"Cox sought to defend herself by invoking the First Amendment.
She argued that because she was a member of the “media,” Obsidian could not “recover damages without proof that [Cox] was at least negligent and may not recover presumed damages absent proof of ‘actual malice.’” In an order issued orally on November 28, 2011 and memorialized in a written opinion on November 30, 2011, the district court rejected that argument. Emphasizing that Cox had not cited any cases “indicating that a self-proclaimed ‘investigative blogger’ is considered ‘media’ for the purposes of applying a negligence standard in a defamation claim,” the Court “decline[d] to conclude that [Cox] . . . is ‘media,’ triggering the negligence standard.” Moreover, the Court added, Cox had “fail[ed] to bring forth any evidence suggestive of her status as a journalist,” such as evidence of
(1) . . . education in journalism;
(2) any credentials or proof
of any affiliation with any recognized news entity;
(3) proof of adherence to journalistic standards such as editing, factchecking,
or disclosures of conflicts of interest;
(4) keeping notes of conversations and interviews conducted;
(5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings or postings of others; or
(7) contacting the other side to get both sides of a story."
“Without evidence of this nature,” the court concluded, Cox “is not ‘media.’”
Thus, when the case went to the jury, the instructions that the jury received regarding the defamation claim did not include any requirement that Padrick and Obsidian show either negligence or actual malice on Cox’s part. The jury awarded Padrick and Obsidian $2.5 million in damages.
On March 27, 2012, the district court denied Cox’s motion for a new trial, in which she argued that “the jury instructions misstated the law and that the jury verdict is excessive.”
In the opinion that accompanied that order, the court stated that it did not mean to suggest that “a person who ‘blogs’ could never be considered ‘media,’” or that “to be considered ‘media,’ one had to possess all or most of the characteristics I recited.” Rather, the court reasoned, the jury instructions in this case rested on the fact that Cox had not presented any “evidence as to any single one of the characteristics which would tend to establish oneself as a member of the ‘media.’”
The court apparently found it unnecessary to specify how many of these characteristics a defendant would have to possess to receive the First Amendment protections the court would accord to the “media.”
This appeal followed."
"... files this brief to illustrate for the Court how a “blog” that provides a useful public service and that ought to receive the protections of the First Amendment can face potential liability, yet not be able to satisfy most of the criteria identified by the district court."
"SCOTUSblog Could Be Subject To Allegations Of Libel And Defamation Like Those Asserted In This Case. Although posts on SCOTUSblog are rarely as strongly worded as those at issue in this case, it is nonetheless often critical, in a way that could very well offend the targets of that criticism."
"Other regular contributors to the blog have used similarly unfavorable language. On December 7, 2011, for example, Columbia University law professor Ronald Mann, who covers many of the cases involving intellectual property, securities, and bankruptcy for the blog, posted an analysis of the oral argument in Caraco Pharmaceutical Laboratories v. Novo Nordisk, a case that arose from efforts by a generic drug manufacturer to sell a drug for a use that has been approved by the Food and Drug Administration but was not covered by the patent for the drug. Professor Mann’s discussion of the oral argument contained an unflattering description of the lawyer who argued on behalf of Novo Nordisk."
"SCOTUSblog Could Not Satisfy Several Of The Criteria Articulated By The District Court.
The question presented by this case creates significant concerns for SCOTUSblog, because of the prospect that it too could face lawsuits like the one filed by Obsidian in this case.
Specifically, like Cox, the blog and its staff could not make several of the showings outlined by the district court in this case, leaving it vulnerable to an adverse decision in a defamation case.
First and foremost, with the exception of our reporter Lyle Denniston, none of the regular contributors to the blog have any training in journalism: Tom Goldstein and Amy Howe, for example, have undergraduate degrees in political science and law degrees, while Kali Borkoski and Max Mallory – the blog’s manager and deputy manager – are recent college graduates with undergraduate
degrees in philosophy and history, respectively.
However, even some journalists have suggested that having lawyers cover the Court may benefit, rather detract from, the coverage:"
"SCOTUSblog would also be unable to show that it has “credentials or proof
of affiliation with any recognized news entity.”
The Supreme Court and Senate Press Gallery have refused to grant the blog a press credential. See Mallary Jean Tenore, Why it’s so hard for SCOTUSblog to get Supreme Court press credentials,
Poynter, July 11, 2012, available at http://goo.gl/I22RQ.
The blog’s inability to obtain a Supreme Court press credential for the blog stems from the fact that the Court provides permanent press credentials only to journalists with White House or congressional credentials. Permanent White House credentials can be obtained only by journalists with congressional credentials. And the blog’s efforts to obtain congressional credentials have been rebuffed: the director of the Senate Press Gallery, which issues the press credentials, has indicated that under the current credentialing criteria – which were last updated in 2002 – “if a practicing lawyer applied to us, there is almost no way they would be credentialed.” See Tenore, supra.
Although he has covered the Court for over fifty-four years, the past eight of which have been spent working almost exclusively for the blog, reporter Lyle Denniston does not have a Supreme Court press credential through the blog; instead, he has a Supreme Court credential based on his work for WBUR, a
Boston-area public radio station for which he occasionally also files reports.
The blog would also be unable to meet the third and fourth criteria outlined
by the district court, as it does not as a general rule do any fact-checking, nor does
it have a policy of maintaining notes of conversations, interviews, or research.
As an initial matter, the blog rarely engages in “investigative” journalism. Instead,
most of its content is derived from the briefs filed in the Supreme Court, the oral
arguments in cases on the merits, and the decisions that result from those briefs and
Moreover, although the blog’s editing process sometimes identifies
substantive errors in the posts that go up on the blog, the blog relies primarily on
the expertise of its contributors not only to summarize, analyze, and provide their
impressions of the briefs, oral arguments, and decisions, but also to do so
accurately and fairly, without the need for fact-checking or detailed notes.
To be sure, the blog and its staff would be able to make a few of the
showings – specifically, the fifth, sixth, and seventh ones – outlined by the district
court in this case.
First, to the extent that the blog’s authors rely on confidential sources for their posts, they do adhere to principles of confidentiality when requested to do so by those sources. Second, with the exception of the blog’s daily “round-up” of news related to the Supreme Court, the blog prides itself on creating
its own original content – an “individual product . . . rather than assembling the writings and postings of others.” Third and finally, although the blog does not have a firm policy requiring its authors to always “contact the ‘other side’ to get both sides of a story” – instead using its own judgment about whether such consultations are necessary on a case-by-case basis – it does have a policy of not
accepting commentary or advocacy posts by one side unless it is also able to post views from the other side of the issue.
However, even though the blog might be able to make these showings in a lawsuit, its ability to do so provides it with scant comfort in light of the district court’s failure to specify how many of these characteristics a defendant would have to possess to receive the First Amendment
protections the court would afford to the “media.”
SCOTUSblog respectfully asks this Court to make clear that non-traditional
news sources, such as blogs, that provide a useful public service by gathering,
analyzing, and disseminating information are entitled to the same First Amendment
protections as traditional news media even if they cannot make most of the
showings outlined by the district court in this case. "
Source of Free Speech Supporting Amicus Brief by ScotusBlog.com