BOB GARFIELD: On last week’s show, I spoke with Ellyn Angelotti of the Poynter Institute about the first Twibel case in the United States and what it means for our understanding of defamation online. Ellyn is back for round two this week, after a federal court ruled that a blogger who had lost a defamation suit in 2011 should have the same free speech protections as a traditional journalist and as anyone else who publishes online.
The decision from the Ninth Circuit Court of Appeals is being held as legal proof positive that journalism is not defined by the medium it appears in but by the acts of reporting and opinionating themselves. The blogger in this case is Crystal Cox, whom we've discussed on this show before. Her blog and other online activities have elements of journalism, elements of gadfly crackpotitude and elements of a shakedown racket. And she is a very persistent adversary. Ellyn Angelotti is lawyer and member of the Poynter Institute's faculty. Gosh, Ellyn, you again?
ELLYN ANGELOTTI: Thanks for having me back.
BOB GARFIELD: Before we get into the details of the most recent Cox decision, describe the original case which Crystal Cox lost to the tune of a two-and-a-half-million-dollar jury award.
ELLYN ANGELOTTI: So Crystal Cox had created a website called BankruptcyCorruption.com and accused Kevin Padrick who is a trustee for a company that he was a thug, a thief and a liar because of his actions as a trustee in a bankruptcy case. There are many blog posts but there is one in particular where she interlaced a lot of her very strong opinions with facts based on anonymous sources.
BOB GARFIELD: And in defending herself, she claimed she did not have to identify her supposedly anonymous sources because she was entitled, as a journalist, to protect their identities, to keep them anonymous. And the court said, n-no!
ELLYN ANGELOTTI: Yeah, Crystal Cox claimed that she was protected by Oregon Shield Law and, therefore, she was able to protect her anonymous source. And that was one of the contexts that the court ruled, that she did not work for a traditional media organization, and they actually laid out seven factors that determined whether or not she was an actual journalist.
BOB GARFIELD: And now the Ninth Circuit says the court was incorrect, and it’s arbitrary to assign kind of legacy standards to online journalism. It’s great that a higher court has finally acknowledged that journalism isn’t defined by where the journalism appears, but is this ruling an invitation for anyone to go online with vile unsupported allegations against any poor schnook they don’t like?
ELLYN ANGELOTTI: That’s where the tension is with this case. When you have a defendant here like Crystal Cox, it can be a little troubling to promote her behavior. And that is why one interesting part of this case is the, the blog post in question from December 25th, 2010 will still be analyzed under defamation. So she can still be liable for making these allegedly false statements about somebody whose reputation was harmed by her statements.
BOB GARFIELD: Now, this decision from the Ninth Circuit, I guess, can help guide other courts, but it's not a precedent that is necessarily going to be applied nationwide, is it?
ELLYN ANGELOTTI: No, so for a case to apply to everybody, it would need to be decided by the Supreme Court. There are a handful of circuits that have also eliminated the distinction between traditional media defendants and have stated that the First Amendment applies to everybody, but this is not a uniform decision that applies to everybody in the United States.
BOB GARFIELD: Now listen, before you go, there’s one more thing that I have to discuss with you. As I mentioned earlier, last week we discussed what you called Twibel, which is libel via Twitter, The so-called “Twibel” case involving the actress and singer Courtney Love, who had, in a tweet, accused the lawyer of her late husband's estate of having been bribed, and that just caused us no end of grief because we were bombarded with tweets, saying that there is no difference between libeling somebody on Twitter and that the neologism is fatuous and we should be ashamed of ourselves. I blame you, but should we be ashamed of ourselves?
ELLYN ANGELOTTI: I even responded to some of these comments because this is not a word that I invented. This is a word that has been used in many conversations about defamation in the context of Twitter. Now that everybody has a platform to publish on, is litigation really the best remedy? Or do we need to come up with some other recourse to help people to repair their reputation or minimize the harm that false and defamatory statements can cause them?
BOB GARFIELD: All right, Ellyn, I suppose we’ll be talking again this time next week. [LAUGHS] Thanks very much.
ELLYN ANGELOTTI: [LAUGHS] Thank you.
BOB GARFIELD: Ellyn Angelotti is a lawyer and a member of the faculty of the Poynter Institute.