Blogger wins first amendment case

January 20th, 2014 at 8:21 am by David Farrar

Stuff reports:

A US federal appeals court ruled has that bloggers and the public have the same First Amendment protections as journalists when sued for : If the issue is of public concern, plaintiffs have to prove negligence to win damages.

The 9th US Circuit Court of Appeals ordered a new trial in a defamation lawsuit brought by an Oregon bankruptcy trustee against a Montana blogger who wrote online that the court-appointed trustee criminally mishandled a bankruptcy case.

The appeals court ruled that the trustee was not a public figure, which could have invoked an even higher standard of showing the writer acted with malice, but the issue was of public concern, so the negligence standard applied.

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 US 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.”

I expect we will see this case cited in the appeal over whether Cameron Slater has to disclose sources in the defamation case brought by Matthew Blomfield against him.

The appeals court upheld rulings by the District Court that other posts by Cox were constitutionally protected opinion.

Though Cox acted as her own attorney, UCLA law professor Eugene Volokh, who had written an article on the issue, learned of her case and offered to represent her in an appeal. Volokh said such cases usually end up settled without trial, and it was rare for one to reach the federal appeals court level.

 

“It makes clear that bloggers have the same First Amendment rights as professional journalists,” he said. “There had been similar precedents before concerning advocacy groups, other writers and book authors. This follows a fairly well established chain of precedents. I believe it is the first federal appeals court level ruling that applies to bloggers.”

A welcome precedent.

Tags: ,

16 Responses to “Blogger wins first amendment case”

  1. adze (2,129 comments) says:

    Interesting. So assuming this decision becomes a precedent here, what recourse would someone whose reputation had been damaged by incorrect reporting by a blogger (other than by negligence)? The Press council couldn’t direct them to publish a retraction I presume…

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  2. Nostalgia-NZ (5,278 comments) says:

    Press Council has no jurisdiction over bloggers, who to this point are not recognised as the ‘press’ This case isn’t a precedent in NZ to this point, the argument in NZ is whether a blogger is a member of the press or not with a DC Judge ruling that they are not. That is under appeal. The decision mentioned above is that American Constituent, as it applies to the press, also applies to bloggers and others. It doesn’t ‘permit’ defamation, but recognizes that the ‘public figure’ status and interest isn’t the sole domain of the press when commenting or offering opinions on allegedly well known figures. In this case a court appointed trustee was held not to be a ‘public figure’ so it’s some distance from the current test case here.

    Anyone can publish retractions, they don’t need to be ‘directed’ to do so. All the recent cases here that has been the case as part of the settlement, except for one notable one.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  3. OneTrack (3,223 comments) says:

    Since the MSM has been dropping the ball so badly over the last few years, we obviously need bloggers to be able to pick up the slack, which many of them are doing.

    Vote: Thumb up 3 Thumb down 0 You need to be logged in to vote
  4. flipper (4,199 comments) says:

    As Nosty has pointed out above, the Press Council has no jurisdiction over anyone but its Member Organisations.

    Membership has been denied to anyone NOT a MSM print organisat6ion.

    The Press Council has no power to DIRECT. It “directs” by publishing its finding. The member organisation have, by dint of their Membership, agreed to accept the PC’s findings.

    I believe that Whale has sought membership, but this was declined.

    Frankly I think it is disgraceful that Mr. Slater has been left to pursue his case in the High Court, when the smart alecs in Crown Law persuaded Mike Heron to intervene on Banks v McCready.

    The District Court Judge who misquoted the Law Commission in his Slater ruling is a disgrace, as is the one who ruled against J Banks.

    Vote: Thumb up 3 Thumb down 0 You need to be logged in to vote
  5. Nostalgia-NZ (5,278 comments) says:

    Morning flipper, are you saying that the Crown should have involved themselves in Cameron Slater’s case which is a private civil suit against a member of the public?

    Vote: Thumb up 2 Thumb down 0 You need to be logged in to vote
  6. flipper (4,199 comments) says:

    Well actually, Nosty, I am just poking fun at Mike Heron and his CL mob.
    .
    But seriously, if that DC ruling stands, a precedent of rather nasty proportions will have been established, will it not?
    BTW, not sure where contempt would slot in if Slater digs his toes in? That would move it out of civil…No?
    Cheers
    F

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  7. peterwn (3,305 comments) says:

    Nostalgia-NZ – the Crown has got involved because the civil case complainant is mounting a collateral attack on Whale via the Privacy Commissioner.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  8. gump (1,661 comments) says:

    @DPF

    “I expect we will see this case cited in the appeal over whether Cameron Slater has to disclose sources in the defamation case brought by Matthew Blomfield against him.”

    ——————

    I would really appreciate you explaining how a US Federal Appeals Court ruling would have any relevance to civil proceedings conducted within the NZ legal system??

    I hate to ask, but do you actually understand how our legal system works?

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  9. Nostalgia-NZ (5,278 comments) says:

    Yes, Heron had to step in didn’t he, failure by the police to prosecute then a prima facie case established in the DC by a member of the public.

    I don’t think a nasty precedent will have been established if the High Court upholds the decision, rather the status quo will remain, in fact be reinforced to the ‘cyber world.’ The High Court is going to have to decide if Cameron is simply trying to use the title ‘member of the press’ to protect himself from a defamation claim, not forgetting that the press are not immune from suits of defamation anyway. Then it looks like it goes down to the ‘non disclosure’ of a source. The legislation allows for a Judge to review that (material and source) before an order is made, without the source being made public, perhaps not even revealed to the plaintiff. I guess the reason for that is to test the credibility of the defendants claim and to ensure the ‘source’ is real and not a vindictive former associate of the plaintiff, that sort of thing.

    Further on that line, The Court could say that putting the issue of the being a member of the The Press aside, the nature of the allegations of defamation and so on wouldn’t stand as any sort of protection for the press anyway.

    As for the contempt, can’t see that the HC would put up with a ‘position,’ certainly not with the facility for a Judge to look at both the material and source before making a decision on it’s release.

    It doesn’t look like this is the ‘wider issue’ that it appears to be, the claim of being a member of the press could be seen as a diversion. I’d be surprised if the best way to go wasn’t to withdraw all the allegations, apologise publicly and so on and either use that as mitigation if the case continues or hope that it goes away. From memory the plaintiff has got a few bucks, and is determined. I read somewhere the comments were more than ‘casual’ but rather more like a campaign. The fact that perhaps a lot of people didn’t get to hear about it is reason to look to cut and run, easiest way out, picking your fights and all that sort of stuff.

    Vote: Thumb up 2 Thumb down 0 You need to be logged in to vote
  10. goldnkiwi (1,519 comments) says:

    I think the point is that it is an evolving legal subject that is being addressed in many different jurisdictions. Precedents from other jurisdictions are often cited, especially when there are few precedents from any sources, domestic or otherwise.

    In some ways blogging, as it is solely internet based, possibly even more than traditional media as it is borderless, lends itself to international precedents, at least initially.

    Vote: Thumb up 1 Thumb down 2 You need to be logged in to vote
  11. Nostalgia-NZ (5,278 comments) says:

    ‘peterwn (2,700 comments) says:
    January 20th, 2014 at 10:16 am
    Nostalgia-NZ – the Crown has got involved because the civil case complainant is mounting a collateral attack on Whale via the Privacy Commissioner’

    Sorry Peter, I admit I don’t understand what you are saying. You mean McCready in the case flipper raised, or the man suing?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  12. gump (1,661 comments) says:

    @goldnkiwi

    “I think the point is that it is an evolving legal subject that is being addressed in many different jurisdictions. Precedents from other jurisdictions are often cited, especially when there are few precedents from any sources, domestic or otherwise.”

    ———————-

    The US Federal Appeals Court case specifically dealt with the scope and applicability of the First Ammendment to the US Constitution. At the risk of stating the obvious, the US Constitution has no standing or relevance within the NZ legal system.

    Vote: Thumb up 3 Thumb down 0 You need to be logged in to vote
  13. stephieboy (3,387 comments) says:

    Yes your right gump but that is not to say that we should seriously consider reforming our Defamation Laws to afford our citizens the same rights and protections this land mark decision extends to bloggers and others.
    Am in favour of First amendment styled protections that puts the onus heavily on the plaintiff to prove malice, hurt or wrong etc.There are numerous politicians and public figures in NZ who put up with much worse than some of our serial defamation and other litigants.

    Vote: Thumb up 0 Thumb down 1 You need to be logged in to vote
  14. anticorruptionnz (215 comments) says:

    Defamation is always a good claim to file when some one is exposing corruption , its a traditional move which unfortunately works.

    I know this too well. I raised the issue of a law enforcement authority not existing and was promptly sued for defamation when I pointed out that the person who wrote the legislation to facilitate the application was also the only applicant for ” approved status” under the animal welfare Act (S 121 ) . Legal manipulation saw my defense of truth and honest opinion struck out in defamation proceedings. the result is that the party claiming defamation can be free to make things up from that point on effectively re writing history and concealing corruption using the court.

    While I spoke the truth I have had to suffer defamation and the associated costs through the claims brought agaisnt me.. this is what happens when evidence truth and honesty play no part in our court proceedings.

    while I did not raise the issues initially in a blog.. I raised it with MAF and the Waitakere city council i n emails, I was later found to have continued to defame because I reported the facts in a blog.

    strangely enough I have continued to do this for the past 8 years but each time I bring it to their attention and ask for corrections to be made if I am wrong. ( section 25 defamation act ) not once have they said I am wrong.. Hopefully 2014 is the year I can show how successful defamation proceedings can be in NZ courts.. it works to pervert the course of Justice…. I feel a private prosecution coming on.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  15. dcrown (17 comments) says:

    “I expect we will see this case cited in the appeal over whether Cameron Slater has to disclose sources in the defamation case brought by Matthew Blomfield against him.”
    What a risible statement, does anyone need further evidence of how irrelevant DPF is?
    How can he seriously suggest that USA law or constitutional amendments have any relevance in this country?
    Is he also suggesting that Obama should be eligible as our first president?
    Most ludicrous post so far viewed on this blog!

    Vote: Thumb up 1 Thumb down 1 You need to be logged in to vote
  16. dcrown (17 comments) says:

    On a second issue, is DPF going to seriously suggest that if Colorado or Washington States win a ruling in US federal appeals court on the subject of marijuana criminalisation that this could be used as an argument to overturn drug laws, convictions, or current cases in this country?

    Again, most ludicrous post so far viewed on this blog!

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote