U.S. Court Rules Blogger Is Not A Journalist

An Oregon investment firm has sued blogger Crystal Cox for defamation in Obsidian Finance Group LLC v Cox.

Cox describes herself as an investigative journalist/blogger and argued that any allegedly defamatory content she was accused of posting should be treated as constituting “journalism”.

U.S. District Court judge Marco Hernandez disagreed with her view that she was a “journalist” as opposed to a blogger.

The Judge held that Cox had defamed the Plaintiffs and ordered her to $2.5 million to the finance company in damages.

Cox maintains a collection of over 400 blogs, predominantly dealing with legal and financial issues.  Her own legal troubles started when she published information questioning the behaviour of Obsidian Finance Company and Kevin Padrick, it’s co-founder, on her blog Obisidianfinancesucks.com.

In one of her posts she made accusations against Padrick relating to fraud and dishonesty with respect to the company’s shareholders and abuse of his position as a trustee.

Padrick, an Attorney, was working as a trustee in the bankruptcy case of an Oregon based real estate firm, Summit Accommodators Inc.  Some Summit executives had been charged with money laundering and wire fraud resulting in millions being lost to customers.

After refusing to comply with a cease and desist letter from Padrick, she was sued for defamation, in response to which she argued that journalism shield law protected her from divulging confidential information and sources.

Judge Hernandez held that blogs aren’t covered by shield law found in State law, which defines media of communication narrowly as “any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”

The Judge remarked that Cox had not produced evidence that she held any media credentials, affiliation with a “recognized news entity,” or checked her facts or tried to contact the other side to “get both sides of the story.”  This seems an overly conservative standard of what journalism is.  Although the Judge was applying Oregon law, it makes one question whether it should be necessary to have qualifications or education to qualify as a journalist.  In asking the question of what makes a journalist a journalist it seems more appropriate to ask what kind of activity they are involved in.  If they are gathering news for distribution to the public it seems like common sense to say that  they are engaged in journalism.

In defending herself against the defamation case brought against her, Cox raised a number of defences.

She contended that Padrick and his company, Obsidian Finance Group, qualified as public figures, and that as a media organisation her statements had to have been made with actual malice under US law for her to be held liable for defamation. (based on a long line of US case law commencing with New York Times  Co. v Sullivan 376 U.S. 254 (1964).

The Judge disagreed that her posts were not made with malice or with reckless indifference as to their truth after examining them.  He also disagreed that the defendants were public figures.

Whether a plaintiff is a public figure, in the sense of being an ‘all-purpose public figure’ or a ‘limited public figure’ is a question of law for the court, with the burden of proving the person allegedly defamed is a public figure to be discharged by the Plaintiff.

The Judge, upon surveying the case law on public figures, concluded that just because a business or Attorney has legal problems or there are controversies about how they do business, this doesn’t mean they have injected themselves into the public light, as required by case law regarding ‘limited public figures’.  The Judge reasonsed that whilst Summit Accommodators may have received attention due to it’s failure and caused a controversy for its investors who lost money, the alleged defamatory statements concern Padrick’s handling of the bankruptcy estate’s taxes.  Even assuming Padrick volunteered for his position as the bankruptcy trustee, the Judge held that he couldn’t be viewed as having acted in a manner in which he had injected or thrust himself into a controversy.  Just being an attorney in a controversial civil case didn’t render Padrick a public figure in line with previous case law.

Cox further  submitted that her statements in the relevant blog posts attracted absolute privilege, being based on statements made in judicial proceedings.  However the Judge found that the statements in the  blog posts weren’t merely republications of statements previously published in a judicial proceeding, commenting as follows:

That is whilst defendant provides links to other documents and discusses them in the post, the statements regarding Padrick’s failure to pay taxes on taxable gain obtained by the bankruptcy estate, are not simply republications of statements that initially appeared in a judicial proceeding.”

This is an interesting observation as the Judge could be taken to be implying that this is merely an example of defaming (albeit in anchor text).

Whilst Cox didn’t deny she posted the statements in question, she argued that the relevant  posts consisted of statements made by experts, in this case, her own opinions, commentary, and tips submitted by her readers.  Cox stated that  the reason her post was written in such a factual manner was that she had an inside source leaking information to her and refused to divulge who her source was.  Without revealing her sources, Cox says she couldn’t prove that what the Judge described as her “hyperbolic accusations”   did not constitute defamation. Nor could she attribute the statements to her source/s.

As the Judge correctly pointed out media shield law wouldn’t have afforded Cox a defence to a civil defamation action, even if it such shield laws did apply.

The case is interesting in that it raises an important question as to whether shield laws should apply to internet bloggers when it comes to protecting their sources.  One can understand why the Oregon legislature may have limited shield law to media organisations, defined so narrowly.

Media or journalist shield law merely refers to statutes and law which protect journalists and media organisations, to varying degrees, from divulging the sources of their information imparted to them in confidence, either by way of a subpoena or other court order.

The coverage of shield law and it’s application in the United States is qualified and complex.  There is no Federal shield law, but many US states have enacted legislation conferring varying degrees of protection upon journalists. However, immunity  from revealing such information is never absolute and qualifying for immunity depends on satisfying several criteria.

There is a general policy or convention to the effect that Prosecutors try to avoid prevailing upon journalists for their sources. This is partly a recognition that if a journalist is forced to divulge their sources, this is not in the public interest.  Many journalists would prefer to go to prison than divulge their sources and those who do elect to divulge their sources often salvage their careers.

Generally speaking where subpoenas are issued to gain information, the party issuing he subpoena needs to demonstrate the material sought is unavailable having exhausted all  reasonable alternative sources, and there is a compelling and overriding interest in obtaining the information. The information sought must also be clearly relevant to an important fact in issue in a case.

Blog reporters are excluded from what protection does exist under state shield laws, being unable to meet the definition of “traditional journalism“.  Bloggers are also probably excluded from the prosecutorial exemptions referred to above, which go beyond mere tradition.

A bloggers moderation of comments which appear on their blogs is completely separate from any comments which they make themselves.  Persons who claim to be damaged by what is written about them on the internet are able to pursue bloggers for damages, although due to the cost and jurisdictional complexities, this avenue is usually only available as a practical matter to powerful well-resourced interests.

The shield laws are intended to protect media organisations from intimidation by people swarming them from lawsuits and SLAPP writs by persons who don’t like what is written by them.

Bloggers and almost everyone else who publishes on the internet are required to exercise  caution when reporting facts and/or opinions on their blogs and in the vetting and checking of sources and facts.

This is something we would ordinarily expect of ‘responsible journalists’.  Traditional Journalists are presumed to be more aware of the need to adhere to the highest standards of professional journalism, particularly when using other sources when citing them and/or checking their facts.

However traditional journalists are sometimes wanting in this task. Conversely bloggers and other digital commentators often scrupulously check the facts of their stories and  provide thought provoking value added editorials in a print media that is becoming more bland with the diminishing investment in investigative journalism.

The case throws up an interesting question of what a real journalist is, a question courts have wrestled with.  When a city loses it’s newspaper, does this mean that there will be no journalists left?  Alternatively if an individual decides to print a newspaper or magazine will this alone  transform them into or qualify them as a member of legitimate media?

I identify a journalist as someone who brings news to the public, irrespective of the medium through which it is delivered.  The laws should be technologically neutral.  Bloggers discover and report on news topics and individuals, uncover information relating to the corporate and criminal underworld,  disclosing corporate and/or public wrongdoing through information imparted to them by whistleblowers. Where bloggers uncover corporate and political scams and abuse, by adhering to proper journalist standards, there seems to be no compelling reason for denying them the protection afforded to journalists.

Freedom of the press is of paramount concern and benefits society. The way news is delivered and the distribution channel used should be irrelevant.  A free press, which must include the internet, is an essential catalyst for awakening public interest in Government,  exposing corruption by public officers, corporations and their employees and informing the public of significant events.

In 2006 a young 24 year old videographer Josh Wolf served over seven months for contempt of court in a California jail for refusing to turn over footage of a violent demonstration by a group of protesters in San Fransisco against a Group of Eight summit meeting.

Wolf was a student working part time at a community college television station, maintaining a blog and occasionally selling clips to local TV stations. Wolf resisted a  subpoena to testify before a Federal Grand jury and/or turn over his source material for video he shot.

Whilst Wolf did forfeit his freedom in refusing to testify and hand over part of the video footage, in Wolf’s case there were no confidential sources involved.

When an event is videotaped in a public place, there is a legal question regarding whether there is any implied level of confidentiality.  The case is not analogous to the Cox case, as the real legal question in U.S. vs. Josh Wolf Case CR-06 90064 was whether there existed a reporter’s privilege under the first amendment or at common law in the US, and if so what it’s  application was to Wolf’s situation, in respect of unpublished news material?

Californian State law would have protected Wolf from divulging the unpublished material however Federal authorities had become involved in an investigation pertaining to the anarchists’ protests.

With the advent of technology there will be many citizen journalists who capture public events on mobile devices which are of public interest. It would be difficult to deny that they qualify as journalists where they are providing news to the public.

There is something troubling about attempts by the Government and Courts to exhaustively define what a journalist is.  To the extent that this occurs, it will result in the abridgement of freedom of the press, merely by virtue of depriving persons of membership of the club, whilst awarding membership to another.

A literal definition of what a journalist is isn’t in society’s interests, and Judges should scrutinize what a publisher actually does rather than what their official credentials or affiliations are in order to make a determination as to whether they are meet some myopic definition of a journalist.

This is  particularly the case in a digital age where there is no scarcity of  online news sources which perform the same functions of a traditional mainstream news or broadcast outlets,  many of whom have proven to have supplanted mainstream journalism as the preferred choice of ‘news’.

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