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January 3, 2012 at 9:03 am 
Ed Brayton I’m glad to see that Eugene Volokh, one of the top First Amendment scholars in the country, will be representing a blogger from Oregon who is appealing a defamation lawsuit filed against her. This is a very important case for the free speech rights of bloggers.
The federal district court ruled against the blogger, Crystal Cox, concluding that she is not a member of the institutional media and therefore not entitled to the same protections against defamation given to the press under both state and federal law. The case was filed by Obsidian Finance Group LLC. On the state law questions:
Oregon Revised Statutes §§ (O.R.S.) 31-200 — 31.225 preclude a plaintiff from obtaining general damages on account of a defamatory statement being published in certain forms unless a correction or retraction is demanded, but not published as provided in O.R.S. 31.215. Defendant contends that because plaintiffs did not seek a correction or retraction, they may not obtained general damages.
These statutes apply, however, only to actions for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television, or motion picture. O.R.S. 31.205, 31. 210. The Oregon Legislature has not expanded the list of publications or broadcasts to include Internet blogs. Because the statements at issue in this case were posted on an Internet blog, they do not fall under Oregon’s retraction statutes.
On Oregon’s journalist shield laws:
O.R.S. 44.510 — 44.540 provide certain protections to “Media Persons as Witnesses.” O.R.S. 44.520 provides that
[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required by . . . a judicial officer . . . to disclose, by subpoena or otherwise . . . [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]
O.R.S. 44.520(1). “Medium of communication” is broadly defined as including, but 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.” O.R.S. 44.510(2).
Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.
Second, even if she were otherwise entitled to those protections, O.R.S. 44.530(3) specifically provides that “[t]he provisions of O.R.S. 44.520(1) do not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” Because this case is a civil action for defamation, defendant cannot rely on the media shield law.
And on the key question of whether a blogger is part of the media:
Defendant next argues that she is “media” and thus, plaintiffs cannot recover damages without proof that defendant was at least negligent and may not recover presumed damages absent proof of “actual malice.” Gertz, 418 U.S. at 347; see also Bank of Oregon, 298 Or. at 445-46, 693 P.2d at 43-44 (when plaintiffs were not public figures, but defendant was “media,” plaintiffs had to prove that defendants were negligent in publishing the challenged article).
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.”
But as Volokh argues in a new article in the University of Pennsylvania Law Review, the Free Press Clause of the First Amendment, properly understood, “protects everyone‘s use of the printing press (or its modern equivalents) as a technology. People or organizations who want to occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters. He uses historical evidence to show that “the text was likely understood as fitting the press-as-technology model — as securing a right of every person to use communications technology, not just a right belonging to members of the
publishing industry.”
Volokh and his co-counsel are filing a motion for a new trial and, failing that, will file an appeal to the 9th Circuit Court of Appeals. Let’s all hope they win that appeal.
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Playing devil’s advocate here… Does this line of argumentation mean that Oregon’s shield laws automatically apply to me as long as I am careful to make a one-off blogspot account any time I want to engage in speech that would not otherwise be protected?
There’s two ways I can think of responding here: One is to ask why the speech wasn’t protected in the first place (I have not been able to find the details of this case summarized anywhere and don’t have time to read the entire ruling at the moment, though I did glance at it. So maybe there’s a good reason?) But then why are we hiding behind the shield laws?
The other way I can think of responding is to suggest that there be some kind of “established blogger” test, but of course that has it’s own set of problems…
jamessweet:
Which Eugene Volokh appears to counter by arguing this frame of reference, i.e., the person, is defective. That instead we should be looking to the mechanism/technology used to communicate, not the communicator. So it’s irrelevant whether a blogger meet certain criteria, the fact they blogged certain content has that content and the blogger meeting standard free press protections.
So if I’m reading the Oregon shield laws correctly, they seem to say that if you’re officially considered part of a media “institution,” you get to say at least some things that other people don’t have a legal right to say. Why is the phrase “title of nobility” ringing in my head this morning?
This law seems all-but-explicitly tailored to ensure that only the establishment get to say “defamatory” things about the establishment. Elitism doesn’t get much more blatant than this.
But that’s exactly the point I am raising: There is literally zero barrier to entry to “blog”. If Oregon’s shield laws are supposed to be affording some special protection that is undeserved of “normal” speech, then it seems to render them impotent if I can just get that protection by making sure I start a one-off blogspot account.
If it’s the only post on the entire blog, and it specifically says, “I only created this blog so I could hide behind the shield laws”, do they still count?
I’m with james sweet on this one; why are the shield laws even necessary to begin with? In any case, if the retrial isn’t successful 9th circuit will find for the blogger, the only scary thing would be if it got taken to the SC. I would not want to see how that went down.
Actually, as I’ve blogged, it would be smart for 1st Amendment groups to steer clear of this case. She admitted doing things like gaming Google Search. Second, the case isn’t about the free speech of bloggers; it’s more specific about that, as to whether she is the journalist she claims to be, and issues related to that: http://socraticgadfly.blogspot.com/2011/12/court-blogger-isnt-journalist-he-may-be.html
I’m sure I’ve seen it argued that the drafters of that Free Press clause were thinking as much of pamphleteers (the nearest 18th Cenury equivalent to bloggers) as they were of established newspapers.
“Let’s all hope they win that appeal.”
Lets not. I’m not an expert on the case but as reported it seemed it was a series of attack ads supported by a business rival of the man she libeled. It ruined the target’s business and life and then she should have legal protection to do it?
If so this is charter to crush people who can’t afford the kind of legal counsel to stop someone making dozens and dozens of sites libelling them which wil turn up anytime a potential employer or client does the obligatory Google Search.
http://www.guardian.co.uk/commentisfree/cifamerica/2011/dec/08/crystal-cox-case-digital-media < Comments here are enlightening
Bad cases make bad law. David Carr did some actual investigative journalism and in the process demonstrated some prophetic power:
Google for “David Carr” + “Crystal Cox” and check out the results. Smooth.
I’m not an expert on the case but as reported it seemed it was a series of attack ads supported by a business rival of the man she libeled. It ruined the target’s business and life and then she should have legal protection to do it?
If the blogger should not have legal protection, then neither should “established” media poobahs if they do the same thing. Again, this sounds like a “title of nobility” or “equal protection” case.
Is this really a “free speech” case? Or is this just another moronic hack blowing the “free speech” dogwhistle to silence criticism and dodge responsibility for her actions?
jamessweet writes:
I think I get your point now. To compliment with Volokh’s argument, the cost and barriers to press-protected speech is now practically close to zero because of the advance of technology (for anyone with access to computer and the Internet, which is pretty easy for nearly all of us given library computers). If Volokh’s argument becomes precedent, all one has to do to increase their constitutional protections is understand which communication vehicles they use to heighten their constitutional protections from that of a person to that as the media. In this case Volokh will be arguing a blog post clears that hurdle.
Personally I think the rights of those defamed, slandered, or libeled, need to be broadened in civil suits. I think their right to seek justice for the damage done to them or groups of us by liars is greater than our right to purposefully misinform others. I prefer the media have an even tougher set of hurdles to clear showing they weren’t purposefully misinforming their audience if the facts clearly show someone or cause was harmed by dishonesty where the defamer did not adequately validate the veracity of premises they published which defame others. The obligation should be on the defamer. I think we’d be far better off if liars were socially ostracized, where i think the civil courts could help immensely with some jury-determined damages on high-profile cases.
I just read the Socratic Gadfly post cited by He-Whose-Name-Shall-Remain-Too-Garbled-To-Repeat. I’ll quote the following paragraph for emphasis:
[Judge] Hernandez said Cox was not a journalist because she offered no professional qualifications as a journalist or legitimate news outlet. She had no journalism education, credentials or affiliation with a recognized news outlet, proof of adhering to journalistic standards such as editing or checking her facts, evidence she produced an independent product or evidence she ever tried to get both sides of the story.
So, yeah, this looks like just another case of free-speech advocates mindlessly jumping to the free-speech dogwhistle again. Except for me, of course, I’m a brave individualist forging my own path and mindlessly jumping to the title-of-nobility dogwhistle instead.
You’re defectively conflating the facts of the case in determining that justice be served in this particular case with the far more important constitutional matters which Ed raises which effect all of us. I’m grateful this case has someone of Eugene Volokh’s talent arguing the 1st Amendment issues and I’m grateful Ed brought it to our attention.
I just read the NY Times link cited by chriscroy. Holy fucking shit, this woman isn’t a victim of repression or elitism, she’s another Orly Taitz! If Volokh takes this up as a “free speech” case, he’s a fucking moron.
I haven’t been able to get the timeline 100% sorted out, but it appears that after she planted defamatory google search results about Obsidian, she sent them an e-mail “…offering PR services and Search Engine Management services… to protect online reputations and promote businesses.” For $2500.00 a month!
That looks more like extortion than journalism (and she appears to have gone to the Paul Christoforo School of Business Writing… her crap is almost unreadable) but I’ve only just scratched the surface of this case so I’ll reserve judgement. I gotta take my cat to the vet.
I meant to post a link for that e-mail. Here it is:
http://blogs-images.forbes.com/kashmirhill/files/2011/12/Crystal-Cox-reputation-offer.jpg
Enjoy.
This really seems to be a case of ‘reaching the right conclusion by the wrong means’. The woman is very obviously a libelous agent, and a bit of a nutjob in the bargain. She should, indeed, have been held to account for those lies, and the overall judgement against her is one that would be fitting for anyone who had committed similar actions.
The problem lies in the small ruling the judge made in the course of getting to that point, which focused entirely on the issue of who qualifies for those protections afforded to journalists.
Personally, I would like to see that particular ruling not survive very long at all. I do think shield laws need to be re-written in a manner that would address libel cases. If nothing else, once findings of defamation and falsity have been made, the shield law should no longer be in effect (in other words, if you’re down to defending your libel by saying you “acted in good faith based on a reliable informant”, you need to name that informant).
I’m very sympathetic to Raging Bee’s comparison of this to a sort of “title of nobility” thing. I think this case is exposing a problem with the shield laws themselves, rather than in the interpretation of them.
If Cox’s actions were so damaging as not to qualify as protected speech, why would it be any better if a newspaper or TV station were engaging in the same actions?
I posted earlier that a blanket ruling of “blogging is journalism” would render the shield laws impotent, and I stand by that. But that doesn’t necessarily mean I agree with the shield laws.
@freemage
So in the case of Judith Miller, you agree with her being sent to prison? The problem I see is that a generally reliable source could relay false information, possibly without knowing. So having to reveal the source wouldn’t just hurt the Roves and Emanuels of this world, but also whistleblowers.
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