In a decision that rattled bloggers throughout the country, a federal judge ruled that a Montana blogger was not entitled to the same protections as a journalist and ordered her to pay $2.5 million in a defamation claim.
But U.S. District Court Judge Marco Hernandez is right.
Crystal Cox is no journalist. And she especially isn’t an “investigative journalist” as she proclaims on several of her sites.
She is an extortionist. And not even a very good one.
Cox, who spent several years publishing negative blog posts about Obsidian Finance, damaging the Oregon company’s online reputation in the process, contacted them earlier this year to offer online reputation services at $2,500-a-month.
In other words, she is the cyber equivalent of the mob goons who firebomb your business, before demanding protection money.
Here is a screenshot of her email to Obsidian Finance’s attorney, David Aman, that was published in Forbes:
According to Forbes, Cox created dozens of sites to which she dedicated to trashing Obsidian as well as almost 2,000 other sites she dedicated to other companies.
One can only imagine how much she was charging the other companies to clean up their online reputation after trashing it.
Less than a month before she sent the above email to Aman, she published the following on one of her blogs
There are Many Reasons Why I Claim that Kevin Padrick, Obsidian Finance LLC is a Thug, Thief and a Liar.. Many More Will Continue to Post.. in Detail .. as Oregon Attorney David Aman of Tonkon Torp LLP Law Firm sent me a Cease and Desist Requesting that I Stop saying such Facts about his Client Oregon Attorney Kevin Padrick for Obsidian Finance Portland Oregon.
Cox went on to accuse Padrick, who co-founded Obsidian, of ripping off hundreds of thousands of dollars through shady business maneuvers.
Yet she didn’t back up a single allegation.
When asked to prove her allegations in court, she claimed the information was fed to her by an inside source.
She then attempted to use Oregon’s shield law, which allows journalists to protect their sources.
But U.S. District Court Judge Marco Hernandez decided she wasn’t a journalist, so she had no protection under the shield law.
This is what he wrote in his opinion:
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.”
While it’s true that many bloggers who produce journalistic work might have never spent a day in journalism school or in a professional newsroom, they can easily protect themselves from defamation suits by sticking to the truth.
Even a corporate journalist would not have been able to hide behind the shield law had they not backed up the allegations with some type of evidence, such as leaked documents or some type of money trail.
The truth is, Cox has more leeway as a blogger than as a journalist because most of her derogatory postings against Obsidian Finance are based on opinion.
And Judge Hernandez proved to have a solid grasp of how the First Amendment applies to bloggers when he dismissed most of the defamation claims against her in August because they were based on opinion.
According to the Reporters Committee for Freedom of the Press.
An Oregon blogger’s disparaging “almost stream of consciousness-like” statements about the trustee in a bankruptcy case are protected opinion under the First Amendment, a federal judge in Portland recently ruled.
The opinion in Obsidian Finance Group v. Cox highlights the importance of courts’ consideration of the “looser, more relaxed communication style” of the Internet in their evaluations of allegedly defamatory online communications.
“Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact,” U.S. District Judge Marco A. Hernandez said in his Aug. 23 order dismissing the overwhelming majority of defamation claims against self-described investigative blogger Crystal Cox, who often writes about whistleblowers in the real estate industry.
The only claim Hernandez did not throw out was the blog post mentioned above where she accused Padrick of being a thief because she was saying it as if it were a fact without any supporting evidence.
The First Amendment does not give us the right to create lies about other people just because we don’t like them. That is considered libel when the lies are published or broadcasted. It is considered slander when the lies are verbally stated.
But most of the articles written about this decision have been focusing on the fact that the judge determined she was not a journalist, which on the surface, can lead to some scary implications for bloggers.
However, the decision should simply serve as a reminder that bloggers need to act as responsibly as journalists. The media landscape has changed dramatically in the last decade, but the fundamentals of journalism remain the same.
Mickey Osterreicher, general counsel for the National Press Photographers Association, weighed in on the topic of the shield law in an email Thursday:
This is a matter that will be of continuing concern to the journalism community. Defining who is a journalist was a critical and contentious issue for the Senate Judiciary Committee and the Federal Shield Law Media Coalition during a 2009 attempt to enact a federal shield as part of the Free Flow of Information Act.
While it is understandable that many bloggers and citizen journalists believe that they deserve those same journalistic protections — it is also quite evident that if “everyone” posting online or uploading photographs to a website is defined as a journalist — then upon the first legal challenge to such a law it will not be surprising if the law is struck down and “no one” gets those protections.
“If everybody is a journalist, then nobody is a journalist,” he added in a phone conversation Thursday evening.
The bottom line is, if bloggers want to be viewed as journalists, they need to start acting like journalists. And a good start would be to learn basic media law and ethics.
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