In December, the U.S. District Court for the District of Oregon declined blogger Crystal Cox the protection of an Oregon reporter shield law and First Amendment case law, holding that both applied only to institutional media. See Obsidian Finance Group v. Cox, 2011 WL 5999334, CV-11-57-HZ (D. Or. Nov. 30, 2011). Now she might get a second chance to challenge the defamation claim against her. Cox filed a motion for a new trial Jan. 4, this time with the aid of two attorneys, one of them First Amendment scholar Eugene Volokh – a stark contrast to her previous pro se representation.
The Seattle Weekly provides a concise background of the case, but the gist is that Cox was sued for defamation by investment firm Obsidian Finance Group after writing several blog posts that were critical of the firm and its co-founder. Allegations regarding all but one post were dismissed. Cox admitted that the final post at issue was factual in nature, declining her ability to argue it was protected opinion. But she refused to name the source of the information, claiming Oregon’s Shield Law, Or. Rev. Stat. §44.510 et seq., offered her protection. Cox further asserted that the plaintiff failed to prove negligence or actual malice under the Gertz standard for defamation. See Obsidian Finance, 2011 WL 5999334 at *5 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974)). While Cox claimed to be an investigative journalist, U.S. District Judge Marco A. Hernandez found her not to be a “journalist” within the parameters of the statute, declining to offer her its protection. He also deemed that Gertz, which requires a showing of negligence when a private speaker is defamed, only applied to journalists, not bloggers. Without these defenses, a jury imposed a $2.5 million verdict against her.
The court’s determination that Cox does not fit within the shield law could have significant repercussions for bloggers in Oregon, but Bruce Johnson of Davis Wright Tremaine points out that the specificity in the wording of the Oregon statute was significant in the court’s decision. Johnson, who drafted Washington’s law prior to its legislative approval, notes that Washington’s reporter’s privilege statute would more likely apply to bloggers as well.
The focus of her motion for a new trial, however, is not the application of the Oregon statute, but rather the misapplication of Gertz—Volokh argues that Gertz, and all First Amendment protections, apply equally to everyone, not just institutional media.
Perhaps the most interesting point in the case is Judge Hernandez’s reasoning for determining that Cox failed to establish her status as a journalist. He listed off seven problematic areas, including a lack of 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 interests; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding of 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. According to this standard, without evidence of this nature, a defendant will not be characterized as ‘media.’” Obsidian Finance, 2011 WL 5999334 at *5.
A new trial might bring further clarification to Gertz, but also to how we define “journalist” in a digital age when nearly everyone might be able to stake a claim to this profession. The Oregon district court might add to the increasing judicial dialogue on legal protections for bloggers.