Dec 7, 2011

No, the Sky is Not Failling: Explaining that Decision in Oregon

(cross posted at the Citizen Media Law Project)
For an update on this post, see

There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon who released a decision last week holding that blogger Crystal Cox is 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. 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. But the characterization of the 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 – 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." 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 U.S. Supreme Court
(Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and Oregon Supreme Court (Bank of Oregon v. Independent News, Inc., 298 Or. 434, 693 P.2d 35 (1985)) precedents, 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 journalists 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 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 with this holding: 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.