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Day 17

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A Federal Judge Offers Some Answers

Should Bloggers Be Deemed Journalists?

by JULIE HILDEN

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 Hernandez’s opinion has proved especially noteworthy—sparking this articlein The New York Times, for example—because it relates to the question whether, under the law, a blogger should be deemed a journalist.  In the Cox case, the judge rejected this contention when interpreting two Oregon statutes, holding that the blogger was not a journalist for purposes of the statutes.

Moreover—in a ruling that may well have consequences outside Oregon—when interpreting federal defamation case law as to what state of mind must be 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) he demands 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 statute’s 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 plaintiffs—Obsidian Finance Group LLC, and Kevin Padrick—could not seek their full damages from her.

Judge Hernandez disagreed.  He pointed out that Oregon’s 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 Cox’s 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 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.)

Cox’s Blog Should Have Counted as a “Printed Periodical” Under the Retraction Statute’s Definition, and as a “Periodical” Under the Anonymous Source Statute’s 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 because the 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 questions—that 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.

Thus, in the spirit of the Oregon law, which sought to protect journalists and their sources—and not merely to protect words that happen to have been written with paper and ink—I 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 reader—just 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 don’t 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 it enables 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 Cox’s, were included.

Should Bloggers Be Deemed Media Defendants, and Thus Benefit From the Supreme Court’s Special Rules on Damages for Such Defendants?

Thus far, I’ve discussed only Oregon law, but this case raises an issue of national importance, too:  Can a blogger benefit from the Supreme Court’s 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 media defendant, 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, too—as he had in the context of the Oregon statutes—Judge Hernandez rejected the claim that Cox, in particular, was a journalist.  But here, in discussing federal law, he also provided some guidance for future 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 than assembling 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 free speech.  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 judge’s 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 Hernandez’s test for who is a journalist—so 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 a journalist, 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 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 a factor 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 judges—especially older judges who may get their news largely from The New York Timesand similarly hallowed sources—will 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 show to 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 practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Justia‘s Verdict.