Judge denies blogger retrial in Oregon defamation case

A federal judge denied a motion for retrial in the case of a self-described investigative blogger, ruling that private figure plaintiffs do not have to establish “negligence” or “actual malice” to hold a non-media defendant liable in a defamation suit arising out of speech not on a matter of public concern.

Judge Marco A. Hernandez clarified several issues in the defamation case against blogger Crystal Cox in his March 27 opinion, including why Cox was not provided heightened protection under the First Amendment.

In a motion for retrial, Cox’s lawyers, Eugene Volokh and Benjamin Souede, took the position that the judge erred in its instructions to the jurors. They argued that the court could hold the defendant liable only if the plaintiff proved negligence or “actual malice,” in accordance with the United States Supreme Court case Gertz v. Robert Welch, Inc. Hernandez, however, rejected this argument.

“In the end, the Supreme Court, in my opinion, has not squarely held that a private figure plaintiff who sues a non-media defendant regarding allegedly defamatory statements made on a private issue, is required to demonstrate negligence to establish liability,” Hernandez wrote.

Obsidian Finance Group, LLC and its co-founder Kevin D. Padrick sued Cox in January 2011 for defamation over posts she made to a website called obsidianfinancesucks.com. Hernandez threw out most of the claims in August, but found one, which was posted to another Cox-run site called bankruptcycorruption.com, was not protected. Cox was ordered to pay $2.5 million in damages to Obsidian and Padrick in November.

Cox did not present any evidence, Hernandez said in November, that she qualified as a member of the media, according to seven listed criteria, including: journalism education; media credentials at a “recognized news entity;” editing, fact-checking or disclosure of conflicts of interest or journalistic standards; notes of interviews; confidentiality agreements with sources; independent reporting; and balanced reporting.

Cox's attorneys argued that under Supreme Court precedent, the First Amendment "applies equally to the institutional press and to others who speak to the public." Because Gertz requires a showing of at least negligence in order to find a media defendant liable for defamation, Cox was entitled to the same protection, they argued.

But under Hernandez's analysis, because Cox did not qualify as a member of the media, her speech was not on a matter of public concern, and because the plaintiffs were private figures, she was not entitled to heightened protection under the First Amendment.

In his most recent opinion, Hernandez rejected Cox’s argument that “a higher standard of fault was required,” ruling the previously given jury instruction — that the “[d]efendant’s knowledge of whether the statements at issue were true or false, and defendant's intent or purpose in publishing those statements, are not elements of the claim and are not relevant to a determination of liability" — was correct.

“In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media,’” he wrote. “I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the ‘media.’”

The judge also referred to email sent by Cox to the plaintiffs, offering services for reputation repair for $2,500 per month, which he said, along with not providing evidence according to the criteria listed in November, led him to conclude she was not a member of the media.

Volokh, an attorney for Cox and professor at the University of California-Los Angeles law school, said that the judge’s ruling in the case could affect online and traditional media.

“Our position is it doesn’t matter who qualifies as a journalist, freedom of the press includes public access to the materials of the press, including printing and publishing,” he said. “Under the judge’s decision, if it stands, newspapers have First Amendment protections, and no one else does.”

Volokh, who operates his own blog called “The Volokh Conspiracy,” said experts in fields such as law, public policy, science and history are contributing to public debate through online platforms in the same manner as journalists, often providing more in-depth analyses.

“Look at the wide range of things that are on the web,” Volokh said. “The web includes things written by professional reporters and also field experts. We have people who, in the words of the judge, are not journalistically trained; who do not write for a recognized news entity; who do not necessarily hold ourselves to journalistic standards, but do hold ourselves to standards … Do we participate in the public debate? Yes, of course.”

Steven M. Wilker, an attorney for Obsidian Finance Group who specializes in media law among other things, said he does not think the case will affect the way libel cases are handled for reporters, because Cox is not a reporter. He said Cox has filed an appeal of the judge’s decision.

“I don’t think we have had the last word yet on this case,” he said.

The Electronic Frontier Foundation, which filed a friend-of-the-court brief in support of Cox, raised other issues including Oregon's retraction and reporter's shield statutes. The court held that neither of these statutes applied to the blog posts at issue in the case.

Related Reporters Committee resources:

· Oregon – Privilege Compendium

· News: Mont. blogger ordered to pay $2.5 million for defamation