Judge Suggests Some, But Not All, Bloggers Qualify as ‘Journalists’ Under Law

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Perhaps hyperlocal bloggers are journalists after all. As reported previously in Street Fight, Federal Judge Marcos Hernandez in Oregon ruled last November that a self-proclaimed “investigative blogger” was not a journalist for purposes of Oregon’s shield law. The tone of the opinion drove blogosphere apoplectic. Since the first ruling, Judge Hernandez issued another opinion in the same case, responding to the criticism by explaining “I did not state that a person who ‘blogs’ could never be considered ‘media.'”

Crystal Cox calls herself an “investigative blogger” and runs sites that she claims “expose 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, and lost.

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, Judge 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.

After retaining counsel, Cox moved for a new trial. Judge Hernandez denied the request in late March 2012. He held fast to his original decision that Cox did not qualify as “media” for shield law protection, but he also took pains to explain that his first ruling did not suggest that bloggers may not qualify as journalists.

“In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’” Judge Hernadez wrote in his opinion. “I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the ‘media.'”

In justifying his decision against Ms. Cox, Judge Hernandez pointed out evidence regarding Cox’s offer of “public relations” services, including removal of her blog posts, to the defendants after they complained about the posts. “The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee,” Hernandez wrote. “This feature, along with the absence of other media features, led me to conclude that defendant was not media.”

Judge Hernandez’s point was that bloggers can be journalists — just not the one in his particular case.

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.


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