Patterico's Pontifications

1/18/2014

Ninth Circuit: Bloggers Get the Same First Amendment Protection As the Press

Filed under: General — Patterico @ 4:49 pm

Eugene Volokh litigated the case for the defendant, and so gets the link. From the court’s opinion:

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.” Citizens United, 558 U.S. at 352. 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.

Nicely done, Prof. Volokh. I have a feeling this decision will be quoted as persuasive authority when we move to dismiss Brett Kimberlin’s frivolous claims against me. (You are aware that Brett Kimberlin has sued me, in an utterly frivolous set of claims — aren’t you? If not, Ken White has the definitive post. I could still use pro bono local counsel in Maryland, if anyone has any suggestions or contacts.)

UPDATE: Ken White from Popehat says (my characterization) that this defendant is a jerk (I’m putting it very mildly) and has given him fits in the past — but approves of the First Amendment protection.

35 Comments

  1. I’d say even more – if nobody reads or cares about what the blogger writes – where’s the defamation?

    Comment by Sammy Finkelman (d7b491) — 1/18/2014 @ 6:02 pm

  2. If somebidy does care or note it – then they are a full fledged journalist or commentator.

    Comment by Sammy Finkelman (d7b491) — 1/18/2014 @ 6:04 pm

  3. The Reporter’s Committee for Freedom of the Press filed an amicus http://www.rcfp.org/sites/default/files/2012-10-17-obsidian-finance-group-llc-et-al-v-crystal-cox-.pdf arguing for an expanded definition of media while preserving the distinction between media and non-media. Naturally. (I would not fit their definition.) They must be disappointed with the court’s decision. Volokh consented to their brief, he’s a gentleman, but I bet he’s enjoying his whole loaf a lot more than the crumbs they were throwing.

    (I hate it that Volokh now requires registration for comments, otherwise I would congratulate him there. And what happened to Platt? ;) )

    Comment by nk (dbc370) — 1/18/2014 @ 6:38 pm

  4. TIL. It seems Crystal Cox is the same Crystal Cox who won the Gold Medal for the 400m relay in Athens and lost it for using steroids. She also looks like she competes in JD’s Iron Man events and wins. In the men’s division.

    Comment by nk (dbc370) — 1/18/2014 @ 6:46 pm

  5. We’re all bloggers!

    Comment by AZ Bob (ade845) — 1/18/2014 @ 7:38 pm

  6. plus “trained reporters” is a euphemism for unthinking water-carrying whores for the neo-fascist state

    Comment by happyfeet (8ce051) — 1/18/2014 @ 7:38 pm

  7. We’re all bloggers!

    Irrelevant. We all have the same First Amendment protection.

    Comment by nk (dbc370) — 1/18/2014 @ 7:44 pm

  8. @4- nk, it appears that the blogger and the runner are not the same person. An article about the runner (her losing her gold medal due to doping) and one about the blogger (AKA Rev. Crystal L Cox) both have photos of the subject individuals… definitely not the same person. For what its worth.

    The Google search on Cox also turned up Ken’s post at Popehat on the “Rev” Cox.

    Comment by gramps, the original (64b8ca) — 1/18/2014 @ 9:23 pm

  9. You’re right, gramps. I stand corrected.

    Comment by nk (dbc370) — 1/18/2014 @ 9:28 pm

  10. this is good news… hard to believe the 9th Circus got something right, but blind pigs & acorns, etc.

    i had a similar conversation with a local genius about people who were publicly active in local government. they were most upset with comments i made in open forums, and told me i couldn’t say what i said.

    even when i explained, briefly, what a “public person” was, and what that did to expectations of privacy, etc, they were still adamant that i couldn’t say things they didn’t like.

    i told them to go attempt an impossible feat upon themselves, in mid-air, without lubrication, and to sue me if they wanted to.

    (because i’m a diplomat… %-)

    Comment by redc1c4 (abd49e) — 1/19/2014 @ 12:34 am

  11. Little Dickie Durbin is fit to be tied

    Comment by Icy (5ff082) — 1/19/2014 @ 6:43 am

  12. I find it interesting that some of those who insist that “corporation’s aren’t people” and thus don’t have free speech rights support laws that give corporations privileged status under the First Amendment.

    NYT, LAT, WaPo; I’m looking at you.

    Comment by Jeff Weimer (bb9480) — 1/19/2014 @ 11:50 am

  13. I find it interesting that some of those who insist that “corporation’s aren’t people” and thus don’t have free speech rights

    There are those that believe that corporations don’t have any rights at all. It’s really interesting arguing with that sort.

    Comment by Chuck Bartowski (11fb31) — 1/19/2014 @ 12:04 pm

  14. Little Dickie Durbin is fit to be tied

    President whiny, little b***h, more. He has said he doesn’t like bloggers.

    For the Durbins, this is actually a win. Follow me on this. It is a big loss for the institutional press. They have been told that they have no greater First Amendment rights than any other U.S. citizen. The Durbins have no more obligation to issue them press passes than they have an obligation to issue a press pass to me.

    Comment by nk (dbc370) — 1/19/2014 @ 12:12 pm

  15. Comment by redc1c4 (abd49e) — 1/19/2014 @ 12:34 am

    Unfortunately, it appears that at least in some jurisdictions if one has enough money they can take you to court for defamation just because they want to, and make your life hell if you are not sufficiently equipped with lawyers (no guns necessary) and money to argue the case.

    Unless they run the IRS, then they have other ways of shutting you up if you say mean things about them.

    Comment by MD in Philly (f9371b) — 1/19/2014 @ 2:23 pm

  16. well, here in the People’s Republic of Failifornia, if you take me to court because i hurt your feelings on line, i just file an anti-SLAPP lawsuit, get yours dismissed and collect damages from you. 8-)

    Comment by redc1c4 (abd49e) — 1/19/2014 @ 3:34 pm

  17. Fully ghey entrance on to the field by teh Seahawks. 49ers have this one.

    Comment by Colonel Haiku (047341) — 1/19/2014 @ 3:36 pm

  18. Comment by redc1c4 (abd49e) — 1/19/2014 @ 3:34 pm

    That is at least one advantage Failifornia has over PA. I don’t think there is such a thing as an anti-SLAPP in PA; you have to defend the charge and do a counter-suit if you want to try to pay off your legal fees and any additional you want to add.

    I would like to see Russell Wilson do the Badgers proud.

    Comment by MD in Philly (f9371b) — 1/19/2014 @ 3:42 pm

  19. Russell just got done

    Comment by Colonel Haiku (047341) — 1/19/2014 @ 3:43 pm

  20. The skinny one from Heart butchers the national anthem and teh Seahawks come prancing out, waving what for all intents and purposes should have been a rainbow flag… go 9ers!

    Comment by Colonel Haiku (047341) — 1/19/2014 @ 3:50 pm

  21. If we only had a press, that asked tough questions;

    http://www.thegatewaypundit.com/2014/01/no-mention-of-benghazi-or-obamacare-lies-in-intimate-new-yorker-obama-profile/

    Comment by narciso (3fec35) — 1/19/2014 @ 3:55 pm

  22. Colonel, I’m not going to watch anymore of the game, so I’m not going to comment on anymore of it.
    But, sometimes I wonder if the sportscasters don’t have a script to go from as any other press.
    Both announcers state that the personal foul call was bad, that it was “shoulder pad to shoulder pad”-
    well, I’m not sure who needs galsses, but it seemed to me that even the “SP to SP” view also showed the receiver’s head jerking backwards, and the opposite view showed the SP hitting the neck/head, as the cause for the head jerking back.

    I know football is rough, but I think it is reasonable to have zero tolerance for leading with the helmet or aiming for the head.
    Otherwise you get “Rollerball”, and that is nasty.

    Comment by MD in Philly (f9371b) — 1/19/2014 @ 4:21 pm

  23. I don’t think that was the first or last thing that came to mind;

    http://hotair.com/headlines/archives/2014/01/19/ive-never-fought-the-word-genius-when-people-have-said-that-about-me/

    Comment by narciso (3fec35) — 1/19/2014 @ 4:38 pm

  24. I could still use pro bono local counsel in Maryland, if anyone has any suggestions or contacts.

    How long is this going to take? If you take up a collection and put me through law school I’ll do it.

    Comment by MD in Philly (f9371b) — 1/19/2014 @ 4:52 pm

  25. Frisco sucks… it’s a nasty little town full of nasty little people, and both the coach & his players are dirty hacks, which makes them the perfect team to represent the sewer by the bay.

    Seattle isn’t a collection of saints either, but i’d rather they win.

    Comment by redc1c4 (abd49e) — 1/19/2014 @ 5:03 pm

  26. 14. Comment by nk (dbc370) — 1/19/2014 @ 12:12 pm

    The Durbins have no more obligation to issue them press passes than they have an obligation to issue a press pass to me.

    Press passes aren’t governed by law, but custom.

    What this decision reinforces is that press passes and the like don’t affect anyone’s legal rights. Even with the shield laws, it’s not the press pass itself.

    Comment by Sammy Finkelman (4227f2) — 1/19/2014 @ 5:46 pm

  27. Go ‘Niners !

    Hey Coach Pete “I didn’t know my players weren’t going to class or taking money” Carroll, what’s your deal ?!

    Comment by Elephant Stone (9d30f3) — 1/19/2014 @ 5:57 pm

  28. Why did it take the refs so long to figure out that was a grounding penalty ?

    Comment by Elephant Stone (9d30f3) — 1/19/2014 @ 6:04 pm

  29. c’mon, 9ers! That knee injury looked like a bad one. Sh*tty calls by these officials all game long.

    Comment by Colonel Haiku (59cd69) — 1/19/2014 @ 6:28 pm

  30. Thing is, the First Amendment says nothing about persons or corporations (other than the right of the people to assemble), but states that Congress shall make no law abridging the freedom of speech or of the press. How can anyone get “professional reporters” from that, since Congress is (supposedly) forbidden to legislate on the subject in the first place?

    Comment by The Dana who isn't an attorney (3e4784) — 1/20/2014 @ 8:15 am

  31. Our Philadelphia physician wrote:

    I could still use pro bono local counsel in Maryland, if anyone has any suggestions or contacts.

    How long is this going to take? If you take up a collection and put me through law school I’ll do it.

    The Wendy Davis method?

    Comment by The Dana not in Texas (3e4784) — 1/20/2014 @ 8:20 am

  32. 30. “the press” is not a proper noun.

    Comment by Sammy Finkelman (4227f2) — 1/20/2014 @ 8:36 am

  33. Happy dr Martin Luther King Day! and hopefully soon a Caesar Chavez Day!

    Comment by mexican american (fdd8fc) — 1/20/2014 @ 11:41 am

  34. Comment by Icy (5ff082) — 1/19/2014 @ 6:43 am

    My thoughts exactly, Icy.

    Comment by askeptic (2bb434) — 1/20/2014 @ 5:47 pm

  35. Comment by mexican american (fdd8fc) — 1/20/2014 @ 11:41 am

    As a loyal Son-of-Italy (twice removed), I’m waiting for Giuseppe Garibaldi Day!

    Comment by askeptic (2bb434) — 1/20/2014 @ 6:08 pm

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