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Blogger Sued For Defamation

December 9, 2011 by  

Blogger Sued For Defamation

A Federal judge in Oregon has ruled that a Montana woman who was sued for defamation was not considered a journalist when she posted online that an Oregon lawyer acted criminally during a bankruptcy case.

United States District Judge Marco Hernandez’s ruling, which may impact bloggers throughout the country, said that Cox was not a journalist and cannot claim the protections against lawsuits afforded to mainstream reporters and news outlets.

Cox said she considers herself a journalist because she has produced more than 400 blogs over the past five years and uses a technique that gets her postings on the top of search engines, where they get the most readers, according to The Associated Press.

“What could be more mainstream than the Internet and the top of the search engine?” she said.

Cox was sued for defamation by attorney Kevin Padrick when she posted on her blog that he was a thug and a thief during the handling of bankruptcy proceedings by him and Obsidian Finance Group, LLC. Obsidian and Padrick said that their business has been hurt by the blogger’s statements and that she was guilty of defamation of character.

“If anyone can self-proclaim themselves to be media, the concept of media is rendered worthless,” Padrick said. “When everyone is media, the concept of media is gone.”

The judge agreed, saying that Cox had no journalism education, credentials, affiliation with a recognized news outlet, proof of adhering to journalistic standards such as editing or checking her facts, evidence she produced an independent product or evidence she ever tried to get both sides of the story.

Sam Rolley

Staff writer Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After learning about many of the biases present in most modern newsrooms, Rolley became determined to find a position in journalism that would allow him to combat the unsavory image that the news industry has gained. He is dedicated to seeking the truth and exposing the lies disseminated by the mainstream media at the behest of their corporate masters, special interest groups and information gatekeepers.

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  • s c

    This is interesting stuff. Sadly, we don’t have an H L Mencken to tell the American people what’s wrong with a judge who says free speech isn’t really intended for mere mortals. At least the judge doesn’t claim to be a ‘journalist.’
    It makes me wonder how the “judge” got through law school. If he had a functional knowledge of what passes for ‘journalists’ and ‘journalism,’ he would not have been so hasty to make such a flawed decision.
    Isn’t it bad enough that we have a criminal administration that hates the 2nd Amendment? If this judge is allowed to trample on the 1st Amendment, then Americans might as well conclude that the judge is an adoring fan of the current Washington schmucks who pose as “leaders.”
    I wasn’t aware that someone could become a judge and know little or nothing about the Constitution.
    Thank God he wasn’t a nominee for the Supreme Court.

    • joe

      “thug” and “thief” are words that a journalist would only use with the word alleged preceding or in quoting an authority. They are totally opinionated and presumably unsubstantiated. however, she has the freedom to say them and also to suffer the consequences.

      • Papa

        You’re correct. The proper use of such words is the difference between opinion and slander.

        Slander will get you sued, and unless the lady in question can produce evidence that what she said is true, she SHOULD be sued, and she should lose. Apparently, that is what occurred in this case…

      • EARTHMAN911

        The “Truth” is an absolute defense in a suit for defamation.

        Either she could not or did not produce evidence that the lawyer was a “Thug” and “thief.”

        • Eli

          To EARTHMAN911: Then someone should have sued Shakespeare for from one of his writings the phrase “Kill all Lawyers” And most anyone who has had the misfortune to deal with many of them you realize that this is a statement that perhaps should have been acted upon! Example obama, as well as many Representatives and Senators! Therefore her only mistake was to not precede the words with alleged Thug and Thief for it may be possible that in this case he be guilty. But not unlike the cases where Criminals Sue their Victims of which there was an example of this recently where the Criminal is Suing The City for the Police officer shot this Kidnapper in the back of the neck and the Kidnapping victims for not keeping their word? Which your guess is as good as mine as to what their word Contract was since they were being held against their will! So This so called Thug Lawyer is likewise able to sue for an opinion! Give me a Break! Please! This is no more constitutional than a fart in the wind doesn’t stink!

        • Joe H.

          EARTHMAN911,
          She could have simply preceded her claims with “in my opinion”! Has been used for years!

          • Joe H.

            accordingly, while statements of opinion, reasonably based on true fact OR WHICH ARE INCAPABLE FO BEING PROVER TRUE OR FALSE are normally protected under “The Fair Comment” privelege. But as milkovich case demonstrates, there are situations where someone is not entitled to their oinion, at least not free to express it without heeding the the consequences that MAY result if they harm a persons reputation.
            Straight from the mikovich decision!!

    • wandamurline

      Free speech as well as other freedoms are evaporating as we have activist judges who do not rule by the Constitution, the law of the land, but on their feelings, etc. When the government and judges reach this point, as they have, our forefathers told us it was our “duty” to remove them and replace them with constitutents who do rule and obey the Constitution. Vote in 2012 like your life depends on it, because it definitely does…America cannot withstand another four year assult by the traitors we now have in Washington…both Demorats and RINOS alike.

      • Vigilant

        “Free speech as well as other freedoms are evaporating as we have activist judges who do not rule by the Constitution, the law of the land, but on their feelings, etc.”

        Sorry, s c and wandamurline, I must respectfully disagree. Free speech does not legitimize slander, and the judge was certainly no activist. In fact, an activist judge would have spurned the rule of law and let the woman off the hook.

        The woman was free to say what she did (freedom of speech, she wasn’t muzzled), but that free speech when slanderous is fully punishable by law. As Justice Holmes iterated, free speech is not the right to yell “fire” in a crowded theater. Irresponsible speech that hurts someone’s livelihood, and with malice aforethought, in the absence of proof, is definitely illegal and is decidedly NOT counter to the provisions of the First Amendment.

        A more appropriate response to the article would be to question why “journalists” can get away with defamation as they do, and yet are shielded to a greater degree than the average person. The absolutely best movie ever made on this subject was “Absence of Malice” with Paul Newman and Sally Field.

        • shane fletcher

          This is really an asault against the first admendment now just the products of the university system are the only legitimate media sources we should count on. We all know how legitimate the party elitest university system is

    • eddie47d

      SC defames someones character each and everyday and attempts to have journalist integrity (chuckle). Then she goes off into her daily tangent with irrelevant information on the subject. I’m surprised that someone hasn’t sued SC although I don’t think she could handle that $2.6 million dollar judgement. She wants free speech as long as she’s the one dishing out the slander. Come down to earth SC you are no better than any other blogger and can’t always hide behind the walls of the Internet to protect your drivel. So “man up” on your verbiage!

      • Wil

        Now,eddie,I see you on here daily,defaming the intelligence of anyone with half a brain,and nobody’s sued you yet.

        • duaner

          RIGHT ON!!!

        • eddie47d

          Then if you feel defamed then make a challange. SC never provides facts and just raises hell. If you like her so much give her an atta girl but that may put you in rather despicable territory. You wouldn’t get much from suing me so you better find a different route.

          • Vigilant

            For all of you above:

            Defamation of character does not occur unless you are signing your true name and address. The banter that goes back and forth between screen names is just that, banter and nothing else.

          • Joe H.

            eddie,
            IN MY OPINION, you are a worthless windbag and useless when it comes to the important functions of life. Yo0u serve no use to society except to be an irritant like a mosquito bite or a grain of sand in ones wet swimming shorts. Why you bother to get out of bed each day and take up useful oxygen is one of the seven wonders of the modern world!! Now sue me! I have a right to my opinion as stated by LAW!!!

    • Eli

      Guess What SC United State District Court Judges are one of the drafting points for Supreme Court Nominees Keep an eye out it may happen Yet!

      • Vigilant

        I would certainly endorse that Federal judge, since the judge ruled impeccably and in accordance with the laws of the land.

    • Peter Locke

      She’s being sued! That isn’t the same as being convicted. Maybe she will win the suit because her statements were truthful. As much as I dislike lawyers and frivolous lawsuits, it’s just possible that the judge here is not the problem.

      • Vigilant

        From http://www.insurancejournal.com/news/national/2011/12/09/226848.htm

        “Hernandez issued a verbal ruling in court denying Cox’s request for certain legal protections customarily offered to journalists before a jury found on Nov. 29 she had defamed Obsidian and Padrick. Jurors found she should pay $1 million to the company and $1.5 million to Padrick.”

        Ergo, she lost the court suit, and the fact that it was a JURY that found her guilty was somehow conveniently not mentioned by Mr. Rolley.

        Are we now to see on this website a flurry of new postings condemning juries in general, as well as judges? I doubt it.

    • DaveH

      For those of you who are so quick to judge when in fact you have no facts:
      What is truth? How do you determine from a few sound bites whether the woman spoke truth or not? How do you know that she wasn’t correct and the judge (a lawyer) wasn’t just sticking up for his fellow lawyers, something which professionals often do and for good self-serving reasons?
      In my divorce, my ex had been sleeping with the next door neighbor, then filed for a divorce, and with the coaching of the neighbor lied her teeth off in court. Without making any determination about who was lying and who wasn’t, the judge ruled that I had to pay half of her lawyer’s fees. Now, why was that? To see that his fellow lawyer got paid, of course.
      Anybody, who can’t see a slight conflict of interest there, is just plain being naive.
      I am currently involved in an estate issue and wanted to represent myself in probate court, but when I called the Probate Division, they wouldn’t even tell me what the procedure was for filing an Objection.
      Why do you think those creeps make it so hard for average citizens to state their grievances in court? It wouldn’t have anything to do with the $200-$300 dollar fees they normally command, now would it?
      Wake up, People. The Government is just one big gang who is feathering their own nests at the rest of our expenses.

      • DaveH

        Let’s start downsizing the gang.
        Vote Ron Paul 2012.

  • bohemian

    Judge: “no…proof of adhering to journalistic standards such as editing or checking her facts, evidence she produced an independent product or evidence she ever tried to get both sides of the story.”

    According to this judge, then very few print newspapers, CNN, MSNBC, alphabet networks, and even FOX News in recent months can be considered journalists, either.

    • JB

      True – true – true – -

  • 4-just_us

    I think our Government is morphing into something other then a republic. Our government is getting a strangel hold on we the people by taking our rights away a little at a time. Where are all the good smart people in America to challenge our Government?

    • Kevin

      What right was taken away from her? This is not a freedom of speech issue. You cannot accuse someone publicly of a crime or attempt to damage someone’s reputation unless you have some evidence to back up your claims. She made allegations she could not back up in a public forum, she got busted for it. Case closed.

      • Vigilant

        You are 100% correct.

    • Vigilant

      This was never a David vs. Goliath issue. The government trampled on no rights of the defendant. Cox was found gulity by a JURY of her peers, not by the judge.

      Moreover, along the lines of journalistic honesty, Mr. Rolley ALSO failed to mention the following about Ms. Cox:

      “Attorneys for Padrick presented as evidence a Jan. 19 email from Cox, sent days after she was sued for defamation by Padrick and Obsidian, in which she offered the firm her services “to protect online reputations and promote businesses” for $2,500 a month. Cox denied she was trying to extort money.” (also from http://www.insurancejournal.com/news/national/2011/12/09/226848.htm ).

      I find it amusing that people posting on this site are decrying the MSM but don’t realize that they are being “played” by PLND as well.

  • Garry

    This woman had the right to voice her opinion, however also has to be responsible for what she says.
    If you are accused of something that is untrue, and it harms you monetarily, you may sue them. A judge determines if what you say is true, you are entitled to reimbursement from the accuser.
    This lawyer claims she damaged his business by falsely accusing him of a crime. Obviously Cox didn’t have any evidence of the claims she publicly made.
    Cox did not go to jail, she paid a fine. There was no infringement on the Constitution here…

    • ChristyK

      The problem with the ruling isn’t necessarily the end result against the blogger. If she truly told lies that hurt the lawyer’s business with no evidence, then she can reasonably be held liable. The problem is that the judge says the official media can say anything, but individuals can’t. This is a slippery slope we don’t want to go down.

      • Vigilant

        “The problem is that the judge says the official media can say anything, but individuals can’t. This is a slippery slope we don’t want to go down.”

        No, the judge did not say that, and no judge in the history of this country ever said that. The journalistic media are also held to standards of non-malicious reporting. The press is afforded protections under the same amendment that guarantees free speech.

        Absent malice, both you and the press are free to say whatever you want that does not endanger the public welfare.

    • Joe H.

      Garry,
      Wrong. If she precedes it with “in my opinion”, she is not ACCUSING! She is simply stating an opinion and EVERYONE is entitled to have their opinion by LAW!!!

  • 4-just_us

    I think our Government is morphing into something other then a republic. Our government is getting a stranglehold on we the people by taking our rights away a little at a time. Where are all the good smart people in America to challenge our Government?

    • eddie47d

      This is a private capitalistic company that is doing this suing so now you want the government to interfere and correct this lawsuit. Where is your sense of anything goes free markets?

    • Vigilant

      Certainly the government should be challenged when it steps out of line. It did not step out of line in this case. And no rights were abridged.

  • Scott in SC

    Experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.
    -Thomas Jefferson

    • Eli

      Scott in SC you have quoted an extremely good and accurately predicted Statement. Thomas was not only a Statesmen but was also a visionary! So why in this Society of degenerated leaders are We the People allowing them to systematically remove our or even Suppress our Rights! “Kill all Lawyers” Slowly! Judges fall in this Category don’tchaknow!

  • Morton L. Friedman

    What’s next? The Union of Journalists, Eitorialists, Reporters and Kolumnists, (U-JERKS), will be empowered to qualify those who desire to publish. Would Thomas Paine (Common Sense) have been allowed to be qualified? Or is it to be a ‘closed shop’.

    I believe that it is a well established principle that no public figure has relief by libel laws from criticism of their public ations. That is a fundamental right by the First Amendment, and one does not need a ‘press card’ to exercise that right.

    • Kevin

      Criticizing someone and accusing them of being a “thug and a thief” are not the same thing. She attempted to damage someone’s reputation without evidence to back up her claims. She got what she deserved.

  • Thomas

    According to the judge, the defendant “no journalism education, credentials, affiliation with a recognized news outlet, proof of adhering to journalistic standards such as editing or checking her facts, evidence she produced an independent product or evidence she ever tried to get both sides of the story.”

    There’s your lesson right there. While free speech is as important to mere mortals as it is to “media”, and the judge doesn’t obviously grasp that, free speech still comes with a price tag. The court found that this woman did a miserable job of reporting and fact checking. While she may be getting a lot of click-traffic, she was found to be sadly lacking in journalistic integrity.

    Not that I’m defending “journalism” as it exists today. Long gone are the days of Woodward and Bernstein, and often all that is left are bloggers to pick up the slack. But this decision does serve notice to the blogosphere – if you’re going to claim you’re a journalist, be prepared for the consequences of your writing. As did those bloggers in the middle east who paid the price for reporting the truth on the ground the past few years, from Iran to Egypt. Or those in Mexico reporting on the drug cartels.

    • Vigilant

      “But this decision does serve notice to the blogosphere – if you’re going to claim you’re a journalist, be prepared for the consequences of your writing.”

      I’m afraid you got it backwards. It was precisely because she was NOT a journalist that the criteria for slander were narrowed. She was seeking the status of “journalist” to avoid the slander laws. The court never(and should not have) acknowledged that.

  • Jeep

    Apparently, the judge had no legal education, credentials, affiliation with a recognized law college, proof of adhering to practised legal standards such as case law or checking the facts, evidence he produced an independent law review or evidence he ever tried to get the legal side of the story.

    The real mistake here is that Cox tried to claim “privilege” and claiming herself to be a journalist. You do have a right to your opinion and the right to state your opinion. In lay terms, even if that opinion is basically factually incorrect, you still have protection as a “normal” citizen. The only deciding factors are, did you knowingly make claims that are false, and if you were given the “facts” did you continue to make slanderous remarks. Calling someone a “thug” is not usually slanderous, but calling someone a thief (false accusations) can be. In any case, by claiming privilege the onus is set back in Cox’s court. Otherwise, the claimant would have to prove prior knowledge of the “truth”, an attempt at preventing further remarks (just say “No!”), establish when Cox knew the “truth” and any real damage.

    It sounds like her representation was lacking.

    • Vigilant

      “Apparently, the judge had no legal education, credentials, affiliation with a recognized law college, proof of adhering to practised legal standards such as case law or checking the facts, evidence he produced an independent law review or evidence he ever tried to get the legal side of the story.”

      …and do you have these things? No sir, the judge acted completely in accordance with the law.

  • Ted Crawford

    While I believe that it’s the Media themselves that are primarily responsible for the fact that the Media has been ‘rendered useless”, and I believe strongly in our first amendment rights, I don’t feel that gives anyone licence to present damaging beliefs as if they were fact!
    I haven’t read the postings and am unfamiliar with the case however, had she included phrases such as” the evidence seems to point to” or “in my oponion” I believe the first amendment would have applied!

  • Scott in SC

    What about all the PACs spending millions to spread rumors and falsehoods about their opposition. I guess the Supreme Court has decided as long as you are spending money to disparage someone it is considered free speech.

    • former walmart person

      Well, if there were any lawyers out there who weren’t absolute, gutless, COWARDS who WOULD TAKE YOUR LAWSUIT AGAINST THESE PACS. M A Y BE we could change things around!!!!

      But nahhhhh, lawyers are coward scum.

    • Vigilant

      Scott, the difference is whether or not the “victim” of slander is a public figure. The law is MUCH more lienient and wider in latitude when the target is a public figure.

      Most all public figures recognize that they are, for the most part, fair game when it comes to the slander and libel game. And unless the slander is especially harmful, they usually choose not to sue.

  • PatrioticOne

    I guess neither the judge, who probably was an attorney first, nor the attorney who sued can handle the truth. If you look up the definition of thug and thief, there is a picture of a lawyer next to them.

  • former walmart person

    As it was said in Apocalyspe (sp?) now, “we get weaker, while Charlie gets stronger”. Charlie’s idea of morale is some weak old rice and some rat meat.

    Everyday, the fat cats in government and the major corporations get weaker with decadence, and we get stronger having to face economic abyss, or perhaps lost children taken by CPS, or tougher in jail.

  • debeddebed

    To sum it up.

    The media and journalist’s are allowed to lie to the public.

    Anyone else can be sued.

    • Vigilant

      Sadly, you’re pretty close to the mark. Media outlets and newspapers can be sued, but the legal tests for slander and libel are so broad as to make the attempt too money-consuming to be worth it.

  • Kevin

    I don’t see what the issue is. There is no first amendment conflict here at all. The first amendment does not give a person the right to make false accusations about someone else. She was not expressing an opinion when she accused him of being a thug and a thief. Odds are there was more to her comments than that, otherwise I can’t imagine that the lawyer would have bothered with the lawsuit. The media has an expectation of being able to back up their statements with evidence. Does the media distort that evidence? All the time. But there is some semblance of documentation available to protect them in the event of a lawsuit. This woman had no evidence to back up her accusations, so she has no legal ground to stand on.

    • Vigilant

      You’re right, Kevin. “Malice Aforethought” is a key concept, and journalists can skirt the test by claiming that we were not acting with malice specifically to harm an individual’s reputation.

      Each news organization has a team of lawyers whose sole responsibility is to screen potentially controversial news stories to avoid these kinds of lawsuits. Once again “Absence of Malice” (Paul Newman and Sally Field) is the hands-down best drama depicting how a news organization can impeach the reputation of its target and still get away with it. A great movie. If you have Netflix, please get the DVD.

  • Jim

    I am not sure where I heard or read this but I seem to remember something about the news industry of today is not held to any standard that holds them accountable to tell the truth. This seems to be telling us that these legitimate news agencies can lie without any recourse from those they may lie about. If this is true, then the judge has made an appropriate call.

  • Idylewylde

    The judge was stuck with two realities:

    1.) Even a journalist can be sued if the wording demonstrates malicious intent without a factual basis. If the basis is arguable, the journalist had better not go there until after the litigation is resolved.

    2.) Litigation is contentious by design. One man’s thug is another man’s lawyer. I pay my lawyer to play mean, or I get a new lawyer. That’s our legal system .. Love it or Leave it.

    Opinions are like A**H***s. Everybody has one. But, cross the line into slander and defamation, and a lawyer will bend you over a court bench to examine your Opinion, and the Judge will rule on his performance.

    • Eli

      Well said idlewylde I do get it!! And I guess she got it too! But I bet she did not like it!

  • http://deleted Claire

    Perhaps a person should think twice about calling various individuals foul names. In this crazy mixed-up world, anything is possible.

  • http://Boblivingston Gottaplenty

    Ive wondered about this for some time, after seeing some of the comments on this blog

  • Ironclad

    But wait…since when did the main stream media keep to adhering to journalistic standards such as editing or checking their facts…?
    Old fashion journalism is dead!

  • Fubert Bar

    This lady is obviously a novice. She should know that to become a fully accredited ‘professional’ journalist, all she needs to do is to praise the crease in obama’s slacks and diss conservatism.

  • s c

    Fubert Bar, this article’s last paragraph puts the judge’s judicial wits in question. That is, since WHEN do American ‘journalists’ have to have CREDENTIALS? Since WHEN do American ‘journalists’ have to check their facts or produce PROOF?
    The lamestream media dotes on subjectivity and gross opinions. Only when you can an SOB into a court of law do they have to act as though they pretend to give a damn about rights or ‘the law.’
    There is NO WAY that anyone can claim that our hooker media has any consistent habit(s) of proofing or checking for FACTS. If our media whores suddenly developed some integrity, conservatives wouldn’t have such an uphill battle coping with double and triple standards. Kindly realize that the judge in this article is an OREGON judge. Did most people miss that? IF that judge is conservative, he’s RARE in Oregon.
    Oregon ain’t exactly a mecca for conservative judges or examples of wall-to-wall shyster conservatives.

    • Vigilant

      s c,

      “Since WHEN do American ‘journalists’ have to check their facts or produce PROOF?”

      Two principles are in play here:

      (1) Fact checking and production of proof are required by the media if they make statements that do not include the words “alleged” or if they can prove that their allegations are absent malice.

      (2) Free market rules are always in play. A newspaper or other media outlet, over time, will suffer if they make it their business to say anything they want without proof, as in just pushing a particular political agenda. The New York Times and media outlets such as MSNBC are all suffering because they have engaged in these shoddy journalistic practices. And they deserve to suffer.

      As for the political leanings of the judge, PLND has itself not told you the whole story. She was found guilty by a JURY which was given a hell of a lot more facts than we have been about this case. As for the test to determine whether or not she was a journalist, the judge only applied common sense and existing law, as would any conservative judge.

      • Vigilant

        B, another little-known fact is that journalists ARE required to reveal their sources in slander cases or suffer contempt of court citation and jail time.

  • http://KingCast.net Christopher King, J.D.

    I will preface my comments by noting that I was a guest panelist at New England News and Press Trade Show last year on the very subject of who is a journo. I have also been found to be “an African American journalist” by a Federal Court Judge despite the fact that I have not worked for a large daily in 20 years, since before I went to law school. Here is my open letter to Lucy Dalglish, Ms. Cox and Judge Hernandez, who was flat out WRONG on the issue of whether or not she is a journo, note that the case law most directly on point comes from NH, where I am battling Senator Kelly Ayotte on a free press issue that is noted in the video at bottom. The issue is foreclosure fraud, I am very well versed in that as I was a title insurance producer and now run mortgage movies journal.

    http://christopher-king.blogspot.com/2011/12/kingcast-open-letter-to-lucy-dalglish.html

    Vigilant says:
    December 11, 2011 at 9:58 pm
    B, another little-known fact is that journalists ARE required to reveal their sources in slander cases or suffer contempt of court citation and jail time.

    …..This is not always true, read about a case that I helped put together for Joanna Marinova v. Boston Herald et al., while the Herald lost on SJ and its Interlocutory Appeal and WHDH settled with a public apology, her Motion to Compel was DENIED.

    http://christopher-king.blogspot.com/2011/12/kingcast-and-suffolk-court-of-appeals.html

    http://www.youtube.com/watch?v=aqHecDEG5D8

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