Published by LawTechie - December 8, 2011 - LawTechie

In a defamation action out in Oregon, U.S. District Judge Marco Hernandez has ruled that defendant blogger was not a journalist and therefore not entitled to the protection afforded to “mainstream” reporters and news outlets. According to the Associated Press:

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.

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.

It seems that the defendant here attempted to avail herself of the journalist shield law so that she could rely on anonymous sources as part of her defamation defense. When it comes to actions for defamation involving public figures or matters of public interest, the Supreme Court has ruled that constitutional free speech protections require plaintiff to prove malice (e.g., the journalist’s actual knowledge that the statements were true). New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

As such, journalists are typically immune from defamation lawsuits on the basis of free speech protections so long as they can point to a source and say, “He told me so.” Add into this mix the fact that many states have laws protecting journalists from revealing the identities of anonymous sources, this combination of case law and statute allows journalists to avoid pretty much any defamation action on free speech grounds without even having to prove the existence of some anonymous source.

Here the Judge declined to allow defendant to make use of the journalistic free speech defense/loophole. However, whether or not one agrees with the blanket protections afforded to journalists by the Sullivan plus shield law combos, it is indeed troubling that a federal court would decide that blogging is not mainstream enough to be considered journalism. Of course we’ll have to wait and see how other federal courts rule on this issue before this retro definition of journalism means anything outside of Oregon.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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