This morning we told you about the troubling case of Crystal Cox, the Oregon blogger who was successfully sued for defamation, thanks in part to a federal court ruling that she isn't a "journalist" and therefore doesn't qualify for the state's media shield laws. Now, the man who wrote the shield laws in Washington state has weighed in on whether such a ruling would fly here.
He says that had Cox's case been heard in a Washington court, the outcome (at least in regards to the shield law) would have most likely been different.
"I believe the shield law would have been applied [in Washington state]," Johnson tells Seattle Weekly. "Oregon's law was probably written before blogging was accounted for."
Media shield laws exist in 40 U.S. states and protect journalists from being forced to reveal confidential sources in court.
Bruce E. H. Johnson wrote the shield law in Washington
In Oregon the law reads in part as such.
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 [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]
Furthermore, Oregon law defines "any medium of communication" as "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service,news or feature syndicate, broadcast station or network, or cable television system."
Notice that nowhere on that list is "website," "blog," "Internet medium," or other such definition.
It was indeed this definition that the federal judge in Oregon cited when he ruled that Cox was not a member of the media and therefore could not benefit from the shield law.
Skip north to Washington and the shield law reads in part like so:
. . . no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose the identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality
Washington law further defines "news media" as:
Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;
Johnson says that he wrote the shield law shortly after the case O'Grady v. Superior Court was decided in California. In that case, Apple sued a blogger who had published leaked information from the company. The blogger had refused to reveal the source of the leaked information, and after a long, arduous path through the courts, the 6th District U.S. Court ruled that the blogger was in fact a media member and therefore did not have to turn over the information.
"Fortunately we had the O'Grady case to say that bloggers were media when I wrote the law," Johnson says. "Washington's shield law is technologically neutral and it relies on the definition of news media as any news media, including Internet."
As for Cox, Johnson says that even if the court had ruled that she didn't have to reveal her source, she likely still would have had to reveal the source if she wanted to prove her statements were true and therefore weren't defamatory. In other words, the shield law, even if applied, might not have shielded Cox from the $2.5 million judgement she's been ordered to hand over.
At any rate, Cox's plan to keep representing herself without a lawyer isn't doing her case any favors.
To that Johnson recommends she contact the Electronic Frontier Foundation, a San Francisco-based legal group that has been known to represent such cases pro bono.