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"Don't fear the law, fear the judge."

--Alexander Solzhenitsyn 
from: The Gulag Archipelago

Citizen Journalists Under Attack

Truth Not an Affirmative Defense

Crystal L. Cox, claiming protection as a citizen journalist, was accused of defamation by a lawyer when she publicized allegedly corrupt acts that were known to her.  She lost the defamation case, not because her accusations were false (they were not), but because the judge ruled that she is not entitled to the protections afforded to "bona fide" journalists.  This case has serious consequences for bloggers (citizen journalists) who openly criticize public figures, and who now outnumber traditional journalists.  The court's opinion is intended to have a chilling effect on public criticism, and is an example of how the courts are restricting the rights of citizens that are guaranteed by the Constitution and its Bill of Rights.

Federal Judge: Montana Blogger Is Not Journalist
December 7, 2011

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.

Crystal L. Cox, a blogger from Eureka, Mont., was sued for defamation by attorney Kevin Padrick when she posted online that he was a thug and a thief during the handling of bankruptcy proceedings by him and Obsidian Finance Group LLC.

U.S. District Judge Marco Hernandez found last week that as a blogger, Cox was not a journalist and cannot claim the protections afforded to mainstream reporters and news outlets.

Although media experts said Wednesday that the ruling would have little effect on the definition of journalism, it casts a shadow on those who work in nontraditional media since it highlights the lack of case law that could protect them and the fact that current state shield laws for journalists are not covering recent developments in online media.

"My advice to bloggers operating in the state of Oregon is lobby to get your shield law improved so bloggers are covered," said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press. "But do not expect the shield law to provide you a defense in a libel case where you want to rely on an anonymous source for that information."

The judge ruled that Cox was not protected by Oregon's shield law from having to produce sources, saying even though Cox defines herself as media, she was not affiliated with any mainstream outlet. He added that the shield law does not apply to civil actions for defamation.

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.

"My intensions are the highest and best," she said. "I know I am sometimes over the top or a little bit vulgar. But I encourage people not to listen to me or him but to look at the documents and make their own decision based on that."

Padrick said the case showed how vulnerable anyone was to someone with a computer. He said he has lost business from potential clients who search his name and firm through Google and find Cox's postings at the top of the list, adding that he has no way to remove them.

"If anyone can self-proclaim themselves to be media, the concept of media is rendered worthless," Padrick said. "When everyone is media, the concept of media is gone."

The judge ruled that Padrick and his company did not have to seek a retraction, as required by Oregon law, before claiming damages, because a blogger is not on the list of recognized media, which include newspapers, magazines, television and radio news, and motion pictures.

Padrick said he did not expect to collect much of the $2.5 million jury award, or to see his business fully rebound. He said his only consolation was that all eight jurors who heard the case believed he had been significantly harmed.

Ellyn Angelotti, who teaches about digital trends and social media at The Poynter Institute, said the ruling was significant because so little case law has built up on online media. But she believed it would have little impact on bloggers in general until the U.S. Supreme Court takes up a case, or more federal courts rule.

Kyu Ho Youm, a First Amendment expert and journalism professor at the University of Oregon, called the judge's strict definition of a journalist "outdated" since so-called citizen journalists currently outnumber traditional journalists.

"When we talk about the shield law, we should pay more attention to the function people are doing than whether people are connected to traditional and established news media," he said.

Copyright 2011, ABC News Internet Ventures

From: Jeff Barnard, "Federal Judge: Montana Blogger Is Not Journalist," ABC News, December 7, 2011, http://abcnews.go.com/Technology/wireStory/ore-judge-rules-blogger-journalist-15108964, accessed 12/10/2011.  Tulanelink thanks Gary Zerman for bringing this article to its attention.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Video adapted from "Crystal Cox Speaks Out on Blogger/Journalist Debate," WebProNews Videos, December 16, 2011, http://videos.webpronews.com/2011/12/crystal-cox-speaks-out-on-blogger-journalist-debate/, accessed 12/18/2011.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading

  1. Crystal L. Cox, "Obsidian v. Cox; Portland Oregan Financial Company v. Investigative Journalist-Blogger," http://www.obsidianvcox.com, accessed 02/06/2012.

  2. "Obsidian v. Cox; Trial Documents Blogger Cox was Denied into Court," http://www.docstoc.com/docs/107076940/Obsidian-V-Cox---Trial-Documents-Blogger-Crystal-Cox-Was-Denied-into-Court, accessed 02/06/2012.

  3. Crystal L. Cox, "Summit 1031 Bankruptcy; An In-Depth Investigative Blog into Kevin Padrick's as Trustee," http://www.objectiontofees.com, accessed 02/06/2012.

Is a Blogger a Journalist?
December 9, 2011

The case of Crystal Cox, a self-professed "investigative blogger" from Oregon, should outrage the public. The woman was investigating targeted companies that she believed to be acting unethically and found herself at the wrong end of a lawsuit.

The evidence she had unearthed concerning a Pacific Northwest finance group she was after and the sources she used seemed, in the end, immaterial to the outcome of the lawsuit against her. I won't get into the details of Cox's case since my concern is the definition of journalist. The judge, recent Obama appointee Marco Hernandez, asserted that as a blogger with no other credentials, she was not a journalist and was entitled to no protection.

He said, "Although the 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. Thus, she is not entitled to the protections of the law in the first instance."

Apparently, there are now new qualifications for journalists. So who decides these qualifications? Hernandez? Where did he get this from? I've never seen a laundry list in the U.S. that precludes bloggers. There is nothing in the Bill of Rights, to wit: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In this instance, the concept of the "press" means any dissemination of information through a communications medium. In the past, this would be a flyer, pamphlet, or newspaper. Now, it includes TV, radio, magazines, PDF files, and blogs. Just because the media have modernized, it does not suddenly mean that the rules have changed.

More importantly, when we look at journalists' rights, there are no admissions whatsoever. You do not need a license—like you do in most South American countries, for example—to be a journalist. I'm not sure where Hernandez got his ideas from, but it seems someone failed to emphasize the Constitution.

By his definition, all Cox has to do is publish a pamphlet or write a book to be a journalist. The defining difference between a pamphleteer and a blogger is, frankly, beyond my grasp. How would a pamphlet containing the same information qualify her as a journalist when the more modern and slick blog disqualifies her? Where's the logic in that?

Taking away the mention of the pamphlet, the rest of Hernandez's list implies that you need some sort of blessing to be a journalist, and apparently be an employee. Someone has to pay you. Thus, you'd be at a newspaper or a syndicate. This logic flies in the face of the Bill of Rights.

As far as I'm concerned, bloggers can easily be considered journalists if they claim to be taking part in journalistic endeavors. That means reporting. They can merely report the current weather conditions, as far as anyone should be concerned. Publish the report, "the weather in Berkeley is nice today," and you are a journalist. You do not need training to do this. You do not need a license or a degree. There are no hoops that you need to jump through. No one will fine you for practicing journalism without a license. This is guaranteed by the Bill of Rights, not by the Columbia School of Journalism.

That said, some knowledge of libel and slander laws would be useful if you plan on writing about more than the weather—and if you want to stay out of court.

Hopefully this un-American precedent will be reversed shortly. Meanwhile, the public should be outraged. Furthermore, for years, many writers have advocated for the idea that the Bill of Rights is outdated in the modern era and that journalists per se should be regulated. These people should be strongly rebuked. If we do not protect our rights, we lose them.

Copyright 2011, Ziff Davis Inc.

From: John C. Dvorak, "Is a Blogger a Journalist?" PC Magazine, December 9, 2011, http://www.pcmag.com/article2/0,2817,2397450,00.asp, accessed 12/18/2011.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.





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