Is This Person A Journalist? Federal Judge Issues Sweeping Ruling Against Investigative Blogger And Upholds $2.5 Million Award

There is an interesting defamation ruling out of Oregon where U.S. District Judge Marco Hernández has ruled that blogger is not a journalist for the purposes of defamation rules in a dispute with a lawyer. Crystal L. Cox is a blogger from Eureka, Montana and accused Oregon lawyer Kevin Padrick with criminal and unethical conduct in a bankruptcy case. She relied on a statute offering higher standards to protect journalists from defamation actions and Hernandez rejected the claims. It is the latest in an ongoing debate of how to define a journalist for purposes of constitutional and tort law. Cox now stands subject to a $2.5 million award in favor of Padrick and Obsidian. Cox runs a site entitled Obsidian Finance Sucks (as well as other sites) and insists that she is an investigative blogger/reporter.

Padrick and Obsidian Finance Group LLC were involved in a bankruptcy action. Padrick was a trustee in the case Summit Accommodators, a company that helped property owners conduct real estate transactions to reduce tax bills. The controversy led to federal criminal indictments against three executives.

Cox wanted to use Oregon’s shield law to protect her sources. Hernández noted that shield laws normally do not apply to civil as opposed to criminal actions. However, it was his observations on the definition of journalists that will be of greatest interest for many — though that is a small part of the opinion. The remainder of the opinion has some equally interesting rulings on what constitutes a public figure.

Hernández cited the lack of journalistic elements, including:

“(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 disclosures 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.’”

The affiliation criteria would move most bloggers outside of the protections for journalists. He also noted that she did not meet professional standards for editing or checking her copy or tried to get a balanced account in stories. The latter criteria is also questionable given the work of columnists who are protected under these standards. Ironically, columnists today are more partisan and one-sided than ever. When the late Robert Novak (one of the most biased columnists from the right) was sued, a court ruled in his favor on the basis that everyone knew he was not writing as a disinterested journalist. In Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), he and his co-writer Rowland Evans were found:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

Wouldn’t the same logic apply to bloggers?

Notably, Hernández ruled that Padrick was not a public figure and that the bankruptcy case is not a matter of public interest. That latter decision is hard to square with the fact that the underlying controversy is the subject of multiple criminal indictments.

By ruling that Cox is not a journalist, Hernandez also relieved Padrick of the need to seek a retraction under Oregon law — a standard obligation before seeking such damages.

I find the decision to be remarkably rigid in its definition of these various terms and threatens to move a significant amount of speech outside of protected categories. News reporting and commentary is changing and Hernandez seems wedded to rather dated understandings of journalism. This is not to say that this is not a legitimate question in drawing lines, but Hernández’s decision sweeps radically against the free speech, free press values.

Here is Cox discussing her effort to investigate real estate issues:

Here is the opinion. The discussion of whether Cox qualifies as a “media person” under the statute is found in the first two sections. The opinion then turns to the other common law issues discussed above.

Kudos: Rachel Kleinpeter

43 thoughts on “Is This Person A Journalist? Federal Judge Issues Sweeping Ruling Against Investigative Blogger And Upholds $2.5 Million Award

  1. Cox is caught in the flux of change.

    I suspect we will be hearing a great deal more on this and that Hernandez’s ruling will not stand up to the tests which will be coming.

  2. I agree with Blouise that this decision will not stand. If this blogger is not a journalist under these new requirements, it is time to sue Fox News because I would wager few if any of their top “journalists” have any journalistic training and they certaintly do not adhere to fact checking. What this judge is saying is that unless you belong to a corporate entity you can’t be a journalist. Is this Citizens United gone wild?

  3. First, what Blouise said. Change is a uncertain mistress.

    Second, raff raises an interesting and valid question “What this judge is saying is that unless you belong to a corporate entity you can’t be a journalist. Is this Citizens United gone wild?” This is also why censorship on the Internet is a critical civil rights issue.

  4. If she has said ‘alleged” criminal conduct, would this all go away?
    Is the problem that she does not want to divulge the source of her information?

    She is making a comment on a public controversy. Is Kevin denying criminal and unethical conduct? In enough detail that the detail can be contested if untrue?

  5. Many dead tree or tv journalists don’t have a journalism (or similar) degree. A quick scan of many newspapers, including the once standard-bearing Washington Post and the somewhat less laughable NY Times, would find plenty of stories that don’t meet the judges’ criteria. I suspect this guy doesn’t know how to read Google or has a clerk who went to law school because his journo degree got him nothing but deadend jobs.

  6. ““(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 disclosures 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.’”

    **************************

    One wonders how corset-maker, privateer, school teacher, and butler, Thomas Payne would have withstood the test established by Judge Marco Hernández.

  7. I think this is a potentially dangerous ruling and echo the thoughts expressed in the other comments. The ruling would limit journalistic protection to only minions of established corporate entities, or those with approved credentials. Not only does this ignore modern realities, but it also presents a potentially chilling. restraint upon investigative reporting. I hope it will be overturned on appeal, but who knows these days.

  8. There is an interesting defamation ruling out of Chicago where U.S. District Judge Marco Hernández …”

    Isn’t that Portland, Oregon, not Chicago?

    I am reading the supplemental opinion which rendered partial summary judgment to defendant Cox on most of her blog posts, even though she did not file such a motion (plaintiffs filed the motion).

    Will comment further after reading all of the relevant pleadings.

  9. The judge has declared that only corporate-sponsored news is legitimate. The problem with this is obvious – but unfortunately I think it stands.

    The judiciary these days seems quite willing to hand all power over to corporations and then declare them immune from the law.

  10. While a blog may be a relatively new medium the legal principle isn’t new.
    In the “old days” a person could photocopy and distribute an attack on a private or public official containing clearly defamatory material. Because the copy machine, a “press”, was used does the circulator enjoy the designation of a journalist. The existing law on defamation covers the characterization of blogs.

  11. The opinion in July and the supplemental in August both analyze the plaintiff’s motion under a First Amendment standard concerning free speech opinion. Under that standard only one blog post was triable because the material facts related to it were in dispute.

    The defendant blogger was granted summary judgment on all other blog posts.

    I can’t find any reason to think the judge even considered the “free press” aspects of the First Amendment, probably because the plaintiffs did not make it an issue, and the defendant did not brief it, making one one assertion that she was an “investigative blogger”.

    I could not find the words “free press” or the word “journalist” anywhere in either the original opinion in July, or in the supplemental in August.

    I don’t know why the issue of journalism and free press was mentioned in this post on Turley Blog.

    Someone wise me up if I missed it.

  12. “One wonders how corset-maker, privateer, school teacher, and butler, Thomas Payne would have withstood the test established by Judge Marco Hernández.” (mespo)

    Absolutely beautiful response that goes straight to the heart of the matter.

  13. http://wonkette.com/457895/boston-judge-rules-free-speech-doesnt-count-if-cops-need-to-beat-you#idc-cover

    Here’s the creepy stand-out line from the judge’s ruling: “Little in the way of expression is outlawed in the United States Constituion, but an act which incites forceful response is unlikely to pass as express speech.”

    Uhhh. So new memo to everyone! You can “express” yourself all you want, up until the cops/nervous mayors/freaked out bank executives decide your face would look a little more friendly to them with pepper spray in it. Thanks for clarifying!
    The “she made me beat her” defense is now law?

  14. I found my mistake, I did not read the final court memorandum / opinion, I had read only the summary judgment memoranda.

    Here is a legal journal article dealing with a “citizen journalist” not having to disclose confidential sources: Link (It favors the defendant Cox in this case).

    I think we should distinguish who is covered by the “free press” language in terms of who is a citizen journalist, and what protections, privileges, and burdens that places on a citizen journalist and/or a professional journalist.

  15. eniobob 1, December 8, 2011 at 3:42 pm

    Dredd,from your link 75 years??????

    They are doing their best to shut it all down.
    ==================================
    I share the same observations and questions that Professor Turley did, now that I have read Judge Hernandez’s applicable memorandum.

    I had read two earlier memoranda of his, thinking those were what Professor Turley was in reference to, but finally figured out that the Professor had another memorandum in mind.

    Remember that there were state-law shield defenses brought by Cox, a pro se defendant, however, they were brought untimely by Cox.

    The state statute required the state shield law (defamation related) be raised and asserted within 60 days.

    The issue in this Cox case was defamation, which can even apply to The New York Times (NY Times v Sullivan).

    What NYT v Sullivan does is offer protection to the free press in defamation cases, but the issue there was how does it apply when the plaintiff is a public figure.

    It merely ratcheted up the burden of proof on a plaintiff in those circumstances, but that heightened burden would not apply if the plaintiff was not a public figure.

    What Judge Hernandez did, in the case we are discussing, was to take a lame understanding of “free press”, then conflate it with “journalist”, rendering a meaning that the cases do not support.

    The purpose of the free press is to reveal what the government is doing, so the citizens can keep abreast of both government shenanigans and legitimate government activity.

    Supreme Court precedent has not limited the form or recipe for that:

    The press in its connotation comprehends every sort of publication which affords a vehicle of information and opinion … the very foundation of the freedom of the press [is violated] by subjecting it to license and censorship.”

    (Lovell v City of Griffin GA). We can see at once that citizen journalism is critical when we consider the words of the President of the Associated Press:

    The Bush administration turned the U.S. military into a global propaganda machine

    (Warriors Press For Propaganda). Citizen journalism is a valid counter to the subjugation of the “we dress good and wear professional clothing” journalists who can be subjugated by government pressures.

    A recent federal 1st Circuit case, which Professor Turley has quoted in other posts, indicates that citizen journalists have the right to gather news under the free press clause of the First Amendment (Glik v. Cunniffe).

    The courts would do better to treat citizen journalists the same as for-profit main stream journalists, focusing on the merits of defamation claims in the same manner they do with the press Bush II turned into “a propaganda machine“.

    The purpose of a free press is to provide the public with information about what the government is doing, not to become a government mouthpiece for deceiving the public.

    Citizen journalists are competent to do that, and are less likely to become mouthpieces for a rogue government.

    The cases and articles cited above are available here.

  16. “. . . an act which incites forceful response is unlikely to pass as express speech.”

    Sonofagun — ain’t that the whole reason for the Amendment?

  17. In analyzing any free speech and free press issue, I think it is important to keep in mind the true beneficiaries of 1st Amendment protections — those who hear or read (or watch) whatever is said. The purpose of the Amendment is protect my right and your right to hear and read about what’s going on. The starting point for any rule or decision should be whether it fosters the free flow of information to “we the people” or hinders it.

    BTW, that’s why I detest “denial-of-speech” hecklers, whether Tea Party folks of OWS cohorts; by shutting down a town hall speaker or a university lecturer, they trample on the fellow citizens’ right to hear. They limit their fellow citizens’ ability to make informed decisions.

  18. Oro: Not especially liking some of the ‘heckling’ either, I did see one instance today that seemed valid.

    A student from Middlebury College attended the climate change conference in Africa. She stood and recited a short statement from her youth group directly to the US ambassador to the conference.

    More Multinational Corporations had seats at this conference to speak instead of scientists or students or any group from the populations who would be affected most by the decisions of the conference. They were in the streets outside the conference because they did not have a voice at the talks.

    It may be a tactic of desperation for the voiceless if done well. It garners some attention to the subject matter of the passionate speaker. It takes some risk every time of not going over well, but sometimes it does.

  19. Oh, I love the well-timed and witty heckle. It is its own art form. I object to the orchestrated efforts of hecklers to prevent dissemination of information or ideas. It’s like overwhelming a website with email to deny anyone else access. “Denial of speech” heckling is the equivalent of “denial of access” email attack.

  20. Dread, you say (@7:29)
    A recent federal 1st Circuit case, which Professor Turley has quoted in other posts, indicates that citizen journalists have the right to gather news under the free press clause of the First Amendment (Glik v. Cunniffe).

    My only objection to this phrasing is that it seems to confer more rights to people who plan to write about issues than to people who plan to talk about issues.

    There may be state or federal laws that regulate the for-profit press, but I read the 1st amendment as dealing with freedom of expression, not making a distinction between written or spoken, whether for-profit or non-profit.
    The semi-colons in the first amendment seem to aim that amendment at three targets, and the first target is freedom of expression.

    This vaunted “freedom of the press” takes up only 4 words, and that is counting “or” and “of” and “the”.

  21. ORO:

    The purpose of the First Amendment as a collectivist right versus an individual right is an interesting question. It is an individual right in the sense that I have the right to mount my soapbox even if no one is around and speak to my heart’s content. There is no requirement that the speech be for benefit of the public. My own self-satisfaction is quite adequate a reason to invoke the protection. On the other hand, it has a justification of truth seeking for the public which validates its existence as well. Professor Phillip Napoli did an admirable job of discussing the transmission versus reception justifications:

    http://www.bnet.fordham.edu/public/comm/pnapoli/first.htm

  22. Mespo —

    It is true beyond reasonable doubt that I will never be confused as a deep thinker; my only hope in understanding most things is to Keep It Simple Somehow. Looking for synergies does it for me. Instead of seeing dichotomies or either/or situations, I’m more likely to see the flip side of a coin or another facet of the same jewel. I guess I kinda fool myself into thinking that I’m only thinking about one thing.

    The first Amendment protects the Rights of the Individual, but the overriding beneficiary of such protection is the community of hearers. Focus on protecting the apex critters in an ecosystem and you protect the whole ecosystem, even elements which may have no direct bearing on the welfare of the apex critters. Kinda the same with protecting the speaker who has no audience or promotes purely selfish desires. Failure to protect that speaker may result in failing to protect a speaker who can greatly benefit the community.

    Anyway, thanks for the link. This is the second article mentioned in this blog this week which I have downloaded for my own reading and to send to some college journalism students.

  23. Oro
    re: “BTW, that’s why I detest “denial-of-speech” hecklers”
    Are you “up” on the Irvine 11 case, and if so, what did you think of the sentence that they got?

    and then, what of Finkelstein?

  24. Pissed me off to no end! Hope the appeal goes well.

    While I may detest denial-of-speech hecklers, I don’t believe hecklers, even denial-of-speech hecklers, should be punished simply for heckling. Just because I don’t like something doesn’t mean it should be against the law. That kind of thinking is for wusses.

    Conduct can be speech. Disrupting a speech is conduct, but it serves to communicate dissent. The hecklers should be asked to refrain; if they refuse, they should be escorted out; if they resist, they should be charged with trespassing; if they violently resist, they should be charged with assault.

    But simply disrupting a speech? Protected by the first Amendment as far as I’m concerned.

  25. I wish to thank you Jonathan.

    While I follow your postings often – this one is of great concern.

    Crystal actually worked for me and I did utilize her prowess as an investigative journalist and journalist/ Blogger.

    Keep up the good works – both you and Crystal.

    I would say that MSM is NOT journalism
    and these efforts – whatever the nefarious hordes call them

    are the only True efforts in journalism.

    Being not bought and paid for by Corporate pirates.

  26. There’s been some updates to this story.

    Apparently the bitch, Ms. Cox went after a First Amendment lawyer she had a brief professional relationship with, and when that went sour, she trotted out her usual blackmailing tactics against him.

    Amy Alkon sums it up here

    The result was the judge clarified his original order narrowing it to say that it wasn’t that bloggers couldn’t be journalists, it was that this particular blogger, was not a journalist.

  27. There is an On The Media interview with the lawyer, Marc Randazza, here in which he talks about being conflicted as a First Amendment lawyer between wanting to respect her rights to free speech and wanting to protect his family after she bought domain names with his wife and 3 year old daughter in them to say how much they suck.

    So yet another stupid crazy bitch, amirite?

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