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, Obsidianfinancesucks.com. 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.