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
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.
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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.
Dredd,from your link 75 years??????
They are doing their best to shut it all down.
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.
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?
Ok I found the clean-up opinion … reading it now.
“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.
Mespo,
Perfect example with Paine, I agree with Blouise.
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.
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.
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.
“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.
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.
““(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.’”
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One wonders how corset-maker, privateer, school teacher, and butler, Thomas Payne would have withstood the test established by Judge Marco Hernández.
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.
Note that she was a pro se defendant.
I like her video!
W
O
W
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?
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.
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?
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.