Blogger Gets High-Profile Support In Libel Appeal

by Wendy Davis, Nov 13, 2012, 6:45 PM

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The Reporters Committee for Freedom of the Press is throwing some support to Crystal Cox, a blogger who was ordered to pay a staggering $2.5 million after losing a defamation lawsuit.

That group says the judgment should be reversed, arguing that the trial judge wrongly treated Cox differently than if she had been a reporter for a traditional newspaper or magazine.

The facts are somewhat complicated. Briefly, Cox issued a series of posts criticizing Obsidian Finance Group and its co-founder, Kevin Padrick, whom she called “a thug and a thief.”

Padrick and Obsidian then filed a defamation lawsuit against Cox in federal court. U.S. District Court Judge Marco Hernandez in Portland, Ore. dismissed counts related to numerous posts that he determined were merely opinions. (Opinions, as opposed to facts, can't be defamatory.) But the judge said that one post on the site bankruptcycorruption.com appeared to contain assertions of fact, and therefore, could be the basis of a libel finding.

Cox represented herself at trial, where things didn't go so well for her. A jury not only found her liable, but ordered her to pay $1 million to Obsidian and $1.5 million to Padrick.

While that verdict could send chills through the spines of many bloggers, this case is clouded. That's because, at some point after making the posts, Cox allegedly offered to help Obsidian with its online reputation, for the fee of $2,500 month. That allegation understandably drew much commentary -- but it's worth noting that it wasn't part of the lawsuit. Instead, the lawsuit was just about whether Cox defamed Obsidian and Padrick in the original posts and, if so, what the remedy should be.

Cox is now represented by UCLA law professor Eugene Volokh, who is appealing the case to the 9th Circuit. The Reporters Committee for Freedom of the Press recently weighed in on Cox's side with a friend-of-the-court brief.

One of the key issues centers on Hernandez's instructions to the jury about defamation. Critically, Hernandez didn't tell the jury to consider whether Cox acted negligently before awarding damages. Without that type of instruction, the jury was able to find that Cox defamed Obsidian simply by publishing a false statement -- even if she reasonably believed the statement to be true.

Had Cox been a member of the traditional media, there's no question the jury would have been told to consider whether she believed the statements she posted were true.

Now, the Reporters Committee says that Hernandez wrongly refused to give Cox the same legal protections as members of more traditional media. "The determination of whether a particular person qualifies for ... protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform," the group argues.

 

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