Judge's Anti-Blog Language In Defamation Case Raises Questions

In a case that's riled up the blogosphere, Crystal Cox, who says she's an “investigative blogger,” was just ordered by a jury to pay $2.5 million to investment firm Obsidian Finance Group and its co-founder Kevin Padrick for a post that they say was defamatory.

The case stemmed from a series of critical posts by Cox on and other sites that she operates. “Kevin Padrick is a THUG and a Thief hiding behind the Skirt tails of a corrupt unmonitored bankruptcy court system,” says one post from last December. “I will Expose every detail of every law he broke, every secret hand shake and back alley deal,” the post continues.

Padrick didn't take kindly to Cox's diatribes. He and Obsidian sued Cox in federal court in Oregon for defamation. 

This summer, U.S. District Court Judge Marco Hernandez in Portland, Ore. threw out counts related to some posts that he decided weren't factual enough to be libelous. (Only assertions of facts -- and not opinions -- can be defamatory.) But Hernandez let stand a count stemming from one post that appeared on the site Hernandez said that post was different from the ones on for several reasons, including that the name wouldn't clue readers in to the author's bias.



The decision, while favorable to Cox, had some troubling language about blogs. Hernandez found that one reason the posts weren't factual is because blogs themselves are more suspect than traditional media. “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact,” the judge wrote.

Cox went to trial last month on the count that remained. Perhaps unwisely, she represented herself. The jury found her liable and ordered her to pay $1 million to Obsidian and $1.5 million to Cox.

One aspect of the case in particular is drawing a huge amount of attention. Before trial, Obsidian demanded to learn the source for Cox's post on Cox said that she didn't need to disclose that under Oregon's journalist shield law, which allows reporters to keep certain information confidential.

Hernandez disagreed and issued a written opinion stating that Cox was not entitled to the shield law because she wasn't “affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”

That language is now causing a big uproar among observers.

But what's getting lost in the discussion is that Hernandez's ruling on that point was irrelevant because Oregon's shield law doesn't protect journalists in civil defamation cases. On the contrary, the law has an exception for journalists who are sued for defamation. They can be ordered to disclose their sources; those who decline to do so risk negative jury instructions or other adverse rulings at trial.

Still, that begs the question why Hernandez included such anti-blogger language in his opinion -- language that could potentially be repeated by judges in other cases. 

“The concern here is that the judge is making a statement about Ms. Cox's that wasn't necessary to the decision,” David Ardia, co-director of the University of North Carolina Center for Media Law and Policy, tells MediaPost. “Most lawyers find that problematic regardless of which side you're on. Judges shouldn't attempt to answer questions that aren't necessary to their rulings.”

1 comment about "Judge's Anti-Blog Language In Defamation Case Raises Questions".
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  1. Chuck Lantz from, network, December 7, 2011 at 7:31 p.m.

    This decision must be appealed, and Cox needs to wise-up and get legal representation. If the ruling, and especially the judge's comment, stands, we are all potentially in serious trouble.

    Besides that, I am tired of seeing rulings such as these handed down by judges who very obviously have very little knowledge of blogs and the internet in general.

    It goes without saying that blogs, like print media, comes in all shapes and varieties. Simply assuming that a blog automatically lacks veracity is like saying anything printed on paper is trustworthy.

    U.S. District Court Judge Marco Hernandez needs a primer course on the Interweb, in my personal opinion (CYA)

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