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On blogging, [in]correct claims and the Constitution



Bloggers have long identified themselves as having the same right to express their opinions through reportage as do traditional journalists writing for newspapers, AKA “the mainstream media,” even though they may have had no formal journalistic training, and no editors or fact-checkers are around to make sure they get their facts straight.

Now, the Ninth Circuit Court of Appeals, based here in San Francisco, apparently agrees. In a ruling that hasn’t attracted the attention it should, they threw out most of a lawsuit against a blogger, Crystal Cox, who had been sued for defamation by a investment consulting company, Obsidian Finance Group, after Cox accused them of “fraud, corruption and other misconduct” on her blog,

A self-described “investigative blogger,” Cox, who defended herself in the lawsuit, argued [as she wrote on her blog] that “Bloggers have Equality [sic] with reporters such as the New York Times” and that, in essence, if a newspaper like the Times can make allegations against public officials or corporations, so can she, as an “Anti-Corruption Blogger[s], Whistleblower[s], and Citizen Journalist[s].”

That stance is what the Court of Appeals agreed with. The Court determined that “The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities.”

No one disagreed that Cox’s blog postings were, in the Los Angeles Times’ words, “rants [to the] extreme.” Rather, the Court ruled that, since Cox did not act with “actual malice,” she had the right to express herself.

I have no idea if Cox is correct or not; that’s not the point. But journalists and First Amendment defenders no doubt will celebrate this ruling. I do; I would not want to see a blogger self-censor herself, out of fear of being sued by a big, wealthy, bullying corporation. But this case does raise troubling questions.

Granted that a blogger has the right to publish her rants, does that give him or her credibility?

Ought the public to believe “investigative blogging” in which no editor or fact-checker is present as a balancing restraint, as is the case with newspapers?

How can the public determine the accuracy of blogs, a medium notoriously devoid of traditional ethical and publishing standards (e.g., the reporter has to have multiple sources for each assertion, and there has to be a bright line between editorial, on the one hand, and opinion, on the other)?

Can the public know for sure that a blogger does not have ulterior motives? Newspaper reporters are much less likely to have hidden agendas precisely because their work is scrutinized by editors, and they ultimately are answerable to (and fireable by) a publisher.

Better yet, how can we educate the public to be discerning when they digest the content of blogs?

These questions become even more poignant when we consider that traditional journalism is being challenged by blogs and other forms of self-publishing on the Internet and “alternative media,” in this post-Citizens United atmosphere. The First Amendment to the U.S. Constitution mandates that “Congress” [i.e. the Government] “shall make no law…abridging the freedom of speech, or of the press…”). “The press” later was defined, by the U.S. Supreme Court, as “every sort of publication which affords a vehicle of information and opinion.” It was this sweeping definition, which obviously includes blogs, that the Court of Appeals apparently subscribed to in their decision.

But we are entering into dangerous waters when we have an increasingly powerful “Press” that is devoid of traditional restraints against unproven and unresearched allegations. I hardly need point out a growing section of the American population that believes nothing the Mainstream Media says–and turns instead to “journalistic sources” (including blogs) that are patently nothing more than mouthpieces for (often unidentified) corporate, political and personal interests, regardless of whatever claims they make of serving the public interest.

The balancing act American journalism must tread is one between First Amendment rights, including the right to self-publish a blog, and the preservation of some standard of truth by which to judge published claims. We should celebrate diversity of opinion, of course, but we also should insist on a strict adherence to facts and their correct interpretation.

No easy task.

  1. I think that the credibility of any source is earned over time. A responsible media consumer has to intake information in a skeptical manner, and exercise some reasonable judgement about how reliable the source is, and know whether the writer is reporting first hand experience, eyewitness accounts, or hearsay. Even when I read your blog or writings, I do so with some context of how Steve appears to view the world, and that filters how I file the information away. One ranting blogger with no body of work aside from bad mouthing one company is not a credible source on its own, but if it triggers the reader to seek substantiation from other sources, or draws the investigation of more established, vetted media with more resources and reach, that is positive and is free speech working. Much top news starts with a tweet these days from a citizen at the point where news is being made. They may not have the full story, or the facts and context correct, but they bring it to life.

  2. Steve,

    I’ve followed the Obsidian vs. Cox case for awhile now (really). The 9th Circuit’s Opinion is a partial overturning of an opinion from an Oregon district court. That case got a lot of attention (rightly so) because it held, in part, that bloggers were not afforded the same protection as journalists.

    All along, that seemed like a dubious and outlying opinion by a District Court that would not stand up on any sort of appeal. There have been a number of Supreme Court Opinions to the contrary, including the widely publicized Citizens United opinion (but there were previous cases, which the 9th Circuit sites in its opinion).

    Your points about determining the accuracy of the blog, about bloggers potentially having the protections of the press without the traditional responsibilities of the press, the lack of traditional safeguards, etc. are all spot on. The 9th Circuit’s ruling in the Obsidian vs. Cox case mentions a couple of these in passing when it notes:

    “Cox has a history of making similar allegations and seeking payoffs in exchange for retractions.”

    “Cox does not….contest the jury’s conclusions that the post was false and defamatory.”

    In my opinion, it seems to me that those of us who support the First Amendment have to be happy that the 9th Circuit has overthrown this outlying elements of the District Court’s ruling and sent the case back for a new trial. But I also think that we’ve ridden this rather unattractive horse about as far as we can, and now hope that Ms. Cox loses in future rulings. Of course, the group that Ms. Cox was writing about is pretty awful as well (with Obsidian apparently being involved in a Ponzi scheme and defrauding investors) so it isn’t easy to find ones self on their side either. Time to wash one’s hands of both parties and move on.

    Adam Lee
    Siduri Wines

  3. “Can the public know for sure that a blogger does not have ulterior motives? Newspaper reporters are much less likely to have hidden agendas precisely because their work is scrutinized by editors, and they ultimately are answerable to (and fireable by) a publisher.”

    Not anymore. Plenty of unfortunate examples exist to suggest a serious erosion of trust in newspaper reporting is warranted. Same goes for other forms of print and TV. I don’t trust fox news, for example…

  4. Joe,

    You are probably right….but oddly enough one of the reasons Cox won at least a partial victory in the 9th Circuit is because she was so biased that no one would believe that she was stating objective facts (one of the criteria for a defamation ruling). Her opinions were, for example, posted on a site called

    Adam Lee
    Siduri Wines

  5. Adam Lee, if extreme bias was an obstacle to credibility, then no one would watch Fox “News.”

  6. Steve, apparently the 9th Circuit still has standards for what is defined as credible. It was their ruling, not mine. 🙂

    Adam Lee
    Siduri Wines

  7. pawineguy says:

    You are all ignoring the journalistic climate that existed when the constitution was written, and for the 100+ years that followed. Newspapers did not even pretend to be objective, and publishers of “flyers” acted as the bloggers of the 18th and 19th centuries.

    Joe’s simplistic “I don’t trust Fox News” ignores the fact that for decades previously the prevalent media sources were highly biased, and most remain so today.

    Either we have free speech in this country or we don’t. Liberals should be hailing the Citizens United decision as one of the most important guarantors of free speech in this country in the last 100 years, but because of their bias agains the group involved, they can’t wrap their brains around the idea that McCain Feingold was a horrible law that eroded everyone’s freedom.

  8. I could not disagree more strongly with pawineguy’s conclusion that liberals should celebrate Citizen’s United. That was a decision taken by conservatives on SCOTUS who openly flout their rightwing ideology, especially Scalia (who consistently has trouble disentangling his religious beliefs from his jurisprudential ones). The Constitution guarantees the right of citizenship (and thus of voting) to “persons.” (Never mind that originally persons were defined as white, male landowners!). No reasonable individual could ever confuse a corporation for a person, except for the ideologues on SCOTUS whose political interests were furthered by doing so. Moreover, Citizen’s United’s secrecy provisions (corporations are not required to divulge the recipients of their contributions, nor are those recipients required to say where they get their money) means that we, the people, cannot even know who is responsible for the awful political advertisements we’re bombarded with, such as lies about the Affordable Care Act and lies about President Obama’s birthplace. That is not freedom–it is Orwellian. To accuse liberals of having “bias” against groups promoting dishonesty is like accusing firefighters of having bias against fires.

  9. pawineguy says:

    I just re-read Adam’s first post and it looks like Crystal is winning, having gotten Adam to echo that Obsidian was involved in a Ponzi scheme, when it was the bankrupt company (Summit) that had defrauded investors.

    Funny that no one has noted that the current administration, along with Sen. Feinstein, are fighting hard to keep bloggers from being considered for journalistic protections.

  10. In the modern era of 24-hour news channels, magazine advertisements disguised as articles, and self-selected blogs, it is the responsibility of every person to think critically about what they read. Getting your information from FoxNews or the Huffington Post is not in itself a marker of stupidity. Believing everything they tell you, especially when it’s what you want to believe, is the real danger.

  11. I think that not only post on a blog must to be fact-checked, but also news on traditional media.
    But it’s simple to check a news in a blog, I can type a specifical term on s searching engine and find most of posts of that argument. I can compare two or more post and build my opinion.
    With traditional mainstream media, I couldn’t be able to buy all newspaper to read the same news, or look about all television news speaking of that fact.

  12. Yes Steve, only conservatives use these groups to campaign. Last I checked, liberal advocacy groups funded by Soros, et al were greatly outspending conservative groups. And if you want to declare that groups of people are not “people”, then let’s make sure AARP, Family Winemakers, or any other associations are not allowed to advocate either. And, let’s remember those large corporations that own newspapers, TV stations, radio stations, etc… no more editorializing Steve, because that’s a corporation!

    It is telling that the ACLU came down heavily in favor of Citizens United, as should have been expected. Those that screamed the loudest were those in the media who fear the loss of their influence.

    And Steve, with all due respect, it is a known FACT that it was Hillary Clinton’s campaign that started the birther movement. As someone who follows politics, I’m sure that you know this.

  13. Interesting thread, and great responses thus far. Adam shared my own thoughts on the issue so poetically, that I don’t have much to add, other than that we do live in an age where the general public continues to find sources for information ‘to believe’, and therefore learns to trust such sources over time. Does this mean that those sources are ‘truthful’? Not necessarily.

    Free speech carries with it a sense of responsibility as well – and I think it will continue to be important for those blogging to try to separate ‘fact’ from ‘opinion’ and state it as such.


  14. george kaplan says:

    I feel uniquely qualified to comment on this topic since I know absolutely nothing about it. I have read that the straw SCOTUS used in Citizens United goes back to the early days of the constitution, when the framers were worried that people, ie people like us, would find it difficult to speak with one voice against the powers that were. In the Gilded Age this became codified to include the dubious notion that a corporation could be a person with the same rights and privileges as you and me. Of course they merant political speech. Anyway, the 9th circuit gets overturned at a rate greater than predicted by chance.

  15. To pawineguy’s point, here is a relatively recent article — from Huffington Post even! — that highlights that after a brief period immediately following the Citizens United decision, liberal Super PACs have outraised conservative ones.

    One of the telling things I note that this article indirectly highlights is how much information there really is out there about who or what interests are behind these Super PACs. Sure there are dummies out there who buy into messaging without considering the source, but if you care at all about being informed a little Google search can go a long way in telling you who is behind that Super PAC ad you just saw on the TV.

    Now, can we go back to talking about wine?

  16. Bob Henry says:

    See this article on the subject . . . and a word of advice to self-styled bloggers: Consider prefacing your comments with a qualifier such as “In my humble opinion . . .” or “I believe . . .”

    From The Wall Street Journal “Personal Journal” Section
    (May 21, 2009, Page D1ff):

    “Bloggers, Beware: What You Write Can Get You Sued”


    By M.P. McQueen
    Staff Reporter

    Be careful what you post online. You could get sued.

    In March 2008, Shellee Hale of Bellevue, Wash., posted in several online forums about a hacker attack on a company that makes software used to track sales for adult-entertainment Web sites. She claimed that the personal information of the sites’ customers was compromised.

    About three months later, the software company — which contends that no consumer data were compromised — sued Ms. Hale in state court in New Jersey, accusing her of embarking “on a campaign to defame and malign the plaintiffs” in chat-room posts.

    In her legal response, Ms. Hale, 46 years old, claims she is covered by so-called shield laws that protect reporters from suits, because she was acting as a journalist and was investigating the hacker attack while researching a story on adult-oriented spam.

    Bloggers are increasingly getting sued or threatened with legal action for everything from defamation to invasion of privacy to copyright infringement. . . . . There have been about $17.4 million in trial awards against bloggers to date, according to the Media Law Resource Center in New York, a nonprofit clearinghouse that tracks free-speech cases.

    Many lawsuits are thrown out of court or settled before trial, but not before causing headaches for the accused. Though the likelihood of a plaintiff winning a lawsuit is not high, “you could go bankrupt” just from defending against them, says Miriam Wugmeister, a partner at Morrison & Foerster LLP and a privacy and data-security law expert.

    . . .


    Civic gadflies and self-styled watchdogs who accuse local politicians and companies are getting slapped with lawsuits. People who post messages in chat rooms, online forums and blogs can be held liable for invasion of privacy or for making defamatory statements, which are damaging, false statements of fact.

    . . .

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