Motion for New Trial in Obsidian Finance Group, LLC v. Cox

Eugene Volokh

January 5, 2012

Our local counsel Benjamin Souede (Angeli Law Group LLC) [ http://angelilaw.com/professionals/benjamin-souede/ ] and I have just filed a motion for new trial in Obsidian Finance Group, LLC v. Cox [ http://ia600403.us.archive.org/9/items/gov.uscourts.ord.101036/gov.uscourts.ord.101036.106.0.pdf ]. As you may recall, the Nov. 30 opinion in that case [ http://scholar.google.com/scholar_case?case=10377762955466572966 ] concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections. The motion for new trial [ http://ia600403.us.archive.org/9/items/gov.uscourts.ord.101036/gov.uscourts.ord.101036.106.0.pdf ] argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media. Here is Part I.A of our memorandum in support of the motion:

Even if plaintiffs were not public figures, defendant was still entitled to the protections of Gertz v. Robert Welch, Inc.

The Supreme Court has held that the First Amendment applies equally to the institutional press and to others who speak to the public: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (internal quotation marks omitted). In support of this holding, the Court favorably quoted five Justices’ opinions in a libel case — Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting), and id. at 773 (White, J., concurring in judgment) — which expressly concluded that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities,” id. at 784 (a view expressly approved by Justice White, id. at 773). And the Court in Citizens United went on to specifically mention that its “‘reject[ion]’” of any greater protection for the institutional press over other speakers stemmed partly from the realities of the Internet age: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” 130 S. Ct. at 905–06.

Indeed, the principle that the institutional press and others who speak to the public have the same First Amendment rights has been applied by the Court in case after case since the 1930s. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (stating that the freedom of the press “embraces pamphlets and leaflets” as well as “newspapers and periodicals,” and indeed “comprehends every sort of publication which affords a vehicle of information and opinion”); New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964) (applying the same First Amendment protection to the newspaper defendant and to the non-media defendants who placed an advertisement in the newspaper); Garrison v. Louisiana, 379 U.S. 64 (1964) (applying the rule of New York Times Co. v. Sullivan to a speaker who was not a member of the institutional press); Henry v. Collins, 380 U.S. 356, 357–58 (1965) (same, where the speaker was an arrestee who conveyed statements to the sheriff and to wire services alleging that his arrest stemmed from a “diabolical plot,” Henry v. Collins, 158 So.2d 28, 31 (Miss. 1963)); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 782 n.18 (1978) (rejecting the “suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by [non-institutional-press businesses]”); Cohen v. Cowles Media Co., 501 U.S. 663, 669–70 (1991) (concluding that the press gets no special immunity from laws that apply to others, including laws — such as copyright law — that target communication); Bartnicki v. Vopper, 532 U.S. 514, 525 & n.8 (2001) (concluding that, in deciding whether defendants could be held liable under statutes banning the redistribution of illegally intercepted telephone conversations, “we draw no distinction between the media respondents and [the non-institutional-media respondent],” and citing New York Times and First Nat’l Bank of Boston as support for that conclusion).

All the federal circuits that have considered the question have likewise held that the First Amendment defamation rules apply equally to the institutional press and to others who speak to the public. Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980); Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011); In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985); Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975). As the Second Circuit put it in Flamm, “a distinction drawn according to whether the defendant is a member of the media or not is untenable,” even in private-figure cases. 201 F.3d at 149. And while the Ninth Circuit has not specifically discussed the question, it has indeed cited Gertz even where a non-institutional-press speaker was involved. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 n.4 (9th Cir. 1998) (citing Gertz for the proposition that a “private person who is allegedly defamed” must show “that the defamation was due to the negligence of the defendant,” in a case where the defendant was not a media organization).

Moreover, the Ninth Circuit’s reasoning with regard to the First Amendment newsgatherer’s privilege is instructive for First Amendment cases more generally. In Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), the Ninth Circuit confronted the question whether the newsgatherer’s privilege applies only to the institutional press or also extends to book authors. Plaintiffs argued that a person who was writing a book “has no standing to invoke the journalist’s privilege because book authors are not members of the institutionalized print or broadcast media.” Id. at 1293.

But the Ninth Circuit expressly rejected that view. It found “persuasive” “the Second Circuit’s reasoning” that “it makes no difference whether ‘[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill’ because ‘“[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”’” Id. (alterations in original) (quoting von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), which in turn quoted Lovell v. City of Griffin, 303 U.S. 444, 452 (1938)). And the Ninth Circuit concluded that “[h]ence, the critical question for deciding whether a person may invoke the journalist’s privilege is whether she is gathering news for dissemination to the public,” id., not whether she is working for the institutional media.

The same reasoning applies to the First Amendment defamation law rules, which are even more clearly secured by First Amendment precedents than are the First Amendment journalist privilege rules. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 531–32 (7th Cir. 2003) (taking the view that the Supreme Court’s First Amendment precedents do not in fact recognize a newsgatherer’s privilege). Anyone who — like defendant — is disseminating material to the public is fully protected by the First Amendment precedents, whether or not she is a “member[] of the institutionalized print or broadcast media.”

Moreover, the Supreme Court cases cited above did not turn on whether the defendants were trained as journalists, were affiliated with news entities, engaged in fact-checking or editing, disclosed conflicts of interest, kept careful notes, promised confidentiality, went beyond just assembling others’ writings, or tried to get both sides of a story. But see Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334, *5 (D. Or. Nov. 30, 2011) (concluding that the defendant was not protected by Gertz because “[d]efendant fails to bring forth any evidence suggestive of her status as a journalist,” and that, “[f]or example, there is no evidence of (1) any 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, fact-checking, 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 and postings of others; or (7) contacting ‘the other side’ to get both sides of a story”). The First Amendment fully protects the partisan polemicists in Citizens United v. FEC, the political activist in Bartnicki v. Vopper, the self-interested bank in First Nat’l Bank of Boston v. Bellotti, the disgruntled defendant in Henry v. Collins, the elected district attorney in Garrison, the activists in New York Times Co. v. Sullivan, and the Jehovah’s Witness pamphleteers in Lovell v. City of Griffin. It equally fully protects defendant.

In footnotes from a few cases from 1979 to 1990, the Court did leave open the possibility that some of its First Amendment defamation rules would only apply to the institutional press. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 n.6 (1990). And a few other courts, including the Oregon Supreme Court, expressly held that such First Amendment defamation rules, and especially the Gertz v. Robert Welch protections, apply only to the institutional press. See, e.g., Wheeler v. Green, 593 P.2d 777, 784–85 (Or. 1979).

But while the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights. And the Supreme Court’s decision in Citizens United expressly closed the door that the earlier footnotes left open, making clear that a speaker’s First Amendment rights do not turn on whether she is a member of the institutional press.

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