Bloggers, shield laws and the journalists who don't get it
No Associated Press content was harmed in the writing of this post
Last week an Oregon blogger named Crystal Cox had a $2.5 million defamation judgment issued against her. It was for posts she had written about investment firm Obsidian Finance Group and its co-founder Kevin Padrick; the case hinged on whether her allegations were factual or not. Padrick said they were defamatory, while Cox said they were factual but that because said facts had been leaked to her by an inside source she could not provide details. She then claimed she was protected by journalism shield laws allowing her to not name the source.
There are some extremely interesting and complex details to hash through in this case. The big one is the nature of shield laws in the Internet era. It is now possible for an individual to write anything at all, true or not, about anyone, and for that to be visible to the whole world. If that individual is sufficiently knowledgeable and persistent it's also possible to manipulate search engine optimization to put those posts right at the top of the results page for the target. Cox was knowledgeable and persistent.
The underlying assumption of shield laws seems to be that organizations are unlikely to pursue vendettas and also unlikely to go to the mattresses to defend a spurious piece of reporting. In other words, the circumstances that create a full blown defamation lawsuit will be rare, and the defendant will have incentive to settle. But in our new world it's possible for there to be a proliferation of defamatory content as well as a legion of single minded fanatics willing to take the full legal journey out of pure spite.
It is easy to envision courts getting clogged up with this kind of case, where one pissed off individual with an axe to grind comes up with an imaginary source to justify any kind of claim, then hides behind shield laws to get away with it. It's a real problem. We need a way to evaluate claims of inside sources made by bloggers in a way that allows a defamation claim to be evaluated without potentially compromising the identity of a whistleblower.
There's a lot to chew through, and Judge Marco Hernandez failed to even take a bite: "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[.]" In other words, she is not employed by a respectable outlet so to hell with her.
David Carr then took to the Paper of Record to write a nasty, snide little piece that also completely missed the issues at play. He piously begins by claiming to have come to the case on the blogger's side: "I went to work on a blog post, filled with filial umbrage, saddened that the Man once again had used a boot heel to crush truth and free speech." ("Filial umbrage" reeks of insincerity, just in case the ironic mention of the Man was not enough to clue you in on the joke.)
His entire post drips with contempt for the unwashed rabble who dare to practice journalism outside the high temples designated for it. "In the pre-Web days," he sneers "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." Yes of course, Mr. Carr, because the New York Times has never missed an important piece of news, does not have blind spots and always prioritizes stories strictly according to their importance! Why should anyone ever attempt to bring anything to anyone's attention outside of that which arrives via the comprehensive and infallible process used by newspapers?
Articles like his are a great example of exactly the kind of flawed reporting that creates such deep skepticism towards traditional outlets. There is a real issue here that Carr's arrogant, smug and superficial (he doesn't even mention shield laws!) gloss completely misses. Whether he misses it out of laziness, a simple lack of intelligence or some compelling need to demonstrate he's not like them doesn't matter.
The plain fact is, anyone who got their information on the case from David Carr's writing at the New York Times would be substantially less informed than those who read Curtis Cartier's piece at the Seattle Weekly blog. That is why we need bloggers, lots of them, in lots of places. And we need to find a place for their journalism - yes, David Carr, journalism - within the legal system. Because even the Times cannot cover all the news that's fit to print.