Obsidian Finance Group v. Cox- A Case every blogger should know.

I recently spoke on a panel discussion on legal issues facing bloggers at BlogCon 2012 in Charlotte, NC, generously sponsored by FreedomWorks, and the Franklin Center for Government and Public Integrity.  I intended to discuss a very important case currently being litigated in the United States District Court for the District of Oregon, but ran out of time.
In my opinion, this case shows the need for first amendment issue advocacy on behalf of bloggers, and also expressly shows why it is important for bloggers to have insurance.

The facts of the case are simple.   The defendant made statements on her blog which may have been defamatory.  The Plaintiff filed a defamation suit against the defendant.  The judge dismissed on summary judgment all but one of the issues contained in the complaint (a summary judgment is where a judge rules that there is no issue that needs to be brought to trial, and that as a matter of law, the case is decided in one way or another).  On the one issue that remained, the judge ruled very strongly against the first amendment rights of bloggers.

Shield Laws

While the court stated that shield laws did not apply, due to the information being allegedly defamatory, the Court also opined on how shield laws should apply to bloggers.

Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.

So, shield laws do not apply to bloggers because they are not “media” because they are not affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, etc. etc.  This is an important factor to think about.  Is it a requirement under the law to be “affiliated” with a news service to be considered “media”?  This is particularly interesting because the law cited in the previous paragraph states that the “Medium of Communication” is broadly defined, and is not limited to “News papers, magazine, periodical, etc.”.   So is the court here narrowing the scope of the definition of “Media” to explicitly exclude bloggers?

Anti-SLAPP and the First Amendment

Oregon has an anti-SLAPP law.  The defendant made the mistake of not attaching the anti-SLAPP motion at the outset, however the judge said that this didn’t matter because in this case the First Amendment protections did not apply in the first place.  If the plaintiff is a public figure, then in general, the plaintiff has to prove that the defendant had “actual malice” in stating the false or defamatory statement (see. New York Times v. Sullivan, 376 U.S. 254 (1964)).  In this case the judge ruled that the plaintiff was not a public person or even a limited public person, so actual malice is not the standard.  This is not the important part.  If the person is not a public person, then the plaintiff still needs to show that the defendant was at least negligent in their publication of the false or defamatory comment (Gertz v. Welch 418 U.S. 323 (1974)).  The court ruled that Cox was not a media defendant, and so Gertz did not apply, therefor not allowed the First Amendment protections afforded to the media.

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.”

Again, we have the court applying a test to define what is and what is not considered “media”.  The court stated that the defendant showed no evidence to define her as media.  But, should she have to?  Shouldn’t the court rule in favor of First Amendment protections, and leave it to the defense to prove in front of a jury that she is somehow “not” media?  How can this be a ruling as a matter of law?

Need for Advocacy

Cases like this are likely to come up, and judges are likely to rule in the very same matter.  This is why bloggers need advocates.  They need advocates to reform legislation to specifically mention “bloggers” as media because the nature of media is changing, and the courts are slow to recognize this.  With the shuttering of many small market newspapers and the shift of the remaining groups away from expensive investigative reporting, it has been up to bloggers and online media groups to pick up the slack.  They cannot do it alone, there needs to be cohesion amongst bloggers to protect their first amendment rights.  There needs to be active advocacy on behalf of bloggers.

Need for Insurance

As I stated last week at BlogCon, bloggers need insurance, and this case is a prime example of why.  Originally the defendant defended herself pro se, and I speculate she did so because she could not afford legal representation.  This was largely a mistake and she lost largely because she did not have the necessary legal training.  But more importantly the amount in controversy is $2.5 Million.  $1.5 Million to the Finance Group, and $1 million to the named plaintiff.  This types of lawsuits have the potential to render many bloggers destitute for merely exercising their first amendment rights.  Insurance could have the effect of both helping to pay litigation costs, and making payouts in the event the defendant loses.  Like I stated before, insurance programs for bloggers are in development.  In the mean time, bloggers need to check to see if they are covered under their existing insurance programs

The entire court opinion can be read here.