Remember when Crystal Cox made the blogosphere news about having to pay an unusually large monetary amount for writing an article about a corporation’s employee? Apparently the corporation had sued her for defamation. And the court agreed with the corporation despite Ms. Cox assertion that the requests to reveal her sources violated her first amendment rights as well as her right to keep her sources confidential. Now a federal court has overturned that decision remanding it back to be tried in court again with her having those rights in place. The monetary amount awarded to the corporation will probably be modified at that time. For those who aren’t aware of this I am copying a link to a post that I had written back in December of 2011 entitled A Discussion Revisited- Are Bloggers Like Journalists and Should You As A Blogger Worry About Defamation Charges Being Filed Against You? Link: https://teribelle.wordpress.com/2011/12/19/a-discussion-revisited-are-bloggers-like-journalists-and-should-you-as-a-blogger-worry-about-defamation-charges-being-filed-against-you/ Please before you go further or after read this article. Included are some links about the story and some articles she has written. A recap of the issues in that trial are that she, Cox, is covered as a journalist for her information gained in writing the article meaning that she is not penalized or required to relinquish her sources that she used to help write the article, that the person written about or entity was for purposes of this article a public figure and therefore the person or entity being written about must show negligence on the part of the author of the article.
In an article written by a BlogHer contributor entitled UPDATED: FEDERAL COURT RULES BLOGGERS HAVE SAME FIRST AMENDMENT PROTECTIONS AS ‘TRADITIONAL’ JOURNALISTS Link: http://www.blogher.com/crystal-cox-loses-25m-suit-when-blogger-journalist-or-not; it says that bloggers have the same protections as journalists. In fact it goes on to state that Judge Andrew Hurwitz, Judge for the 9th US Circuit Court of Appeals in San Francisco said that the article was of “public concern and that the jury in Cox’s previous trial (who had ordered her to pay $2.5 million in damages) had not been instructed that negligence be proven.” The article further states that, in court, the party suing, (plaintiff) has to show that Cox, (defendant) failed to act with a reasonable level of care when writing and publishing this article online. If the party suing is unable to prove this then she has not committed any misdeed. But it is on the party suing to prove that. In other words, all she has to do is defend her position and her article. The right to not reveal sources or other media shield laws that give protection to those who write will take care of the rest for the most part. But you also have to be careful what you are willing to reveal and what you actually reveal because, once the door is open it is hard to go back and close it.
The maelstrom of articles that this case had brought will probably continue. But in reading the Blogher article I had found another one that I am not sure if I had mentioned so I am mentioning it now. If it is a repeat please excuse me. The article entitled, Why An Investment Firm Was Awarded $2.5 Million After Being Defamed By Blogger Link: http://www.forbes.com/sites/kashmirhill/2011/12/07/investment-firm-awarded-2-5-million-after-being-defamed-by-blogger/ ; specifically details what the opinion given as a link http://www.scribd.com/doc/74870113/Crystal-Cox-Opinion in the article states in reiteration:
Defendant fails to bring forth any evidence suggestive of her status as a journalist.
For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”
The opinion as listed above goes into why the 9th Circuit Judge addressed the public concern issue because of the claim of fraud made by Cox. He specifically states in the opinion:
…implicating First Amendment protections. “[W]hether speech addresses a matter of public concern must be determined by the expression’s content, form, and context as revealed by the whole record.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985)(internal quotation, ellipses, and brackets omitted).
The questions: Did Ms. Cox address an issue that could be considered public concern and thereby informing the public of something that the public needed to know. And if that is the case- then First Amendment protections would then be an issue. The judge found that the issue addressed by the court did not start the First Amendment protections and therefore the case wasn’t tried for the right issues in order to obtain the award.
The question: Was the plaintiff considered a public figure? Not according to the opinion nor his actions. Thus the case was not tried on the right issue and remanded back for trial.
The question: Is Ms. Cox considered media for purposes of this trial? Not according to the findings of the court of appeals.
However the court did find that if she gets a trial on the issues of addressing a public concern and writing on it with no negligence then she has a trial and a platform for which to defend her stand of journalistic practices.
I wait to see what happens and hopefully you will too.