Bloggers versus the courts

An online writing defamation roundup

Like many defamation cases, Roger Shuler’s is legally complicated. As the proprietor of the Alabama political blog Legal Schnauzer, Shuler was sued last year by some of the subjects of his online writing. A judge issued an injunction requiring Shuler to take down the posts in question and a disturbingly broad court order to stop writing about those people at all until the court case. Shuler ignored the orders, as well as the court appearances he was supposed to make, and was soon arrested for resisting arrest and contempt of court. He was sentenced to 90 days for one charge, but still remains in jail without bond for the other.

Shuler has, quite rightly, received a lot of attention by virtue of his being the only person in the Western Hemisphere on the Committee to Protect Journalists’ list of imprisoned journalists worldwide.

Far less colorful defamation cases are going on across the country all the time—and, as defamation is a matter of state law, the defendants’ experiences vary widely. Many of the cases have revived a familiar conversation about whether bloggers should get the same legal protections as traditional news organizations. Since New York Times Co. v. Sullivan, decided by the US Supreme Court in 1964, media outlets have had a strong protection against defamation suits. But, in the parlance of our times, who is the media?

Here’s a roundup of some recent court rulings and what they might mean for still-evolving protections of online speech.

Protecting non-professional journalists online

In 2010, Crystal Cox accused a bankruptcy trustee of Obsidian Finance Group of crimes like fraud and money laundering in a posting on her blog, The trustee sued, and a federal court in Oregon decided that Cox didn’t deserve the same kind of First Amendment protection that journalists receive, because she wasn’t “acting as a journalist” when she wrote. Cox self-identified as a journalist, but her writing was hyperbolic and sloppy (and then there’s her blog’s name).

But Cox appealed, and this month, the US Court of Appeals for the Ninth Circuit ruled that bloggers should be extended the same First Amendment protections as traditional media outlets. Many praised the ruling as a reinforcement of online writer’s rights.

However, there are aspects of the ruling that could still be troublesome for future defendants. In this case, the court ruled that Cox should receive First Amendment protections, because her writing was so hyperbolic, and so sloppy and unprofessional, that no reasonable reader would take it seriously as “statement of fact” anyway. But should it be a judge’s role to determine what is journalistic, factual writing, whether or not the writing is any good?

“There are certain statements which can be emotionally charged and still try to convey specific facts,” says Jeff Hermes of the Digital Media Law Project. “I think there’s no reason to find that just because someone isn’t a journalist, they’re incapable of trying to convey statements of fact. That’s just ridiculous on its face.” In his own post responding to the ruling, Hermes wrote, “I’m not a particular fan of judicial decisions that purport to protect speech by devaluing it.”

Hermes also points out the parallels between this case and the debate over the proposed federal shield law. The biggest criticism of the Senate bill has been that it draws too narrow a distinction “between people who are employed in the practice of journalism, or who have a relationship with a traditional news outlet, and people who are publishing on their own,” says Hermes. “This is a very troublesome issue, and it comes up in a lot of contexts.”

Preserving internet anonymity

Back in 2011, an anonymous blogger writing under the name “Q-Tip” published a critical and accusatory post about a group of Republican politicians in Croton-on-Hudson, NY, entitled “Would you buy a used car from these men?” The politicians wanted to sue for defamation, but they didn’t know who they were suing. A county judge had earlier granted their petition to reveal the writer’s identity. Q-Tip fought back, and the case went to an appeals court in New York. In December, the panel of appellate judges reversed the petition and allowed Q-Tip to remain anonymous, thereby blocking the plaintiff’s ability to sue for defamation.

The judges wrote in their decision:

Here, given the context in which the challenged statements are made, on an Internet blog during a hotly contested election, a reasonable reader would have believed that the generalized reference to ‘downright criminal actions’ in post entitled “Would You Buy a Used Car From These Men?” was merely conveying Q-Tip’s opinion and was not a factual accusation of criminal conduct.

The upshot of this case is that courts tend to take First Amendment protection of anonymous speech pretty seriously. The question here was not necessarily whether the anonymous writer was a “professional” or “just a blogger,” but whether or not the plaintiffs had any hope of winning a defamation claim if the writer’s identity was revealed. And since the post in question was made up entirely of opinions, not statements of fact, then they probably wouldn’t be able to prove whether the statements were true or false.

“Anonymous speech has always had a special protection under the First Amendment, and therefore the plaintiff has to show they’ve got a concrete claim, that’s going to stand up, before the courts will give them access to the identity of the speaker,” says Sandra Baron, executive director of the Media Law Resource Center. “So in that regard, since it’s a lot harder to be an anonymous speaker in The New York Times than it is in a blog post, arguably, the online speakers who choose to be anonymous have greater protection.”

But, she adds, anonymity does not immunize a writer, either. And just how concrete a claim the plaintiff has to prove before the judge will agree to break that anonymity varies from state to state, jurisdiction to jurisdiction. “Some people think they can never be found out, and that’s often not the case,” says Baron. “The online space is not a law-free environment.”

Takedown orders

The case before the Texas Supreme Court, like Shuler’s case, involves a “takedown” order for an online publication. In an online post of JD Journal, a legal publication, Andrew Harrison Barnes had accused an Austin attorney, Robert Kinney, of bribery. Kinney sued Barnes for defamation and asked the court for an injunction to make Barnes take down the post, which Kinney said was false. The judge in the original trial ruled in favor of Barnes, saying that even if it was false, a permanent injunction was too broad, and would deny Barnes’ First Amendment rights. After several appeals, the case has now made its way to the Texas Supreme Court, where Kinney is arguing that the state’s defamation laws are outdated.

As the Texas Tribune reported from a January 9 hearing, Kinney’s attorney argued that “the internet has created new forms of speech and that the case calls for the re-examination of Texas common law,” because when defamation can be proven, the offending post should have to be unpublished from the Web. Barnes’ attorney argued that this followed the “slippery slope” line of logic, “that if the court ruled that the remarks be removed, it could create a precedent of ‘prior restraint’ on speech.” There are predictions that this case could go all the way to the US Supreme Court.

Plaintiffs in defamation cases, obviously, often want the judge to include takedown orders in the damages they’re awarded if they win; they also often want to try to ensure that the offenders won’t strike again with more lies in the future. But judges are always very careful about these types of injunctions, which can easily become too broad. As a result, Hermes and Baron agree, takedown orders are relatively rare.

“But I’m not sure we won’t see more [takedown orders], particularly depending on which way some of these early cases go, like this one in Texas,” says Baron. “There’s a lot of room for legal growth in this area.”

She adds that it almost surprises sometimes her how little litigation like this there actually has been in the court system, considering how much speech there is out there on the internet. “When you think about the sort of ethos of free speech we have in this country, that allows so much to go up online, without intervention,” she says, “it’s pretty astonishing.”

Regardless, it can’t hurt to be prepared. If you write online—whatever you call yourself—it’s good to know your rights. Guides written by the Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press are both a great place to start.

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Lauren Kirchner is a freelance writer covering digital security for CJR. Find her on Twitter at @lkirchner Tags: , , ,