Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? | Julie Hilden | Verdict | Legal Analysis and Commentary from Justia

Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? | Julie Hilden | Verdict | Legal Analysis and Commentary from Justia

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The Retraction Statue Issue

The question whether a blogger counts as a journalist came up in the Cox case because Oregon, like many states, has a retraction statute. Under that statute, a plaintiff cannot get his full share of defamation damages unless (1) he demands a correction or retraction from the person or entity that is the alleged defamer; and (2) the alleged defamer fails to publish a correction or retraction that follows the statute’s rules.

Cox argued that since, in her case, there was no demand for a correction or retraction, the statute plainly applied, and that, thus, the plaintiffs—Obsidian Finance Group LLC, and Kevin Padrick—could not seek their full damages from her.

Judge Hernandez disagreed. He pointed out that Oregon’s retraction statute only applies to defamatory statements that are “published or broadcast in a newspaper, magazine, or other printed periodical, or by radio, television or motion picture.” Since Cox’s statement appeared exclusively online, the judge reasoned that it did not fall within any of these categories, and thus that the plaintiffs were not required to have demanded a correction or retraction in order to be awarded their full damages.

The Anonymous Source Issue

Judge Hernandez also ruled that, under Oregon law, Cox did not have the right to protect her sources.

Under an Oregon law entitled “Media Persons as Witnesses,” “[n]o person connected with, employed by, or engaged in any medium of communication to the public shall be required by . . . a judicial officer . . . to disclose, by subpoena or otherwise . . . [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving, or processing information for any medium of communication to the public[.]”

In this context, “Medium of communication” is broadly defined as including, but not limited to, “any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”

Cox argued that she was a media person under this definition, too, but the court disagreed. (The court also held that Cox would have lost on this argument anyway, for the statute at issue does not apply in defamation cases.)
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