The Real Danger in That Bloggers-Aren't-Journalists Ruling

Judge Hernandez's ruling is dangerous not because he doesn't believe bloggers are journalists. Rather, it's dangerous because he believes journalists comprise a special class who are entitled to more constitutional rights than the rest of society.
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You may have heard that a Montana blogger must pay a $2.5 million libel judgment because a federal judge ruled she was not a journalist, and was thus not entitled to protect her anonymous sources.

In fact, that's not quite what happened. The case actually had little to do with whether bloggers have the same right to protect their sources as traditional journalists. But U.S. District Judge Marco Hernandez's opinion nevertheless threatens to weaken long-standing protections against libel suits, and to widen the already-gaping divide between the media and the rest of society.

Let's take the shield-law issue first.

Crystal Cox, a self-described "investigative blogger," was sued for libel by Obsidian Financial Group and one of its executives, Kevin Padrick, after Cox wrote that some of their business practices were "illegal" and "fraudulent."

As part of the discovery process, Obsidian demanded to know the identity of the confidential sources Cox said she had relied on in the course of reporting her story. The trial was to be held in Oregon, and she invoked that state's shield law, which gives journalists a limited ability to protect their sources.

Judge Hernandez ruled that Cox was not a journalist and so therefore could not rely on the shield law. But he added that it wouldn't have mattered anyway, because even a traditional news organization would be required to give up its anonymous sources if the plaintiff in a libel suit demanded that information. Hernandez pointed out that the Oregon shield law contains specific language preventing news organizations from using the law as a way of defending themselves against a libel suit.

There is nothing all that novel or surprising in Hernandez's ruling. For instance, in 2002 the Boston Globe lost a $2 million libel suit after the newspaper refused to identify its sources for a 1995 story about Globe reporter Betsy Lehman, who died after receiving a massive overdose of chemotherapy drugs. Dr. Lois Ayash, whom the Globe identified as among those most responsible, sued, and a judge ordered a default judgment against the paper on the grounds that it was denying Ayash the information she needed to prove her case. The ruling was upheld in 2005 by the Massachusetts Supreme Judicial Court.

But if Judge Hernandez's ruling on the shield law is nothing to be all that alarmed about, the same cannot be said for what he wrote elsewhere in his opinion. In a passage that I find astonishing, Hernandez found that Cox could not be considered a "media defendant," and that therefore Obsidian and Padrick would not have to prove she acted negligently.

A little background. In the landmark 1964 case of New York Times v. Sullivan, the Supreme Court ruled that public officials could not prove libel unless they were able to show "actual malice" -- that is, that defamatory material about them was published despite the knowledge that it was false, or with "reckless disregard" for whether it was true or false. That standard was later extended to public figures as well.

But what about private figures, such as the plaintiffs in the libel suit against Cox? In 1974, the Supreme Court abolished the last vestiges of no-fault libel, ruling in Gertz v. Robert Welch that even private figures would have to prove negligence at the very least in order to win a libel case. (The states were free to set a tougher standard of fault, but not a lesser one.)

Hernandez, though, blew right past the Gertz requirement, even as he quoted it, by ruling that Cox was not entitled to its protection because she was not a "media defendant." Hernandez wrote:

Defendant cites no cases indicating that a self-proclaimed "investigative blogger" is considered "media" for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is "media," triggering the negligence standard.

Hernandez offered two precedents for his view that only professional journalists should enjoy the protections of the negligence standard. The first was a reference in Gertz that "the States may define for themselves the appropriate standard of liability for a publisher or broadcaster [my emphasis] of defamatory falsehood injurious to a private individual." The second was a reference to Gertz contained in a case called Bank of Oregon v. Independent News, decided in 1985 by the Supreme Court of Oregon. Gertz, according to that decision, "established that a state could not impose liability without fault on a media defendant [my emphasis again], even where the plaintiff was a 'private individual.'"

The problem is Hernandez believes that because Gertz specifically cites media defendants as coming under the protection of the negligence standard, then anyone who is not a media defendant is therefore excluded. And his reasoning for why Cox does not qualify as a member of the media is a doozy, as he cites everything from her lack of a journalism degree to what he sees as her unprofessional reporting techniques. It is an incredibly narrow definition of journalism that is entirely at odds with the role of free speech in a self-governing society.

The Supreme Court has always been clear that the First Amendment is for all of us, not just for credentialed journalists. In fact, in the 1972 case of Branzburg v. Hayes the court ruled that journalists could not claim a constitutional privilege to protect their sources precisely because "liberty of the press is the right of the lonely pamphleteer ... just as much as of the large metropolitan publisher." And what is a blogger in 2011 other than today's lonely pamphleteer?

And though it is true that Gertz seems to single out media defendants for special treatment, it's hard to believe that's what the court intended. Maybe it's time for a clarification.

After Hernandez issued his ruling, Cox's case went to trial, where a jury awarded $2.5 million to the plaintiffs. She represented herself, which is always a bad idea.

I hope Cox will get a lawyer and appeal. Hernandez's ruling is dangerous not because he doesn't believe bloggers are journalists. Rather, it's dangerous because he believes journalists comprise a special class who are entitled to more constitutional rights than the rest of society.

That's not just bad law. It's bad for democracy.

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