Bloggers Get 1st Amendment Protections in Defamation Suits

Jan 17, 2014 4:30 PM PST

SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals on Friday, deciding that 1st Amendment protections for news media extends to individuals posting on the web, unanimously overturned a defamation award against a blogger.

"The protections of the 1st Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities,” wrote U.S. Circuit Judge Andrew D. Hurwitz for a three-judge panel deciding the case.

The appeal by Obsidian Finance Group and owner Kevin Padrick focused on the Christmas Day blog post of Crystal Cox, who accused them of fraud, money laundering and corruption in connection with the bankruptcy of Summit Accomodators. Padrick served as a bankruptcy trustee in the case.

A federal court in Oregon held that most of Cox’s posts about Obsidian and Padrick were constitutionally protected, but the court allowed Cox to face trial on one post that accused Padrick, in acting as a bankruptcy trustee, of failing to have paid taxes for Obsidian.

Later, a jury awarded plaintiffs Obsidian and Padrick a total of $2.5 million in damages.

Cox, who represented herself at trial, appealed. She did not contest the jury’s decision that the post was false and damaged reputations but argued she could not be held liable unless it was shown she had acted with negligence.

The 9th Circuit agreed the jury should have been required to find that Cox had acted negligently because her posts involved a matter of public concern and that they could not award monetary damages for presumed, unproven harm to the subjects of her posts unless it found that Cox had acted with malice, posting information she knew was false or with reckless disregard for the truth.

Adult industry attorney Marc Randazza, who knows Cox very well after she registered and used scores of domain names that used portions of his last name, said that portions of the 9th Circuit's ruling are  a "good thing."

"It makes no sense for a speaker's 1st Amendment rights to turn on whether they are a journalist, not a journalist, or a traditional journalist," Randazza told XBIZ. "However the opinion has some troubling parts in it as well.

"The opinion also states that the plaintiff could not recover from the defendant for false statements that he hired a hit man to kill her. Why? Because the writing was so insane that the court didn't take it seriously. So, the 9th Circuit seems to of created a bat shit-crazy defense to defamation.

"Now the traditional news media does not have any special privilege, which is a good thing. At the same it gave more 1st Amendment rights to people who are nuts rather than sane or credible writers."

Randazza in a lawsuit in 2012 alleged that Cox registered the domain name MarcRandazza.com and then tried to extort money from him. He later alleged that when that failed, Cox registered the name of his wife, JenniferRandazza.com, and three-year-old daughter, NatalieRandazza.com, as well as FuckMarcRandazza.com and MarcRandazzaSucks.com. Other "Randazza" domain names followed.

Cox then offered “reputation management” services to Randazza to clean up search engine results related to the domains, according to the suit that has been since adjudicated.

The nearly three-dozen "Randazza" websites registered and used by Cox later were transferred to Randazza by a federal judge.

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