Ninth Circuit Provides Important Protection To Bloggers

In an important victory for free speech advocates, the Ninth Circuit has joined other courts in establishing that authors protected by the First Amendment need not be journalists to have such robust protections.

In Obsidian Finance Group, LLC v. Cox, — F.3d —- (2014) (filed Jan. 17th, 2014), the Ninth Circuit overturned a lower court decision that limited certain First Amendment protections to institutional journalists. The Court explained that “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.”

In aligning the Ninth Circuit with other circuits which have addressed the issue, the court reaffirms that negligence is the minimum legal standard for any case involving matters of public interest (and possibly all cases). To receive general damages without suffering specific harm and to receive punitive damages, the plaintiff must establish that the defendant published the statements with actual malice, meaning intentional knowledge of falsity or reckless disregard of the truth.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court established the modern First Amendment framework. Public officials must prove actual malice to prove liability. Curtis Publishing Co. v. Butts, 388 U.S. 130, (1967), then extended this standard to public figures. A decade later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974), the Supreme Court held that the First Amendment required a negligence standard for private defamation actions. Significantly less than the actual malice standard, it nonetheless established that there could not be liability without fault.

In Obsidian Financial Group, the Ninth Circuit does not suggest the defendant is blameless:

Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations.

The accusations and statements, however, were difficult to view as factual assertions. Where there were assertions of fact, the court explains, the plaintiff must establish the negligence of the statements.

The Ninth Circuit also sidestepped the issue whether the Gertz negligence standard applies to matters of purely private concern. It noted the unresolved question, when it stated that “the Supreme Court has ‘never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.’” (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 757 (1985) (plurality opinion)).

Instead, the Ninth Circuit noted that the blog was made available to the public at large, just as every blog does. Moreover, the court noted that “public allegations that someone is involved in crime generally are speech on a matter of public concern.” So instead of answering whether the negligence standard applies to private matters, the court expanded the realm of public discourse to almost any public accusation.

This strategy has the effect of expanding the negligence standard to almost any claim. It may leave certain personal matters personal, though this is unclear. It could also leave certain formats, such as personal emails, texts, and friends’ lists as matters of purely private concern, but undoubtedly many of allegedly defamatory posts on such platforms will also be matters of public concern.

The distinction between matters of public concern and purely private matters has less and less meaning, and the distinction is likely to continue to erode in the context of defamation, though perhaps remain relevant in some issues involving privacy.

Nonetheless, the case is an important victory for free speech interests. Of course, this does not mean anything can be published with impunity. Negligence is not a terribly difficult test to meet and those plaintiffs who have truly been harmed will still have their day in court. It is difficult to be the subject of online attacks, but the rules of law should apply equally to all speakers, journalists, bloggers, and citizens alike. In the Ninth Circuit, it now does.

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Two District Courts see NSA very differently

The seal of the U.S. National Security Agency....

(Photo credit: Wikipedia)

On the last day of 2013, the federal district court for the Southern District of New York handed the Obama Administration a sweeping endorsement of the NSA’s bulk telephony metadata collection program. Unlike the decision in Klayman v. Obama, the district court in ACLU V. Clapper began with the terrorist attacks of 9/11 to frame the power of the government to defend national security.

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda. …

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. …

If reasonableness stands as the constitutional framework for First Amendment rights of association and Fourth Amendment Rights to be free from governmental searches and seizures, then the reasonable government reaction to terrorism can well be understood to depend on the magnitude of the threat to determine the reasonableness of the government’s response to that threat. As the court highlighted, “[t]he natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program.”

Unlike the Klayman decision, this opinion relies not upon the search and seizure doctrines of Smith v. Maryland442 U.S. 745 (1979) as the distinct powers of the government to conduct foreign and domestic security in United States v. U.S. Dist. Court for East. Dist. of Mich., 407 U.S. 297 (1972).

The court quoted a recent decision interpreting Keith to provide for wide latitude in reviewing surveillance powers.

 Although the Keith opinion expressly disclaimed any ruling ‘on the scope of the President’s surveillance power with respect to the activities of foreign powers,’ it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible.

 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (quoting Keith407 U.S. at 322– 23) (internal citations omitted).

Klayman and Clapper diverge quickly because they begin at very different points. Klayman emphasized the importance of being the first court to provide a non-secret review of the bulk telephony program. Clapper, in contrast, offers great deference both to Congress and to the FISA judges who have reviewed the secret process. The court notes that “[f]ifteen different FISC judges have found the metadata collection program lawful a total of thirty-five times since May 2006.”

Clapper also sites evidence of success from the program:

The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court’s view, they offer ample justification:

  • In September 2009, NSA discovered that an al-Qaeda-associated terrorist in Pakistan was in contact with an unknown person in the United States about efforts to perfect a recipe for explosives. NSA immediately notified the FBI, which investigated and identified the al-Qaeda contact as Colorado-based Najibullah Zazi. The NSA and FBI worked together to identify other terrorist links. The FBI executed search warrants and found bomb-making components in backpacks. Zazi confessed to conspiring to bomb the New York subway system. Through a section 215 order, NSA was able to provide a previously unknown number of one of the co­conspirators—Adis Medunjanin.[1]
  • In January 2009, while monitoring an extremist in Yemen with ties to al- Qaeda, the NSA discovered a connection with Khalid Oazzani in Kansas City. NSA immediately notified the FBI, which discovered a nascent plot to attack the New York Stock Exchange. Using a section 215 order, NSA queried telephony metadata to identify potential connections. Three defendants were convicted of terrorism offenses.
  • In October 2009, while monitoring an al-Qaeda affiliated terrorist, the NSA discovered that David Headley was working on a plot to bomb a Danish newspaper office that had published cartoons depicting the Prophet Mohammed. He later confessed to personally conducting surveillance of the Danish newspaper office. He was also charged with supporting terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Information obtained through section 215 orders was utilized in tandem with the FBI to establish Headley’s foreign ties and put them in context with U.S. based planning efforts.

These successes are helpful to begin to understand the program. They do not, however, provide context into the efforts of anti-terrorist activities or explain whether a more focused program would provide equal or greater protections without affecting millions of individuals who have a right to be free from data searching.

Or perhaps the Clapper court is correct that national security is different from criminal investigations and more needs to be done to codify the distinction articulated in Keith. The constitutional question remains what his reasonable under the circumstances. Neither decision has been able to answer that question because too much information and power is left to the discretion of the executive branch and secret proceedings.

Investigations need to be clandestine, but there is no reason that the nature of constitutional protections is not fully understood and debated.

I do not know if the geographic location of the court is relevant, but the shape and culture of lower Manhattan has been transformed by 9/11 in a manner that makes it part of its zeitgeist. Having by coincidence visited the site of the 9/11 memorial with my family the day the Clapper decision was handed down, I was overwhelmed by the thousands of visitors who spoke all languages and came from towns across the world to remember and reflect. The meaning of reasonable takes on different aspects in the shadow of such history. Whether it should do so must also be part of our national debate.

The tension between Klayman and Clapper should lead to a healthier understanding regarding terrorism and surveillance, but only if the two starting points of the two decisions can be understood and reconciled. Liberty is protection from oppression. Oppression can come from the government, its enemies, or the unchecked, mob-like will of the majority. Oppression cannot be stopped with more oppression, only with more liberty.

Klayman and Clapper cannot be reconciled, but the two decisions have the potential to help us find the right path. The lessons of each decision are best understood as part of a dialogue rather than discrete declarations. That dialogue has only begun.


[1] The court explains the Section 215 order as follows:

In 1998, Congress amended FISA to allow for orders directing common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities to provide business records to the Government. See Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998). These amendments required the Government to make a showing of “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” §602.

After the September 11th attacks, Congress expanded the Government’s authority to obtain additional records. See USA PATRIOT Act of 2001, Pub. L. 107-56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861) (“section 215”).’ Section 215 allows the Government to obtain an order “requiring the production of any tangible things (including books, records, papers, documents, and other items),” eliminating the restrictions on the types of businesses that can be served with such orders and the requirement that the target be a foreign power or their agent. The Government invoked this authority to collect virtually all call detail records or “telephony metadata.” See infra, Part II. See generally David S, Kris, On the Bulk Collection of Tangible Things, 1 Lawfare Res. Pap. Ser. 4 (2013).