I’m pleased to report that our local counsel, Benjamin Souede of Angeli Law Group LLC, and I will be representing the defendant blogger in Obsidian Finance Group, LLC v. Cox (D. Or.); we will be filing a motion for new trial, and an appeal to the Ninth Circuit if the motion is denied.
Gertz v. Robert Welch, Inc. (1974) held that even private-figure libel plaintiffs (1) may not recover proven compensatory damages unless the defendant was at least negligent in its investigation, and (2) may not recover presumed or punitive damages unless the defendant knew the statement was false or recklessly disregarded a known and substantial risk that the statements were false. The District Court in Obsidian Finance held that the defendant was not entitled to the protection of Gertz, because she was not a member of the “media.” But as I’ve argued in my forthcoming University of Pennsylvania Law Review article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, the First Amendment has historically been understood as protecting people who use mass communications technology equally, whether or not they are members of the institutional media. I much look forward to litigating this case, and, I hope, getting the District Court decision reversed.