By Dan Kennedy • The press, politics, technology, culture and other passions

Appeal filed in bloggers-aren’t-journalists case

Lawyer-blogger Eugene Volokh has filed an appeal in the matter of the Montana blogger who lost a $2.5 million libel case after a federal judge ruled she was not entitled to the legal protections enjoyed by journalists.

“The motion for new trial,” Volokh writes, “argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media.”

I wrote about the case last month for the Huffington Post. In a nutshell, U.S. District Judge Marco Hernandez ruled that Crystal Cox, a self-described “investigative blogger,” could not be considered a journalist under Oregon law, where she was sued. Hernandez wrote that he reached that conclusion because Cox did not work for a newspaper or broadcast outlet, and because she lacked training and failed to demonstrate professional standards.

Hernandez’s ruling had two effects. First, Cox could not invoke Oregon’s shield law to protect her source or sources, whose identity was sought by the plaintiffs, a financial-services company and one of its executives. That ruling was actually of little account, since even established media organizations can’t invoke shield laws to defend themselves against libel suits.

Of far more importance was Hernandez’s ruling that the plaintiffs would not have to prove Cox had acted negligently — only that what she had published was false and defamatory. In the 1974 case of Gertz v. Robert Welch, the U.S. Supreme Court ruled that libel plaintiffs must prove the defendant acted with some degree of fault, with negligence as the lowest standard the states could require. But, seizing on an ambiguity in the wording, Hernandez claimed the Gertz protection only applies to professional journalists.

Volokh, by contrast, argues that the U.S. Supreme Court has made it clear for many decades that journalists do not enjoy any special protections under the First Amendment — meaning that any rulings the court has made about the press apply to everyone, not just to those carrying a press pass from a newspaper or television station. (Which was the main thrust of my Huffington Post commentary.) According to the brief, filed by Volokh and Benjamin Souede:

[W]hile the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights.

As several people who’ve looked at this case have reported, most notably David Carr of the New York Times, there is ample evidence that Crystal Cox’s conduct was reprehensible, and that the plaintiffs — Obsidian Financial Group and one of its executives, Kevin Padrick — might easily have won their libel case even if they had been required to meet the Gertz negligence standard.

What makes this case important is not Cox, but rather the principle that all of us — not just professional journalists — should be able to speak and write freely without inadvertently running afoul of libel laws.

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  1. Nice post, thanks for staying on top of the case. Is the appeal staying within Oregon’s court system? Do you think it would head to the US Supreme Court, if it comes to that?

    Do you think that because “Cox’s conduct was reprehensible,” that it hurts the core argument of free speech freedoms? That is, if her acts were more professional, could she have enjoyed greater protection under the law?

    David DesRoches

    • Dan Kennedy

      @David: Thank you. It’s been in the federal courts all along because it’s a diversity case — the defendant is in one state and the plaintiffs are in another. But the federal judge does have to show deference to Oregon’s libel laws. I expect what will happen is that the federal appeals court will throw out Hernandez’s ruling, and the case will go to trial again, this time with the negligence standard in effect. And Cox will lose again. Which is fine. At least the principle will be upheld.

  2. Thanks Dan, I just re-read it and noticed you said “US District Judge…” but thanks for clarifying. Is there any chance Hernandez’s ruling would be upheld? I haven’t been following this case closely, but it obviously has far-reaching implications. Would this decision serve as precedent for future cases about free speech being universal and not only provided to institutional media?

    • Dan Kennedy

      @David: I think it’s extremely unlikely that Hernandez will be upheld, but who knows? And then that would be the controlling opinion in that circuit, though not nationally. Perhaps the Supreme Court would have to clear it up. I think that would be good news, since this court seems unlikely to issue an opinion that would carve out special privileges for professional journalists.

  3. While I agree with you on principle on all of us being able to speak and write freely, what Cox did was irresponsible and harmful. I looked at her blogs, and they were most certainly set up with no standards at all–not even good blogging standards. The intention of the blogs, to my eyes, is clearly to defame Padrick and Obsidian, without offering proof, and to generate income from these statements. How do I know the latter? Well, knowing a tad about SEO, and the way her linking system works, and the kinds of ads she’s running, even the slightest mouse-over could generate income for her. To use a cliche: this is no way to run a railroad! As a blogger, I’m ashamed of people like Cox and believe that they continue to take advantage of a great technology that is there in part to bring out voices that can change things for the better–not defame others to create income for ourselves.

    • Dan Kennedy

      @Tish: Agreed. If this case is retried with the Gertz negligence standard in effect, as it should have been the first time, I’m confident Cox will lose again.

  4. L.K. Collins

    Oregon is in the Ninth Circuit, one of the most liberal and oft-overturned circuit courts in the nation.

    Their decision will be an interesting read.

  5. So odd so many talking about me and clueless to the facts of the case and my “actions” “reprehensible” really? That is NOT true, you have not researched the facts and are only going by what the yammerings of others are. Read documents, and facts and find out the truth.

    Also it was NOT a filing for an appeal, it is a filing for a new trial and with the same arguments I made, made again and in depth more. Why do you say I will lose again? You dont even know the facts, I had NO actual Malice, I gave over 500 documents of source information. I have investigated this story for over 3 years, read thousands of pages, watched videos of meetings and depositions, read court cases and tax filings, LLC documents, bankruptcy code and Kevin Padrick is not in the White Light, Do your Homework.

  6. You ashamed of Me Trish, Really? And no proof, really? I link to videos, documents, bankruptcy codes, depositions and more and gave the judge all of this source information. My blogs are to expose corruption, have been for over 6 years and not to defame, to EXPOSE.

  7. David Carr did not have “ample” evidence. Forbes and the New York Times defamed me, that email was a Settlement Communication, it was in response to a cease and desist to offer a settlement. And that email was taken out of context, it was back and forth emails between two attorneys as I was pro se and the email was sent after the lawsuit was filed. Find your facts before you shoot the messenger, meanwhile ignoring the message of rampant corruption in the Bankruptcy Courts.

  8. Crystal I have supported you and will continue to do so at least on the classification as journalist.

    08 DECEMBER 2011

    KingCast open letter to Lucy Dalglish regarding online journo Crystal Cox: Federal Judge Marco Hernandez is wrong, she is a Journalist.

    I wrote:

    Hey Crystal,
    File a Motion to Set Aside the Judgment or Verdict and file an appeal.

    First read the definition of journo with respect to the FOIA. I have a pending appeal on that. Read the links carefully including the fact that NH clearly sees bloggers as journos when you have a track record in the implode explode case, also stemming from the mortgage industry.

    Also a Federal Court Judge ruled that I am “an african american journalist” even though I have not worked for a mainstream press in 20 years…..


    Meanwhile when it comes to who is or who is not a journo, look no further than the subject of substantial coverage by Dan himself…. one Mike Barnicle. How did the NYTimes scribes miss his seedy past when my GF and I found it in 5 minutes, sitting on the couch on a lazy Sunday afternoon……

    SUNDAY, JANUARY 15, 2012

    KingCast/Mortgage Movies blast Bank of America’s Anne M. Finucane for being a complete liar and full of s***, just like Senator Kelly Ayotte and just like her husband, failed Boston Globe plagiarist Mike Barnicle.


  9. I actually dedicated an entire post to related issues for a global perspective:

    17 JANUARY 2012

    Crystal Cox, Dan Kennedy, Boston Globe, Anne M. Finucane, Mike , Boston Herald, Elizabeth Ritvo Esq., Jessica Van Sack, Joanna Marinova and KingCast cross paths at the modern journalism summit.

    ….The 1 Feb. 2012 Motions hearing will be the first KingCast courtroom coverage (read the particulars in the comments section), with Mintz Levin stepping in after it became painfully evident that Attorney Ritvo was involved in the Defamation (IMO) in the first place, just look at the questions that she refused to answer in the Interrogatories, such as “Why was [the Herald’s pre-publication review by counsel] done?….. [snip]

    ….when I wrote to her today I mentioned the fact that journos like us are always targets because we are truly independent and will say whatever we feel, as long as it is backed up by some facts. Not one person has ever found one thing I have written in 6 years to be materially incorrect, and I aim to keep it that way, thank you…..[snip]….

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