

U.S. Court: Bloggers Are Journalists, even when they're libeling you  - milesf
http://www.theatlantic.com/technology/archive/2014/01/us-court-bloggers-are-journalists/283225/

======
nate_meurer
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://www.popehat.com/2012/03/30/investigative-journalist-
crystal-coxs-latest-target-an-enemys-three-year-old-daughter/)

[http://randazza.wordpress.com/2012/12/17/this-domain-name-
se...](http://randazza.wordpress.com/2012/12/17/this-domain-name-seized-from-
crystal-cox/)

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.

~~~
dragonwriter
> 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.

~~~
nate_meurer
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?

~~~
dragonwriter
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.

~~~
penrod
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?

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

------
dragonwriter
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."

------
milesf
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.”'

~~~
nickff
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"_

~~~
Shivetya
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."

------
kevinpet
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".

------
Sniperfish
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?

------
higherpurpose
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.

~~~
reallyseriously
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.

------
adventured
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).

------
at-fates-hands
This is not good news for Chris Kluwe then.

