Troubling rulings paved way for blogger’s libel conviction

Monday, December 19, 2011

That the blogosphere is buzzing about the outcome of the libel trial in Obsidian Finance Group v. Cox is hardly surprising.

The verdict against controversial blogger Crystal Cox, after all, was $2.5 million.  The jury that delivered it deliberated for all of 75 minutes. The person who will try to collect it views the case as a victory for free speech.

And then there are the rulings of federal judge Marco Hernandez in Oregon, which paved the way for the jury’s verdict. Among other things, Hernandez held that Cox was not a journalist and therefore not entitled to the protections that media defendants enjoy in libel cases.

The blogger vs. journalist buzz, however, misses one of the judge’s most legally significant decisions. Hernandez, despite having every opportunity to do so, refused to extend to Oregon bloggers a key libel defense that is available to bloggers in the vast majority of other states.

In all but a few states — Wisconsin and Vermont are two of the exceptions — a person suing for libel must prove that the maker of the allegedly defamatory statement is at fault. If the person suing is a public official or public figure, he or she must prove that the speaker either knew the statement was false or recklessly disregarded whether it was false. If, on the other hand, the person suing is a private figure, he or she must prove that, at a minimum, the speaker acted negligently in determining the truth of the statement.

In Obsidian, however, Hernandez denied Cox this basic protection. Instead, Hernandez held that, under Oregon law, non-media defendants in libel cases are not entitled to any First Amendment protection and thus can be found liable even if they take reasonable care to assure the accuracy of their statements.

This minority view is rooted in the fact that all of the U.S. Supreme Court cases establishing First Amendment protections in libel cases involved news media defendants. While most state courts have held that the reasoning in these cases applies to non-media speakers, a few have clung to the view that private speech about matters of private concern is not constitutionally significant.

Hernandez’s embrace of the minority view is clear.

“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,” Hernandez wrote in his Nov. 30 opinion. “Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is ‘media,’ triggering the negligence standard.”

Hernandez’s reasoning, however, ignores at least two key facts. First, Cox represented herself, so her failure to present authority should not control a potentially constitutional issue. Second, by focusing on whether authority exists to treat a blogger as a journalist, Hernandez failed to address the many cases nationwide that hold that non-media libel defendants (blogger or otherwise) are entitled to the same constitutional protections as journalists.

Ultimately, Hernandez’s ruling on this issue appears to have had little impact on the trial’s outcome. For reasons that are not entirely clear, Cox in a series of blog posts excoriated Kevin Padrick, a private lawyer serving as a bankruptcy trustee. In her posts, Cox accused Padrick and his company, Obsidian Finance Group, of bribery, tax fraud and money-laundering.

Though Cox during the case sought to protect a confidential source, little other evidence exists that she reported her posts carefully. Indeed, Hernandez threw out most of Padrick’s lawsuit on the grounds that Cox’s posts were so outrageous that no one would believe she was making factual statements about him.

Padrick has said he is not optimistic that he will collect any significant amount from Cox. Nevertheless, he rejects the notion that the verdict will discourage bloggers from writing about important issues. Instead, he says, his case is a victory for the First Amendment.

“If defamatory speech is allowed just because it is on the Internet,” Padrick told The New York Times, “it cheapens the value of journalism and makes it less worthy of protection.”

Cox certainly will not be the last case to ask whether bloggers are journalists or — even if they are not — whether they are entitled to First Amendment protection. Some judges likely will even use the multi-part test Hernandez used to determine whether a blogger is a journalist, asking whether the blogger (1) has any journalism education, (2) is affiliated with a recognized news entity, (3) adheres to editing and fact-checking standards, (4) keeps notes of interviews, (5) agrees to keep some sources confidential, (6) creates an independent product rather than assembling writings or postings of others and (7) contacts sources to obtain all sides of a story.

This test and others like it undoubtedly will generate controversy as judges use them to determine whether bloggers may keep sources confidential or insist on access to events and meetings open to recognized journalists.

Whether bloggers being sued for libel are entitled to the same First Amendment protections as  non-media defendants, however, should be beyond controversy. On this issue, Cox was wrongly decided. Regardless of how judges feel about individual bloggers, the majority view on this issue should control and ensure all bloggers this basic protection.

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