U.S. District Judge Marco Hernandez' ruling that blogger Crystal Cox's isn't a journalist and therefore doesn't qualify for media shield-law protection should be overturned as quickly as possible--but not because the the judge's ruling was wrong.
For those who missed this story, here's a quick recap. Cox, a self-described "investigative blogger" with a host of different websites and a knack for squeezing the best Google rankings possible out of each of her posts, was sued for defamation by the investment firm Obsidian Finance Group and its co-founder Kevin Padrick.
In the trial, Judge Hernandez threw out the vast majority of Padrick's claims, but on a single blog post Hernandez ruled that Padrick had been defamed and he ordered Cox to pay $2.5 million in damages.
Cox, who defended herself in court, argued that Oregon's media shield laws protected her from disclosing an inside source. Hernandez disagreed. And in the ruling that has shaken the blogosphere since we broke this story a week ago, he ruled that she wasn't a journalist because she didn't get a paycheck from an official media outlet.
From the ruling:
. . . 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
The "protections of the law" that Hernandez refers to is this one, Oregon's media shield law, which reads:
No person connected with, employed by or engaged in any medium of communication to the public shall be required by ... a judicial officer ... to disclose, by subpoena or otherwise ... [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]
When Hernandez talks about Cox not being "affiliated with any newspaper, magazine, periodical, book, pamphlet, news service," etc., he's not just spouting off qualifications that he believes are necessary to be considered a "media member." The judge is actually quoting directly from Oregon law which says that a "medium of communication" "includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system."
As we reported last week, Washington's counterpart to Oregon's shield law does specifically protect bloggers. Bruce E. H. Johnson, the man who wrote the shield law in Washington, told us that thanks to a recent case in California that had been decided shortly before he drafted the law, he knew that today's media landscape was a changed and changing landscape, and web-based writers would need equal protections.
Unfortunately states like Oregon wrote their shield laws before Internet journalism was so widespread, and the fruits of that legislative lag time are reflected in this very case.
But while Hernandez's ruling may be correct, the blunt way in which the judge words his opinion has also effectively removed all ambiguity from the law and potentially made a permanent standard where once some wiggle room remained.
A close look at Oregon's law shows that some gray area exists in the phrase "but is not limited to" when the law defines "medium of communication." A savvy lawyer might have argued in Cox's case that "is not limited to" means that bloggers should be included as legal "journalists."
But with Judge Hernandez writing in black-and-white terms about Cox's professional accreditation being the deciding factor in her legal definition, future plaintiffs of similar suits need only cite Obsidian Finance Group v Crystal Cox as reason to have that gray area shaded black.