Debate about Crystal Cox blogging case misses a key legal point
A Montana blogger has reopened an often-debated question: “Who’s a journalist?”
In the $2.5 million judgment in a defamation suit against Crystal Cox, a self-proclaimed "investigative blogger," many journalists initially reacted to the Judge's ruling that Cox is not considered a journalist and therefore does not deserve protection under Oregon's shield law. Since then, journalists have discovered that their defense of Cox may be misplaced. In fact, even if the courts had considered her a journalist, under Oregon law, the shield law would not have protected her from this civil action for defamation.
Cox posted claims to her website, Bankruptcy Corruption, that Kevin Padrick, an Oregon lawyer was a “Thug, Thief and a Liar” because of his actions in a bankruptcy case. She interlaced her opinion with facts based on anonymous sources.
Padrick filed a defamation suit against Cox for the statements she published. Cox argued that under the shield law, she did not have to produce her sources.
A shield law protects journalists from having to share sources and information unless the source is: relevant to the matter, unobtainable any other way, and the need for the information is compelling to the public interest. Forty states currently have shield laws and they vary by state.
One of the main takeaways from this case is that Oregon, like many shield laws that exclude online publishers from protection, may need an update, but does not grant publishers the freedom to publish defamatory content.
“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, told the AP. “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 lack of consistency and clarity also adds to the confusion. A federal shield law was proposed by Congress in 2009 -- and even then the House and Senate could not agree who should be considered media. Hence, no controlling federal law exists, leaving it up to each state to create its own laws. Therefore, bloggers need to be aware of the protection afforded to them in their home state, and in any state where their subject could bring a claim.
It is important that online publishers do their best to prevent publishing defamatory content. Actually, the judges’ ruling, while it may limit who is considered a journalist too much, does offer some good advice as far as how journalism should be done. Here are three factors mentioned:
(3) Proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest.
Journalistic standards like accuracy and transparency are important. The Internet lets us publish instantaneously without an editor, but everyone can benefit from a second set of eyes checking their work and preventing mindless errors.
(6) Creation of an independent product rather than assembling writings and postings of others;
There is great value to creating independent products rather than simply aggregating others’ work. We have a fire hose of information available to us, and it’s important for publishers to help their audiences make sense of this overabundance by guiding them to the most important and relevant information. And, what’s even more crucial is that this sensemaker take in all of the available information, suspend judgement, then, synthesize and add context.
(7) Contacting ‘the other side’ to get both sides of a story.
Finally, it is important to present all sides of the story. One key step in critical thinking in journalism is gathering multiple perspectives. Rarely is a story one-sided. A story is incomplete if it doesn’t include ideas from a diversity of perspectives who can help tell the whole story -- and add credibility to any bold statements you may be making about a subject.
Until the Supreme Court chooses to define exactly who and what media is (and isn't) or a federal shield law is passed (which is more likely), the outcome of cases like this -- and the protection afforded to online publishers -- will depend on the interpretation of state shield laws and therefore be somewhat less predictable. But careful, responsible journalism can reduce the risk in any state.
Related online learning:
- Newsgathering Law & Liability: A Guide for Reporting
- Online Media Law: The Basics for Bloggers and Other Publishers
In addition to being a Poynter faculty member, Ellyn Angelotti is a 3L at Stetson University College of Law.