December 12, 2011

About that blogger who didn't get to use the journalist shield law...

David Carr — at the NYT — is not too sympathetic:
In the pre-Web days, someone like Ms. Cox might have been one more obsessive in the lobby of a newspaper, waiting to show a reporter a stack of documents that proved the biggest story never told. The Web has allowed Ms. Cox to cut out the middleman; various blogs give voice to her every theory, and search algorithms give her work prominence....

“I view our case as a blow for the First Amendment,” said [the man who won at $1.5 million judgment from her]. “If defamatory speech is allowed just because it is on the Internet, it cheapens the value of journalism and makes it less worthy of protection.”

44 comments:

timmaguire42 said...

I'm not surprised that a privileged journalist defends his privilege.

It's probably beyond his capacity to cringe a little at the thought that, in defending his privilege, he supports the government's power to decide who is a journalist and who isn't.

Henry said...

Reading this it seems to me that the Judge's ruling falls within standard legal definition of defamation. The "blogging" part or whether Ms. Cox is a journalist seems irrelevant -- as it should.

Am I right? If a journalist had acted the same as Ms. Cox, would any "journalist shield law" have applied?

Now I'm wondering -- could Mr. Padrick sue Google for hosting a defective product? It is their algorithm, after all, that Ms. Cox used to slander him.

Peano said...

She didn’t so much report stories as use blogging, invective and search engine optimization to create an alternative reality.

Sounds like the NYT.

sorepaw said...
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Henry said...

sorepaw wrote: And under American law the "standard legal definition of defamation" does not lead to a win for the plaintiff, in the vast majority of cases.

Well that's what I'm curious about. Does this case really turn on whether or not Ms. Cox is a journalist? The plaintiff must win occasionally. Or are the journalists reporting on it getting the story wrong?

EDH said...

Not sure I get the implication of the shield law.

If I understand correctly, Cox was unable to use the shield law to hide her sources, which allowed the plaintiff to prove malice (assuming Padrick and his firm were [limited?] public figures and had to show malice).

So, a "legitimate" journalist can use the shield law to hide sources to thwart a plaintiff from proving malice, and would allow them to engage in the same conduct Cox did?

Have I got that right?

ndspinelli said...
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timmaguire42 said...

Hmmm...having now read the story, Henry has a point--Ms. Cox would probably lose under any standard and probably deserves to lose. The author says the ruling on the shield law is a McGuffin and doesn't discuss it much.

So while he seems comfortable with special privileges for reporters ("Journalists who initially came to her defense started to back away when they realized they weren’t really in the same business."), this is not the best case to hash it out over.

edutcher said...

The point about defamation is one thing although, if it was the Gray Lady doing the defaming, would the court have been so generous to the plaintiff?

The other, as tim notes, is that the Goliaths will use anything they can find to keep down the legitimate Davids.

MadisonMan said...

So is the take-away that a Journalist who prints lies and defames would get away with it?

I guess I'm asking the same thing Henry is asking.

Perhaps Ms. Cox should have written fiction. Thinly-disguised fiction.

Fen said...

They lost me at "cheapens the value of journalism".

Fen said...

My understanding is that she couldn't fight the charge of defamation unless she revealed her (insider) sources, which she refused to do.

And yes, if this had been the NYTs...

xnar said...

To help clear things up, we just need federally issued journalistic licenses, since a journalists are a special class of citizens and have special "shield" rights the rest of us do not have. The well-connected can apply for waivers.

Pastafarian said...

If this shield law protects journalists from defamation, then I'd say that the problem here isn't that this law doesn't extend to bloggers, but rather that it shields anyone, journalist or not.

Extending this shield to everyone would basically nullify any laws against slander and liable, wouldn't it? And extending it only to certain people with the subjective credential of "journalist" is clearly absurd.

I wonder what Althouse's take is here, as a blogger and a free-speech near-absolutist.

Coketown said...

Actually, I am curious what would happen if this had been the New York Times. There is no Federal shield law, and the firm in question and the NYTs are in two different states. In which state would the firm sue? Whose shield law would apply?

The NYTs already had one journalist--Judith Miller--go to jail for contempt of court for refusing to name her sources.

But let's assume my town's local piece of crap alt-weekly were in this situation. It's troubling that, as journalists, their source could be Fuzzy Dunlop and nobody could prove otherwise.

sorepaw said...

The plaintiff must win occasionally.

OVery occasionally.

What most often does it unsubstantiated charges of committing a crime.

sorepaw said...
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Christopher in MA said...

"If defamatory speech is allowed just because it is on the internet, it cheapens the value of journalism and makes it less worthy of protection."

Does this mean Sarah Palin can sue Andi "I'm not a gynecologist, but I play one on my blog" Sullivan into well-deserved penury?

Bruce Hayden said...

Not sure about the legal niceties here, even after having read the article.

A shield law typically protects sources, and has not from defamation. And, in this case, even if the target had been a public official or public figure, there appears to have been sufficient malice to get over the hurdle partially named for the rag this guy works for (NYT v. Sullivan).

Bruce Hayden said...

But my last brings up a point. Why should the dead-tree and broadcast media have some sort of protection for their sources, when much of the breaking news we get these days comes from the Internet, and often from bloggers.

I think that the Madison stuff over the last year demonstrates this fairly well - Meade and Ann seem to have done a better job covering what was going on that most of the media that is protected by shield laws. We are really seeing this with Fast and Furious, where outlets like the NYT have been noticeably absent in their coverage - potentially one of the biggest political scandals of our lifetimes, and the MSM is covering for AG Holder and the Administration. Why should they be getting a shield law, and bloggers not, when the MSM doesn't seem to want to investigate much of what is important these days?

The Godfather said...

Carr's a lousy journalist. In one article he misused "decimate" and "McGuffin".

Levi Starks said...

So in the end the only people who can print (say) anything they want will be those with the deepest pockets (NYT), and those with nothing to loose.
since it seems that this case was about money.
If Ms. Cox was penniless I doubt that any attorney would have agreed to take the case since there would have been no potential for financial reward. Or is libel ever a criminal offense?

sorepaw said...
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Christopher said...

Bad cases make bad law. Anything that makes journalism more of a profession and less of an activity undermines citizen rights under the First Amendment.

She didn’t so much report stories as use blogging, invective and search engine optimization to create an alternative reality.

Fortunately, the New York Times and other major media never do this. Because that would be wrong.

Skyler said...

So the professionals who have deep pockets and vast audiences are shielded from irresponsibility, but the lone reporter is fed to the wolves?

This must be overturned.

Levi Starks said...

Well actually I think a destitute citizen would be safe. One who blogs from the free computer at the city library where they spend their day, and sleep behind at night.

rcommal said...

It appears that, especially with regard to a particular post, Cox defamed her target (and it's clear she was targeting him). There are, even legally, exceptions to free speech. She went way over the line. She deserved what she got, and in no way is she a hero, and much less ought she be a symbol of beleaguered blogger whose free speech has been stomped on by the government.

I say: Good on the court, and good for Mr. Padrick. Unfortunately, he'll never be able to truly get his reputation back (the internet is forever!).

Chip Ahoy said...

Fuzzy Dunlop. Ha Ha Ha Ha Ha Ha.

It's a tennis ball. A surveillance device inside a tennis ball.

caplight45 said...

Christopher said: "Fortunately, the New York Times and other major media never do this. Because that would be wrong."

That and the layers and layers of fact checkers.

alan markus said...

Speaking of "pre-Web" days, that's exactly what I was thinking of yesterday when I read Law creates barriers to getting care for mentally ill in the Milwaukee Journal Sentinel.

The 91-year old lady (Alberta Lessard, whose case radically changed mental committment law) would be much more effective if she had not been born too early to benefit from the Internet. Her couch would not be overtaken with all the information she must keep track of: Alberta Lessard relaxes in her West Allis apartment after sending out a batch of her ditties, homemade poetry rants she sends, mainly to political figures. Imagine if she could do an email blast when she has things like this to send: TrickyDickLapDogs

Actually, this article is a very good read (it isn't just about Alberta Lessard), but it is rather lengthy for internet reading. Interesting lady - she was actually recommended for a University of Wisconsin-Madison honorary law degree. Didn't happen, but she does fancy herself as legally the attorney general of the state of Wisconsin.

Beldar said...

This whole thread seems terribly confused to me.

"Shield law" is a term typically used to refer to an immunity from the normal responsibility of every person, including litigants, to respond to a lawful subpoena or court order -- usually one issued at the behest of a prosecutor or grand jury in connection with a criminal prosecution or investigation -- compelling production of testimony or evidence about the identity of a confidential source. That's what was at issue in, for example, the Judith Miller contempt case.

There's no direct connection between such shield laws and defamation lawsuits. These shield laws weren't enacted by legislatures (or created by state-court judges in some instances) to give special privileges to those who've made defamatory statements. And whether a journalist is or isn't involved doesn't really matter in terms of defamation law, although it may have practical consequences in terms of how broadly distributed the falsehood may be.

There is, however, a restriction on state defamation law that the SCOTUS, in the famous case of New York Times v. Sullivan, has deemed required by the First Amendment. And case and its progeny hold that when the defamation plaintiff is a public figure, he can only recover if he pleads and proves the falsity of the defamatory statement and that the statement was one of objective, verifiable fact that was published with "actual malice," peculiarly defined in this context as meaning "with knowledge of the statement's falsity or with reckless disregard as to its truth or falsity."

The NYT v. Sullivan rule has nothing to do with press shield laws per se, and it's a restriction on defamation plaintiffs, not a defense for defamation defendants.

Here it appears that the defamation defendant tried to use the shield laws to justify a refusal to answer questions being asked by a defamation plaintiff. That's not remotely what shield laws are for.

Suppose that a prosecutor had decided to investigate Ms. Cox' claims of misconduct by Padrick. If that prosecutor (or a grand jury acting at the prosecutor's suggestion and request) had then tried to subpoena Cox to appear before the grand jury -- in order that Ms. Cox could be compelled to bring documents and to testify under oath, subject to penalties of perjury for lying and to contempt of court for refusal to testify -- then Ms. Cox might have tried to invoke the shield law. And then there would indeed have been a big fight over whether the Oregon legislature intended to include bloggers within the protection it purported to extend to "journalists."

But this is just an attempt by Ms. Cox' lawyers to misuse, in a civil defamation proceeding, a defense against disclosure that was never intended to protect journalists (or anyone else) against defamation claims. Even if she were a journalist, the shield law shouldn't have applied; and if the Oregon law in particular was drafted overbroadly so that it might have (and arguably it is), then courts ought to either interpret it narrowly or, if unable to interpret it to promote its true purpose (which isn't licensing widescale defamation), call upon the state legislature to fix it by narrowing it.

Beldar said...

I should add that whether the defendant is or isn't a "journalist" may be relevant for other purposes in defamation lawsuits. For example, in Texas a "media defendant" has, by statute (part of recent tort reform measures), certain extra procedural rights, including an extremely valuable right to take an interlocutory (mid-lawsuit) appeal from an adverse pretrial ruling on a summary judgment motion. There's also an ongoing debate, the answers from which are varying from state to state, over whether being a "media defendant" may excuse one from having the burden of proof on truth or falsity. (Typically that's an affirmative defense that the defendant must plead and prove, but by statute or caselaw, but NYT v. Sullivan requires states to put the burden of proof and persuasion on the plaintiff when the plaintiff is a public figure, and some states also require the plaintiff to so prove even if he's a private figure but he's suing a "media defendant." But that's not this.

Beldar said...

Neither the First Amendment nor anything else in the federal Constitution requires a testimonial privilege for members of the media or anyone else, by the way. So held the SCOTUS in Brandenburg v. Hayes in 1972, and that rule has been repeatedly applied by the federal district and circuit courts, including (recently) in Judith Miller's case. So if there is any protection, it's merely a nonconstitutional statutory or common-law protection, and it can be restricted or widened pretty much at the whim of the state and federal legislatures respectively.

Beldar said...

Yikes -- meant to say "Branzburg v. Hayes," not "Brandenburg."

Amartel said...

Thank you, Beldar. You should write for the NY Times. This story is not about the decline of free speech rights for anyone other than credentialled media. It's a story about how you can't hide from a defamation lawsuit on the internet. Also, that judgment does seem high until you read how this blogger purposefully tracked and tried to destroy a livelihood.

BJM said...

The most amazing part of the article is that Carr writes and the NYT publishes a graf this facile and dishonest after the MSM's disgraceful coverage, and groundless defamation of half the country following the Giffords shooting:

"...was actually something else: a case of a blogger using the Web in unaccountable ways to decimate the reputation of someone who didn’t seem to have it coming. "

The MSM can't go the way of the buggy whip quickly enough.

ndspinelli said...
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Henry said...

Thanks Beldar.

Paco Wové said...

Jesus Christ, spinelli, let it go.

Alex said...

Why does the government get to decide who is "press"?

sorepaw said...
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Beldar said...

@ Sorepaw (12/12/11 3:51 PM): We don't disagree about that. Defamation cases are hard to win in a meaningful way for almost anyone, anytime, but since NYT v. Sullivan in 1964 they've been almost impossible for a "public figure" to win.

The current hot argument in the appellate courts is over the subject of "limited-purpose public figures." I recently was involved (remotely) in a Texas lawsuit in which the parties vigorously argued over whether a successful Dallas real estate developer, one who nevertheless considered himself a very private person and indeed avoided publicity even for his business, had to jump the NYT v. Sullivan actual malice hurdle. The defendants argued that by making a proposal to a Texas coastal town that they use eminent domain to facilitate a marina development deal he was promoting, he therefore had made himself into a "limited-purpose public figure," at least for purposes of allegedly libelous statements in a book discussing the resulting "Kelo-style" public controversy. I would suppose analogous arguments could be made that when one becomes a trustee appointed by the government, one becomes a limited-purpose public figure; if so, then Mr. Padrick's defamation case will be that much harder to win. But even that's no reason for him not to get pretrial discovery which might allow him to meet and overcome that high hurdle.

I'm no fan of journalist shield laws in any context, but if legislatures are to create them, they should be narrowly interpreted as to what they cover, and very broadly interpreted as to who's a "journalist." What Ms. Cox was trying to do, though, was IMHO certainly outside the likely intentions of the state legislature that had passed the shield law.

Kirk Parker said...

Levi @ 11:23am:

She's representing herself.





(Yes, the usual cliche applies.)

Beldar said...

That the shield laws are poorly understood within the halls of the New York Times was again illustrated by Judith Miller's long and effectively self-imposed incarceration in connection with the Scooter Libby prosecution. Once her confidential source -- Libby -- had released her from any conceivable obligation to hold his identity or what they talked about as confidential, she nevertheless continued to assert some so-called privilege. The whole rationale for the journalist shield laws is that they encourage whistleblowers to speak to the press who otherwise wouldn't unless their confidentiality could be guaranteed. Libby, however, obviously no longer wanted confidentiality. Why Judith Miller spent weeks in jail protecting him from something he wasn't trying to avoid remains a mystery to all but the chattering classes who think that reporters aren't bound by the same rules the rest of society has to comply with.