Blogger Loses Defamation Case, Judge Weighs in on Who is "Really" a Journalist

Blogger Crystal Cox owes $2.5 million to Obsidian Finance Group for defaming them on her blog, says a U.S. District Court in Oregon. Part of her defense involved claiming a knowledgeable source told her some of the things said to be untrue defamation, and she tried to claim Oregon's journalism shield law to protect that source's identity.

As the Seattle Weekly explains it:

without revealing her source Cox couldn't prove that the statements she'd made in her post were true and therefore not defamation, or attribute them to her source and transfer the liability.

Oregon's media shield law reads:

"No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]" The judge in Cox's case, however, ruled that the woman did not qualify for shield-law protection not because of anything she wrote, but because she wasn't employed by an official media establishment.

From the opinion by U.S. District Judge Marco A. Hernandez:

". . . although defendant is a self-proclaimed "investigative blogger" and defines herself as "media," the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law."

Matt Welch in Reason back in 2005 argued that shield laws should protect journalism, not officially-employed journalists. Judge Hernandez, by the way, goes on to say that even if she were a for-real journalist the shield-law wouldn't apply for this civil defamation suit. Still, getting district judges on record making that kind of distinction portends grim things in the actual world of journalism we are living in.

The full opinion in the Cox case.

Comments

[Pro Libertate]

I don't think that's consistent with First Amendment jurisprudence. One of the things government isn't supposed to be doing is judging whether one media source or another gets to be labeled, "the press." If it did have that power, then it could, of course, begin dramatically limiting the scope of freedom of the press.

[John Thacker]

Although plenty of self-styled "progressives" think that government should be in the business of judging who is a real media source and who isn't, at least if you turn the conversation to bete noirs like Fox News or NRA News or Citizens United making a documentary.

She also made a big mistake by being pro se, too. However much court system doesn't like amateur journalists, it doesn't like amateur lawyers even more.

[Thom]

Self styled progressives think that government should be in the business of deciding who is an isn't a part of any occupation, which is why they support endless regulation and licensing requirements for even the simplest of professions. Heck - plenty of self-styled progressives think that government should be involved in telling you what occupation you should doing at all.

[Fist of Etiquette]

I still contend "the press" meant the printing press, the mechanism for disseminating speech. It's not an occupation.

Anyway, the state's shield law does not seem vague on the topic. But those in positions of authority do not like to see citizens usurping the power once held solely by established institutions, even unrelated ones. It looks like this judge might be one of those types.

[Pro Libertate]

Even early on, I don't think there was a legal difference between newspapers and pamphlets. If that's right, this is a doomed decision from the beginning, as a blog is certainly no less protectable than a pamphlet.

[Paul]

My advice would be for everyone blogging to create a media organization with a membership of one.

[Colonel_Angus]

High school history class had numerous examples of people spamming the colonies with pamphlets. Articles this, papers that, common sense and so forth.

[Tulpa]

Freedom of the press has never been a defense against defamation or libel lawsuits. Even for "obvious" members of the press.

[Lost_In_Translation]

She definitely qualified for the shield law if they cannot prove she used that knowledge for anything other than blogging (no insider trading, working for a competitor, etc).

However, if what she was told was untrue and the corporation could prove it, she disseminated false information, which should be considered defamation. If I heard a bad rumor about someone from an unnamed source and blabbed about it and then it proved wrong, I'm as guilty as the person who lied to me and if I still protect that person, its as if I made it up.

Bad ruling by the judge, but the rule in itself doesn't protect her from spreading falsehoods.

[cynical]

But if state-sanctioned media outlets are allowed to do that without punishment, it violates the equal protection clause.

[Lost_In_Translation]

They also have to issue retractions (and do) if they get something wrong. If they continued to run with it, I expect they should be sued.

[Brian D]

Since anyone can submit show prep, couldn't the blogger have claimed affiliation with Free Talk Live?

[Rich]

"No person connected with, employed by or engaged in any medium of communication to the public shall be required by ...."

The judge in Cox's case, however, ruled that the woman did not qualify ... because she wasn't employed by an official media establishment.

Since Cox was "engaged in any medium of communication to the public", that judge is wrong. Let him suck on it until the legislators try again.

[Mensan]

I think the judge may have missed a key phrase in the Oregon statute where it defines medium of communication:

[emphasis added] "Medium of communication" has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

[P Brooks]

the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law."

She probably doesn't even work in an architectural landmark designed by a starchitect with a large following amongst the glitterati. How could she have the audacity to claim "journalist" status?

[John Thacker]

At this point Cox says that she still has no plans to get a lawyer.

We think that's a bad idea.

She lost $2.5 million and she *still* wants to be pro se on the appeal?

[Raston Bot]

yeah, but she saved $60,000 so it balances out.

I certainly was fit to represent myself and I did a damn good job. I recommend that everyone go pro se and lawyer up for the appeal, this way you get to introduce more elements into the case and others pick up the case and whatever you right in your motions to the court is then under "Absolute Privilege" as a matter of law and can't be considered defamation. I fought a good battle and I introduced tons of information that will later be used to further the story. I did not want to say, I have a right to say what ever I want. I wanted to make the statement that I am Media, I posted the truth to the best of my ability and I was never asked to retract. I wanted to be Pro Se and I Did It. I believe I did a better job then a lawyer could have for this first step, and it took a year that would have cost over $60,000 with as many documents as the Plaintiff's Blathering Attorney kept filing. I am proud of the Job I did, and Stand in my Truth with Honor and Dignity.

[Hank]

Her spelling does nothing to help her claim that she is a journalist.

[Pro Libertate]

I like the archaic capitalization. And her grammar is somewhat journalistic--missed comma between independent clauses, other errors.

[Hank]

Recent capitalization trends, much like the digital music revolution, have completely passed me by. Consider me one of The Old People.

[Pro Libertate]

What was great about the capitalization era is that people just made it up as they went along. Hey, This sounds Important, so I'll Capitalize it.

[Hank]

I'm also continually amused by the "Purfuit of Happineff" as written.

[Juice]

Here, try to read this paper that uses the long s. It looks so much like a f that it is difficult.

http://www.tandfonline.com/doi.....1003659164

(PDF)

[John Thacker]

Actually, that would be "Pur?uit of Happine?s." They used the modern form for s at the end of a word.

Bizarre awesome footnote: Chrome's built in spell check treats "?" (long s) the same as "s" for spell-checking purposes.

[Juice]

In the actual document it looks like "pursuit of Happinefs" where the s in pursuit is the cursive s we know today. For some reason that document mixes the long and short s in the middle of words. I can't see any discernible pattern to it.

[John Thacker]

If you like archaic capitalization, you'll like the same thing done by Durham, NC's insane DA (yes, the new one who replaced Nifong):
Here and elsewhere.

There's a whole series of articles on her. False motions, insane arguments, grammar, and capitalization, false evidence, hiding evidence, allowing evidence to be destroyed, etc.

[juris imprudent]

Pro se must be latin for "dumb as a box of rocks".

[Juice]

It depends. Maybe you have a copy of Juisdictionary.

[Arf?]

It seems like incorporating, and publishing paper copies of all your blog posts would be enough to qualify as being affiliated with a pamphlet.

Would incorporating help protect you in a defamation suit? IOW, who gets sued for defamation: you or the corporation?

(Of course, getting a lawyer would also help.)

[Colonel_Angus]

Judge Marco A. Hernandez sounds like a prick. My investigative journalism has found out that it is because he is, in fact, a prick. Furthermore, his bitchass is not qualified for a position as any sort of magistrate or any legal profession as he seems to have a reading comprehension problem of the constitution.

Google your name, motherfucker.

[Lost_In_Translation]

You know, it would be more brave if you actually put your email address in there as opposed to hiding behind anonymity on Reason's servers.

Punk...

[Beezard]

Do "defamation" rulings usually take into account an actual dollar amount of damage? Does the court set it or the plaintiff?

Does this company have any liability to prove her words cost the 2.5 million or do they get to set an amount and just prove defamation?

[Pro Libertate]

You have to allege (and later prove) damage to even plead a case, I think. That's certainly the case as far as getting damages are concerned.

[Raston Bot]

Good question. Here's the one defaming post. All others were thrown out.

If that rambling, disjointed, incoherent verbal diarrhea cost a business $2.5 million, then the defamed party has much bigger problems.

Also, how the hell could any reasonable person read that and conclude it's fact as opposed to the ramblings of a crazy ex-girlfriend?

[Lost_In_Translation]

My god, that's unreadable.

[ChrisO]

Yes, a defamation plaintiff has to prove actual damages, just like any tort plaintiff. The judge's opinion at issue isn't a final judgment, but merely a ruling on several motions that were raised by Cox during trial. So, we still don't know why the plaintiff claims $2.5 million in damages against a blogger.

[juris imprudent]

Not to mention good luck on collecting anything but more grief from the queen of domain name registration.

[Colonel_Angus]

Let me guess, this was a progressive appointee? Progress, indeed.

[juris imprudent]

I wondered that myself before reading the opinion, which is sound and accessible. Anyway, had you bothered to more than wonder you would've found out that Bush nominated him but the nomination was deferred. Obama renominated him.

[DuncePhy]

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[DomTony]

Get back in your pen, bitch.

[Hank]

There is still, to this day, no tangible evidence to support the widely-disseminated claim that District Judge Marco A. Hernandez regularly, passionately, and messily copulates with sheep.

Some say that lack of evidence lends credence to the additional claim that District Judge Marco A. Hernandez regularly, passionately, and messily copulates with sheep only under cover of darkness and in disguise.

Hernandez did not reply to my intentions to contact him for this story.

[Lost_In_Translation]

Leave the judge alone. If you read Oregon law (which is stupidly written), the judge is technically correct in that the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

That statement is directly out of Oregon law according to the guy who wrote washington state's media protection act. Oregon simply doesn't recognize bloggers.

[Hank]

But the shield law itself says "No person connected with, employed by or engaged in any medium of communication to the public shall be required..."

So the shield law covers bloggers (in plain text), but bloggers don't qualify for the protections afforded by the law (somewhere else)? That's an interpretation problem, which is the judge's job to decide on.

But, since the entirety of my Oregon law expertise is based on this blog posting, I will no longer perpetuate the disgusting and baseless rumor that Judge Marco A. Hernandez regularly, passionately, and messily copulates with sheep.

[ChrisO]

There is a specific statutory definition of "medium of communication" that the judge found (wrongly, IMHO) couldn't apply to Cox as an investigative blogger.

However, the shield law doesn't act as a defense for journalists sued in defamation cases, so it doesn't protect Cox even if she qualifies as a journalist.

[Lost_In_Translation]

It shield her from subpeona of her source, but she still has to prove what she's saying is still true I believe or atleast the prosecutor has to show how its false.

[ChrisO]

Exactly. She can't be forced to name the source in court, but she can't hide behind the shield law if she publishes something defamatory that a source told her and is then sued for it.

The shield law is intended to protect journalists who are called to testify as witnesses, not when they are defendants in defamation lawsuits.

[Sheep]

Ba-a-a-a-ah-ah. I-i-i-i-it's the tru-u-u-u-u-th.

[yogi]

otherwise ... [t]he source

I get confused by snippet syntax. Did the Oregon lawmakers misspell "the"?

[Pro Libertate]

It was probably "The source" originally, and it went little 't' to make it fit in a sentence.

[yogi]

I see. Thanks.

[B?nzli]

How does blogging not count as being "[...]engaged in any medium of communication to the public[...]"?

[juris imprudent]

Read the f'n opinion. Even if she had been covered by the shield law, the shield law does not apply in defamation cases.

Doherty did a crap job explaining this case beyond sound-bite treatment.

[ChrisO]

I read the relevant portions of the opinion. The portion addressing the definition of "medium of communication" seems quite likely to be reversed on appeal, if the case comes down to that. Going strictly based on the opinion, "medium of communication" is defined as

including, but not limited to, "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service,news or feature syndicate, broadcast station or network, or cable television system."

Note the key "but not limited to" language. In the very next paragraph, the judge claims the blog isn't a medium of communication precisely isn't affiliated with any of those enumerated types of media. Which *completely ignores* the "not limited to" language used by the legislature.

That type of language is legislative code for "interpret this provision broadly," which the judge failed to do.

However, it's likely that this issue will never be reached by the court of appeals, since the judge is on much firmer ground in holding that the media shield law does not apply as a defense to a defamation action. It prohibits media members from being forced to name their sources in court, and expressly states that it does not apply in a "civil action for defamation wherein the defendant asserts a defense based on the content or source of such information."

In short, the judge is right on the merits, if partially wrong on the reasoning.

[ChrisO]

Err, that should read:

Note the key "but not limited to" language. In the very next paragraph, the judge claims the blog isn't a medium of communication precisely because Cox isn't affiliated with any of those enumerated types of media. Which *completely ignores* the "not limited to" language used by the legislature.

[ChrisO]

Another note. More offensive is the section of the opinion addressing Cox's First Amendment defense.

The First Amendment provides the media with a qualified privilege to defamation lawsuits, meaning that a plaintiff has to prove that a journalist published a false and defamatory statement with "actual malice" towards the plaintiff--basically with knowledge that the statement was false or with reckless disregard as to its truth.

Cox attempted to assert this defense as a member of the media, which the judge rejected, first citing a lack of case law holding bloggers to be journalists, and then claiming a lack of evidence that Cox had journalistic credentials or did the sort of stuff that investigative journalists traditionally do.

To me, this is much more controversial than the part of the opinion dealing with the media shield law, which clearly doesn't apply in defamation cases.

[jdd]

I tend to agree with the included not limited to language, however, the language is not so general as to necessarily cover every means of communication.

I think the main reason the defendant lost is that she is pro se. Anytime you see some questionable opinion there seems to be some pro se litigant getting crushed.

Rule #1 -- hire a damn lawyer for a lawsuit. Or get smoked.

[ChrisO]

I agree with you on the pro se issue. Some people can get away with representing themselves, but Ms. Cox is clearly not one of them. I recommend reading her comments below the Seattle Weekly article. She's going to get eaten alive on appeal if she goes pro se.

She's on some quixotic quest to get the people at Obsidian Financial criminally prosecuted for something or other, and she thinks this defamation suit against her will help her do that. Ugh.

However, my main point about the media shield law is that it doesn't matter whether it applies to bloggers or not. More pertinently to this case, it doesn't apply to defamation suits against journalists of any type.

[Pro Libertate]

Might be able to get assistance from the RCFP or some other pro-First Amendment organization at this point.

[ChrisO]

Some nonprofits are reluctant to try and rescue "ruined cases" like this. If the case is already terminally screwed up when it hits the appeals stage, typically no amount of fancy lawyering can save it on appeal.

I had to deal with this problem in a prior life trying to help people with property-rights problems. You can't "fix it on appeal."

[Pro Libertate]

One problem with letting a case like this stand is that it has a chilling effect on speech down the road.

[ChrisO]

That's a good point. The judge's opinion concerning Cox's First Amendment defense is based more on the status of the law and not so much on what was proven (or not) at trial. I guess I can see a nonprofit getting involved because of that angle.

[juris imprudent]

Well, if one fancies oneself an "investigative blogger", the judge did outline some useful things to do to enhance your credibility (legally speaking) as a journalist. It shouldn't be difficult to avoid this kind of defamation as long as you aren't batshit crazy or have a wild hard-on.

[cynical]

The press part of the first amendment doesn't protect journalists, it protects those who publish written/printed works. Period.

[Matthew]

I was really confused reading this article until I read the comments and saw she went pro se. Explains everything.

[ChrisO]

She shouldn't have attempted to invoke the media shield law, which clearly doesn't apply as a defense to defamation suits, but she was right to invoke the First Amendment as a defense.

Her comments in the comment section of the Seattle Weekly article make me think she really should get a lawyer for the appeal, however. She has grounds based on the judge's First Amendment ruling, but she could likely screw it up on her own.

[jdd]

She screwed it up when she failed to file a an Anti-Slapp motion. Had she done so then I suspect she'd win. There are some very broad cases out there as to who is a public figure; at least in CA. I've seen a case where a high school gym coach was held to be a public figure.

There are a lot of ways to defeat a suit like this.

[ChrisO]

She did file an anti-SLAPP motion to strike the suit. The judge rejected it because it wasn't timely. Which again points out the folly in her representing herself.

[Juice]

Damn. The judge can't even read.

"No person connected with, employed by or engaged in any medium of communication to the public shall...

It doesn't say you have to be employed. It says you have to be engaged in a medium of communication to the public.

Damn, judgin's easy. Get me a robe.

She'll win on appeal, easily.

[juris imprudent]

How much money you want to put on that juice?

[Juice]

Maybe "win" isn't the right term. I don't think the $2.5 million figure will hold up on appeal.

[juris imprudent]

Considering that damages haven't even been decided it is very safe to say. Going out on a limb, if she went pro se she probably has no insurance and nowhere near the assets to pay off that kind of claim.

[Dookie Brown]

I haven't read the whole thread so forgive me if this has been mentioned but the state law reads "employed by or engaged in any medium of communication to the public".

It seems to me that a blogger or any random person yelling on a street corner is certainly "engaged" in "communication to the public".

[ChrisO]

You might want to read back a bit.

"Medium of communication to the public" is given a broad definition elsewhere in the statute that might possibly include an investigative blogger, but certainly doesn't include me randomly yelling at people on the street corner.

It's irrelevant, though, because the media shield law doesn't provide a defense for journalists in defamation suits. Cox shouldn't even have raised it. She has better defenses under the First Amendment and what's known as an "anti-SLAPP law", which allows people to have frivolous defamation suits stricken long before trial.

It's worth noting, though, that the judge found that Obsidian Financial proved its case against Cox. She's trying to argue that she couldn't mount a defense--by offering evidence that the statements on her blog were truthful--without naming her anonymous source. That's why she tried to invoke the shield law. But the reality is that she doesn't have any choice.

Since Obsidian was able to satisfy its burden of proof against her at trial, she basically either has to call her source as a witness to counter Obsidian's evidence or find other evidence somehow.

The First Amendment "qualified privilege" defense is almost certainly her best hope of prevailing on appeal. The judge rejected it, but on flimsier grounds, in my opinion. She'd better get a lawyer conversant in First Amendment law, however, since she appears to be a bit of a loose cannon herself.

[NAL]

Just to play devil's advocate here. If the judge had sided with her, wouldn't that open up a can of worms. Anyone could get away with slander, defamation by just claiming they have a blog. In fact, one could set up a blog specifically with the intent to defame someone in the near future. Not saying I agree with the judge, but it does appear to be problematic either way.

[ChrisO]

That's a very valid concern. Courts have been struggling with Internet defamation claims for years for this very reason.

Courts can dispose of idiotic defamation cases in a number of ways that are especially applicable to the Internet.

A defamatory comment is not actionable if it is hyperbole or clearly satirical. This alone gets rid of probably 80% of the insults and trollish crap posted on the Internet, in blogs or otherwise.

There's also the issue of damages. Certain kinds of especially nasty defamation (defamation per se) carry automatic damages in many states, but most defamation plaintiffs must prove actual economic damages resulting from a defamatory statement in order to prevail.

Take this case, for example. The judge awarded $2,5 million in damages, but I have a hard time believing that Obsidian Financial was really damaged to that extent by the blog ravings of some nutty lady in Montana. We don't have the court's damages ruling available, but it seems a bit hard to believe. This trips up a lot of Internet defamation cases.

[Tulpa]

Judge Hernandez, by the way, goes on to say that even if she were a for-real journalist the shield-law wouldn't apply for this civil defamation suit.

I like how Mr Doherty just slips this in at the end even though it completely removes any reason for outrage.

The judge's statement on "who is the press" is dicta (ie, not binding precedent) since it doesn't affect the outcome of the case.

[ChrisO]

Doherty also failed to point out that Hernandez made a very binding blogger/journalist distinction in the context rejecting Cox's First Amendment defense. That's where the outrage in this case should be focused, assuming there should be any.

[Brian Doherty]

Tulp, it is not my understanding that merely because two different aspects of a ruling get to the same conclusion, that makes one aspect dicta. If that is indeed a settled legal principal that I'm not familiar with, then OK. He also, as ChrisO points out, comes to the same ruling regarding a different part of the blogger's defense, using different language. So, I'm not convinced that the "bloggers aren't journlalists" aspect of the case is dicta, and not sure why you think it is.

[Brian Doherty]

The judge could have equally phrased the ruling, the shield law doesn't protect you in civil defamation, and anyway even if it did this blogger isn't a journalist protected by the shield law; that would have automatically reversed what was dicta and what was a ruling? Again, not a lawyer, but I don't think that's how it works.

[Mr. Mark]

I'll bet she also lacks a degree in journalism!!!!

(Which, by obtaining one, she would have learned about...um...uh...)

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