and Gertz protect speech, not specific speakers. And in today’s world, who is the “institutional press” anyway?  By making the simple observation that the First Amendment applies to everyone, not just those among us with a press pass, the Ninth Circuit avoided having to answer that difficult question.   

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