1/9/12

Can Bloggers Be Protected Like Traditional Journalists Via State Shield Laws? Recent Court Rulings Say No.

While we were all enjoying the holiday season from Thanksgiving to the New Year, another opinion came down regarding defamation suits against bloggers that bloggers everywhere may be interested in reading.  It's the third case of which I'm aware where state shield laws are used as a defense by bloggers sued by defamation: Oregon isn't as blogger-friendly as New Jersey or California.

Oregon Shield Law - No to Bloggers

The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.

Read the Oregon federal judge’s ruling here.

In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group.  Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.

Judge Hernandez ruled against Cox.  His rationale?  Shield law is limited in its application to “traditional media” and blogging isn’t traditional media. 

Cox, he opined, had no traditional education in journalism.  She had no street creds from a “recognized news entity.” 

Result:  the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.

New Jersey Shield Law - Maybe to Bloggers

If you’re following this stuff, this opinion may sound familiar.  There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.” 

Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”). 

Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum.  Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall.  (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)

The New Jersey Supreme Court’s rationale?  From the opinion:
New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.
California Shield Law - Maybe to Bloggers

Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers.  In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.

From O'Grady: 
We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Here’s something to think about:  if Cox had been interviewed on television, or by a “traditional journalist” for a  printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law?  I think so.
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