$2.5m judgment brings question: Are bloggers journalists?

By Dan Springer
Published December 22, 2011
FoxNews.com

‘Bloggers Beware’

That was the headline on a conservative blog following a $2.5 million judgment this month against blogger Crystal Cox in a defamation case tried in federal court in Oregon. It’s a case followed closely in both the blogosphere and in the traditional media, as it highlights the proliferation of blogging, the blurring of lines between journalists and bloggers and more libel cases born out of blog posts.

“There are a lot of malicious people out there,” says Bruce Johnson, a Seattle attorney with Davis Wright Tremaine and author of Washington state’s current Shield Law. “You’re not going to be able to get rid of them all. They will continue to basically write graffiti on the bathroom wall, and in this case, the Internet provides the bathroom wall,” says Johnson.

According to the Media Law Resource Center, bloggers have been hit with $47 million in defamation judgments. Just two years ago the total stood at $17 million, revealing a sharp increase. MLRC’s Dave Heller sees a rise in ‘fringe publishers’ and says the case against Cox was, in some ways, "extremely rare."

Crystal Cox calls herself an investigative blogger who is also a journalist. The Montana real estate agent wrote extensively about the bankruptcy case of Summit Accommodations. Kevin Padrick, an Oregon attorney with Obsidian Finance Group, was appointed trustee in charge of paying Summit creditors. Cox accused Padrick of, among other things, committing tax fraud.

Padrick sued and won a unanimous jury verdict.

According to published reports, there is no evidence Padrick did anything improper. Cox tried to invoke the Shield Law, which allows journalists to protect confidential sources, but Judge Marco Hernandez ruled Cox was not a journalist and therefore not entitled to the protections. He wrote, "there is no evidence of any education in journalism, any credentials or proof of any affiliation with any recognized news entity or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest."

Dave Heller says what’s remarkable about the Cox case is the court reverted to common law libel standards, meaning she had no defense except to prove what she had written about Padrick was true. Bruce Johnson believes Washington state’s Shield Law would have afforded Cox some protections because it is technology neutral. “I think it’s moving gradually toward more blogging being protected,” says Johnson.

Many bloggers, initially shocked by the size of the judgment against Cox, have since distanced themselves from her. David Goldstein, who founded the liberal Seattle blog "Horse’s Ass," says as more mainstream media reporters and anchors blog, the lines are getting blurred, but getting it right is vital no matter what your medium. “Just like anybody can claim to be a journalist, anybody can claim to be a blogger,” says Goldstein, “And if you look at the court records, she really appeared to be neither.”

Crystal Cox did not respond to our emails and phone calls seeking comment. It appears, however, she plans to continue to fight. She represented herself in the defamation suit, but now has legal help from UCLA Law School and blogger Eugene Volokh. He has taken the case pro bono in hopes of getting the decision reversed. Volokh has written about the First Amendment’s protection of the press, arguing it’s not solely intended for the media as an institution, but anyone doing the work of journalism.

Goldstein agrees, but accuses Cox of harassing Kevin Padrick and getting her facts wrong. “We’re in the business of criticizing people,” says Goldstein, That’s what journalists, that’s what bloggers do. So we have an obligation to be at least accurate with that criticism.”

Kevin Padrick says the issue is much bigger than whether or not Crystal Cox was acting as a journalist or not. “False allegations can be made against somebody,” Padrick says, “and they will have to live with those false allegations for the rest of their lives.”

Since the attacks against him hit the Internet, Padrick says his business is way down. He partially blames the easy manipulation of the search engines to keep even false content front and center.

Crystal Cox has hundreds of web sites and by linking the content it gives the appearance of multiple sources. Google Padrick’s name and up comes dozens of Cox’s blog postings.

“Through search engines, we are allowing bloggers to have a power that is disproportionate,” says Padrick, “and yet with that power has to come the responsibility.”