A decision last week by the Ninth Circuit proves that you don't have to deserve first amendment rights to have them. You don't even need to be a journalist. Or especially sane.

Our story begins when Crystal Cox wrote a blog post that accused a bankruptcy trustee and his firm of "fraud, corruption, money-laundering, and other illegal activities". Obsidian Finance Group, LLC v. Cox, No. 12-35238, slip op. at 4 (9th Cir. Jan. 17, 2014).

"Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction." Id. She styles herself a "Real Estate Consumer Advocate, Anti-Corruption Blogger, [and] Free Speech Advocate" who "Mak[es] a STAND for ALL Citizen Journalists and Victims of Corruption . . . in Love and Light". And someone dislikes her enough to devote an entire blog — Crystal Cox is NOT a Journalist — to making fun of her.

The trustee, Kevin Padrick, and his firm, Obsidian Finance Group, did not like the post. They sued Cox for libel. They won. The Portland jury awarded Padrick "presumed damages" of $1.5 million and Obsidian $1 million.

Cox appealed to the Ninth Circuit. She urged that the first amendment applied to her blog posts. She claimed that Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), therefore obliged Padrick and Obsidian to prove that she acted negligently and with actual malice before they could recover presumed damages.

Bloggers flocked to Cox's defense. Eugene Volokh — he of The Volokh Conspiracy — briefed and argued for Cox to the Ninth Circuit. Tom Goldstein — who founded SCOTUSblog.com — filed an amicus brief in support of Cox's appeal, as did The Reporters Committee for Freedom of the Press.

The Ninth Circuit ruled in favor of Cox. It held that the Gertz rule doesn't protect only "the institutional press":

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[ v. Federal Election Commission], 558 U.S. [310, ]352[ (2010)]. 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.

Obsidian Finance, slip op. at12.

The panel also:

  • Ruled that Cox's crime-charging post dealt with "a matter of public concern". Id. at 13 (noting that Gertz negligence requirement may apply even if speech does not relate to matter of public concern).
  • Declined to deem Padrick and Obsidian "public figures", a status that would have required them, under The New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to show that Cox wrote her post with "actual malice". Obsidian Finance, slip op. at 14-16.
  • Upheld the district court's conclusion that Cox's other posts didn't assert "an objective fact" and therefore couldn't support a libel claim. Id. at 16-18.