“Sticks and stones may break my bones,
But words will never harm me.”
— Traditional rhyme
Were it only so. The ugly reality is that badmouthing someone can destroy their reputation, business, career, family, and life. For example, we’ve all read news stories about cyberbullied teens who commit suicide. When free speech collides with one’s right to be left alone, where does the law draw the line? When does it become necessary to bring in a legal team (similar to the ones at Muldoon Britton) to fight your case?
It’s a question that bedevils bloggers, because posting about real people potentially opens the door to legal liability. The Ninth Circuit’s decision last week in Padrick v. Cox brings this issue back into focus. (Read the opinion here.)
The bottom line is the court ruled that bloggers have the same First Amendment protections as journalists. Technically speaking, this means “liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.”
If that’s all you need to know, you can quit reading here. The rest of this article delves into general libel law (in extremely broad brush terms), the details of the Padrick v. Cox case, and I also throw in brief discussions of SLAPP lawsuits and the Koch brothers’ legal harassment of their critics.
(Note: Because this article is written for a general audience, I’ve foregone cumbersome legal citations. In most cases, a simple internet search using the case name is sufficient to find further information about a case.)
The basic rule of libel law is that truth, no matter how unflattering, is never actionable. Only a false statement can be libelous. Thus, truth is an absolute defense against a libel claim. There are no exceptions to this rule.
But spreading false information about a person, per se, is not enough to create legal liability. In a free society which encourages open debate of issues of public concern, there is wide latitude to be mistaken in what one says, and even considerable tolerance of deliberate lying.
The best known and most important case that imposes additional limits on libel claims in the interest of protecting freedom of speech and press is New York Times Co. v. Sullivan, which established that politicians and other public figures can’t sue the news media for false reporting unless they prove “actual malice” in publishing falsehoods. Thus, it is possible for a newspaper to be sued by a public figure, but the defamation has to be malicious. That’s a nearly impossible hurdle, because news reporting is hardly ever malicious, and effectively prevents politicians and other public figures angered by news stories about them from suing media organizations in nearly every case.
If the victim of a defamatory statement is a private person, the legal bar is lower, but still substantial. This is the Gertz v. Robert Welch, Inc. case. Gertz was a lawyer who represented the family of a person killed by a police officer. The John Birch Society attacked him in its publications, calling him a “communist” among other things, and he sued them. In this case, SCOTUS ruled that strict liability for defamation is unconstitutional in the United States, which means a plaintiff must prove the defendant was negligent (or worse) in defaming him to recover damages. In addition, unless the plaintiff proves actual malice, damages can’t be presumed but are limited to the actual damages proved by the plaintiff.
In other words, if a blogger negligently defames someone, the person can sue the blogger for his/her actual financial loss, assuming applicable state law is not more restrictive.
Finally, the law of libel distinguishes between opinion and fact. Expressions of opinion, however unflattering, are not actionable. Libel claims must be based on false assertions of fact. For example, a blogger can’t be liable for posting that “John Doe is the worst dogcatcher in the history of Upchuck County.” This goes a long way to protect people who gossip on Twitter, in chat rooms, and similar internet forums from lawsuits. For a more in-depth discussion of this point, see http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1003&context=bjesl.
(There’s a caveat, though; in the Ninth Circuit, an opinion that implies a false assertion of fact may be actionable. In other words, while a false factual assertion is required, it need not be expressly stated, but can be implied in an opinion. Thus, a blogger could be liable for posting that “John Doe is the worst dogcatcher in the history of Upchuck County because no one knows what happened to the license fees he collected from dog owners.” The Ninth Circuit’s test for this is discussed in its Padrick v. Cox opinion, linked to above.)
Those are the basic rules. Now let’s consider how Padrick v. Cox fits into the overall scheme of things, and its significance for bloggers.
Crystal Cox is a blogger of the repulsive variety. (Read about her antics here and here.)
Kevin Padrick is a reputable lawyer, so far as I know. In the court’s words, he’s “a principal of Obsidian Finance Group, LLC, a firm that provides advice to financially distressed businesses,” and was appointed by a bankruptcy court as the Chapter 11 trustee for Summit Accommodators, Inc., which allegedly ran a Ponzi scheme and, again the court’s words, “misappropriated funds from clients.” As Chapter 11 trustee, “Padrick’s principal task was to marshal the firm’s assets for the benefit of those clients.”
It’s unusual for a crusading blogger to obsess over a bankruptcy case. What got Cox interested? According to NY Times reporter David Carr, she was attracted by the postings of a daughter of one of Summit’s indicted principals from whom Padrick was trying to recover assets. Opposing lawyers, it seems, are natural targets for people with strong feelings of grievance. And, it also seems, for bloggers with vicarious feelings of grievance. Or maybe just looking for a crusade.
In any event, Cox portrayed Padrick in extremely unflattering terms in her websites and blogs. In the court’s words, she “published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. … Cox also claimed that Obsidian paid off ‘media’ and ‘politicians’ and may have hired a hit man to kill her.” Hinting at a possible motive, the court also said “Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction,” citing Carr’s NY Times article.
Padrick tried to get Cox to stop her attacks on him by sending her cease-and-desist letters, and when she continued, sued her for defamation. Because they lived in different states, he filed the lawsuit in federal instead of state court.
The district judge dismissed all but one of Padrick’s claims on grounds that Cox’s inflammatory statements were “constitutionally protected opinions” — i.e., free speech — “because they employed figurative and hyperbolic language and could not be proved true or false.” However, he ruled that one blog post made “a provable fact assertion,” and allowed a jury trial on that claim. It proved a fat one; the jury awarded Padrick and Obsidian a total of $2.5 million, as a result of the judge’s instructions to the jury that Cox’s knowledge of the truth or falsity of her blog post and her motive in publishing it were irrelevant to liability.
The Ninth Circuit sent the case back to the district court for a new trial, saying, “The protections of the First Amendment do not turn on whether the defendant was a trained journalist …. 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. … [T]he Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants …. [T]he district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently [and] could not award presumed damages unless it found that Cox acted with actual malice.”
In other words, there is no difference in how libel law treats professional journalists and amateur bloggers. The First Amendment applies to them equally and the same. The net effect is to extend the previous caselaw protecting journalists from libel actions to bloggers.
At the beginning of this piece, I alluded to collisions between free speech and private interests. Some years ago, some powerful interests latched onto the idea of discouraging critics and opponents by filing lawsuits against them. These are called SLAPP suits. The acronym stands for Strategic Lawsuit Against Public Participation. A typical SLAPP might be filed by a developer against neighborhood activists trying to block a proposed development. Because defending against lawsuits is expensive, SLAPPs threaten their targets with financial ruin, which has a major chilling effect on average citizens. Fear of being SLAPPed would make homeowners afraid, for example, to testify against a proposed development project at a public hearing on the developer’s permit applications. A New York judge said of SLAPPs, “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” Some states, including Washington, responded by enacting anti-SLAPP statutes, which has reduced but not eliminated use of the tactic; but not all states have such statutes, and they vary in effectiveness and the amount of protection they afford to activists and other outspoken citizens.
On at least one occasion, the Koches tried to silence a group of anonymous bloggers who opposed their bankrolling of climate denial efforts. The bloggers set up a spoof website that parodied Koch Industries by issuing a fake press release announcing that Koch Industries was changing its position on climate change. Koch sued alleging trademark infringement, unfair competition, cybersquatting, computer hacking and breach of the company website’s terms of use. None of these claims survived the defendants’ motion to dismiss. You can read the judge’s opinion and reasoning here: http://www.citizen.org/documents/Koch-v-Does-District-Court-Opinion.pdf
Koch also tried to obtain the bloggers’ identities by sending subpoenas to their web hosting company. This raises an important point. The judge alluded to a “First Amendment right to anonymity,” and observed that “[a] growing number of courts have recognized that civil subpoenas seeking information regarding anonymous speakers raise First Amendment concerns. If Internet users could be stripped of [their] anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights. Accordingly, courts have ‘outlined strict rules for allowing a subpoena that has the effect of unmasking the identity of anonymous online speakers.'” Ruling that Koch did not satisfy this test, the judge quashed the subpoenas and issued a protective order forbidding the disclosure of any information obtained under them.
It is noteworthy that even the rich and powerful Koches, and their corporate lawyers, were shot down in the courts when they sought to use litigation to confront the shrieking magpies that populate the internet. This is further strong evidence that courts will give bloggers protection to carry on what they do best — raucous discussion of public issues — so long as they do not cross the line drawn against destroying innocent lives with malicious lies. Public figures, of course, remain fair game for rowdy and ribald criticism.
Now for the final bottom line. Bloggers who operate websites with forums open to public comments have to think about whether something a stranger posts might get them sued. (All bloggers, of course, also should think about whether their own articles and commentaries might be libelous and invite a ruinous lawsuit.) I think most bloggers are sensitive to this and take some measures for their own protection. For example, it’s common practice for forum managers to require commenters to register before they can post comments. Other “best practices” include establishing Terms Of Service that prohibit personal attacks and other problematical behaviors, using moderators to enforce the Terms Of Service and block or remove offensive or potentially libelous posts, and in general control the public’s use of their forum. Typically there are at least two objectives here, keep the website attractive to readers, and avoid potential legal problems. The specific legal concern is that even if a blog owner keeps his own commentary within bounds, if some commenter crosses the line, the blog owner could be held negligent if he does nothing about it. There are all sorts of strangers out there, and some of them have personal axes to grind, or are just plain crazy, and it’s the rare forum manager who never has to deal with inappropriate and potentially libelous forum comments. So it’s a real and present danger, and an ongoing blog management issues.
Generally, a blogger who doesn’t libel anyone himself and takes reasonable steps to keep his forum from being used for that purpose by strangers is legally safe, at least in terms of the final legal outcome. I mention SLAPPs and the Koch brothers’ lawsuit against a group of their critics in this article because anyone who runs a political blog or any blog that deals with controversial topics (such as customer reviews of businesses and products) has to worry that some disgruntled individual (or company trying to protect its image) will go after him with a claim for damages. This danger can’t be entirely prevented, but defending a lawsuit is much less expensive if the defendant can get it dismissed on a motion for summary judgment, before the big legal bills for discovery, pre-trial motions, and trial are run up, and legal precedents that raise the barrier a plaintiff must climb to maintain a legal action generally work to make it easier for defendants to get harassing lawsuits dismissed in the early stages. From a financial standpoint, that’s immensely better than having to fight it out in trial, even if a jury decision in favor of the defendant is highly probable.
A final word on the reach of the Ninth Circuit’s ruling in Padrick v. Cox, so there’s no misunderstanding about who is affected by this decision. Strictly speaking, a federal court of appeals decision is binding precedent (unless the court specifies it isn’t) only in that circuit. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington; so Padrick v. Cox is the law of the land in those states. That means it applies directly to us, if we live in Seattle, or elsewhere in the Pacific Northwest. And because it involves federal constitutional rights, it trumps any inconsistent state laws or court precedents in these states. In all other states, the Ninth Circuit’s ruling is advisory. That is, federal and state courts geographically in other circuits could copy it, or follow it in their own rulings, but they’re not required to do so and can choose to go another way. Conflicts between circuits are common, and divergent rulings among the circuits on important questions of law is one of the major reasons why the Supreme Court will accept a case, in order to resolve the differences and establish a uniform rule throughout the country. (SCOTUS receives many more appeals than it can handle, so it needs a triage system, and this is one of the criteria that play an important role in determining which cases to accept.)