Cox ruling reaffirms First Amendment rights for bloggers, but it's not a precedent
On Friday, a federal appeals court ruled that bloggers deserve the same protection as journalists, the Associated Press reported.
Gregg Leslie of the Reporters Committee for the Freedom of the Press said the ruling affirms what many have long argued: Standards set by a 1974 U.S. Supreme Court ruling, Gertz v. Robert Welch Inc., apply to everyone, not just journalists.
"It's not a special right to the news media," he said. "So it's a good thing for bloggers and citizen journalists and others."
Cindy Gierhart wrote about the case for RCFP on Friday.
The court noted that “a First Amendment distinction between the institutional press and other speakers is unworkable.” Quoting Citizens United, the court further noted that, with the prevalence of online commentary, the “line between the media and others who wish to comment on political and social issues becomes far more blurred.”
Dan Levine wrote about the case Saturday for Reuters.
Crystal Cox lost a defamation trial in 2011 over a blog post she wrote accusing a bankruptcy trustee and Obsidian Finance Group of tax fraud. A lower court judge had found that Obsidian did not have to prove that Cox acted negligently because Cox failed to submit evidence of her status as a journalist.
But in the ruling, the 9th U.S. Circuit Court of Appeals in San Francisco said Cox deserved a new trial, regardless of the fact that she is not a traditional reporter.
What the ruling does, said Ellyn Angelotti, an attorney as well as a member of Poynter's faculty, is clear the way for Cox to be retried with more clarity. The initial questions the lower court judge asked about whether or not Cox was a journalist don't matter now, Angelotti said, leaving room for the case to be tried with regard to defamation.
But the ruling, by the 9th Circuit, does not apply around the country, she added. In the absence of a similar decision from the Supreme Court, it doesn't set a nationwide precedent.
"It's persuasive," she said, "but it's not controlling."
It could be a landmark case, however, Angelotti said. Both Cox's case and the Courtney Love "Twibel" case, which Angelotti wrote about on Jan. 14, have that potential because both interpret traditional defamation law in a context (Twitter and blogs) that have yet to be decided.
In both instances, there have been few cases against bloggers or Twitter users that have risen up the higher courts. While the Gertz ruling has been called up for Cox's case because it looks at who is a public figure and who is a private figure, Angelotti said another to look to is Milkovich vs. the Lorain Journal, from 1990. That case looks at the overall context of a publication, from who's doing the publishing, where that article is published in a newspaper and the actual context of what's said. How will that apply to a blog post, or Twitter?
In the past, Angelotti said, defamation laws have been used to offer balance between powerful publishers and less-powerful individuals. But when everyone's a publisher?
"I think that's what we're wrestling with now," Angelotti said.
The answers may come through cases such as Love's and Cox's, or it could come from a solution that offers ways for people themselves to fight back against false and bad speech online, she said.
Related: Poynter wrote about Cox, and questions about the actual work she did, in 2011. The New York Times' David Carr wrote about Cox as well, and the focus of her work, which resulted in the lawsuit. That year, Angelotti wrote about what the focus on the journalist vs. blogger question was missing -- the status of state shield laws.