< A Problematic Test Case for Bloggers As Journalists


Friday, April 06, 2012

BOB GARFIELD:  This is On the Media, I’m Bob Garfield.
In 2010, a blogger named Crystal Cox started posting vicious attacks online about a bankruptcy trustee named Kevin Padrick. Padrick sued Cox for defamation, and last November a Federal court in Oregon found her liable, whereupon a jury awarded two and a half million dollars to Patrick and his company, Obsidian Finance Group.

During the case, Cox tried to invoke the shield law that protects journalists from having to reveal their sources. But Judge Marco Hernandez wrote that Cox did not count as a journalist and that the shield law did not apply to her.

Naturally, seeing one of their own denied journalist status raised the hackles of the blogging world, but as they dug deeper into her behavior, Cox’s defenders found that this story wasn’t quite as simple as it appeared. More on that, coming up.

Meantime, the Electronic Frontier Foundation worried that Judge Hernandez was dangerously overreaching. The EFF’s Tervor Timm says that the ruling against Cox set an uncomfortable precedent that could have far-reaching effects on all bloggers. Trevor, welcome to On the Media.
TREVOR TIMM:  Thanks for having me on.
BOB GARFIELD:  This all started when Crystal Cox began blogging on various domains about a lawyer named Kevin Padrick. He was a trustee in a bankruptcy case and, for whatever reason, she decided to target him many times and in many ways. Can you tell me about the stuff that Cox was writing, where, and then what Padrick decided to do?
TREVOR TIMM:  So Crystal Cox ended up writing hundreds of blog posts under dozens of domain names. For example, one of them was called ObsidianFinanceSucks.com, which was Padrick’s company. And she accused him and his company of tax fraud, being corrupt, paying off media and politicians. She accused them of illegal activities, deceiving the government, money laundering, defamation, harassment, and the list goes on.

Padrick sued Cox for these hundreds of blog posts. And the judge ended up throwing out every blog post except for one. And in the end, he found that one particular blog post posted on December 25th 2010 constituted defamation. And the jury awarded Padrick 2.5 million dollars.
BOB GARFIELD:  Now, Cox claimed that she could not prove her allegations without burning her sources and that under the Oregon shield law those sources were absolutely protected. It’s the judge’s ruling in that claim that has the Electronic Frontier Foundation worried. How and why?
TREVOR TIMM:  This was a defamation case, and the shield law shouldn’t apply. And that’s where the ruling should have ended. Unfortunately, the judge then opined about who exactly is covered by this shield law. The Shield Statute says that anybody involved in any medium of communication shall be covered by the statute. It gives examples for what a medium of communication is, for example, a newspaper, magazine, book, periodical. And it’s not limited to any of these, and the statute explicitly says that.
Unfortunately, the judge did limit the shield statute to somebody who is affiliated with a newspaper or a magazine.
BOB GARFIELD:  So how queasy is the EFF to be standing aside Crystal Cox for the larger goal of defending the principal?
TREVOR TIMM:  Our argument to the court was not about whether Crystal Cox is a journalist at all. It was about the interpretation of the shield statute, and it was about the precedent this ruling could set for future cases, if it was applied to other legitimate journalists. And it’s very likely that if the judge accepted our reasoning as it pertains to the shield law and his defamation standard, that the jury would have still came to the same conclusion.

Our interest in this case is not about Crystal Cox. It’s about protecting all other legitimate journalists who operate online, and all other commentators who may not be journalists, but own a blog or express their opinion online.
BOB GARFIELD:  All right, Trevor. Thank you so much.
TREVOR TIMM:  Thanks for having me.
BOB GARFIELD:  Trevor Timm is a lawyer and an activist for the Electronic Frontier Foundation.


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