Drawing by Patrick Finney
The concept of bad facts making bad law struck again with United States District Court Judge Marco A. Hernandez’ December ruling against blogger, Crystal L. Cox. Sued for defamation by Kevin Padrick of the Obsidian Finance Group for blogging that he and his company had engaged in wholesale fraud in a bankruptcy case, Cox was hit with a $2.5 judgement. It didn’t help any that Cox chose to represent herself at trial. Attorney Eugene Volokh and the Electronic Frontier Foundation filed a motion for a new trial on her behalf. Though Hernandez denied the motion, he made clear that he never intended to suggest that bloggers can’t be journalists. Bloggers can have the same statutory and constitutional protection as journalists. Just not Cox, per Hernandez.

In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’ I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited… The uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory materials on several Web sites, including allegations that Mr. Padrick had committed tax fraud, defendant offered ‘PR,’ ‘search engine management,’ and online reputation repair services to Obsidian Finance, for a price of $2,500 per month… The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media.

First Amendment lawyer and former law professor, Marc J. Randazza, calling on New York Attorney Scott Greenfield’s comments on the ruling, makes clear it’s about Cox , personally, and not whether bloggers are entitled to shield protection.

Hernandez was right to draw a line, and where he drew it leaves plenty of room for even the most casual blogger to find protection. Hernandez’s decision does not say that bloggers are not journalists, it merely says that Crystal Cox is no journalist.

The New York Time’s David Carr (@carr2n), my source for this post, shares what Cox has done to Randazza, as evidence of why Cox is not getting journalist protection.

Mr. Randazza wrote that Ms. Cox had registered a number of domains that included his name and offered him help as a “search engine reputation manager.” He declined, and she registered domains that included not only his name and various profanities, but also domains that included his wife’s name, and, creepily enough, that of his 3-year-old daughter. She has filled at least some of these blogs with invective about Mr. Randazza and an incredibly vile post about his wife as well. (I should probably mention here that after writing about Ms. Cox, I’ve been on the receiving end of her special brand of reputation management as well.)

Because of the uncertainty of journalists being constitutionally protected from being forced to disclose their sources (Branzburg v. Hayes), the vast majority of states have shield laws similar to Oregon’s. I’m no media or first amendment lawyer, but a prerequisite to getting protection is being a reporter or journalist. Common sense dictates that bloggers, unlike Cox, would be entitled to such protection.