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By: Andrew J. Olejnik and Abraham M. Salander
In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238, 12-35319 (9th Cir. Jan. 17, 2014), the Ninth Circuit held that First Amendment protections under the Supreme Court’s landmark opinion in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), applied to a blogger, not just the institutional media. In Obsidian, a blogger accused a Chapter 11 bankruptcy trustee of fraud and other illegal activities in the bankruptcy case. The trustee sued for defamation for several of the blog posts. The district court allowed one of the trustee’s claims to go to trial on the grounds that the blog post at issue had made false factual assertions. The Ninth Circuit reversed, holding that the blog post was protected by the First Amendment under Gertz, in which the Supreme Court held that private defamation suits against the media require proof of negligence and actual damages. The Court refused to distinguish between the institutional media and private individuals, explaining that First Amendment protections for the media “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.” The Court noted that the Supreme Court had not decided whether Gertz onlyapplied to matters which are of no public concern, but the Court said that made no difference in the instant case because the blog topic raised issues that were clearly of public interest, namely allegations of criminal activity and fraud in a bankruptcy case. Nonetheless, the Court did not adopt all of the blogger’s arguments; it notably rejected the defense that the bankruptcy trustee was a public official, highlighting that the trustee was not elected or appointed to a government position and was paid by the debtor’s estate, not the court.