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

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