Libel laws apply to bloggers, as well as traditional journalists

A seasoned newspaper editor a couple years ago said most bloggers, at least those who try to deal in news and opinion, are much like high school journalists. They don’t quite yet have a grasp of what they are dealing with, they have no concept yet of the responsibility that comes along with the privilege of writing for a mass audience. Most of them are much more interested in opinion, usually their own, than they are in facts.

To that I might add that eventually, if they stay with it, they will have a real-world experience, possibly painful, that teaches them what all of us who have toiled under the banner of the First Amendment have had to learn at one time or another. Yes, the First Amendment is a glorious tool, and we are all truly thankful for it, but it, like everything else, is far from absolute.

My editor friend’s opinion may have been harsh. There are bloggers doing good work. And there are bloggers libeling people on a daily basis.

Bloggers who think they can write whatever they want, do so at great risk.

They may not have some of the protections that bona fide reporters use. “Shield” laws, which protect reporters from revealing confidential sources, are now on the books in 39 states (including Colorado) and the District of Columbia.

Blogger Crystal Cox was sued for defamation by the founder of an investment group after she accused him, not very artfully, of acting illegally and unethically. She tried to stand behind Oregon’s shield law, but a judge said it didn’t protect her because she was not affiliated with a “newspaper, magazine, periodical, book, pamphlet, news service, news or feature syndicate, broadcast station or network or cable television system.”

Good for the judge. Here’s a sample of the product Cox produces: “Jeff Manning of the Oregonian protects Kevin Padrick of Obsidian Finance Group by his jaded version of the so-called news, without documents, videos, investigations and simply talking to people and then taking their words through the Jeff Manning shredding where they come out as convoluted mud to sling, ‘Paint Splatter’ in all directions to distract readers from what his crony buddy Kevin Padrick of Obsidian Finance Group is really doing in the real world.”

I read a great deal of her work, and nowhere did I find any real reporting. Nothing in anything I read backed up any of her assertions.

Yes, the First Amendment gives her the right to publish. Other laws give Kevin Padrick the right to sue for defamation, which he did and won, to the tune of $2.5 million. Manning could probably do likewise.

Shield laws have kept many reporters from going to jail for contempt. I can’t help but wonder whether Cox, who calls herself an “investigative blogger,” fully understood the consequences when she offered someone anonymity in her “investigation” of Summit Accommodators. Did she know she could go to jail if the judge decided she wasn’t protected by the shield law? Did she know that, even if she was protected, she could still be found to have written something defamatory.

Did she know a jury could come back with a $2.5 million judgment against her? Did she care? Apparently not.

“See, when you sue me it ends up getting tons more media, I mean ‘Real Media,’” she wrote. Then she added there was no way she was going to pay any of the judgment since she doesn’t have any money.

I’m sure that’s true. She’s not likely to ever have any. The judgment may never be paid, but someday she may learn it still will cost her when she applies for a loan and gets denied because of an outstanding judgment against her, or when she applies for a job and doesn’t get hired because of it.

Cox, though, could be the poster child for my friend the editor, who thinks the blogosphere is full of juveniles. What’s troubling is there are people who think she deserves every protection The New York Times got in the Pentagon Papers case.

I don’t know whether Ms. Cox is still in school. She should be. She has much to learn.

Denny Herzog is the retired executive editor of The Daily Sentinel. Email him at .(JavaScript must be enabled to view this email address).


COMMENTS

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Denny’s opinion (we are all entitled to have wrong ones) seems designed to frighten people who might dare to disagree with his pronouncements. In fact, compared to a much better informed (and perhaps more intellectually honest) opinion at SeattleWeekly.com titled “Crystal Cox’s Bad Precedent” (http://www.seattleweekly.com/2011-12-14/news/crystal-cox-s-bad-precedent/), Denny’s piece seems to walk perilously close to the line of being strategically deceptive.
As pointed out by the Seattle news source, the real problem is with the Oregon shield law. In fact the Seattle piece says in part, “Washington’s counterpart to Oregon’s shield law goes a step further, specifically protecting bloggers.” U.S. District Judge Marco Hernandez’s ruling that, in effect, that Crystal Cox wasn’t a journalist simply because she didn’t get a paycheck from an official media outlet may not have violated the Oregon shield law, but it is obviously out of step with controlling U.S. Supreme Court 1st Amendment case law regarding free speech. History is sufficiently clear that the Founders never intended to create a government-approved journalistic aristocracy as arguably implied by Denny’s piece.
Another opinion on the issue better informed than Denny’s is “What the Crystal Cox case means for digital media” by Dan Gillmor of the UK’s Guardian (http://www.guardian.co.uk/commentisfree/cifamerica/2011/dec/08/crystal-cox-case-digital-media). Gillmor astutely points out, “An Oregon court ruling against a blogger addressed the wrong question. It should be: what is journalism, not who is a journalist?”
There is a tension inherent between self-perceived government-approved journalistic aristocrats like Denny who clearly serve Power and “the little people” who suffer under the provably UNconstitutional system owned and controlled by transnational debt-as-money oligarchs who were created and enabled by revisionist-history lies. The government-approved journalistic aristocrats will never talk about the provable FACT, complete with all of its logical ramifications, that the Founders voted 9-2 against giving the national government the power to print paper money. Instead, they will try to frighten those who would expose the immense fraud with veiled threats of libel suits. But I can’t really see that working, even in an intellectually corrupt court system in which, as pointed out by Gerry Spence’s heroic book, “With Justice for None”, the judges also serve Power.

I would add some valuable information for anyone who may be interested: Article 2, Section 10 of the Colorado Constitution says in pertinent part: “Freedom of speech and press…every person shall be free to speak, write or publish whatever he will on any subject, ... and in all suits and prosecutions of libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”
I’d like to see the ACLU appeal on behalf of Crystal Cox, depending on the legal posture of her case. (For example, if she didn’t object, there’s nothing to appeal, since all defenses and objections not entered are deemed waived.) In my opinion — and, as a blogger myself, I try to pay close attention to 1st Amendment law — the Oregon statute is probably unconstitutional as applied. A couple of interesting U.S. Supreme Court decisions to read are: RE libel - Hustler Magazine v. Falwell, 485 U.S. 46 (1988), RE political speech - Brandenburg v. Ohio, 395 U.S. 444 (1969) (unanimous court), & Meyer v Grant, 486 US 414 (1988) (unanimous court), RE sedition - compare Pennsylvania v. Nelson, 350 U.S. 497 (1956) dissent to Brandenburg v. Ohio, 395 U.S. 444 (1969) (unanimous court). You can read U.S. Supreme Court decisions at FindLaw (http://bit.ly/aFCjoe)  and Justia (http://bit.ly/9bRHsU). Just type in the case cite numbers & click “search”.
Lastly, be sure to remember: if it’s true (PROVABLY true is better still), it isn’t libel, even if a politically connected member of the government-approved journalistic aristocracy is able to persuade a Power-serving judge to try to manipulate a jury otherwise. And lest you think judicial railroadings are impossible in America, I refer you to the case of the Haymarket martyrs and the “honorable” Judge Joseph Gary.

On August 26, 2011, the U.S. Court of Appeals For the 1st Circuit recently said in Glik v. Cunniffe, No. 10-1764: “The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16 (Stewart, J., concurring) (noting that the Constitution “assure[s] the public and the press equal access once government has opened its doors”); Branzburg, 408 U.S. at 684 (’[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.’). ...”
“Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are
now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”
It would seem that the 1st CCApp doesn’t share Denny’s thinly-diguised government-approved-journalistic-aristocracy-friendly point of view about citizen bloggers.
The 1st CCApp further said, “In summary, though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment. Accordingly, we hold that the district court did not err in denying qualified immunity to the appellants on Glik’s First Amendment claim.”
I don’t know the all the specific facts of Crystal Cox’s case, nor do I wish to. If she didn’t do her best to present the truth to her readers, she certainly should have. But I view that as a completely separate issue from the journalism aristocracy trying to intimidate citizen bloggers, as I believe was Denny’s intent.

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