Oregon Defamation Decision Could Chill Free Speech

EFF Urges Court to Grant New Trial for Blogger

January 12, 2012

San Francisco - The Electronic Frontier Foundation (EFF) urged an Oregon district court in a friend-of-the-court brief filed Wednesday to overturn a multi-million dollar defamation verdict against a blogger that could chill free speech.

In December, a jury found Montana blogger Crystal Cox liable for defaming Oregon lawyer David Padrick in a highly critical blog post and awarded him $2.5 million in damages. In the brief filed Tuesday, EFF supported several arguments raised by Cox in her motion for a new trial, arguing that the court applied the wrong First Amendment defamation standard and that the jury's award was excessive and unsupported by the evidence. Under the First Amendment, EFF argued, all speakers are entitled to the same defamation standard, regardless of their media status. Moreover, as most of the plaintiff's "reputational harm" came as the result of protected speech, the jury's $2.5 million verdict was unsupportable.

"The Supreme Court has repeatedly made clear that the mainstream press does not enjoy any special First Amendment privilege beyond that enjoyed by other speakers," said EFF Senior Staff Attorney Matt Zimmerman. "Whether or not Ms. Cox is a journalist, the First Amendment requires that a jury must find evidence that a defamation defendant was at least negligent, and the jury was not instructed to do so here."

EFF also urged the district court to reconsider its unnecessary finding that Cox, as an unaffiliated and self-proclaimed "investigatory blogger," was not engaged in a "medium of communication" protected by the Oregon shield law. The shield law, passed years before the advent of the popular Internet, does not explicitly mention web activities but was intended to broadly cover alternate publication channels and allow those engaged in distributing information to the public to protect their sources.

"The question of whether a blogger is a journalist or part of the 'media' is an important question, frequently hinging on whether a blogger is engaged in journalism, not on what medium she uses," added Zimmerman. "Such a question was irrelevant here, however, because the primary question here was whether the statements were defamatory, not the identity of her 'source.' The court's finding only serves to muddy the waters about the rights of online journalists and should be withdrawn."

EFF was assisted in this case by Rick Mc Leod of Klarquist Sparkman, LLP.

For the full amicus brief:
https://www.eff.org/sites/default/files/filenode/coxamicus.pdf