1st AMENDMENT…The Freedom to be Wrong!

I was forwarded an article by Jeff Barnard of the AP opining on a recent Federal Court decision from the 9th Circuit regarding the 1st Amendment–the very first federal appellate ruling affording bloggers, such as myself,  legal protections similar to those of journalists generally.

While I’ve been threatened, to no result, multiple times, with lawsuits and other random attempts to dull my pen, this decision impacts beyond my desk to anyone giving wide circulation about an injustice, or an opinion on a “public issue.”

Some frame of reference.  A series of blogs I posted early last year received widespread attention, including commentary by the Miami Herald, R Street Institute and others. Not so much because of what I wrote, but…because someone I wrote about tried to stop me.

The series of articles narrowed to a public adjuster upset at my observation that his firm’s name  appeared intended to make people think he was with the government. His threat:

“…cease and desist and remove our name right away.  Failure to do so will result in a suit, naming you for damage to our reputation and name.”

Incredulous, I did no such thing.

Just the opposite. I published additional research demonstrating that his firm might be violating both state and federal law. In my published response (Freedom of Speech & the USA), I offered to print his full unedited reply should he care to offer one. He didn’t. I now find the links I provided to his website no longer work.

Retained counsel during the episode provided advice, much of which, if followed, would’ve restricted me from mentioning anyone by name and merely citing applicable statutes without stating that someone, anyone, may be in violation thereof–cogent but, impractical, especially when exposing that a specific name may be in violation of a specific statute. A broader application could handcuff exposing some entities committing far more egregious acts and deceptions.

In 2010, Crystal Cox, a self described “investigative blogger” published posts attacking   Obsidian Finance Group and its partners. She accused them of tax fraud, money laundering, and more. Her posts were published on websites with names like “obsidianfinancesucks.com.”

Obsidian and one of its partners sued for defamation.

The Ninth Circuit in Obsidian Finance v. Crystal Cox  used convoluted language to isolate a simple proposition–even though someone might not write for the “institutional press,” they’re entitled to protections the Constitution grants journalists.

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.”

One AP article quotes Gregg Leslie of the Reporters Committee for the Freedom of the Press saying the ruling affirms what many have long argued: “Standards set by a 1974 U.S. Supreme Court ruling, Gertz v. Robert Welch, apply to everyone, not just journalists.”

“It’s not a special right to the news media,” he said. “So it’s a good thing for bloggers and citizen journalists and others.”

To me the real beauty of this decision, is not that millions of bloggers just like me were right  but, that we now have the media’s freedom to be wrong.


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  1. In my 50+year career selling every kind of insurance known to man trying to survive in such a highly competitive and at the same time most over regulated business I know of, I have not yet seen any government solution that worked long term. Yes, I sold flood, yes I sold Citizens, yes, I collect social insecurity & mediscare.and the fact that they are broke may not impact me at this stage of life but they will fail as currently written. Scott, there is no time in my career that so vividly draws the line between political solutions and market solutions. Companies shoot themselves in the foot constantly and yes they get it wrong often but even with their failures, they are better solutions than political solutions they have to compete. Can’t help but wonder, what would I do if I were in their shoes knowing that my very survival depended on the next election.

    Agents will sell whatever they have to sell even if they change our title to ‘navigators’. The victims will be the public who have probably seen all they care to of the word ‘insurance’..

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