There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon last week that held that blogger Crystal Cox is not protected by Oregon's reporters shield law, thereby leading to a $2.5 million verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011). But most of the buzz and criticism is based on an erroneous reading of the decision.Details of the libel suit against Cox are here. (Further legal details and documents are available in the CMLP Threat database entry and an earlier CMLP blog post on a different ruling in the same case.) But the characterization of Judge Marco A. Hernandez's decision in most of commentary is incorrect. He did not deny Cox the protection of the shield law primarily because she is a blogger, but because she tried to use the shield law in a way that courts have rejected.
This requires a bit of explanation, so bear with me:
The problem is that while the Oregon shield law provides that “[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required [to reveal confidential sources],” Ore. Rev. Stat. 44.520(1), "medium of communication" is defined by Ore. Rev. Stat. 44.510(2), which states that:
“Medium of communication” has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.
Judge Hernandez focused on the list, and found that Cox did not fit under any of these categories. He apparently ignored that the statute says that “medium of communication” includes not only the specific media listed, and that the statute also explicitly states that its coverage is not limited to the listed media. (The court’s decision does not dwell on this point.)
But there was a more important basis why the judge held that Cox was not covered by the shield law in this case – it’s because she was attempting to claim that there was a confidential source and, at the same time, use the existence of that source as evidence that she did not act with negligence in making the blog post at issue. In other words, she was attempting to use the existence of the source – whom she refused to identify – as evidence in her defense. This is known as using the reporter’s privilege as both a "sword and shield." This has been rejected by courts in many states, and Oregon's shield law statute specifically prohibits it. See Ore. Rev. Stat. 44.530(3).
While Cox’s status as a blogger was not (primarily, at least) the basis for the court holding that was not protected by the shield law in this case, there’s another part of the decision in which the judge does say that a blogger is not “media” – and that part is problematic.
Under precedent from both the U.S. Supreme Court (Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and the Oregon Supreme Court (Bank of Oregon v. Independent News, Inc., 298 Or. 434, 693 P.2d 35 (1985)), plaintiffs in a defamation case against a media entity cannot recover any damages without proof that the defendant was at least negligent, and may not recover presumed damages without proving that the defendant acted with "actual malice" (knew a statement was untrue and published it anyway, or acted with “reckless disregard” for whether the statement was true or false). But the judge in Cox’s case said that these precedents did not apply, because she was not a journalist and her blog was not “media:”
Defendant cites no cases indicating that a self-proclaimed "investigative blogger" is considered "media" for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is "media," triggering the negligence standard.
Defendant fails to bring forth any evidence suggestive 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 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."
Judge Hernandez is technically correct: I was unable to find a case holding, in the specific context of applying a negligence standard because the defendant is a media entity, that bloggers are journalists and that blogs are media. But there ARE cases holding that bloggers are journalists and that blogs are media. Two prominent examples are O'Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App., 6th Dist., 2006) (involving California's shield law) and Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 999 A.2d 184 (N.H. 2010) (New Hampshire's constitutional journalist's privilege).
As pointed out by Forbes magazine, there may be other reasons that Cox is not a journalist. But that should not affect the legal standard, and it is unreasonable for Judge Hernandez to expect there to have already been an Oregon case holding that a blog or web site was "media" for the Gertz rule regarding the plaintiff's burden of proof in cases against media defendants. Even though the Internet has been around for almost two decades now, it is still too new, and appellate decisions involving the web are still too few (though growing), for that issue to have already been litigated.
It appears, however, that the cases that have found blogs to be media were not brought to this judge's attention. The fact that Cox is representing herself may have something to do with that.
The fact that Cox is writing on blogs does not prevent her from being categorized as a journalist under the law. A lawyer, however, she is not.
Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He previously worked at the Media Law Resource Center and the Reporters Committee for Freedom of the Press. In addition to his posts here, Eric also blogs at www.bloglawonline.com.
(Photo courtesy of Flickr user Erik Kurtz under CC BY-NC-SA 2.0 license.)
Party Like its 1969
Judges are, quite simply, wrong to distinguish which publishers are "media" defendants and which are not when analyzing a defamation fault standard. Not only is the exercise fraught with peril, see Branzburg, but it applies a head mirror to cases that were intended (and expressly so) to be resounding, far-reaching statements of the importance of free speech in this country, such as Sullivan and Falwell.
At the time the Supreme Court was discovering the First Amendment's fault standard in defamation and similar claims, the only established means for mass communication were what Judge Hernandez describes as the "media." Today, that is simply and unarguably not the case. "Bloggers" are just as capable of contributing to the marketplace of ideas in a meaningful way as any professional information dissemination operation. As a result, limiting the term "media" to its 1969 definition is not only unsound, but is a crabbed view of a term that is intended to be broad and all-encompassing -- the First Amendment, after all, applies to the lonely pamphleteer with equal force.
Rob Arcamona is a legal fellow at the Student Press Law Center (www.splc.org).
Excuse me if I am mistaken, but I believe the sentence: "Judge Hernandez focused on the list, and found that Cox did fit under any of these categories." I believe the the sentence is missing the word "not" after "did".
Thanks for pointing out the typo. I've fixed that, and also clarified the sentence regarding Forbes' findings and the legal standard for protection.
Eric P. Robinson