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In Oregon, Bloggers Aren't Journalists, Federal Judge Rules

BY Sarah Lai Stirland | Wednesday, December 7 2011

A Montana real estate agent in legal hot water for allegedly defamatory statements made on her blog isn't a journalist as defined by Oregon law, a federal district court judge has ruled.

For blogger Crystal Cox, this means she may not enjoy certain protections under a set of laws on the books in Oregon that offer a legal out for journalists who are willing to retract allegedly defamatory assertions. But for the rest of the online world, the case once again stirs the murky waters clouding a view of exactly what free speech protections bloggers can enjoy.

The case is particularly noteworthy because the judge's logic suggests that there should be one set of legal standards regarding defamation applied to individual bloggers, and another set applied to old school media organizations, said Jeffrey P. Hermes, director of Harvard's Berkman Center for Internet & Society's Digital Media Law Project.

"Right now this decision isn’t precedential" — because district courts in the same circuit are only bound by decisions made by the appeals court in their circuits — "but it’s certainly chilling in some respects, because it calls into question whether a blogger can receive standard First Amendment protections which media outlets enjoy," said Hermes. "It’s deeply worrying to us that the decision came down this way because it looks constitutionally suspect to us."

Under the existing body of First Amendment law, entities that sue for defamation have to prove in court that the author of the communication was either negligent, or knew that what they were publishing was false, but published it anyway in order for them to be judged liable.

Cox runs several blogs critical of the bankruptcy process. Oregon-based Obsidian Finance Group and one of its co-founders, Kevin D. Padrick, sued Cox for defamation after she accused Padrick of wrongdoing on one of her blogs, Bankruptcycorruption.com. Padrick, she alleged, committed several types of misdeed during a bankruptcy proceeding that he was working on as a trustee.

In the defamation case, Judge Marco A. Hernandez ruled that Cox is not immune from damages for defamatory statements under Oregon law because the state's law on the subject defines media as newspapers, magazines, "other printed periodical," or radio, television or "motion picture."

"Oregon prohibits you from suing for defamation unless you request a correction or retraction, and a correction or retraction is not published," explained Hermes.

"What Crytsal Cox was saying is: 'Look, Oregon law under the retraction statute requires you to make a demand for a retraction.' The problem was that she wasn’t publishing in one of the listed forms of media," he added.

Indeed, in Hernandez's Nov. 30 opinion, he writes:

"The Oregon Legislature has not expanded the list of publications or broadcasts to include Internet blogs ... Because the statements at issue in the this case were posted on an Internet blog, they do not fall under Oregon's retraction statutes."

The result is that Cox may be on the hook for $2.5 million, reports the Seattle Weekly, which first wrote about the saga.

Cox also isn't entitled to be judged by the rules governing publishing by journalists under Oregon's shield laws because "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," as defined by Oregon's shield laws, Hernandez said.

Interestingly, the judge also ruled that Cox isn't a journalist because, among other things, she failed to provide any evidence that she has "any education in journalism," or proof that she adhered to any standard journalistic practices like fact-checking.

The judge also disagreed with Cox's First Amendment argument that in order to get monetary damages, the targets of her critical blog posts, Padrick and Obsidian Finance Group, had to prove that her posts were published with "actual malice," meaning that she knew that her statements were false, but went ahead and published them anyway.

Cox, who represented herself in court, told Seattle Weekly that she would appeal the decision.