These are the hard questions we face in these trying times. A federal judge in Oregon just weighed in on the first of those, and the news is sending a chill through the blogosphere.
When is a blogger not a journalist? Where does legitimate criticism end and pure slander begin? Is that shiny red can filled with floor wax or dessert topping?
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Crystal Cox, an "investigative blogger" in Oregon, may soon be $2.5 million poorer thanks to a ruling that appears to cut a sharp line between journalists who enjoy a scosh more legal protection than most civilians under the law and the bloggers who don't.
On sites like industrywhistleblower.com, judicialhellhole.com, and obsidianfinancesucks.com, Cox went out of her way to smear investment firm Obsidian Finance Group and its co-founder Kevin Padrick. Check out this choice nugget from BankruptcyCorruption.com (her stylistic choices intact):
There are Many Reasons Why I Claim that Kevin Padrick, Obsidian Finance LLC is a Thug, Thief and a Liar.. Many More Will Continue to Post.. in Detail .. as Oregon Attorney David Aman of Tonkon Torp LLP Law Firm sent me a Cease and Desist Requesting that I Stop saying such Facts about his Client Oregon Attorney Kevin Padrick for Obsidian Finance Portland Oregon.
A disclaimer for any Obsidian lawyers in the audience: Quoting Cox here does not constitute an endorsement of her claims. A corrupt investment banker? Who'd believe that?
Not surprisingly, Obsidian sued. Cox decided to forgo an attorney, relying on a number of Oregon state laws that protect people who have a legitimate interest in exposing corruption or corporate malfeasance. For example, it has a shield law for journalists and an anti-SLAPP (strategic lawsuit against public participation) statute to keep corporations from squelching consumer complaints by suing them. Cox tried to invoke both of those. The judge said no dice.
Representing herself in court, Cox had argued that her writing was a mixture of facts, commentary and opinion (like a million other blogs on the web) and moved to have the case dismissed. Dismissed it wasn't, however, and after throwing out all but one of the blog posts cited by Obsidian Financial, the judge ruled that this single post was indeed defamatory because it was presented, essentially, as more factual in tone than her other posts, and therefore a reasonable person could conclude it was factual.
I am not a lawyer (despite the fact that I look really quite stylish in a three-piece suit). But I havetalked to a few lawyers over the years about libel and defamation, and what Cox did in her post sounds like a textbook definition of it.
As evidenced by that little snippet I quoted above -- and the multiple copycat sites Cox created -- it's clear she was trying to use cheap SEO tricks to build a Google bomb out of "Padrick" and "Obsidian." And it worked. Google "Kevin Padrick" and the first results page is full of extremely similar sites with names like BankruptcyTrusteeFraud, OregonShyster, and RealEstateHoax.
Those sites are registered to Cox or "Leslie Turner," who happens to sport the same email address and general location as Cox. Clearly Crystal isn't the sharpest knife in the drawer -- more like a plastic spoon. But I digress.
Cox also claimed she got her information from an inside, confidential source, which she cannot name and never actually cites inside that particularly nasty post. Right. Sorry Crystal, but calling yourself an "investigative blogger" doesn't actually make you one. It certainly doesn't give you license to say any damned thing you please about anyone you feel like. I don't know what Cox had against Obsidian and Padrick, but she went about exacting revenge in exactly the wrong way, and now she has to pay.
However. What's troubling about this decision isn't the defamation question. It's that the judge in this instance decided to carve out a little island, placing journos in the middle of it and everyone else outside. The money graph is on page 9 of the 13-page ruling:
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."
Woe unto the bloggers of the world who must produce any or all of the above to qualify as journalists. Granted, the vast majority of them are not. But there are a handful of good, independent investigative bloggers who are more than worthy of the title of journalist, however dubious that distinction might ultimately be. And there are a lot of reporters who happen to still have jobs with recognized media organizations but aren't worth shite. Sorry comrades, but it's true.
Part of the problem is that Oregon's shield statutes were written before the age of the InterWeb and apparently have never been updated. Theoretically, then, employees of a news organization who write only for that org's website might also be excluded from that law's definition of "media."
Cartier points out that Cox might have had more legal protections had she lived a few miles north of Portland in Washington, whose shield laws do embrace the Internet as a form of media. But she'd probably still be required to hand over the name of her "confidential source" to defend herself, according to attorney Bruce E. H. Johnson, who drafted that state's shield law.
Still, as an HTML-stained journo-turned-bloggo, it gives one pause. Is it suddenly chillier on the Internet this morning, or is it just me?
Are bloggers journalists? Discuss below or email me: cringe@infoworld.com.
This article, "Bloggers, you're second-class citizens now," was originally published atInfoWorld.com. Follow the crazy twists and turns of the tech industry with Robert X. Cringely's Notes from the Field blog, and subscribe to Cringely's Notes from the Underground newsletter.
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