Obsidian Finance Group, LLC v. Crystal Cox , 740 F.3d 1284 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OBSIDIAN FINANCE GROUP, LLC; No. 12-35238
KEVIN D. PADRICK,
Plaintiffs-Appellees, D.C. No.
3:11-cv-00057-
v. HZ
CRYSTAL COX,
Defendant-Appellant.
OBSIDIAN FINANCE GROUP, LLC; No. 12-35319
KEVIN D. PADRICK,
Plaintiffs-Appellants, D.C. No.
3:11-cv-00057-
v. HZ
CRYSTAL COX,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted
November 6, 2013—Portland, Oregon
Filed January 17, 2014
2 OBSIDIAN FINANCE GROUP V. COX
Before: Arthur L. Alarcón, Milan D. Smith, Jr.,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz
SUMMARY*
Defamation
The panel affirmed in part and reversed in part the district
court’s judgment awarding compensatory damages to a
bankruptcy trustee on a defamation claim against an Internet
blogger.
The panel held that Gertz v. Robert Welch, Inc., 418 U.S.
323, 350 (1974) (holding that the First Amendment required
only a “negligence standard for private defamation actions”),
is not limited to cases with institutional media defendants.
The panel further held that the blog post at issue addressed a
matter of public concern, and the district court should have
instructed the jury that it could not find the blogger liable for
defamation unless it found that she acted negligently. The
panel held that the bankruptcy trustee did not become a
“public official” simply by virtue of court appointment, or by
receiving compensation from the court. The panel remanded
for a new trial on the blog post at issue, and affirmed the
district court’s summary judgment on the other blog posts
that were deemed constitutionally protected opinions.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OBSIDIAN FINANCE GROUP V. COX 3
COUNSEL
Eugene Volokh (argued), Mayer Brown LLP, Los Angeles,
California, for Defendant-Appellant/Cross-Appellee.
Robyn Ridler Aoyagi, Steven M. Wilker (argued), and David
S. Aman, Tonkon Torp LLP, Portland, Oregon, for Plaintiffs-
Appellees/Cross-Appellants.
Bruce D. Brown, Gregg P. Leslie, and Jack S. Komperda,
Arlington, Virginia, for Amicus Curiae The Reporters
Committee for Freedom of the Press.
Thomas C. Goldstein, Goldstein & Russell, P.C.,
Washington, D.C., for Amicus Curiae SCOTUSblog.com.
OPINION
HURWITZ, Circuit Judge:
This case requires us to address a question of first
impression: What First Amendment protections are afforded
a blogger sued for defamation? We hold that liability for a
defamatory blog post involving a matter of public concern
cannot be imposed without proof of fault and actual damages.
I.
Kevin Padrick is a principal of Obsidian Finance Group,
LLC (Obsidian), a firm that provides advice to financially
distressed businesses. In December 2008, Summit
Accommodators, Inc. (Summit), retained Obsidian in
connection with a contemplated bankruptcy. After Summit
4 OBSIDIAN FINANCE GROUP V. COX
filed for reorganization, the bankruptcy court appointed
Padrick as the Chapter 11 trustee. Because Summit had
misappropriated funds from clients, Padrick’s principal task
was to marshal the firm’s assets for the benefit of those
clients.
After Padrick’s appointment, 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. This defamation suit ensued.
A.
The district court held that all but one of Cox’s blog posts
were constitutionally protected opinions because they
employed figurative and hyperbolic language and could not
be proved true or false. Obsidian Fin. Grp., LLC v. Cox, 812
F. Supp. 2d 1220, 1232–34 (D. Or. 2011). The court held,
however, that a December 25, 2010 blog post on
bankruptcycorruption.com made “fairly specific allegations
[that] a reasonable reader could understand . . . to imply a
provable fact assertion”—i.e., that Padrick, in his capacity as
bankruptcy trustee, failed to pay $174,000 in taxes owed by
Summit. Id. at 1238. The district judge therefore allowed
that single defamation claim to proceed to a jury trial. The
jury found in favor of Padrick and Obsidian, awarding the
former $1.5 million and the latter $1 million in compensatory
damages.
OBSIDIAN FINANCE GROUP V. COX 5
B.
In a pretrial memorandum, Cox—then representing
herself—raised two First Amendment arguments concerning
the liability standards that should govern this case. First, Cox
argued that because the December 25 blog post involved a
matter of public concern, Padrick and Obsidian had the
burden of proving her negligence in order to recover for
defamation, and that they could not recover presumed
damages absent proof that she acted with New York Times
Co. v. Sullivan “actual malice”—that is, that she knew the
post was false or acted with reckless disregard of its truth or
falsity. See 376 U.S. 254, 280 (1964). Cox alternatively
argued that Padrick and Obsidian were public figures, and
thus were required to prove that Cox made the statements
against them with actual malice. Id.On the day before trial, the district court rejected both
arguments in an oral decision. In a written decision, issued
two days later, the judge explained that Padrick and Obsidian
were not required to prove either negligence or actual
damages because Cox had failed to submit “evidence
suggestive of her status as a journalist.” Obsidian Fin. Grp.,
LLC v. Cox, No. 3:11-cv-00057-HZ, 2011 WL 5999334, at *5
(D. Or. Nov. 30, 2011). The district court also ruled that
neither Padrick nor Obsidian was an all-purpose public figure
or a limited public figure based upon Padrick’s role as a
bankruptcy trustee, finding that they had not injected
themselves into a public controversy, but rather that Cox had
“created the controversy . . . .” Id. at *4.
After closing arguments, the district court instructed the
jury that under Oregon law, “Defendant’s knowledge of
whether the statements at issue were true or false and
6 OBSIDIAN FINANCE GROUP V. COX
defendant’s intent or purpose in publishing those statements
are not elements of the claim and are not relevant to the
determination of liability.” The court further instructed that
the “plaintiffs are entitled to receive reasonable compensation
for harm to reputation, humiliation, or mental suffering even
if plaintiff does not present evidence that proves actual
damages . . . because the law presumes that the plaintiffs
suffered these damages.” The jury verdicts in favor of
Padrick and Obsidian followed.
Cox—now represented by counsel—moved for a new
trial. In its order denying that motion, the district court
acknowledged that Cox had argued that “she was entitled to
certain First Amendment protections, including requiring
plaintiffs to establish liability by proving that [she] acted with
some degree of fault, whether it be negligence or ‘actual
malice.’” Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-
00057-HZ, 2012 WL 1065484, at *7 (D. Or. Mar. 27, 2012).
But, the judge again rejected Cox’s arguments that Padrick
and Obsidian “were public figures, and that the blog post
referred to a matter of public concern,” and thus concluded
that a showing of fault was not required to establish liability,
and that presumed damages could be awarded. Id. at *4.
Cox appeals from the denial of her motion for a new trial.
Obsidian and Padrick cross-appeal, contending that their
defamation claims about the other blog posts should have
gone to the jury. We have jurisdiction over both appeals
pursuant to 28 U.S.C. § 1291. We reverse the denial of a
motion for a new trial if the district court has made a mistake
of law. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th
Cir. 2007). We “review de novo whether a jury instruction
misstates the law.” Dream Games of Ariz., Inc. v. PC Onsite,
561 F.3d 983, 988 (9th Cir. 2009) (quotation marks and
OBSIDIAN FINANCE GROUP V. COX 7
citation omitted). And we review a grant of summary
judgment de novo. Doe No. 1 v. Reed, 697 F.3d 1235, 1238
(9th Cir. 2012).
II.
Cox does not contest on appeal the district court’s finding
that the December 25 blog post contained an assertion of fact;
nor does she contest the jury’s conclusions that the post was
false and defamatory. She challenges only the district court’s
rulings that (a) liability could be imposed without a showing
of fault or actual damages and (b) Padrick and Obsidian were
not public officials.
A.
After the district court’s orders on the issues raised in her
pretrial memorandum, Cox—then still representing
herself—did not propose specific jury instructions. When
asked by the district court whether she wished to do so, she
stated that she had no objection to the court’s proposed jury
instructions, which were consistent with its earlier First
Amendment rulings. Padrick and Obsidian argue that Cox
therefore waived any First Amendment objections to the jury
instructions.
We disagree. To preserve an argument about a jury
instruction for appeal, a party generally must make a specific
contemporaneous objection to the instruction “on the record,
stating distinctly the matter objected to and the grounds for
the objection.” Fed. R. Civ. P. 51(c)(1). But, “when the trial
court has rejected plaintiff’s posted objection and is aware of
the plaintiff’s position, further objection by the plaintiff is
unnecessary.” Loya v. Desert Sands Unified Sch. Dist., 721
8 OBSIDIAN FINANCE GROUP V. COX
F.2d 279, 282 (9th Cir. 1983) (citing Brown v. Avemco Inv.
Corp., 603 F.2d 1367 (9th Cir. 1979)); see also Dorn v.
Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1189 (9th
Cir. 2005) (“In light of its definitive ruling on a motion in
limine and subsequent warning about rehashing the issue, the
district court was fully informed of Burlington’s position on
the jury instructions . . . .”).
The district court here was fully informed before trial of
Cox’s First Amendment arguments and had rejected them
definitively before the close of evidence. “[A]ny further
objection would have been superfluous and futile . . . .”
Dorn, 397 F.3d at 1189. Indeed, in denying Cox’s new trial
motion, the district judge specifically noted that he had
instructed the defendant to raise her legal arguments in her
trial memorandum, and that he understood those arguments
to be that “she was entitled to certain First Amendment
protections, including requiring plaintiffs to establish liability
by proving that defendant acted with some degree of fault,
whether it be negligence or ‘actual malice.’” Obsidian Fin.
Grp., LLC v. Cox, 2012 WL 1065484, at *7. In ruling on the
new trial motion, the district court initially suggested that
Cox had waived those arguments by not objecting to the jury
instructions, but in the end again treated them on the merits
and rejected them. Under the facts of this case, Cox
preserved the issues raised in her motion for new trial for
review.
B.
The Supreme Court’s landmark opinion in New York
Times Co. v. Sullivan began the construction of a First
Amendment framework concerning the level of fault required
for defamation liability. 376 U.S. 254. Sullivan held that
OBSIDIAN FINANCE GROUP V. COX 9
when a public official seeks damages for defamation, the
official must show “actual malice”—that the defendant
published the defamatory statement “with knowledge that it
was false or with reckless disregard of whether it was false or
not.” Id. at 280. A decade later, Gertz v. Robert Welch, Inc.,
held that the First Amendment required only a “negligence
standard for private defamation actions.” 418 U.S. 323, 350
(1974). This case involves the intersection between Sullivan
and Gertz, an area not yet fully explored by this Circuit, in the
context of a medium of publication—the Internet—entirely
unknown at the time of those decisions.
1.
Padrick and Obsidian first argue that the Gertz negligence
requirement applies only to suits against the institutional
press. Padrick and Obsidian are correct in noting that Gertz
involved an institutional media defendant and that the Court’s
opinion specifically cited the need to shield “the press and
broadcast media from the rigors of strict liability for
defamation.” 418 U.S. at 348. We conclude, however, that
the holding in Gertz sweeps more broadly.
The Gertz court did not expressly limit its holding to the
defamation of institutional media defendants. And, although
the Supreme Court has never directly held that the Gertz rule
applies beyond the institutional press, it has repeatedly
refused in non-defamation contexts to accord greater First
Amendment protection to the institutional media than to other
speakers. In Bartnicki v. Vopper, for example, in deciding
whether defendants could be held liable under a statute
banning the redistribution of illegally intercepted telephone
conversations, the Court expressly noted that “we draw no
distinction between the media respondents and” a non-
10 OBSIDIAN FINANCE GROUP V. COX
institutional respondent. 532 U.S. 514, 525 & n.8 (2001).
Similarly, in Cohen v. Cowles Media Co., the Court held that
the press gets no special immunity from laws that apply to
others, including those—such as copyright law—that target
communication. 501 U.S. 663, 669–70 (1991). And in First
National Bank of Boston v. Bellotti, a case involving
campaign finance laws, the Court rejected the “suggestion
that communication by corporate members of the institutional
press is entitled to greater constitutional protection than the
same communication by” non-institutional-press businesses.
435 U.S. 765, 782 n.18 (1978); see also Henry v. Collins, 380
U.S. 356, 357 (1965) (per curiam) (applying Sullivan
standard to a statement by an arrestee); Garrison v.
Louisiana, 379 U.S. 64, 67–68 (1964) (applying Sullivan
standard to statements by an elected district attorney);
Sullivan, 376 U.S. at 286 (applying identical First
Amendment protection to a newspaper defendant and
individual defendants).
The Supreme Court recently emphasized the point in
Citizens United v. Federal Election Commission: “We have
consistently rejected the proposition that the institutional
press has any constitutional privilege beyond that of other
speakers.” 558 U.S. 310, 352 (2010) (internal quotations
omitted). In construing the constitutionality of campaign
finance statutes, the Court cited with approval, id., the
position of five Justices in Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., that “in the context of defamation
law, the rights of the institutional media are no greater and no
less than those enjoyed by other individuals engaged in the
same activities.” 472 U.S. 749, 784 (1985) (Brennan, J.,
dissenting); id. at 773 (White, J., concurring in the judgment)
(“[T]he First Amendment gives no more protection to the
OBSIDIAN FINANCE GROUP V. COX 11
press in defamation suits than it does to others exercising
their freedom of speech.”).1
Like the Supreme Court, the Ninth Circuit has not directly
addressed whether First Amendment defamation rules apply
equally to both the institutional press and individual
speakers.2 But every other circuit to consider the issue has
held that the First Amendment defamation rules in Sullivan
and its progeny apply equally to the institutional press and
individual speakers. See, e.g., Snyder v. Phelps, 580 F.3d
206, 219 n.13 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011)
(“Any effort to justify a media/nonmedia distinction rests on
unstable ground, given the difficulty of defining with
precision who belongs to the ‘media.’”); Flamm v. Am. Ass’n
of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000) (holding
that “a distinction drawn according to whether the defendant
is a member of the media or not is untenable”); In re IBP
Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th
Cir. 1986); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th
Cir. 1985); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980);
Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975).
We agree with our sister circuits. 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
1
Dun & Bradstreet held that presumed and punitive damages are
constitutionally permitted in defamation cases without a showing of actual
malice when the defamatory statements at issue do not involve matters of
public concern. See 472 U.S. at 763.
2
But cf. Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 n.4 (9th Cir.
1998) (citing Gertz in a defamation case in which the lead defendant was
not a member of the institutional media).
12 OBSIDIAN FINANCE GROUP V. COX
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.
We therefore hold that the Gertz negligence requirement
for private defamation actions is not limited to cases with
institutional media defendants. But this does not completely
resolve the Gertz dispute. Padrick and Obsidian also argue
that they were not required to prove Cox’s negligence
because Gertz involved a matter of public concern3 and this
case does not.
2.
The Supreme Court has “never considered whether the
Gertz balance obtains when the defamatory statements
involve no issue of public concern.” Dun & Bradstreet, 472
3
Gertz dealt with a libel claim brought by a Chicago lawyer who had
been accused by the magazine of the John Birch Society of taking part in
a Communist campaign to discredit local law enforcement agencies. See
Dun & Bradstreet, 472 U.S. at 756.
OBSIDIAN FINANCE GROUP V. COX 13
U.S. at 757 (plurality opinion).4 But even assuming that
Gertz is limited to statements involving matters of public
concern, Cox’s blog post qualifies.
The December 25 post alleged that Padrick, a court-
appointed trustee, committed tax fraud while administering
the assets of a company in a Chapter 11 reorganization, and
called for the “IRS and the Oregon Department of Revenue
to look” into the matter. Public allegations that someone is
involved in crime generally are speech on a matter of public
concern. See, e.g., Adventure Outdoors, Inc. v. Bloomberg,
552 F.3d 1290, 1298 (11th Cir. 2008) (noting that accusations
of “alleged violations of federal gun laws” by gun stores were
speech on “a matter of public concern”); Boule v. Hutton, 328
F.3d 84, 91 (2d Cir. 2003) (holding that allegations of “fraud
in the art market” involve “a matter of public concern”). This
court has held that even consumer complaints of non-criminal
conduct by a business can constitute matters of public
concern. See Gardner v. Martino, 563 F.3d 981, 989 (9th Cir.
2009) (finding that a business owner’s refusal to give a refund
to a customer who bought an allegedly defective product was
a matter of public concern); Manufactured Home Cmtys., Inc.
v. Cnty. of San Diego, 544 F.3d 959, 965 (9th Cir. 2008)
(treating claim that a mobile home park operator charged
excessive rent as a matter of public concern).
Cox’s allegations in this case are similarly a matter of
public concern. Padrick was appointed by a United States
Bankruptcy Court as the Chapter 11 trustee of a company that
had defrauded its investors through a Ponzi scheme. That
company retained him and Obsidian to advise it shortly
4
Dun & Bradstreet dealt only with the Gertz rule on presumed damages,
not the Gertz negligence standard. See 472 U.S. at 754–55.
14 OBSIDIAN FINANCE GROUP V. COX
before it filed for bankruptcy. The allegations against Padrick
and his company raised questions about whether they were
failing to protect the defrauded investors because they were
in league with their original clients.
Unlike the speech at issue in Dun & Bradstreet that the
Court found to be a matter only of private concern, Cox’s
December 25 blog post was not “solely in the individual
interest of the speaker and its specific business audience.”
472 U.S. at 762 (plurality opinion). The post was published
to the public at large, not simply made “available to only five
subscribers, who, under the terms of the subscription
agreement, could not disseminate it further . . . .” Id. And,
Cox’s speech was not “like advertising” and thus “hardy and
unlikely to be deterred by incidental state regulation.” Id.Because Cox’s blog post addressed a matter of public
concern, even assuming that Gertz is limited to such speech,
the district court should have instructed the jury that it could
not find Cox liable for defamation unless it found that she
acted negligently. See Gertz, 418 U.S. at 350. The court also
should have instructed the jury that it could not award
presumed damages unless it found that Cox acted with actual
malice. Id. at 349.
C.
Cox also argues that Padrick and Obsidian are
“tantamount to public officials,” because Padrick was a court-
appointed bankruptcy trustee. She contends that the jury
therefore should have been instructed that, under the Sullivan
standard, it could impose liability for defamation only if she
OBSIDIAN FINANCE GROUP V. COX 15
acted with actual malice.5 See 376 U.S. at 279–80. We
disagree.
Although bankruptcy trustees are “an integral part of the
judicial process,” Lonneker Farms, Inc. v. Klobucher, 804
F.2d 1096, 1097 (9th Cir. 1986), neither Padrick nor Obsidian
became public officials simply by virtue of Padrick’s
appointment. Padrick was neither elected nor appointed to a
government position, and he did not exercise “substantial . . .
control over the conduct of governmental affairs.” Rosenblatt
v. Baer, 383 U.S. 75, 85 (1966). A Chapter 11 trustee can be
appointed by the bankruptcy court for cause or when the best
interests of the estate or creditors dictate. 11 U.S.C.
§ 1104(a). But, an appointed trustee simply substitutes for,
and largely exercises the powers of, a debtor-in-possession.
11 U.S.C. § 1107(a). No one would contend that a debtor-in-
possession has become a public official simply by virtue of
seeking Chapter 11 protection, and we can reach no different
conclusion as to the trustee who substitutes for the debtor in
administering a Chapter 11 estate.
We also reject Cox’s argument that Padrick and Obsidian
were “tantamount to public officials” because they received
compensation from the court for their efforts. In Gertz, the
Supreme Court held that there is “no such concept” as a “de
facto public official,” 418 U.S. at 351, and that a lawyer who
had served briefly on several housing committees appointed
by the mayor of Chicago, but who had never held “any
remunerative governmental position,” could not be
5
Cox argued in her pretrial memorandum that Padrick and Obsidian
were public figures, but contended in her motion for a new trial that
Padrick was a public official. She raises only the public official argument
on appeal.
16 OBSIDIAN FINANCE GROUP V. COX
considered a public official. Id. Bankruptcy trustees do not
receive remuneration from the government. Their
compensation is drawn from the assets of the Chapter 11
estate they administer. See 11 U.S.C. § 326(a). They are not
rendered public officials by virtue of that compensation, any
more than is an expert witness compensated by the estate.
III.
Padrick and Obsidian argue on cross-appeal that the
district court erred in granting Cox summary judgment as to
her other blog posts. Among other things, those posts accuse
Padrick and Obsidian of engaging in “illegal activity,”
including “corruption,” “fraud,” “deceit on the government,”
“money laundering,” “defamation,” “harassment,” “tax
crimes,” and “fraud against the government.” Cox also
claimed that Obsidian paid off “media” and “politicians” and
may have hired a hit man to kill her.
In Milkovich v. Lorain Journal Co., the Supreme Court
refused to create a blanket defamation exemption for
“anything that might be labeled ‘opinion.’” 497 U.S. 1, 18
(1990). This court has held that “while ‘pure’ opinions are
protected by the First Amendment, a statement that ‘may . . .
imply a false assertion of fact’ is actionable.” Partington v.
Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (quoting
Milkovich, 497 U.S. at 19). We have developed a three-part
test to determine whether a statement contains an assertion of
objective fact. Unelko Corp. v. Rooney, 912 F.2d 1049, 1053
(9th Cir. 1990). The test considers “(1) whether the general
tenor of the entire work negates the impression that the
defendant was asserting an objective fact, (2) whether the
defendant used figurative or hyperbolic language that negates
that impression, and (3) whether the statement in question is
OBSIDIAN FINANCE GROUP V. COX 17
susceptible of being proved true or false.” Partington, 56
F.3d at 1153.
As to the first factor, the general tenor of Cox’s blog posts
negates the impression that she was asserting objective facts.
The statements were posted on obsidianfinancesucks.com, a
website name that leads “the reader of the statements [to be]
predisposed to view them with a certain amount of skepticism
and with an understanding that they will likely present one-
sided viewpoints rather than assertions of provable facts.”
Obsidian Fin. Grp., 812 F. Supp. 2d at 1232. The district
judge correctly concluded that the “occasional and somewhat
run-on[,] almost ‘stream of consciousness’-like sentences
read more like a journal or diary entry revealing [Cox’s]
feelings rather than assertions of fact.” Id. at 1233.
As to the second factor, Cox’s consistent use of extreme
language negates the impression that the blog posts assert
objective facts. Cox regularly employed hyperbolic language
in the posts, including terms such as “immoral,” “really bad,”
“thugs,” and “evil doers.” Id. (quoting blog posts). Cox’s
assertions that “Padrick hired a ‘hit man’ to kill her” or “that
the entire bankruptcy court system is corrupt” similarly dispel
any reasonable expectation that the statements assert facts.
Id.
And, as to the third factor, the district court correctly
found that, in the context of a non-professional website
containing consistently hyperbolic language, Cox’s blog posts
are “not sufficiently factual to be proved true or false.” Id. at
1234. We find no error in the court’s application of the
Unelko test and reject the cross-appeal.
18 OBSIDIAN FINANCE GROUP V. COX
IV.
We reverse the district court’s judgment against Cox
concerning the December 25, 2010 blog post and remand for
a new trial consistent with this opinion. We affirm the
district court’s summary judgment on Cox’s other blog posts.
All parties are to bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.