Category Archives: Blogs

9th Circuit: Bloggers have same 1st Amendment protection as mainstream media

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A 9th Circuit Court decision last week found that an independent blogger enjoys the same First Amendment protections in a libel action as the mainstream media.

The decision came in the case of OBSIDIAN FINANCE GROUP V. COX.

Court Description:

Defamation. The panel affirmed in part and reversed in part the district court’s judgment awarding compensatory damages to a bankruptcy trustee on a defamation claim against an Internet blogger. The panel held that Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (holding that the First Amendment required only a “negligence standard for private defamation actions”), is not limited to cases with institutional media defendants. The panel further held that the blog post at issue addressed a matter of public concern, and the district court should have instructed the jury that it could not find the blogger liable for defamation unless it found that she acted negligently. The panel held that the bankruptcy trustee did not become a “public official” simply by virtue of court appointment, or by receiving compensation from the court. The panel remanded for a new trial on the blog post at issue, and affirmed the district court’s summary judgment on the other blog posts that were deemed constitutionally protected opinions.

And here is the key part of the decision.

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. 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.

You can view the decision at Justia.com, or use a link at the site to download a copy.

For more commentary, check some of the links produced by this Google search.

Some comments aren’t helpful

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Following yesterday’s post regarding the origin of the Hawaiian flag, one of the first comments was from Steve Laudig.

I did not approve the comment, but later decided to share it. Here’s his comment, in full:

Carpetbagger is a term that comes to mind here if he was not a Hawaiian National. He was a loyal servant, and patronage employee of the US occupation government. A flunky, some could easily say. If he was a Hawaiian National he could be called a Quisling.

This is the kind of comment that just isn’t useful or helpful, in my view. The comment seems more likely to cut off discussion rather than promote exchange of ideas, unless one is in already in agreement with Laudig’s historical-political assumptions.

I also considered it inappropriate because the topic of the post is the research note on the flag’s history. Laudig’s comment is, instead, a dismissal of the author for historical-political reasons that readers may or may not agree with, and in any case involve a whole different set of issues. It seemed to me a classic ad hominem attack, addressing the person’s supposed personal characteristics rather than the substance of what they have written.

Another frequent commenter here, Ken Conklin, has an equally strong but polar opposite historical interpretation. But he has generally been a useful participant here by providing specific references to document his interpretations, an approach which opens the door to further debate.

I also find it odd when today’s dissenters believe that they would have been ardent monarchists in that earlier era, or at least appear to reject the idea that there could have been legitimate reasons for opposing the Kingdom’s constitutional monarchy.

And so it goes on this Monday morning.

Investigating a company can be a challenge

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Investigative Reporters & Editors (IRE) supports good reporting in a number of ways, including sharing of tips on how to dig our information in unusual circumstances.

A recent query on one of the IRE listservs asked for advice on how to get information on privately held companies that don’t have to file pubic reports with the Securities and Exchange Commission. One response gave excellent advice on the “zen of investigating” that is worth sharing more generally.

It pointed out that the SEC is only one of the agencies that might regulate all or parts of a particular business, but there are others. You really have to be creative and get into the nitty gritty of a particular business to figure out what forms of regulation might apply.

The response pointed to the usual sources, such as court records (potential “goldmine”), regulatory complaints, credit rating agencies, real estate records, even some social networking sites.

What government agencies regulate aspects of the businesses that interest you? For example, even a private hospital or nursing home probably has to file a certificate of need somewhere with financial details; franchises must file financial disclosures in their FDDs; and many kinds of securities that don’t fall under the SEC are nonetheless covered in California by the CAL-EASI databases.

Then the response shared this revealing anecdote.

When James Bamford was writing about the virtually unknown NSA in the early 1980s, no one would tell him how many people worked there. He found out anyway: 68,203. How did he get such an exact number when even Congress couldn’t? The NSA credit union had to file annual reports with the National Credit Union Administration listing its potential membership.

Of course, beyond the documents are the usual “current and formers,” as in “current and former” employees, competitors, clients, contractors, suppliers, neighbors, etc., etc.

Useful information isn’t always obvious, but it is usually there for those able to dig beyond the basics.

These suggestions are applicable to bloggers and community activists as well as reporters, so take note!

Cutting off climate change deniers and comment trolls

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The Los Angeles Times’ decision to no longer print letters from those who deny the reality of climate change is rightly seen as a major step in restoring some semblance of order in public discussions and debates (“On letters from climate-change deniers“).

Paul Thornton, the newspaper’s letters editor, wrote:

As for letters on climate change, we do get plenty from those who deny global warming. And to say they “deny” it might be an understatement: Many say climate change is a hoax, a scheme by liberals to curtail personal freedom.

Before going into some detail about why these letters don’t make it into our pages, I’ll concede that, aside from my easily passing the Advanced Placement biology exam in high school, my science credentials are lacking. I’m no expert when it comes to our planet’s complex climate processes or any scientific field. Consequently, when deciding which letters should run among hundreds on such weighty matters as climate change, I must rely on the experts — in other words, those scientists with advanced degrees who undertake tedious research and rigorous peer review.

And those scientists have provided ample evidence that human activity is indeed linked to climate change. Just last month, the Intergovernmental Panel on Climate Change — a body made up of the world’s top climate scientists — said it was 95% certain that we fossil-fuel-burning humans are driving global warming. The debate right now isn’t whether this evidence exists (clearly, it does) but what this evidence means for us.

And what they’ve decided it means is that public discussion is not aided by those who simply refuse to recognize the weight of scientific evidence.

A subsequent report on CNET describing the new L.A. Times policy noted a broader move by Popular Science magazine (“LA Times cuts off climate-change deniers“).

Last month, another mainstream source of science news, the magazine Popular Science, took an even more direct approach to removing the deniers from the climate-change discussion. On September 24, PopSci announced that it is shutting off comments on its Web site .

Suzanne LaBarre, PopSci’s online content director, wrote, “Everything, from evolution to the origins of climate change, is mistakenly up for grabs again. Scientific certainty is just another thing for two people to ‘debate’ on television. And because comments sections tend to be a grotesque reflection of the media culture surrounding them, the cynical work of undermining bedrock scientific doctrine is now being done beneath our own stories, within a Web site devoted to championing science.”

In May, Mother Jones reported that researchers at George Mason University found that “when it comes to online commenting, throwing bombs gets more attention than being nice, and makes readers double down on their preexisting beliefs.” The magazine mentioned climate-change articles as the main platform for these comment bombs.

A column by two leaders of the Safe Climate Campaign published in USA Today took another approach by likening climate change deniers to the minions of Big Tobacco (“Climate deniers meet Joe Camel“).

Half a century ago, the tobacco industry tried to preserve its market by misleading Americans about the scientific validity of research demonstrating that smoking causes cancer. To weaken efforts to fight global warming, the “climate change denial machine,” in the words of the Oxford Handbook of Climate Change and Society, has been using that same strategy. For more than 20 years it has sought to cast doubt on the science that demonstrates that the climate is changing and pollution is to blame.

Why is anyone still paying attention?

The denial lobby is using pseudo-science and cherry-picked data to present the fringe view that global warming is nothing more than what Sen. James M. Inhofe, Republican of Oklahoma, famously called “the greatest hoax ever perpetrated on the American people.”

These issues are familiar to anyone with a site that allows comments, since we know nasty comments can easily derail an otherwise constructive discussion thread.

I sometimes step in to edit or remove comments, but it’s a mine field. At least one friend is now boycotting this site after I cut one of his comments.

Another CNET column is worth reading in this context (“When Internet trolls attack: A view from the receiving end“).

In any case, I’m glad to see these policy changes, and will be interested to see what other changes we’ll be seeing going forward.