This is a two-part series about two court decisions from the Ninth Circuit Court of Appeals regarding two commonly raised issues among bloggers of all varieties: taxes and free speech.

PART I: Blogging and Tax Write-Offs – this post covers the recent opinion from the 9th Circuit affirming the Tax Court’s denial of alleged business deductions of a part-time travel writer.  (Oros v. Comm. of Internal Revenue, Case No. 12-71071 (9th Cir. 2013, Not for Publication)).
PART II: Blogging and the First Amendment – this post discusses another 9th Circuit opinion that places bloggers on level with traditional news journalists regarding First Amendment protections from defamation claims. (Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir., January 17, 2014).

Enough About Taxes, What About My First Amendment Rights As A Blogger?
Bloggers vary greatly in terms of the extend they deliver content to the reader. Some stick to pure delivery of information. Others push, and exceed, the bounds of opinion and controversy.

Additionally, a few bloggers are professionally educated and experienced journalists, while most are…well… just another person armed with a computer and internet connection. But quality aside, where do bloggers stand legally with respect to delivering information to the masses; with “reporting” to the pubic. Are they “media” or some sui generis category deserving of a unique examination of First Amendment rights? One court has spoken on just that.
In a Ninth Circuit opinion issued on January 17, 2014 (here), the court said:

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 v. Federal Election Commission, 558 U.S. 310, 352 (2010).

freedom of press amendment

Plaintiffs suing bloggers over statements on matters of public concern must prove the speaker (read: writer) was negligent about the falsity of the statement

This opinion comes in the context of defamation and libel liability after an internet blogger, Crystal Cox, made statements on a website ( that led to a $2.5 million libel verdict against her that is now reversed and remanded to trial (with directions consistent with the Ninth Circuit’s opinion). Ms. Cox (with the help of her attorney, Eugene Volokh of The Volokh Conspiracy fame) hit two important home runs for bloggers in the Ninth Circuit. In general:

  1. Plaintiffs suing bloggers over statements on matters of public concern must prove the speaker (read: writer) was negligent about the falsity of the statement, i.e. the state of mind of the speaker is at issue, and
  2. Plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false, i.e. that the speaker acted with actual malice.
freedom of press amendment

Truth, or substantial truth, is a complete defense to a claim of defamation.

The Takeaway
Putting bloggers on the same level as “traditional media” by a federal court of appeals is huge for freedom of speech rights in online speech and for building on the foundation of the still young medium of online content and transmission of information. The added hurdle of requiring a defamation plaintiff to show an online author had actual knowledge that the published content was false at time of posting builds a greater burden on the plaintiff to seek any damages, rather than on the defendant who would affirmatively defend it. Remember: The truth (in a blog) will set you free.



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