My take on the $2.5 million blog libel judgement

December 8, 2011 · 12 comments in Braided Journalism,Social Media

A few days ago, I posted a piece about the Pepper Spray incident at UC Davis. When people saw the original video clip, they overwhelmingly supported students and felt the police had acted harshly and without justification. When I posted a longer video clip, those who commented on my blog, on Twitter and Facebook were about evenly divided on whether police actions were justified or not.

The point of my post seems to have gotten a little lost. I was calling for a need for balance in citizen-generated news content. I was emphasizing that when we see content from sources we don’t know, we need to keep an open mind on what we see.

Yesterday, an Oregon Judge ruled that Crystal L. Cox, had to fork up $2.5 million in libel damages because she was not a journalist, and therefore not protected by Oregon Shield Laws. This ruling, in my view, is hogwash. It goes against at least two previous rulings and I am reasonably certain that if Ms. Cox stops trying to defend herself in court, a decent lawyer will win her case on appeal.

Social media and traditional media is all media. Every company is now a media company and every person who posts on Facebook–or anywhere else–is now a journalist. And as has always been the case, there is a chasm of difference in the quality of reporting in the media–all of the media.

So while I think Cox deserves to be called a journalist, protected by Shield Laws, I don’t think she is a very good one. Take a second to read the post that got her into trouble. It is more name-calling than it is a report. The names that could be considered libelous are: “Thug, thief and liar.” Those terms can certainly be considered defamatory, a key issue in any libel suit. Her tone of writing seems intended to hold an executive up to public scorn, another component of libel.

In reading the Cox blog post, I am unsure whether or not what she wrote is true, and truth is the ultimate defense of libel.

In short, while I absolutely defend Cox’s right to be a journalist, I do not defend a blogger’s right to slander someone. The content is justifiably challengeable, if you ask me, whether the publisher is Crystal Cox or the NY Times.

To me this case and the Pepper Spray Videos are two closely related issues. It is self-evident that we are now the media. But what needs to evolve is that we need to behave with the same level of responsibility that professional journalists have been expected to use since long before the first blog was posted to the internet.

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Crystal L. Cox January 5, 2012 at 9:08 pm

Thug, Thief, Liar and all the dirty names are protected. It was the speech that had numbers and seemed real, that they said was defamation. I was granted a summary judgement on all the other “speech”. Also I did very good representing myself, the judge screwed up, my new attorney is pushing the case precedence, actual malice and more of what I had already said.. here are more of the older documents.. http://www.citmedialaw.org/threats/obsidian-finance-group-v-cox – I was not a fool with a fool for a client, I also got them to perjure themselves on the stand and will expose that as well. Dig Deep..

Deviah January 5, 2012 at 11:31 pm

Ms. Cox. As a former journalist I confess to having winced at some of the language you used. However, the larger issue is about freedom of the press. Best wishes for your appeal.

PG December 10, 2011 at 3:24 pm

There’s a limit to what lawyers can do for you. The Occupy movement is an excellent example: despite having professional legal assistance, their case was simply too poor to win in court after full briefing. There is no First Amendment right to express yourself — even peacefully — when that right conflicts with others’ peaceful enjoyment of quiet (disrupted by bongo drums at all hours) or of public spaces (Zucotti having been rendered effectively unusable for other New Yorkers). The same analysis applies to anti-abortion protesters who think they can’t truly express themselves, even in a perfectly peaceful manner, unless they can get next to the clinic. Too bad — that particular form of speech interferes with others’ rights of access and is “abridged” by federal law mandating that women seeking abortions have a clear path to the clinic door.

I’m not even sure that being deemed a journalist would have won the case for Ms. Cox. According to the AP story, the judge stated that the shield law does not apply to civil actions for defamation, so even if she’d been covered by the shield law, she still would run into the problem of having made false claims about a non-public figure.

(My background, FWIW: NY JD and twice the TA for a media law course at a U.S. J-school.)

shel israel (@shelisrael) December 10, 2011 at 11:16 pm

All that may be true and accurate, but I would put much more trust in your comments if you posted under a real name, showed some mpre about yourself in your Twitter bio & showed you face in your avatar.

Paul Bedient December 9, 2011 at 12:20 pm

If she had written her blog as a “letter to the editor” and it was published in print and on-line, she still could have been sued along with the newspaper that published the letter.

Giving her journalist credentials is akin to me becoming an MD because I know how to use a thermometer…IMHO.

Deviah December 9, 2011 at 10:06 am

But then, as Mr Bumble said so eloquently in Oliver Twist: “The law is an ass.”

My American friends: please note that “ass” must be read in British English, meaning “donkey!”

Gerrit Betz December 9, 2011 at 6:00 am

The point about having both high standards of ethics and balance while still having broad inclusion (i.e., “bloggers” are journalists for certain purposes) reminds me a little bit of the perennial discussion around opening up the practice of law to anyone. It was featured recently in the Wall Street Journal.

Maybe what would be appropriate in today’s wild west environment of online media is some level of protection for citizen journalism, a mini version of the protection afforded to “real journalists.”

But as I’m not familiar with the law in that area, I don’t know if that is feasible or very helpful. I’m confident though that the law now didn’t imagine the masses publishing online when it was drafted.

Lou Covey December 8, 2011 at 6:39 pm

It kinda depends. The Society of Professional Journalists would not support any argument that what she produced was journalism in any sense of the matter. There is a house in Mountain View where the owner has painted, in large letter, claims that the city government is corrupt. There is a woman that stands on a particular corner of Redwood City that holds signs of similar discussions about the banking industry. Neither of them could be called journalists. I would not even call Glenn Beck a Journalist. My reason is that none of those people follow any of the ethics of a true journalist and I would suggest that if you want to call yourself a journalist, than you should, in the least, familiarize yourself with them.

Deviah December 8, 2011 at 2:26 pm

I completely concur. While defending her right to be called a journalist, the language in which she writes is not beyond reproach. Libel laws vary from country to country. In the US it is pretty much up to the slandered to prove the story is wrong. In the UK and India it is up to the journalist to prove the story right. In the UK or india she would almost certainly have been convicted. But that is not the point. The judge saying that as an independent blogger she cannot be called a journalist is rubbish. That takes away the rights of bloggers who have behaved more responsibly than her on a sustained basis. It is probably up to the bloggers of America to contest this.

shelisrael December 8, 2011 at 5:34 pm

It would be easier to organize a herd of feral cats, stoned on catnip to do something than to get bloggers to organize. But I doubt this miscarriage would have happened had she not elected to defend herself rather than retain a lawyer.

Deviah December 9, 2011 at 10:00 am

As someone so rightly said: The defendant who is his own lawyer has a fool for a client.

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