by F. Grey Parker
Sometimes, these independent reporters are essential. This has been the case with the coverage of ongoing atrocities in Syria. Other examples are certainly less urgent. Some are even infuriating (think James O'Keefe). But, this all journalism.
As a blogger who has occasionally used an anonymous source or two, a recent legal decision from Oregon sends a chill down my spine. AP reports:
"A federal judge in Oregon has ruled that a Montana woman sued for defamation was not a journalist when she posted online that an Oregon lawyer acted criminally during a bankruptcy case, a decision with implications for bloggers around the country."
The defendant in this proceeding, Crystal L. Cox, has published hundreds of pieces since she began blogging. Her specialty is the real estate industry and she is widely read. Her blog can be found HERE.
What's at the heart of the case are Oregon's shield law, the tool journalists throughout the country have relied on for years to protect their sources from retaliation and even danger, as well as the legal standard for negligence in a defamation proceeding. U.S District Judge Marco Hernandez has defined both so narrowly as to be dangerous. Also, his decision pours derision on the defendant for not possessing a journalism degree. I wonder what he would have thought of Mencken?
"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.
Cox said she considered herself a journalist, producing more than 400 blogs over the past five years, with a proprietary technique to get her postings on the top of search engines where they get the most notice.
"What could be more mainstream than the Internet and the top of the search engine?" she said.
Padrick, of Bend, Ore., was a trustee in a bankruptcy case involving Summit Accommodators, a company that helped property owners conduct real estate transactions in a way to limit taxes. Three executives face federal fraud and money laundering indictments.
The lawyer sued Cox for defamation, a legal fight that is typically difficult for plaintiffs to win. Public figures, for example, must prove the defendant knew the statement in question was false, and the statement must be matters of public interest.
The judge found that Padrick was not a public figure, and that the bankruptcy case was not in the public interest. The ruling opened the way for a jury to award $2.5 million to Padrick and Obsidian.
Cox said she didn't have the money to pay the judgment, and that she intended to keep posting about the Summit bankruptcy case."
Dan Kennedy, an assistant professor of journalism at Northeastern University, is less alarmed by the shield law component in the decision than he is the issue of negligence and status. He writes for HuffPo:
"In a passage that I find astonishing, Hernandez found that Cox could not be considered a "media defendant," and that therefore Obsidian and Padrick would not have to prove she acted negligently.
A little background. In the landmark 1964 case of New York Times v. Sullivan, the Supreme Court ruled that public officials could not prove libel unless they were able to show "actual malice" -- that is, that defamatory material about them was published despite the knowledge that it was false, or with "reckless disregard" for whether it was true or false. That standard was later extended to public figures as well.
But what about private figures, such as the plaintiffs in the libel suit against Cox? In 1974, the Supreme Court abolished the last vestiges of no-fault libel, ruling in Gertz v. Robert Welch that even private figures would have to prove negligence at the very least in order to win a libel case. (The states were free to set a tougher standard of fault, but not a lesser one.)
Hernandez, though, blew right past the Gertz requirement, even as he quoted it, by ruling that Cox was not entitled to its protection because she was not a "media defendant."
This is not the only recent decision to have a chilling effect on new media. Graeme McMillan observes:
"This is the second ruling in recent months that complicates the issue of digital journalism and anonymity; in June, the New Jersey Supreme Court ruled that online discussion forum postings by journalists are similarly not covered by that state’s Shield Law. The solution is clear: Don’t say anything online that you’re not willing to defend in court… but if you have a chance to attribute statements blindly in print or television, go crazy."
The point here, as I see it, is that we have moved far from the days of the cigar-chomping muckraker, pounding keys on an old Underwood 5 and racing to make some editor's deadline in a cacophonous room surrounded by hundreds of others doing the same. The romanticized images of All The President's Men are not only no longer representative, they are quaint.
As Professor Kennedy puts it, "Hernandez's ruling is dangerous not because he doesn't believe bloggers are journalists. Rather, it's dangerous because he believes journalists comprise a special class who are entitled to more constitutional rights than the rest of society.
That's not just bad law. It's bad for democracy."
Fox fails Hernandez's criteria for Christ's sake.
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