The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Federal Court Upholds Bloggers’ Rights

Posted on | January 18, 2014 | 22 Comments

Eugene Volokh cites a ruling yesterday by the Ninth Circuit Court of Appeals in the case of Obsidian Finance Group v. Cox:

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, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

This is obviously relevant to the Maryland lawsuit Kimberlin v. Walker, et al., as well as to the federal lawsuit that my co-defendant John Hoge has dubbed Kimberlin v. the Universe, et al.

It’s interesting that the Ninth Circuit cited the Citizens United case, which figured prominently as a casus belli for the anti-Clarence Thomas campaign of Kimberlin’s Velvet Revolution.

It’s also interesting that in neither his state nor federal lawsuits against bloggers does Brett Kimberlin mention his role in founding Velvet Revolution which, the last time I checked, was located at the same Bethesda street address — i.e., Kimberlin’s mother’s basement — listed on Kimberlin’s legal filings in both cases.



22 Responses to “Federal Court Upholds Bloggers’ Rights”

  1. K-Bob
    January 18th, 2014 @ 11:40 am

    Excellent. Obviously a ruling in favor of the First Amendment applying to all people in the public square is far healthier to “professional” journalists, than one which limits who does and does not get to take advantage of the First Amendment.

    Credentials can be revoked.

  2. Dianna Deeley
    January 18th, 2014 @ 11:45 am

    Yes, but it’s the Ninth Circus – it appears to be a sound decision (and I’m very happy to see it), but I am gloomily aware that there is no circuit as often overturned as is the Ninth.

  3. robertstacymccain
    January 18th, 2014 @ 11:48 am

    The important thing to understand is that journalism is an activity, rather than a professional club whose membership is self-selecting.

    As I have often said, I write for money — that is to say, this blog is an exercise in shameless capitalism and, unlike many “professional news organizations” (e.g., the Orange County Register lately) I actually derive a net income from this. How is it that my profitable blogging is not “journalism,” but such money-losing enterprises are?

    It’s a preposterous distinction. And therefore you should hit my tip jar, if only so I can keep rubbing those bastards’ nose in it.

  4. LADowd
    January 18th, 2014 @ 12:48 pm

    RT @smitty_one_each: TOM Federal Court Upholds Bloggers’ Rights #TCOT

  5. M. Thompson
    January 18th, 2014 @ 11:51 am

    Well, the 9th is overturned because it’s the largest by caseload. The ideas here should be uniformly applicable, and I hope the matter of law the Supremes let it rest.

  6. robertstacymccain
    January 18th, 2014 @ 11:51 am

    Yes, I noticed that. “The Ninth Circus Court of Schlemiels,” as Mark Levin calls them.

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  8. Evi L. Bloggerlady
    January 18th, 2014 @ 12:38 pm

    That is a broad statement. The ninth is also the biggest circuit and it is hardly the clown show it once was. Now if you want really crazy…go East young lady, go East!

  9. DaveO
    January 18th, 2014 @ 12:41 pm

    Which means folks can now blog about the couple that created the financial instruments (packaging and selling debt) that created the housing market meltdown of 2005-2008. With their billions, they threatened to sue anyone who wrote about them until the blogger was too poor to even make the poverty statistics. Also financed Hillary and Obama and make the Koch brothers look penny ante when it comes to political funding.

  10. richard mcenroe
    January 18th, 2014 @ 12:45 pm

    OK, PLAINLY Obama has to take his little pen and issue an Executive Order clarifying that the First Amendment requires a W-2 or at least a Form 1099 from an established, recognized-by-the-consensus professional journalistic-like entity before any white Christian heterosexual male may invoke the protections of said amendment. As President and a Consitutional scholar, it is his duty to the nation.

  11. richard mcenroe
    January 18th, 2014 @ 12:47 pm

    The 9th Circuit skews so far left that it would have hit the GOP in the ass by now if the GOP wasn’t also running as far left as fast as it could. That has a lot to do with many of the overturnings.

  12. Evi L. Bloggerlady
    January 18th, 2014 @ 1:05 pm

    This is sort of a myth. Many Ninth Circuit judges are conservative (or at least right leaning). While it certainly has a strong liberal crazy wing to it, it is not as bad as it was. The ninth circuit is essentially the whole west coast, making it the largest circuit by far and thus the one most over turned.

    When you have a federal court of appeals affirming that Massachusetts has to pay for sex change operations for murderers–I think that counts as the most bat shit crazy decision I have heard in a long time.

  13. K-Bob
    January 18th, 2014 @ 1:24 pm

    What amazes me is that so many people need to learn this lesson.

    In all the years I spent playing in bands, I was constantly amazed at the number of kids who’d gig for free.

    ~~~wavy lines indicating flashback~~~~~~

    One terribly sad story involved a band whose members all had their gear purchased by their parents. They found a bar that would let them play, if they paid to rent the “stage” (a spot in front of a wall where they moved a few tables).

    They had an equipment manager, too. He drove a van! He got to watch the band for free!

    They had to drive into Detroit to play this gig where they lost money walking thru the door. Which took gas money, of course.

    After the second night, the equipment manager decided to park the van at his girlfriends house and spend the night, rather than drive all the gear back home.

    Next morning, he went outside to discover it was gone.

    Never gig for free.

    Always ask for top dollar.

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  15. DaveO
    January 18th, 2014 @ 4:58 pm

    Disagree: not so much a myth as a matter of structure. Each judge on the 9th Circuit reviews cases from a specific area, and in some cases will call a small version of the court: 1-3 judges, and other times the matter of law will be review by the full court. Because of the practice of Judge-shopping, and because judges are appointed on the basis of their politics, the 9th Circuit sees the most liberal of all cases, and because of the politics of the judges who oversee California, we see whacked out legal judgements that then have to be reviewed and usually overturned.

  16. Bob Belvedere
    January 18th, 2014 @ 5:14 pm

    Yes! Obama must penumbra another of his emanations.

  17. Evi L. Bloggerlady
    January 18th, 2014 @ 7:23 pm

    Depends on the case. You can only shop so far on some diversity cases. On others, sure you can pick and choose.

  18. Adjoran
    January 18th, 2014 @ 8:10 pm

    That doesn’t account for the fact that the 9th Circuit has been overturned by SCOTUS more than every other circuit combined.

  19. Adjoran
    January 18th, 2014 @ 8:17 pm

    The main reason the 1st covers freedom of “the press” is to ensure that “speech” could not be narrowly construed. To the Founders, the “press” included distribution of flyers and pamphlets, which was a major form of political expression in the 18th Century.

    Of course newspapers were included, too, but it was never intended to focus on them.

    As Stacy pointed out, it is the “activity” of journalism which is protected, not any institution, business, or “profession.”

  20. Adjoran
    January 18th, 2014 @ 8:19 pm

    The problem, of course, is not geography or arbitrary judicial circuit lines, but Democratic appointees (for the most part, there are also many disappointing Republican nominees, but far fewer proportionally). If we never elected Democrats we would have better judges.

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