should bloggers be deemed journalists

8/2/2019 Should Bloggers Be Deemed Journalists

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Should Bloggers Be Deemed Journalists,With the Power to Trigger the SupremeCourts Favorable Rules Regarding

Damages, Invoke Retraction Statutes, andProtect Confidential Sources?A Federal DistrictJudge Offers Some Answers

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On November 30, United States District Judge Marco A. Hernandez of the

U.S. District Court for the District of Oregon, Portland Division,ruled against a

blogger, Crystal Cox, who had represented herself before the court in a

defamation case in which she was the defendant. In the end, the judge

ordered Cox to pay $2.5 million in damages to the plaintiffs.

Judge Hernandezs opinion has proved especially noteworthysparkingthis

articleinThe New York Times, for examplebecause it relates to the question

whether, under the law, a blogger should be deemed a journalist. In

the Coxcase, the judge rejected this contention when interpreting two Oregon
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statutes, holding that the blogger was not a journalist for purposes of the

statutes.

Moreoverin a ruling that may well have consequences outside Oregon

when interpreting federal defamation case law as to what state of mind mustbe proven for damages to be awarded, Judge Hernandez suggested that

bloggers could only sometimes count as journalists, based on a multi-factor

test he set forth.

The Retraction Statue Issue

The question whether a blogger counts as a journalist came up in the Cox case

because Oregon, like many states, has a retraction statute. Under that statute,

a plaintiff cannot get his full share of defamation damages unless (1) hedemands a correction or retraction from the person or entity that is the alleged

defamer; and (2) the alleged defamer fails to publish a correction or retraction

that follows the statutes rules.

Cox argued that since, in her case, there was no demand for a correction or

retraction, the statute plainly applied, and that, thus, the plaintiffsObsidian

Finance Group LLC, and Kevin Padrickcould not seek their full damages

from her.

Judge Hernandez disagreed. He pointed out that Oregons retraction statute

only applies to defamatory statements that are published or broadcast in a

newspaper, magazine, or other printed periodical, or by radio, television or

motion picture. Since Coxs statement appeared exclusively online, the judge

reasoned that it did not fall within any of these categories, and thus that the

plaintiffs were not required to have demanded a correction or retraction in

order to be awarded their full damages.

The Anonymous Source Issue

Judge Hernandez also ruled that, under Oregon law, Cox did not have the

right to protect her sources.

Under an Oregon law entitled Media Persons as Witnesses, [n]o person

connected with, employed by, or engaged in any medium of communication to


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the public shall be required by . . . a judicial officer . . . to disclose, by subpoena

or otherwise . . . [t]he source of any published or unpublished information

obtained by the person in the course of gathering, receiving, or processing

information for any medium of communication to the public[.]

In this context, Medium of communication is broadly defined as including,

but not limited to, any newspaper, magazine or other periodical, book,

pamphlet, news service, wire service, news or feature syndicate, broadcast

station or network, or cable television system.

Cox argued that she was a media person under this definition, too, but the

court disagreed. (The court also held that Cox would have lost on this

argument anyway, for the statute at issue does not apply in defamation cases.)

Coxs Blog Should Have Counted as a Printed Periodical Under

the Retraction Statutes Definition, and as a Periodical Under the

Anonymous Source Statutes Definition

Here, the court was faced, in the Oregon statutes, with two lists of media that

each completely failed to take the Internet into account, despite the fact that

the Internet has been popular since roughly 1998.

The judge had essentially two choices: (1) Exclude Internet material becausethe list excluded it, and hope that the Oregon legislature would eventually

amend the statute to include the Internet, even though it had not seen fit to do

so for the 13 years during which the Internet has been a crucial part of

American communications media; or (2) see if analogies could be made

between Internet postings and the media that were included on the list, such

that Internet postings could be incorporated as part of the list.

Judges are constantly faced with similar questionsthat is, questions that

force them to consider and weigh both the spirit and the letter of the law.Especially when laws are meant to support First Amendment free speech

rights, as they were here, I would argue that judges ought to opt for the spirit

of the law, not the letter, when looking to the spirit will lead to greater

protection of free speech.


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Thus, in the spirit of the Oregon law, which sought to protect journalists and

their sourcesand not merely to protect words that happen to have been

written with paper and inkI believe that Judge Hernandez should have

concluded that a blog was a printed periodical for purposes of the retraction

statute, and a periodical for purposes of the anonymous source statute.

What defines a periodical? Issued every so often, it conveys written material

to a readerjust as a blog does when it posts entries every so often. Should it

really matter, for the purposes of this definition whether the material appears

online or on the page? I dont think so.

What about the requirement, in the retraction statute, that the periodical must

be printed? Functionally, it makes no real difference if the printed text

appears online or on a page; the key purpose and effect of printing is that itenables reading.

In sum, Judge Hernandez should have taken a functional approach, and read

the terms of the two statutes to encompass methods of publication that were

closely analogous to those listed in the statute. Doing so would have meant

that blogs, including Coxs, were included.

Should Bloggers Be Deemed Media Defendants, and Thus Benefit

From the Supreme Courts Special Rules on Damages for SuchDefendants?

Thus far, Ive discussed only Oregon law, but this case raises an issue of

national importance, too: Can a blogger benefit from the Supreme Courts

special rules for media defendants?

Those rules stipulate that to recover any damages in a case against a media

defendant, the plaintiff must, at a minimum, prove negligence. They also

stipulate that to recover presumed damages in a case against a mediadefendant, the plaintiff must prove actual malice (defined as knowledge, or

reckless disregard, of the falsity of the statement or statements at issue).

In this context, tooas he had in the context of the Oregon statutesJudge

Hernandez rejected the claim that Cox, in particular, was a journalist. But

here, in discussing federal law, he also provided some guidance for future


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bloggers who want to be counted as journalists. In this interpretation of

federal constitutional protections, I believe the judge was on much more solid

ground than he was in his Oregon law rulings, where I think he should have

given bloggers greater protection.

On the media defendant point, Judge Hernandez compellingly argued that

Cox lacked any of the indicia of a journalist, such as (1) journalism education

(though many journalists, including some very well-known ones, lack any

formal education in the subject); (2) credentials or proof of affiliation with

any recognized news entity; (3) proof of adherence to journalistic standards

such as editing, fact-checking, or disclosures of conflicts of interest; (4)

keeping notes of conversations and interviews conducted; (5) mutual

understanding or agreement of confidentiality between the defendant and

his/her sources; (6) creation of an independent product, rather thanassembling the writings and postings of others; or (7) contacting the other

side in order to get both sides of a story.

A Multi-Factor Test Will Likely Be the Only Way to Define a

Journalist, but Such a Test Must Be Crafted With Special Care

Multi-factor tests like this one are not ideal, especially in the First Amendment

context, since the way in which a particular judge will apply such a test is not

always predictable, and unpredictable rules exert a chilling effect on freespeech. But Cox, it seems, did not fulfill any one of the seven criteria. Thus,

she was deemed not to be a journalist for defamation law purposes. Hers was

an easy case in the judges eyes. But future cases may present closer calls.

Given the serious First Amendment concerns at issue here, future courts

should, at a minimum, build on Judge Hernandezs test for who is a

journalistso that would-be journalist/bloggers can know with certainty how

they can safely fit within judicial definitions. Unfortunately, the test is going

to have be a multi-factor one, as no single attribute or action defines ajournalist, but the factors should be chosen with care.

On one hand, Judge Hernandez was surely reasonable to include factors

referring to practices such as fact-checking; keeping interview notes; honoring


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confidentiality; refraining from publishing articles that are merely cut-and-

paste jobs; and contacting the other side.

But on the other hand, it may not be fair to include the factors of journalism

education, institutional affiliation, or proof of credentials (especially if such afactor would prove a tie-breaker among the factor, excluding a person who

would otherwise be deemed a journalism by a 4-to-3 split of the factors).

After all, institutional affiliation, here, would seem to be code for not just a

blogger. And bloggers are likely never to have the kind of credentials that

judgesespecially older judges who may get their news largely from The New

York Times and similarly hallowed sourceswill find sufficient. To address

that problem, bloggers, as a group, may want to set up their own credentialing

body to give bloggers who want to use confidential sources something to showto judges, in court, as a traditional journalist could.

Yet, to establish such a credentialing body might prove to be a double-edged

sword. One of the very points of blogging is that anyone can do it, and that is

also one of its great virtues. Thus, this issue may be one in which either

bloggers independence will be sacrificed a bit, or the legal protections

journalists enjoy will continue to be withheld from bloggers.

Julie Hilden, a Justia columnist, graduated from Yale LawSchool, practiced First Amendment law at the D.C. law firm of Williams &Connolly from 1996-99 and has been writing about First Amendment issuesfor over a decade. Hilden is also a novelist. In reviewing Hilden'snovel,3,Kirkus Reviewspraised Hilden's "rather uncanny abilities,"andCounterpunchcalled it "a must read... a work of art." Her websites

address iswww.juliehilden.comhttp://verdict.justia.com/

A Dec 28 2011
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