Wednesday, December 07, 2011

Court: Blogger isn't journalist - he may be right

Let's see the new media fluffers' take on this:
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.
Is this just a matter of Oregon needing a better shield law? That's one claim.
“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. 
Dalgish may or may not be right on that. She is right on this:
“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.”
That's because Hernandez went further:

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.
But, Dalgish is not guaranteed to be right on this, if Cox is indeed not a journalist.

Now, contra new media fluffers who accuse old media of trying to maintain a guild system, I'm not doing that.

Let's read WHY Hernandez ruled as he did:
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.
Emphasis on the last clauses are mine. Hernandez, although he appears to start from the "guild" point of view himself, goes beyond that to use generally recognized journalistic standards as a large portion of his decision.

And Cox's response, if anything, justifies Hernandez's decision:
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.
Let's try riffs on that:
1. Twenty years ago: What could be more mainstream than junk mail and a filled mailbox?
2. Sixty years ago: What could be more mainstream than Joe McCarthy and a stack of papers waved in one's hand?
3. Seventy-five years ago: What could be more mainstream than Father Coughlin?
I think you get the drift.

I'm sure Dalgish's organization and others will file amicus briefs in any appeal, but, really, they shouldn't. Both for the actual defendant and for the material facts involved.

Here's my response.

First, blogging may be journalism. It isn't automatically journalism. That's reason one professional media organizations should be wary of offering amicus briefs in this case, at least without actually taking a look at Cox's blog first.

Second, I'd potentially partially disagree with the judge that that plaintiff is not a public figure. I'd have to see the details of how big his tax shelter advice was, whether he's a defendant in the fraud case against some of his advisees and other things. He may be a public figure.

This isn't a slam-dunk one way or the other, unlike the Houston-area blogger of a few years ago, who was reporting on a criminal case, a felony, and using anonymous sources.. There's no indication that Cox was even using anonymous sources, or doing anything more than writing opinion pieces. And, even if attorney Patrick IS a public figure, while case law cuts more latitude on opinion pages in conventional newspapers and magazines, even there, there isn't a license to libel.

Given that Cox is using a "proprietary technique," which is probably called paying $99 to some SEO optimizer outfit, and boasts about that, she's not a journalist from where I stand, and probably stands guilty of the failings of effort Hernandez found.

I do agree with media analysts that a case like this shows we need SCOTUS to eventually wade in. BUT, this case ain't the vehicle for it.

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