Bloggers Receive Same Constitutional Protection as Traditional Press in Defamation Claims, Rules 9th Circuit Court of Appeals

By on January 18, 2014 in Journalism

KeyboardThe 9th Circuit Court of Appeals ruled Friday that bloggers receive the same First Amendment protection as traditional members of the press when facing defamation charges. Writing the majority opinion, Judge Andrew Hurwitz held that, “[t]he protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities . . . [because] 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.”

The plaintiffs, Obsidian Finance Group and its co-founder Kevin Padrick, sued blogger Crystal Cox for defamation after Cox wrote about the plaintiffs’ allegedly fraudulent conduct on her blog. Cox’s blog states that she is dedicated to, “Exposing Obsidian Finance Group and Kevin D. Padrick for Abuse of his Power as Trustee in the Summit Accomodators.” The defamation claim cites a number of Cox’s blog posts regarding the plaintiffs’ alleged bankruptcy code violations. Cox’s blog claims the plaintiffs were involved with corruption, deceit on the government, and money laundering, among other claims.

The court, citing Gertz v. Welch, held that the plaintiffs had the burden of proving negligence for their defamation claim despite the fact that Cox is not an institutional media defendant. Judge Hurwitz distinguished between matters of private and public concern, holding that Cox’s allegations are a matter of public concern as the post concerned alleged fraud upon Obsidian’s investors and the blog post was published to “the public at large.”

The case was on appeal from a December 2013 judgment ruling for the plaintiff in which Cox was ordered to pay $2.5 million for damages sustained by the plaintiff.

Samantha Scheller is a 2L at the UNC School of Law.

(Photo courtesy of Flickr user orangeacid, licensed under a CC BY-SA 2.0 license.)

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A UNC Student’s Summer Experience at the Chilling Effects Clearinghouse, a Project of the Berkman Center for Internet and Society

By on January 14, 2014 in Copyright, First Amendment, Internet

Berkman Center LogoLet me start by saying that I really like information. Numbers, lists, facts, data, trivia. I like them all. I’m an information junkie. I also happen to love the First Amendment. Given this, it’s not surprising that I was so excited to spend this past summer interning with the Chilling Effects Clearinghouse at the Berkman Center for Internet & Society. Chilling Effects collects threats to free expression online, mostly in the form of DMCA take-down notices and similar intellectual property infringement claims, although Chilling Effects receives notices of other threats to free speech as well. All of that information is compiled into a searchable database. Being able to work with Chilling Effects, to explore this database, and to see “under the hood” was a great way to combine my interest in data with my passion for the First Amendment.

The summer was jumpstarted with a joint project involving myself and the two other Chilling Effects interns. Our task was to track down questionable trademark infringement claims in the database. We sorted through hundreds of these claims, looking to see if the people who filed them had concerns beyond trademark infringement — for example, someone whose real issue might be closer to a defamation claim than a trademark claim, but the latter might more quickly and effectively take down the content in question, since defamation claims can be costly to pursue and difficult to win. In other words, we scoured the database looking at potentially fraudulent trademark infringement claims that were being used to stifle free expression online. Once we wrapped up our search we worked with Jeff Hermes at the Digital Media Law Project to turn our findings into content for a presentation he was giving. One of the best parts of summer at the Berkman Center was a project like this one because I got to work with the other interns, all of whom were passionate, curious, and eager to spend the summer researching and working on a variety of Berkman projects.

On top of working with these great people, interns attended weekly presentations by leaders in the technology and policy fields. One week we got to hear from NYU privacy scholar Helen Nissenbaum, who spoke about transparency and privacy issues in accessing online court records. Earlier in the summer many of us attended a book launch for ReWire: Digital Cosmopolitans in the Age of Connection by Ethan Zuckerman of the MIT Center for Civic Media. But perhaps the most fun “intern hour” was an interactive demonstration of Google Glass. We might have looked ridiculous, but we loved being among the first to check out this new wearable computing technology.

The summer flew by. When news broke about the NSA’s PRISM program, I started reading everything I could about the issue and turned my research into a blog post featuring a timeline of Edward Snowden’s leaks and related news about the program. The best part about the blogging for Chilling Effects was that I got to use the Chilling Effects database to add color, facts, and figures to the stories that were already out there. For example, when Twitter released it’s annual Transparency Report in July, I combined their reported data with information stored in the Chilling Effects database. By layering the Chilling Effects’ data on top of Twitter’s, it was easy to start to see the bigger picture for how Twitter handles attempts by countries to censor tweets or account holders.

My summer internship at the Berkman Center gave me the opportunity to work with an area of the law that I am passionate about and introduced me to dozens of new friends and peers who are equally excited about the future of technology, law, and policy. It was by far the most exciting and memorable summer I’ve had and it was an honor to work with some of the world’s leading tech and policy thinkers. Summer 2014 Berkman Center internship applications just opened up and are being accepted until February 16.  If you’re interested applying you can find more information on the Center’s Internship page here.

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Appeals court (mostly) strikes down net neutrality rules

By on January 14, 2014 in FCC, Internet

The D.C. Circuit today held that the Federal Communications Commission’s network neutrality nondiscrimination rules were invalid because the FCC lacked the authority to regulate how Internet providers treat content. The “Open Internet” rules, passed in 2010, required ISPs to treat all Internet content equally. Under the rules, a provider such as Verizon could not block or slow down certain Internet content or allow companies to pay for their content to be delivered faster. The Court said that the FCC can only impose such regulations on common carriers, such as telephone companies, and that ISPs are not common carriers. Read the opinion here.

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New Center Video Gallery Launched

By on January 9, 2014 in Journalism

Since 2009, the Center has been holding a variety of events and workshops. Whenever possible, we live-stream and make archive video available on each event’s individual page. To make it easier to find these videos, we have compiled all of our event videos into a gallery so our community of users can easily browse and view footage of the diverse programs that we offer. It is our goal that this collection, which includes public addresses by scholars like Harvard Professor Lawrence Lessig, media executives like NBC News President Ben Sherwood, and public officials like former FCC Commissioner Michael Copps, will inspire lively discussions amongst those interested in the relationships between communication and government policy. We encourage you to check out the gallery and welcome your feedback.

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Free Speech Assumptions and the Case of Netflix

By on December 13, 2013 in First Amendment, Internet, Journalism
From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

There are two (among many) huge assumptions we make when we speak of a right to free speech or free expression.

The first assumption is that such speech can actually be formed.

The second is that such speech will be heard.

For the disabled, neither assumption is a given.  The disabled who can speak are often not heard. Their voices are either lost in a crowded marketplace focused on elite influencers or their speech is lacking or misunderstood because of the nature of their disability.

How then do we conceptualize a right of free speech for the disabled? Can we think about the Americans with Disabilities Act (ADA) in connection with a right of free expression? Do we have any case law that might lead us to consider such a connection? (The short answer to this last question, I think, is “yes.” More on that below.)

Haben Girma, the first deaf/blind student to graduate from Harvard Law School, had me reflecting on these questions during her visit last month to UNC. Haben, who was invited by Advocates for Carolina, a student group formed to reflect on life for the disabled on the UNC campus, spoke about her disability and her story to WUNC and to more than 100 students gathered in the Student Union. She now spends her days as a Skadden Fellow at Disability Rights Advocates in San Francisco, where she works to increase the accessibility of digital instructional materials at colleges and universities.

Like others who have struggled to make a life for themselves amidst an able-bodied culture, Haben refused to allow society to shut her out. She has spent her young life problem-solving around a profound inability to engage in the marketplace of ideas as seamlessly as the rest of us do. While certainly no law has directly infringed Haben’s right to free speech, it is very clear that her speech experience has been profoundly different than the experiences of most U.S. citizens.

That raises the question of government responsibility: What is the state’s role, if any, in assuring access to the marketplace of ideas for those whose access is impaired by a physical and/or mental limitation? And how can digital and online media technologies contribute to that access?

It’s a question I’m interested in thinking more about after Haben’s visit and in the wake of a settlement last year between Netflix and the National Association of the Deaf. The Netflix case revolved around the movie service’s “Watch Instantly” on-demand service, which failed to provide closed captioning on all content. The case ended with a consent decree that mandated Netflix provide captions on all streamed programming by 2014.

Federal District Court Judge Michael Ponsor rejected Netflix’s argument that the American with Disabilities Act (ADA) did not require Internet Service Providers and other digital media providers to make accommodations:

“In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”

In other words, the Internet’s marketplace of ideas must and should be accessible to the disabled. This expanded view of the ADA bears watching for its First Amendment implications going forward. In the meantime, I’ll be sending the link to this post to Haben, hoping that she will post a response below.

 

 

 

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