I just spent the morning studying Obsidian Finance v. Cox (CV-11-57-HZ), the instantly famous case involving Crystal Cox. I have concluded the news stories focus on the wrong part of the case. It is the second portion that bloggers (and other writers) should be concerned about.
Crystal Cox is a blogger. She was sued for defamation by an attorney named Kevin Padrick, who had been appointed as a bankruptcy trustee, after Cox called Padrick a thug and a thief in one of her posts.
Following a jury trial, which found Padrick had been defamed, U.S. District Judge Marco Hernandez wrote an opinion.
He reached several conclusions, one of which is that Cox was not a journalist under Oregon state law (the case was tried in federal court due to diversity of residence, but the court correctly used the law of the state where the case was tried). The reason he reached this issue is that Cox asserted her accusations were true, but refused to reveal her sources, asserting the Oregon journalists' shield law.
The Oregon statute (O.R.S. 44.520(1)) provides protection to "media persons as witnesses:"
[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required by ... a judicial officer ... to disclose ... [t]he sources of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public.
"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 stattion or network, or cable television system." (O.R.S. 44.510(2).)
Judge Hernandez found that although Cox was 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, news or feature syndicate, broadcast station or network, or cable television system."
So basically, all the judge did was read the words of the statute and applied them. Arguably his interpretation was too narrow, as the list was not intended to be exhaustive.
Judge Hernandez then went on to rule that the shield law did not apply to defamation actions anyway, citing O.R.S. 44.530(3), which states that the provisions of O.R.S. 44.520(1) "do not apply with respect to the content or sources of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of that information."
So the portion of the decision which held a blogger is not a journalist for purposes of the shield law is mere dictum, that is, it was an opinion which did not affect the outcome of the case, since even if she had been a journalist, she still would not have been able to assert the shield law to avoid presenting a crucial witness in her defense.
Arguably Judge Hernandez should not have "gone there," since cases should be decided on the narrowest possible grounds and judges should avoid dicta. Nevertheless, the gnashing of teeth in the blogger community is uncalled for. However, it would probably be a good idea for Oregon to expand the list of media, since the issue will probably come up in a true shield case.
It is the actual holding of the case, and how Judge Hernandez got there, that is of concern. He held "that plaintiffs are not public figures, defendant is not 'media,' and the statements at issue were not made on an issue of public concern. Thus, there are not First Amendment implications."
Cox had asserted that she was "media," so the plaintiff would have had to prove she was negligent in her publication. Judge Hernandez ruled that Cox had not presented any evidence that a "self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 and Bank of Oregon v. Independent News (1985) 298 Or. 434, 445-446.
The judge found that Cox failed to introduce evidence of "her status as a journalist."
For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosure of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."
Neither Gertz nor Bank of Oregon set forth the standards for determining who is a member of the "media." It was not even an issue in either case. The list of requirements that Judge Hernandez set forth is, as far as I can tell, completely his own.
This is the part bloggers should be concerned about. But the fact that a person chooses the blog as the medium does not affect the analysis. If Cox had written a paper broadside and distributed it in the streets, the standard for establishing herself as "media" would remain the same.
Of course, being "media" is not a "get out of jail free card." The plaintiff may still be able to prove the writer was negligent.
However, according to Obsidian Finance v. Cox (CV-11-57-HZ) if the defendant cannot prove she is a member of the media, and the plaintiff is a private person, and the publication does not involve a question of public concern (which is what Judge Hernandez found), the publication does not have First Amendment protection.
The bottom line is that regardless of the medium, when you start accusing people of committing crimes, you may get sued. And if you do get sued, you may not be able to require the plaintiff to prove you were negligent unless you are prepared to prove that you are at least as careful as a mainstream journalist.
I'm not sure that's such a bad thing.