Court Says Blogger Isn’t a ‘Journalist’ — Implications for Hyperlocal

A federal judge in Portland, Oregon has declared that a local “investigative blogger,” doesn’t qualify as a journalist — calling into question whether online hyperlocal news publishers should be treated differently than traditional media.

Crystal Cox calls herself an “investigative blogger” and runs sites “exposing corruption.” Obsidian Finance Group filed a $10 million defamation claim against Cox in Portland, alleging that she made several defamatory postings against Obsidian and its co-founder, Kevin Padrick. Cox defended herself in federal court but lost. According to a report by Seattle Weekly, she faces a $2.5 million judgment.

Cox claimed her information for the Obsidian postings came from a confidential source, and, therefore, Oregon’s Shield Law protected her from disclosing her source at trial. In an opinion filed on November 30, 2011, Federal Judge Marco Hernandez disagreed, ruling that Oregon’s Shield Law was limited to traditional media like newspapers, broadcast stations, magazines, and news services — but not to an “investigative blogger” who was not affiliated with traditional media.

The court further concluded that Cox was not entitled to claim other defenses against damages that could be raised by traditional media because she failed to prove she was a bona fide journalist. “Defendant fails to bring forth any evidence suggestive of her status as a journalist,” Judge Hernandez wrote. Hernandez ruled that Cox failed to show, among other things, that she had any education in journalism or “any credential of proof of any affiliation with an recognized news entity.” Cox told Seattle Weekly that she plans to appeal the ruling.

Last June 2011, the New Jersey Supreme Court ruled that a journalist’s posting on an online discussion board was not entitled to protection under New Jersey’s Shield law. The court concluded that message boards were not similar to traditional new organizations protected by the law.

Although Cox was not a hyperlocal news publisher, the decisions raise concern on whether online hyperlocal news sites, some of them published in blog format, should be viewed  and treated differently than traditional media. That question remains unresolved, but it serves as a reminder that getting the facts right is paramount in avoiding trouble.

This article is provided for information only and does not provide legal advice.

Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.

  1. FrankS.
    December 7, 2011

    Since when does the judiciary have the power to qualify a person’s profession?
    This ridiculous decision mandates that someone advancing the facts surrounding
    any given event must: a) be employed by a profit-making, established mainstream
    media organization, and/or b) have spent tens of thousands of dollars to be
    indoctrinated into the agenda-mill that is the community of college-graduated

    The Bill of Rights guarantees freedom of the press, not
    freedom of the established and anointed press. This judge should be removed from
    the bench for judicial misconduct.

    1. Tom Henderson
      December 7, 2011

      With all due respect, the judiciary has the right to qualify and settle complaints. Doctors are supposed to know what they’re doing. Those in the profession of journalism are also supposed to know what they’re doing. That’s why we specifically exclude them from liability in some scenarios, in some jurisdictions. If you’re a regular stringer or freelancer, you can claim at least 1099 rather than W2 relationship with an employer, or something qualifying you as a journalist by de facto rather than de jure credentialization. If you go firing off your fat mouth and malign someone with malice of forethought, or do other things that free speech concepts aren’t protection for (ex: parody), then you can be successfully sued. The judge can and did disqualify this person, apparently, as a bona fide journalist. That lifts any protections afforded. Real journalists should rejoice. Fans of free speech should rejoice: it carries the responsibility not to injure others, as in liable and defamation.

      1. December 7, 2011

        Wrong. If I hire freelance journalists for my for-profit blog (or nonprofit, for that matter,) i expect that they will have the same protections as any other journalist. If I am the only writer at my blog, i expect to have the same protections as well. In case the judge hasn’t noticed, citizen journalists and hyperlocal news organizations have exploded across the country in the last few years. Hyperlocal news gethering orgqanizations largely exist to fill the void left by “real journalists.”

  2. December 7, 2011

    Agree with FrankS.  Do courts have a right to “qualify a person’s profession?” That’s more the question with this event to me.  Not sure how working for a newspaper would have changed the outcome if the story had been the same. Over time these types of rulings might be overturned. 


  3. novenator
    December 7, 2011

    This is a dangerous precedent. Anyone that writes about what’s going on
    is a journalist. This could be the attempts by the establishment to
    curtail freedom of the press.

    Wiki: A journalist collects and distributes news and other information. A
    journalist’s work is referred to as journalism. A reporter is a type of
    journalist who researchs, writes, and reports on information to be
    presented in mass media, including print media (newspapers and
    magazines), electronic media (television, radio, documentary film), and
    digital media (such as online journalism).

  4. December 7, 2011

    Is that so ?? hmm…

  5. Anonymous
    December 7, 2011

    more importantly: what qualifies as “traditional” media?  There was a time when TV news was non-“traditional” media.  and what if she had incorporated
    as a media company, then printed a monthly ‘zine of her articles? would this qualify her then as “traditional” media?  I understand the
    journalist posting on the message board, as a post can be done on one’s own time and not in a professional capacity (newsgathering, and the like)
    But this decision is definitely one of those “send a message” and “defense of traditional” media things.  Very bad indeed.

  6. Sarte
    December 7, 2011

    This ruling pretty much grandfathers anyone working in “established” media and ignores people engaging in new media and those just starting out. So a freshman journalism student writing a story on a local court case for his Journalism 101 blog isn’t protected by Freedom of the Press because, 1. His medium is “new,” and, 2. He is not yet trained in journalism?

    I’m in the world of writing, and own an “established” media outlet and am well credentialed, but I eventually see journalists being in the same classification as poets. Anyone can call themselves a “poet,” but few make serious money doing do. 

  7. Crystal L. Cox
    December 7, 2011

    Being Legally Media is Important here because I did not have “Actual Malice” another words I did not knowingly post false information. The other reason blogs as media in what i do is very important is that the judge said Oregon Retraction Laws did not apply to me, this means they did not ever have to ask for a retraction or give me a way to remedy the situation, by law.  So any blogger that posts can be sued and lose and never be told that what they post may be false or provided any documentation to that affect.   I gave the courts over 500 pages of what I used in that post, as source information and the Judge Threw it out

    1. Brian
      December 14, 2011

      Crystal, thank you for your comments. Are you going to appeal?

  8. Crystal L. Cox
    December 7, 2011

    This Case, in my Opinion, was Perfectly orchestrated to set precedence, as each stage was precise, and I did not know I could not use my over 800 pages of Exhibits until moments before the trial and after the jury was selected.  This judgement shuts down millions of bloggers and suppresses information online. And to me, bloggers provide more real news from what is really going on to real people then any other form of media, or so called alleged “Real News”.

  9. Lee L
    December 7, 2011

    So would this judge also put Ben Franklin or his brother in Jail ?

    Ben Franklin went from being a soap maker to writing for his brother,  James Franklin’s “New England Courant” newspaper. His brother was put in jail, because he had printed matter considered
    libelous, and was forbidden to continue as the publisher, the newspaper
    was published under Benjamin Franklin’s name.

    We have “news organizations” who simply rewrite press releases and call themselves journalist. And then we have what appears to be someone doing investigative reporting (based on this limited article) and they are sued.

    Does this also mean that CNN is no longer protected under the 1st amendment because they fired 50 staff members and are now using UNTRAINED citizens as photographers ?

    1. Brian
      December 14, 2011

      Lee, you bring up a good point about the citizen journalists.  Please keep in mind that some state shield laws incorporate factors that courts must analyze to determine whether a “journalist” is entitled to shield law protection. One of the factors is whether the persons is providing the services for traditional media, so providing for CNN would qualify for some protection. But does the training issue also factor heavily? 

  10. Youngblood
    December 7, 2011

    What’s the legal definition of “traditional journalist?”

    1. Brian
      December 14, 2011

      Actually, for purposes of some state shield laws, the analysis of whether someone is part of the media includes whether the person had formal, journalistic training (including ethics), and whether the person worked for a recognized traditional medium, usually limited to newspapers, wire services, radio stations, TV stations, etc.

  11. August 17, 2017


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