The refrain that bloggers can’t be trusted to produce accurate, factual information and reporting is a familiar one. Now, though, courts are beginning to give the cliche some legal bite. While in the short run those cases are wins for the individual bloggers involved, the bigger picture suggests that we shouldn’t be too quick to celebrate.
The basic problem is this: As we all know, you can’t sue someone for defamation based on opinion, as opposed to factual statements. That standard applies the same to the Washington Post as it does to YoMammaSo.blogspot.com. It’s possible to argue, though, that statements on a blog are inherently less “factual,” making it harder to sue for defamation. Some online defendants are starting to find some success with this strategy, and more power to them.
I get nervous, though, with any legal standards based on blogs’ second-class status. Other tangible legal interests could be affected by such rulings (I’m thinking in particular of reporters’-shield laws). And more generally, the “you can’t trust these crazy bloggers” sentiment doesn’t seem to be in the long-term interests of online media.
The case I have in mind — Obsidian Finance v. Cox, out of the federal district court in Oregon (see CMLP’s full treatment of the case here) — goes something like this: Blogger runs angry, critical website. Target of criticism sues. Court says that, because blogger is obviously angry and critical, nobody would believe that she’s making any factual claims.
The district court’s ruling (PDF here) is the fullest treatment I’ve seen of the theory that blogs, as an inherently less factual medium, are less susceptible to defamation suits. Judge Marco Hernandez turns to the Ninth Circuit’s standard test (first laid out in Unelko Corp. v. Rooney but expanded upon in Partington v. Bugliosi) for deciding whether a written work is “factual” (and thus open to defamation claims) or “opinion” (protected by the First Amendment). That test, first of all, looks not at the author’s intent to be “factual” or not, but instead turns on how a reasonable reader would interpret the information. To figure out how readers will take the information, the test looks to the “context” of the work, both in a broad, general-tenor sense (which includes “the subject of the statements, the setting, and the format”) and in a more focused sense (looking at things like the writing style of the disputed content, whether figurative language was used, and so on).
Judge Hernandez ended up ruling that Cox, who runs a website critical of Obsidian Finance’s acts in the bankruptcy realm, was writing opinion and not fact. And that’s fine with me. The judge’s order runs through plenty of evidence — the website’s URL (ObsidianFinanceSucks.com), the subject matter (bankruptcy disputes), the language and tone (described as “stream of consciousness”) — to suggest that Cox’s posts aren’t “factual” in the defamation-law sense of the word. Instead, Cox is just someone with (as the judge puts it) a “personal vendetta” against Obsidian Finance. Her writing makes that bias obvious, which undercuts the factual nature of her blog.
Now, that’s fine. I’ve got no problem with looking at the entirety of a website to decide how factual or non- various statements are. (Otherwise, The Onion would have a lot of trouble). That inquiry focuses on the message being conveyed, not on the medium used to convey it.
I get more nervous when the ruling veers off into broader generalizations about blogging as a form. Judge Hernandez’s order is littered with references to the idea that blogs and other types of online fora have an inherently “looser, more relaxed communication style,” that causes readers to give blogs “less deference” than other media. Judge Hernandez’s particularly cringe-worthy language: “blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact.”
First of all, generalizations about blogs weren’t necessary in Cox’s case. Like I said, there was plenty of specific-to-Cox evidence to show that her blog wasn’t factual. That kind of context, that looks at a blog on its own terms, and not as part of some untrustworthy “subspecies” of shady bloggers, seems totally right to me. After all, if Cox had published her exact words in a gorgeous leather-bound volume (the ENCYCLOPÆDIA OBSIDIANSUCKSICA), I can’t imagine Judge Hernandez would find it to be any more “factual.” Put another way: The important factor is that Cox was an obviously biased blogger, not an obviously biased blogger (if you get my meaning). But the more courts make sweeping pronouncements about blogs and other online media, the easier it gets to marginalize bloggers in other legal settings.
I get particularly queasy because that “looser, more relaxed communication style” language comes straight from TooMuchMedia v. Hale. Unlike most of the cases Judge Hernandez cited, TooMuchMedia (see our entry here) isn’t a standard “is-this-factual-or-not” defamation case — it’s a journalists’-shield-law case, in which the New Jersey Supreme Court denied the defendant’s attempt to use the state shield law because the statute requires a connection to the news media. That’s how this sentiment, that blogs are an inferior “subspecies” of medium, can leak out and poison the well in all sorts of important ways. Shield laws and newsgathering privilege jump immediately to mind, but there are surely other important legal contexts; bloggers don’t need an uphill battle against a pile of cases waxing poetic about blogs’ inherent lack of credibility.
I don’t want to come across as overly alarmist. While cases like TooMuchMedia seem to marginalize online speakers, decisions like the New Hampshire Supreme Court’s in Mortgage Specialists v. Implode-Explode Heavy Industries, Inc. (a case in which the CMLP filed an amicus brief) push back the other way, recognizing websites’ newsgathering privilege with barely a second thought. But when it comes to the close calls, I’d rather not hand skeptical judges a pile of cases that prattle on about how you just can’t trust those bloggers.
John Sharkey is currently a student at Harvard Law School; before that, he studied English Lit. at the University of Minnesota. David Foster Wallace is his favorite author.
Citizen Media Law Project (http://www.citmedialaw.org).