A federal judge's ruling that a blogger was not covered by Oregon's reporters' shield law is being appealed to the Ninth Circuit,
and is getting some amicus support from media organizations. But the
appeal -- and the amici -- are not addressing the main issue that led to
an online uproar over the trial judge's initial decision.
the Reporters Committee for Freedom of the Press (where I once worked)
and Scotusblog.com, a site that covers U.S. Supreme Court cases in
intimate detail, have filed amicus briefs in the case, concerned that
the courts not define "media" and "journalist" in such a way that
bloggers are not categorically denied coverage by state reporters'
As I wrote at the time, a federal judge's decision holding that blogger Crystal Cox
was not protected by Oregon's reporters' shield law in a defamation
suit against her -- which led to a $2.5 million verdict against her --
was not as dire a threat to bloggers as it was portrayed at the time.
The judge -- District Judge Marco A. Hernandez -- did not deny Cox the
protection of the shield law primarily because she is a blogger, but
because, the court said, she was attempting to claim that there was a
confidential source for the information sought by the court 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 – which she refused to identify – as evidence in
her defense. This is known as using the
reporter’s privilege as both a "sword and shield," and is specifically prohibited by Oregon's shield law statute. See Ore. Rev. Stat. 44.530(3). [Cox disputes this.]
did include problematic language about the application of the shield
law to bloggers, even though it was not the basis of the ruling. Judge
Hernandez focused on a list in the statute's definition of "medium of
communication", and found that bloggers like Cox did not fit
under any of these categories. In doing so, he ignored that the statute
says that “medium of communication” includes not only the specific media
listed, and explicitly states that its coverage
is not limited to the listed media.
While this language
in the decision was not Judge Hernandez's rationale for his ruling, it
got most of the attention. So much so that Judge Hernandez apparently
felt the need to respond, which he did in a subsequent ruling (which I also covered) denying Cox's motion for a new trial.
In my discussion, I did not state that a person who "blogs" could never
be considered "media." I also did not state that to be considered
"media," one had to possess all or most of the characteristics I
recited. Rather, I confined my conclusion to the record defendant
created in this case and noted that defendant had presented no evidence
as to any single one of the characteristics which would tend to
establish oneself as a member of the "media."
Hernandez also noted in the second decision that
Cox had offered "public relations" services – including removal of her
blog posts – to
the defendants after they complained. "The suggestion
was that defendant offered to repair the very damage she caused for a
small but tasteful monthly fee," Hernandez wrote. "This feature, along
with the absence of other media features, led me to conclude that
defendant was not media."
of the $2.5 million verdict does not address her status as a member of
the media under the Oregon shield law. Instead, it argues that the trial
court was incorrect in its ruling of what the plaintiffs who sued her
for libel had to show in order to prevail, and that the $2.5 million
award was not supported by the evidence.
The Reporters Committee brief
argues that the heightened protection provided to journalists,
including shield law protection and heightened requirements on
plainitffs, should apply regardless of medium. "In light of the recent
evolution in the media industry and its shift toward online
publication," the brief argues, "this case presents an opportunity for
this Court to recognize that nontraditional journalists can claim the
constitutional protections of Gertz [v. Robert Welch, Inc., 418 U.S. 323
(1974)] ." But the Reporters Committee brief does not address the
specific reasons that Judge Hernandez denied Cox coverage under the
The Scotusblog.com brief
also does not address Judge Hernandez's specific shield law ruling. But
it otherwise makes a similar argument as the Reporters Committee brief:
that blogs such as Scotusblog.com should receive the same First
Amendment protection as other forms of media. "SCOTUSblog respectfully asks this Court to make clear that non-traditional news sources, such as blogs, that provide a useful public service by gathering, analyzing, and disseminating information are entitled to the same First Amendment protections as traditional news media even if they cannot make most of the showings outlined by the district court in this case."
a blogger myself -- and a free speech advocate -- I agree that bloggers
should receive the same First Amendment protection under shield laws
and U.S. Supreme Court precedent as other forms of informational media.
But while the fact that material is posted online should in and of
itself not be a barrier to such protection, not all material posted
online is "journalism," and thus should not automatically receive such
Blogs like Scotusblog.com -- and, I hope,my blog -- are sources of news and commentary that should
receive First Amendment protection. But courts considering these cases
should look at the purpose and goal of any online site to make a
fact-specific determination on this question.
Eric P. Robinson teaches media law and ethics at the CUNY Graduate
School of Journalism and Baruch College, as is of counsel to the Counts Law Group.
He was previously Deputy Director of the Donald W. Reynolds National
Center for Courts and Media at the University of Nevada, Reno. Eric is a
media and internet law attorney with extensive experience analyzing and
writing on media, internet and freedom of expression issues, including
tracking media and internet litigation and legislation. He also blogs at
(Image courtesy of Flickr user Wandering Eyre pursuant to Creative Commons CC BY-NC-SA 2.0 license.)
Florida Appeal of Ruling Holding Blog Covered By Notice Statute
Marc Randazza informs me of a similar case in Florida, where a state court held that a blog is covered by Fla. Stat. 770.01, which requires five days notice "[b]efore any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander ..." That ruling is now on appeal. For details, see http://cominsvvanvoorhis.wordpress.com. [You can also see the CMLP's threat entry on the Comins case here. -- Ed.]
Eric P. Robinson
The appeal in this case was argued before the Ninth Circuit in early November 2013. Obsidian Finance Group, LLC, et al v. Crystal Cox, Nos. 12-35238, 12-35319 (9th Cir. argued Nov. 11, 2013).
Eric P. Robinson