from the law professors at the The Volokh Conspiracy:
I’m pleased to report that our local counsel, Benjamin Souede of Angeli Law Group LLC, and I will be representing the defendant blogger in Obsidian Finance Group, LLC v. Cox (D. Or.); we will be filing a motion for new trial, and an appeal to the Ninth Circuit if the motion is denied.
Gertz v. Robert Welch, Inc. (1974) held that even private-figure libel plaintiffs (1) may not recover proven compensatory damages unless the defendant was at least negligent in its investigation, and (2) may not recover presumed or punitive damages unless the defendant knew the statement was false or recklessly disregarded a known and substantial risk that the statements were false. The District Court in Obsidian Finance held that the defendant was not entitled to the protection of Gertz, because she was not a member of the “media.” But as I’ve argued in my forthcoming University of Pennsylvania Law Review article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, the First Amendment has historically been understood as protecting people who use mass communications technology equally, whether or not they are members of the institutional media. I much look forward to litigating this case, and, I hope, getting the District Court decision reversed.
Thanks to http://twitter.com/#!/MarshallYoum for the link.
In Obsidian vs. Cox, Judge Marco Hernandez writes: “Defendant cites no cases indicating that a self-proclaimed ‘investigative blogger’ is considered ‘media’ … [and] Defendant fails to bring forth any evidence suggestive of her status as a journalist.”
I’m no constitutional lawyer, but I think it’s too bad that First Amendment law has become encrusted around the notion that there is an institutionalized media that is entitled to protections ordinary citizens are not entitled to.
Or maybe case law simply hasn’t caught up with the Internet.
Actually, as I argue in my Penn article, First Amendment law has not generally adopted such a notion, in the pre-Internet era or now. The dominant view is that the First Amendment provides the same protection for non-institutional-media speakers as for institutional media speakers; the District Court decision in Obsidian Finance v. Cox was a departure from this norm.
I’ll take your word for that — that this out of the norm. Which is comforting to know. Maybe it’s just that some judges haven’t caught up with the Internet yet.