"The medium shouldn’t define who is media"

December 9, 2011 4:23 AM

An Oregon judge has ruled that a Montana blogger is not eligible for the legal protections afforded to journalists, letting stand a $2.5 million defamation verdict. At the end of the Ars Technica article there's a link to a Forbes article that contains some more details and the text of an email that didn't help the blogger's case.
posted by veedubya (53 comments total)

There is a tangent to the Wikileaks case in Sweden here where Wikileaks was found to not be a publisher under Swedish law and thus not entitled to any journalist protection of sources. Like many legal decisions, that case hinged on the minor, but significant, technical point that Wikileaks had not registered itself in Sweden as a licensed publisher - which is an easy and trivial thing to do. (I submitted my application the next day.)

Perhaps some sort of formal licensing process here would also draw some bright lines around who is and who is not to be considered as a journalist.
posted by three blind mice at 4:39 AM on December 9, 2011 [3 favorites]

That Forbes article lays it on the line, she clearly is in fact guilty of defamation. However, the precedent is scary. Bloggers are often journalists, even without any affiliation to an established news source or a degree in Journalism. Maybe some freedom-loving university should offer a free "journalist certification program" so that self-taught whistle-blowers can protect confidential sources?
posted by Potomac Avenue at 4:46 AM on December 9, 2011 [3 favorites]

It's only a precedent for Oregon, which gave additional protections to 'traditional journalists' over and above 1st amendment and federal protections. She doesn't qualify as a 'traditional journalist' under that law.

In any other state (without such a law), it wouldn't even have been a question, she'd just have been guilty of defamation. The 1st amendment doesn't give people carte blanche to defame just because they call themselves journalists.
posted by empath at 4:58 AM on December 9, 2011 [6 favorites]

It looks to me like the judge gave consideration to every possible way that the woman could legally be considered a journalist, and couldn't find any. If she is a journalist, then so am I and so are you, and the term has no significant meaning separate from "literate and internet-connected member of the public"
posted by aeschenkarnos at 5:02 AM on December 9, 2011 [2 favorites]

Bloggers are often journalists, even without any affiliation to an established news source or a degree in Journalism.

A Facebook profile is in principle not really that different from a blog. Should all Facebook users have same legal protections as journalists?
posted by iviken at 5:03 AM on December 9, 2011 [7 favorites]

The extent to which bloggers should be treated as journalists is an interesting debate. The "Journalist" tag comes with both rights and resposibilities. We see some bloggers who say they should be afforded the same rights as a journalists when it comes to stuff like libel and protecting sources. We also see bloggers who, when called out on a failure of fact-checking or attribution, reply with "lol, I'm a blogger not a journalist, I don't have to do that".

To my knowledge, these are pretty much non-overlapping groups. It's not hypocrisy, it's the presence of at least two very different types of writer all labeled as 'bloggers'. I think the "bloggers are proper journalists too" crowd ought to drop the B-word and start calling themselves independent journalists or something. Let blogging revert to being the practice of linking to interesting things on the web and expressing opinions on them, and make the kind of venue where you can expect journalistic integrity something different.
posted by nowonmai at 5:06 AM on December 9, 2011 [10 favorites]

After not previewing, I'm basically getting at the same thing as iviken: investigative reporting for the NYT or Rolling Stone is not the same as reblogging My Little Pony gifs on Tumblr. If proper journalism is to be protected from being shut down by litigation, it needs to be identifiable. To extend it to "anything in reverse chronological order on the internet" is to kill it.
posted by nowonmai at 5:12 AM on December 9, 2011

Padrick [Company's Attorney] supplied Hill [Forbes Writer] with a copy of an e-mail Cox [Blogger] had sent to Obsidian Finance a few days after the defamation lawsuit was filed. It offered Obsidian "PR Services and Search Engine Management Services starting at $2500 a month" to "protect online reputations."

Straight up defamation, with extortion on top.
posted by absalom at 5:13 AM on December 9, 2011 [18 favorites]

Should all Facebook users have same legal protections as journalists?

Shouldn't everyone have the same legal protections as journalists? What's weird is that Oregon might have let this woman engage in defamation and extortion if she WAS a journalist.
posted by anotherpanacea at 5:13 AM on December 9, 2011 [10 favorites]

Hangon, the judge carefully judged her status as a journalist using two criteria - the first is by the letter of the Oregonian shield law, which has a definition of journalist in its language, which doesn't mention new media like blogs or podcasts. But, he doesn't stop there, he realizes that beyond the narrow definition of the shield law, the first amendment protects journalists doing their job, no matter the venue in which they work - so he applies professional standards of journalism as the criteria.

I'd actually count this as a win for bloggers and journalism both.
posted by Slap*Happy at 5:16 AM on December 9, 2011 [20 favorites]

It's clear that she was very much guilty of defamation, but the question of whether she is a professional journalist or not is answered by that email - not the context, but all of the random capitalization and terrible grammar. As Hill says, "Do we really want to claim this person as one of our own, folks?"

Not likely.

(Yes, emails are not formal publications and typos are possible, but even now I couldn't bear to not edit the hell out of something like that if it was leaving my inbox.)
posted by custardfairy at 5:18 AM on December 9, 2011

From the Forbes article:

If you Google Crystal Cox’s work about Obsidian Financial Group, you will find a host of websites full of erratic writing about the firm’s allegedly unethical practices, with domain names like “obsidianfinancialsucks.com.” She mainly directed her ire at firm principal Kevin Padrick. His search results are ruined — dominated by posts on websites Cox created, such as “bankruptcytrustfraud.com,” “realestatelies.com,” and “realestatehoax.com.” Obsidian’s tech team found dozens of sites that appeared to have been created by Cox to write about Obsidian, says Padrick, and over 1,900 others that she had created to write about other people and companies.

That's not blogging. It isn't blogging that got her hit with the lawsuit, it's a broad-based campaign of character assassination. I'm not feeling the outrage.
posted by localroger at 5:20 AM on December 9, 2011 [9 favorites]

If we replace "blogger" with "a person with a website" is anyone up in arms? "Blogger" is such an arbitrary term. It means someone who updates a website frequently? "Oh hey, nice to meet you, I'm the printer driver blogger for Hewlett Packard. It's pretty cool being a journalist."
posted by nathancaswell at 5:21 AM on December 9, 2011 [2 favorites]

The only thing that strikes me as off here is that she might have been protected from a defamation suit if she were recognized as a journalist. I can't imagine that I'd get away with that pattern of behavior in a million years.
posted by Holy Zarquon's Singing Fish at 5:28 AM on December 9, 2011 [1 favorite]

This woman is a terrible person. Why is the media spinning it as 'bloggers' rights' and not as 'a woman tried to pretend that she was both a journalist and a blogger so that she could get away with horrid defamation and extortion"???



“She has decimated my business. It’s half of what it was,” says Padrick.
posted by 200burritos at 5:36 AM on December 9, 2011 [3 favorites]

Slap*Happy is right; before jumping to conclusions about what this means for "blogging as journalism" be sure to look at this paragraph from near the end of the judge's opinion:

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any 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 writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

3 through 6 seem to me a pretty good statement of the "journalist is something you *do*, not something you *are*" argument, which a lot of bloggers think is a good way to define things. If more judges focused on the actual practices that define journalism rather than credentials or "recognized" affiliation, that would be a good thing.
posted by mediareport at 5:37 AM on December 9, 2011 [6 favorites]

http://www.obsidianfinancesucks.com/

"Don't Like My Writing Style? dOnT' ReAd It.. Move Along and Stay cALm. Where i pLaCe Capital Letter has NoThiNg to DO with the Truth vs. the LiE."
posted by p3on at 5:37 AM on December 9, 2011 [1 favorite]

Should all Facebook users have same legal protections as journalists?

If they have a public profile and they're writing for the public, yes. Many Facebook users are journalists. How is Nicholas Kristof writing something on Facebook different than someone else publically addressing a large audience on Facebook?

Where in the text of the applicable law do you get the idea that it doesn't apply to Facebook?
posted by John Cohen at 5:43 AM on December 9, 2011

Shouldn't everyone have the same legal protections as journalists? What's weird is that Oregon might have let this woman engage in defamation and extortion if she WAS a journalist.

From the article, it looks like the law only says that to sue a journalist for defamation, you have to ask for a retraction first, which makes some sense, since journalists have an easy means to reach the same audience they defamed you to, to make a retraction.

What it doesn't say is if making the requested retraction makes you immune from suit; I sort of assume it does, but that doesn't make a lot of sense, since it would it possible for me to publish the Anotherpanacea Eats Babies Quarterly, constantly defame you, and just publish regular retractions.
posted by Bulgaroktonos at 5:43 AM on December 9, 2011

“She has decimated my business. It’s half of what it was,” says Padrick.
This is not an inconsistent statement, but it does lead to the conclusion that he does zero business.
posted by Wolfdog at 5:45 AM on December 9, 2011 [5 favorites]

Anotherpanacea Eats Babies Quarterly

4 babies a year isn't that bad tbh.
posted by nathancaswell at 5:47 AM on December 9, 2011 [8 favorites]

Shalshdot's post had several links about how Italy obstructs journalism, including making foreign journalists register
posted by jeffburdges at 5:47 AM on December 9, 2011

A Facebook profile is in principle not really that different from a blog. Should all Facebook users have same legal protections as journalists?

I think anybody who is reporting news is a journalist, and deserves at a minimum, first amendment protections, no matter what the medium is.

I also think states and the federal government should, over and above that, give additional protections (source protection, protection from spurious defamation lawsuits, etc) to journalists who follow established journalistic ethics and practices, belong to professional organizations with established guidelines, etc..

But those protections should depend on self policing by journalists and journalistic organizations (newspapers, guilds, and so on). If someone is acting out on their own with no regard to any ethical considerations, then they should only have the bare minimum of 1st amendment rights applied to them (which are still fairly considerable).
posted by empath at 5:48 AM on December 9, 2011 [1 favorite]

This conversation is definitely a tightrope, but in this case, the woman clearly crossed into defamation. I don't think she deserves shield law protections, especially since it's clear that in this case she said she was protecting a source, and when she was compelled to give up the source by the courts, she couldn't provide it. Most likely because the source was made up.

This lady seems seriously unhinged.
posted by to sir with millipedes at 6:00 AM on December 9, 2011

There isn't enough information in the article to know if she committed defamation, which should require proving that her statements were both malicious and false. I'd agree her behavior hints towards that conclusion, but you cannot deduce her guilt from the article because you cannot evaluate either her statements themselves, or the arguments that she knew they were false.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,   or   of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It says "or" not "for", the courts should rule the montana statute to covers everyone. And the lawyer should scrounge up some communication that effectively "asks for a retraction".
posted by jeffburdges at 6:16 AM on December 9, 2011

Good heavens, I visited her website. That is ten pounds of crazy in a five pound bag.

Also, I was shocked that a website with that URL didn't already belong to a porn actress.
posted by DWRoelands at 6:17 AM on December 9, 2011

Here are the relevant parts of the law:

44.510 Definitions for ORS 44.510 to 44.540. As used in ORS 44.510 to 44.540, unless the context requires otherwise:

(1) “Information” has its ordinary meaning and includes, but is not limited to, any written, oral, pictorial or electronically recorded news or other data.

(2) “Medium of communication” has its ordinary meaning and includes, but is 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. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of the official’s or employee’s governmental function, or any political publication subject to ORS 260.532, is not included within the meaning of “medium of communication.”

Full text.

From my read, had she not crossed into extortion and not insisted on representing herself she would have been fine.

So I guess if you follow some journalistic standards on your facebook posts then yes, this law will protect you.
posted by VTX at 6:19 AM on December 9, 2011

I'd agree her behavior hints towards that conclusion, but you cannot deduce her guilt from the article because you cannot evaluate either her statements themselves, or the arguments that she knew they were false.

You don't need to deduce her guilt from the article because the court system already did.
posted by empath at 6:23 AM on December 9, 2011 [2 favorites]

Here's the opinion.
posted by empath at 6:24 AM on December 9, 2011 [1 favorite]

There isn't enough information in the article to know if she committed defamation, which should require proving that her statements were both malicious and false.

Really? I was under the impression that proving that the statement was malicious only applies to public figures.
posted by atrazine at 6:24 AM on December 9, 2011

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any 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 writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

By this description a lot of mainstream news outlets contain no journalists or journalism, not that that excuses what she did.
posted by doctor_negative at 6:29 AM on December 9, 2011 [2 favorites]

Why is the media spinning it as 'bloggers' rights' and not as 'a woman tried to pretend that she was both a journalist and a blogger so that she could get away with horrid defamation and extortion"???

Because this is what the media does. They take the part of the story that's interesting, and make it into the story. They drive more page views and sell more ads this way. And this story has an added bonus in that they get to throw blogger credibility in general under the bus.
posted by pwally at 6:32 AM on December 9, 2011 [2 favorites]

it would it possible for me to publish the Anotherpanacea Eats Babies Quarterly, constantly defame you, and just publish regular retractions.

Point of clarification: it's not defamation if it's true, right? I'm asking for a friend.
posted by anotherpanacea at 6:39 AM on December 9, 2011 [1 favorite]

This is the main reason that I never insult, impugn or molest corporations on this website - the liability issues are too frightening to contemplate. The rest of you corporation-hating liberals love to mope and screech at every action of profit-making companies - but on your own heads be it. As far as I am concerned corporations are LOVELY and NICE and they smell like a PINE TREE FOREST and they taste like APPLE STRUDEL. I'd like to HUG a corporation and give it ALL of my money and worship, and then when I die I will be reincorporated under the corporations laws of the State of Delaware and my name shall be inscribed onto the corporate register and I will have ETERNAL CORPORATE LIFE, subject any petition for liquidation filed by my unpaid creditors. Amen.
posted by the quidnunc kid at 6:39 AM on December 9, 2011 [4 favorites]

And this story has an added bonus in that they get to throw blogger credibility in general under the bus.

Well, they'll all be gone soon anyway, so the point will be moot. Most of the former journalists I knew in the Twin Cities are now teaching at journalism schools, and, man are they bitter.
posted by Bunny Ultramod at 6:40 AM on December 9, 2011 [1 favorite]

I'm asking for a friend.

Is it safe to eat this baby I left in my trunk overnight? It was pretty cold out. It still smells fine.
posted by nathancaswell at 6:41 AM on December 9, 2011 [3 favorites]

It's only a precedent for Oregon

Actually, it isn't precedent at all. Trial courts don't set precedent. There will only be precedential value here if the Ninth Circuit issues an opinion. Rulings by federal trial courts can certainly be persuasive authority, particularly in state courts in their jurisdiction--most local legal communities, including state court judges, view the federal bench with no small degree of respect--but there isn't a single court in the country that is required to follow the rules they establish.

And really, it's not even a scary ruling. The judge identified seven criteria under which a person might qualify as "media":

(1) any education in journalism; (2) any credentials or proof of any 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 writings and postings of others; or (7) contacting “the other side” to get both sides of a story.

So the court didn't really hold that bloggers, as such, are not journalists, only that this blogger wasn't. Which is the right result, certainly legally, but also seemingly on these facts.
posted by valkyryn at 6:48 AM on December 9, 2011 [2 favorites]

“She has decimated my business. It’s half of what it was,” says Padrick.

Maybe she decimated it 6.58 times.
posted by justkevin at 7:13 AM on December 9, 2011 [7 favorites]

and, man are they bitter.

What are they saying?
posted by pwally at 7:16 AM on December 9, 2011

Oversimplified: having the means to publish doesn't shield irresponsible people from defamation charges.

In my view, the press has privileges, but not superior rights to the public as a whole. The First Amendment has to apply equally to all or it's not a universal right. I'm saying this as someone who has had, on occasion, access to journalistic privileges. The press is a stand-in for the public. It is not superior to the public.

But isn't that the way with all human rights? If they aren't universal, they aren't rights, just some form of privilege.
posted by warbaby at 7:27 AM on December 9, 2011 [2 favorites]

What are they saying?

Not to be a journalist.
posted by Bunny Ultramod at 7:36 AM on December 9, 2011

"i feel this business should be protected from this person's crazy website"
posted by This, of course, alludes to you at 7:46 AM on December 9, 2011

We e-mailed Cox seeking comment, but we have yet to get a response.

iM TirED oF MySPAceE b*TcHES tALKiNg shIT sAy iT To mY FacE oR IlL fuKC yOU uP!!!!
posted by Inspector.Gadget at 7:57 AM on December 9, 2011 [1 favorite]

She has commented on her website, but her comments of a pair with her other writing -- totally nuts.

In case you're interested
posted by to sir with millipedes at 8:03 AM on December 9, 2011

speaking purely as an educated stupid, do i have a case against timecube
posted by This, of course, alludes to you at 8:24 AM on December 9, 2011

Not sure it matters if she's a journalist or not. They're not allowed to defame someone either, and this seems like a clear case of defamation.
posted by spaltavian at 8:40 AM on December 9, 2011

Fuck you Pay me.

In Love and Light,

Benzenedream
posted by benzenedream at 8:44 AM on December 9, 2011

That's not blogging. It isn't blogging that got her hit with the lawsuit, it's a broad-based campaign of character assassination. I'm not feeling the outrage.

Same here. First I was all "What!? Only 'journalists' get protection? Pretty sure the freedom of the press was designed for all manner of essayists, novelists, and pamphleteers too." But then I read it and was like "oh, she's a scumbag extorting money."
posted by Hoopo at 9:31 AM on December 9, 2011 [1 favorite]

Plenty of journalists are nutcases, but being a nutcase doesn't make you a journalist by itself.

This person is only a blogger because nobody would publish her, not because of any conspiracy but because it's total bollocks.
posted by quarsan at 10:45 AM on December 9, 2011

Shouldn't the judge have concluded that today a blog is the moral equivalent of a series of pamphlets? Had Thomas Paine used blog instead of pamphlets he would not have been protected by the Oregon statute. Ironic?
posted by Mental Wimp at 11:18 AM on December 9, 2011 [2 favorites]

From her website:

NOTICE: Yes I am Taking ALL Interviews

But of course you are, dear.

This reminds me of the McDonald's "hot coffee" lawsuit. It happens every now and then. Some reporter writes-up a lawsuit, leaving out a detail or misconstruing something. Another reporter picks it up and omits something else. And now we're off to the races with an old-fashioned game of telephone until it reaches a particularly sexy sound-bite distillation ("Woman wins millions for spilling coffee!"; "Judge rules bloggers aren't journalists!") and then the headline becomes the story. Sure, the better readers among the bunch will seek out the truth and find it about 180 degrees from the pop version—but you can't kill a good story, true or not.
posted by red clover at 1:06 PM on December 9, 2011 [2 favorites]

DWRoelands: Good heavens, I visited her website. That is ten pounds of crazy in a five pound bag.

You may have been one of the last ones in. Site is now down with a "want to buy this domain" link from GoDaddy.

Perhaps Kevin Padrick will buy it and have some fun
posted by Naberius at 2:59 PM on December 9, 2011

“She has decimated my business. It’s half of what it was,” says Padrick.

Maybe she decimated it 6.58 times.

justkevin, I love you thiiiiiiiiiiiis much.

Mathematically speaking.
posted by IAmBroom at 8:07 AM on December 12, 2011