Obsidian Finance Group, LLC v. Crystal Cox

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.