Are Bloggers Really the Same as Traditional Journalists?

The Ninth Circuit extended to bloggers the First Amendment freedoms enjoyed by traditional journalists.  In Obsidian Finance Group v. Cox, the Ninth Circuit ruled that New York Times v. Sullivan and Gertz v. Robert Welch, Inc, when read together hold that journalists are protected by the First Amendment and therefore plaintiff’s must be able to show that journalists acted with a minimum of negligent intent, if not higher, in order to sustain a libel claim. Although one of first impression for the Ninth Circuit, the issue of whether the negligent standard applies to bloggers has been percolating among the circuits for some time.  Are bloggers journalists for purposes of the Sullivan/Gertz standard?

The 9th circuit noted that the case which “involves the intersection between Sullivan and Gertz, [is] an area not yet fully explored by this circuit in the context of the Internet.   Both parties argued that Gertz only applies to institutional press.  But the court disagreed.  Writing for the Court, Judge Hurwitz opined,  “as the Supreme Court has accurately warned, a First Amendment distinction between institutional press and other speaker is unworkable.’

According to the circuit court, “the protections of the First Amendment do not turn on whether the defendant was a trained journalist …or went beyond just assembling others writings.”   Therefore, bloggers for defamation purposes, should be subject to the same standards as traditional journalists in cases concerning defamatory statements.

 Obsidian Finance Group is just another example of how 15 minutes of Internet fame can elevate an ordinary citizen to higher status for purposes of defamation law.  Arguably, the “star” of a home video gone viral achieves public figure status for purposes of defamation law, so too, it seems, does the casual blogger.

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