Ruling that blogger Crystal Cox is not a journalist granted protection under Oregon’s media shield-laws, U.S. District Court Judge Marco Hernandez entered a $2.5 million judgment against her on November 30. Free-speech advocates state the ruling fails to account for the rise of citizen journalists in the digital era.
Disagreeing with Cox’s assertions that she is an investigative blogger therefore classified as media, Hernandez concluded she “is not entitled to the protections of the law in the first instance.”
Oregon’s journalism shield law was passed in 1973 and amended in 1979, according to the state’s Legislature Media Guide, which was last updated in 2009. The law defines a journalist as a person “affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television.”
Patrick Wright, senior legal analyst at the Mackinac Center for Public Policy, a Michigan-based, free-market think tank, noted that applying legal definitions written long before the advent of the Internet renders them outdated and, in some instances, obsolete.
“Journalism, as the judge defined it, is becoming less prevalent every day,” said Wright. “Nowadays, some of the most important news comes from bloggers. Hopefully, the law will keep up with the rapidly changing landscape so that the public can be fully informed on important public matters.”
Opinions and Facts
Cox was sued $10 million in January 2010 by Obsidian Finance Group. Obsidian claimed Cox made defamatory comments about the company and its co-founder Kevin Padrick when she published her opinions that Obsidian and Padrick engaged in widespread corruption and illegal activities related to their service as trustees in a corporate bankruptcy proceeding. She wrote about her investigations and published pieces by other unidentified writers on her blogs www.industrywhistleblower.com, www.judicialhellhole.com, and www.obsdianfinancesucks.com.
Representing herself, Cox requested that the court dismiss the case under Oregon’s Media Shield Law. Hernandez acknowledged that all but one blog post cited by Obsidian as defamatory clearly indicated Cox was proffering her own mixture of opinions and facts, but determined one could be construed mistakenly by readers as completely factual. Cox says the post was based on information she received from an industry whistleblower who requested to remain anonymous.
‘An Investigative Blogger’
Cox also takes exception to Hernandez’s refusal to acknowledge her as a journalist.
In his opinion, Hernandez wrote: “Defendant fails to bring forth any evidence suggestive of her status as a journalist,” which he identified as possessing “any education in journalism; any credentials or proof of any affiliation with any recognized news entity; proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest” as well as “keeping notes of conversations and interviews conducted; mutual understanding or agreement of confidentiality between the defendant and his/her sources; creation of an independent product rather than assembling writings and postings of others; or contacting ‘the other side’ to get both sides of a story.”
Based on these criteria, Hernandez concluded: “Without evidence of this nature, defendant is not ‘media.'” The judge also concluded that Padrick and Obsidian Financial were not public figures, further hindering Cox’s defense as journalists typically have wider berth to publicly criticize public entities.
“I consider myself news,” said Cox. “I am an investigative blogger. I gather information and I post stories that have public interest in some way. I have been writing on, researching, and reporting on corruption in the judicial system and in Corporate America since 2005. I have been writing on these cases, these stories for years and not just from other blogs but from insiders emailing me, sending me documents, calling me, and telling me their story,” she said.
Forty states have journalism-shield laws, but many haven’t been updated to reflect the significant changes brought about by the Internet and the increasing number of journalists not affiliated with traditional print or broadcast media.
Last spring, the New Jersey Supreme Court ruled in a similar case, Too Much Media v. Hale, that blogger Shellee Hale was not covered by the state’s media-shield laws.
Jeffrey M. Pollock, Esq., Fox Rothschild, defended Hale in the New Jersey case. He perceives similarities between Hale’s case and Cox’s. “This decision, like the Supreme Court of New Jersey’s decision in Hale, eviscerates the intent of the First Amendment to permit the public to be exposed to a market place of valid concerns and ideas,” said Pollock. “The chilling effect of these two decisions will be immediate and far spread. In short, as newspapers increasingly fail, we will simply be left with corporate speech and the citizen journalist will act, if at all, in fear.”
Bruce Edward Walker ([email protected]) is managing editor of InfoTech & Telecom News.
“Obsidian Finance Group, LLC, and Kevin D. Padrick v. Crystal Cox,” U.S. District Court for Oregon Portland Division Opinion, U.S. District Judge Marco Hernandez, November 30, 2011: http://news.heartland.org/sites/default/files/74870113-Crystal-Cox-Opinion.pdf
“Oregon Media Shield Law ORS 44.510 to ORS 44.540,” Oregon State Legislature Media Guide, 2009 edition: http://www.leg.state.or.us/ors/044.html
“Crystal Cox, Oregon Blogger, Isn’t a Journalist, Concludes U.S. Court–Imposes $2.5 Million Judgement on Her,” Curtis Cartier, Seattle Daily Weekly, December 6, 2011: http://blogs.seattleweekly.com/dailyweekly/2011/12/crystal_cox_oregon_blogger_isn.php
“Unlike Oregon, Bloggers Are Journalists in Washington State, Do Qualify for Legal Protections,” Curtis Cartier, Seattle Daily Weekly, December 6, 2011: http://blogs.seattleweekly.com/dailyweekly/2011/12/unlike_oregon_bloggers_are_jou.php
“Blogger Seeks Shield Law Protection in Jersey Supreme Court,” Bruce Edward Walker, Infotech & Telecom News, April 2011: http://www.heartland.org/infotech-news.org/article/29473/Blogger_Seeks_Shield_Law_Protection_in_Jersey_Supreme_Court_.html
“NJ Supreme Court Denies Blogger Journalism Shield-Law Protection,” Bruce Edward Walker, Infotech & Telecom News, August 2011: http://news.heartland.org/policy-documents/nj-supreme-court-denies-blogger-journalism-shield-law-protection
“Too Much Media LLC v. Shellee Hale Decision,” New Jersey Supreme Court, June 6, 2011: http://www.heartland.org/infotech-news.org/article/30318/Too_Much_Media_LLC_v_Shellee_Hale_Decision.html