This is a excerpt from EFF, the Electronic Frontier Foundation attorneys in support of a new trial for defendant Crystal L. Cox in Obsidian Finance Group v. Cox.
Oregon Retraction Laws should have applied to defendant Crystal L. Cox. Kevin Padrick nor Obsidian Finance Group asked for a retractions of that blog post, or a reason why to retract.
"
The First Amendment protects all speakers, not just the press, from strict defamation liability. Moreover, protected-though-critical speech cannot be the basis for a verdict reached by a sympathetic jury. Especially when read in light of the Court’s (unnecessary and erroneous) additional rulings regarding if and how online speakers can earn an elevated “media” or “press” status, these findings paint an unnecessarily risky legal landscape for such speakers in the district, one at odds with the First Amendment and Oregon law."
"The allegedly defamatory statements attributed to Cox included ones accusing Padrick of all manner of misconduct such as committing
“tax fraud,” of being
“corrupt,” of
paying off media and politicians, of
“illegal activities,” “deceit on the government,”
“money laundering,” “defamation,” and “harassment,” even going so far as asking whether “Padrick hire[d]
a hitman to kill” her. Compl. at ¶ 8.
Plaintiffs alleged in their Complaint that “Defendant knowingly and intentionally published the false and defamatory statements alleged above with actual knowledge of their falsity or with actual malice or reckless disregard for the truth or falsity of the statement.” Compl. at ¶ 10."
"Under the First Amendment, contrary to the Court’s Order of November 30, 2011, a successful defamation action requires
at least a showing of negligence, regardless of the “media” status of the defendant.
As the jury found Cox liable for defamation pursuant to jury instructions that did not include such a limitation, the verdict must be overturned and a new trial granted.
Moreover, the jury’s award – $2.5 million based on
a single blog post, undifferentiated from the myriad other allegedly defamatory posts that the Court eventually found to be protected speech under the First Amendment –
was excessive and unsupported by sufficient evidence and thus cannot stand.
Combined with the other overreaching rulings regarding Cox’s media status, these errors will leave online speakers in the district unnecessarily and unconstitutionally chilled. Defendant’s motion should be granted."
"The Court Failed to Instruct the Jury that It Must Find the Defendant at Least Negligent In Order to Find Her Liable for Defamation.
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court identified a constitutional floor regarding the intent requirement in defamation claims, holding that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz at 347. Noting that
“erroneous statement of fact” is “inevitable in free debate,” and that “punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press,” the Court gave States Case 3:11-cv-00057-HZ Document 108-1 Filed 01/11/12 Page 6 of 13 Page ID#:2614
broad latitude to achieve their legitimate objectives of protecting private individuals but drew a firm line barring strict liability statutes because of the inevitable chilling effect:
“Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship.” Id. at 340.
Fashioned in a pre-Internet context (addressing a defamation claim concerning a traditional magazine publisher), and couched in terms of “media,” “press,” “broadcasters,” and “publishers,” the Gertz Court nonetheless did not limit its ruling to the “media” per se.
Rather, the Court addressed a factual claim before it that involved the (then relatively expensive and limited) ability to “broadcast” a message to a sizable audience, an ability that is now not just commonplace but ubiquitous."
"EFF also agrees with the Defendant that the jury’s damages award was unsupported by the evidence, providing a separate basis requiring the Court to grant a new trial.
Trial courts
may grant remittitur if a jury award
“is so unreasonably high as to ‘exceed any rational appraisal,’” is “outrageous, shocking or monstrous,” or “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Rosa v. Burlington Northern, 277 Or. 683, 687 (Ore. 1977) (citing Oliver v. Burlington Northern, 271 Or. 214 (Ore. 1975)). Such is the case here.
Plaintiffs assert that the harm inflicted by the Defendant was the result of hundreds of disparaging blog posts made across a multitude of time and across dozens of sites:
“Every time someone gets on the Internet and uses a search engine such as Google to research Kevin Padrick or Obsidian Finance, what they immediately find is that Padrick and Obsidian are being accused of serious criminal and civil misconduct on literally dozens of websites.” Plaintiffs’
Memorandum In Opposition to Sua Sponte Motion for Summary Judgment filed July 22, 2011,
at p.2 (Dkt. 27). See also id. at p.13 (“Defendant Cox has falsely stated to potentially millions of Internet users that Padrick and Obsidian have engaged in criminal and civil misconduct.”).
However, the Court granted Cox’s motion for summary judgment as to all blog posts (and web sites) save one: a single post from December 25, 2010, that appeared on the www.bankruptcycorruption.com web site. See Supplemental Opinion &; Order of August 23, 2011, at 24-31 (Dkt. 31).
While recognizing the highly critical and caustic nature of many of the allegedly defamatory statements, the Court ultimately found that all but one of the posts amounted to, at worst, hyperbolic expression that a reasonable fact-finder could not interpret as provably false assertions (and thus protected speech).
No evidence in the record supports a finding that Plaintiffs suffered $2.5 million in damages due exclusively to the single blog post of December 25, 2010. Rather, the evidence appears only to indicate that the reputational harm alleged by Plaintiffs was exclusively or primarily the result of protected speech. That search engines such as Google may highlight and
prioritize the Defendant’s protected though critical statements in a manner the Plaintiffs may (understandably) find to be
unfortunate or unfair is of no legal consequence to a defamation award. Indeed, that the jury appears to have shared the Plaintiffs’ aversion to Cox’s writings similarly cannot excuse an award that is contradicted by the evidence.
See, e.g., Siebrand v. Gossnell, 234 F.2d 81, 94 (9th Cir. 1956) (trial court may “grant a new trial when he is of opinion the verdict is against the weight of evidence …”) (citing Southern Pacific Co. v. Guthrie, 186 F.2d 926, 932 (9th Cir. 1951), Bradley Mining Co. v. Boice, 194 F.2d 80, 83 (9th Cir. 1951)). The excessiveness of and lack of an evidentiary for the jury’s award warrants a new trial.
"The Court’s Additional Erroneous Findings Regarding the Defendant’s Media Status Amplifies the Impact of the Improper Jury Instruction and Threatens to Further Chill Speech.
Amicus is concerned not only with the improper application of First Amendment standards to the Internet speaker in the immediate case but also with the message that the Court’s rulings will send to the broader Internet community.
Combined with the pre-trial rulings filed by the Court on November 30, 2011, they together threaten to chill speech in contravention of the First Amendment.
Therefore, in addition to granting Defendant’s motion for a new trial, amicus strongly urge the Court to reconsider two of its previous First Amendment decisions regarding the Defendant’s “media” status.
First, contrary to the Court’s decision,
Oregon’s retraction statute should be interpreted to extend to Internet periodicals such as Defendant’s blogs.
O.R.S. § 31.215 prohibits the recovery of general damages
absent a demand for a retraction (that is subsequently ignored) for “defamatory statement[s] published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures.”
Passed decades before the advent of the public Internet, this statutory list appears to reflect the legislature’s desire to identify and encompass all manner of publication channels, not a desire to pick and choose communications made pursuant to certain technologies per se.
Rather, the legislature’s public policy goal was
to encourage the publication of retractions of defamatory statements and to therefore reduce litigation and
preserve judicial economy by reducing lawsuits.
As the Oregon Supreme Court has noted,
the retraction statute is “loosely drafted” and that the “legislature probably intended” that the protections be afforded “to those involved in the process of publishing or broadcasting.”
Wheeler v. Green, 286 Or. 99, 123 (Ore. 1979). That is, “publishers” are afforded the statutory
opportunity for retraction as “[i]t is the ‘publisher’ in that sense who has the power to determine
whether or not a correction or retraction shall be printed or broadcast. Id. As
Internet publication is no different in this sense than the broad publication methods identified the statute, it too should be afforded the same opportunities and protections.
Applying the statute to Cox’s Internet posts, as a retraction demand was not issued by the Plaintiffs, the ability to seek general damages should have been precluded.
"
Second, the Court’s finding that Cox was not “affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system” and “thus,
she is not entitled to the protections of the [shield] law in the first instance” was unnecessary to reach and erroneous as a matter of law.
Order of November 30, 2011, at p.3 (Dkt. 95). O.R.S. § 44.520 states that “[n]o person …
engaged in any
medium of communication to the public shall be required by a … judicial officer
or body … to disclose … [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.”
By gathering information and directing her analysis and commentary to the public – even if it contained factual assertions that were incorrect, and even if some statements were defamatory – Cox was certainly “engaged in [a]
medium of communication to the public” and thus afforded the protection. The definition of
“medium of communication” was left deliberately broad (and non-exclusive) by the Oregon legislature:
“‘[m]edium 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.” O.R.S. § 44.510(2).
There can be no question that Internet publication qualifies for protection under the statute, and that individuals engaged in such publication directed at the public should be afforded the statute’s protections.
The Court ultimately should not have ruled on the question, and thus should have refrained from issuing its controversial dicta regarding whether Cox’s status as an Internet publisher precluded her from the shield law’s protection, because the source of Cox’s statements were not at issue.
In her Objection to Plaintiff’s FRCP 37 Motion to Compel, filed November 14, 2011 (Dkt. 66), for example, Cox disclaims a proper reliance on the shield law,
identifying and explaining the source of her statements and noting that that source “has nothing to do with the blog post I am on trial for.” Id. at p.3.1 Accordingly, the question of the scope of the shield law’s protection should have been left for another day and for a situation
in which a true controversy exists.
Taken together with the Court’s ruling regarding the appropriate intent requirement and the jury’s excessive verdict, these findings paint an
increasingly and unnecessarily hostile landscape for online speech, one that may discourage such speakers or lead them to engage in the type of
“intolerable self-censorship” decried by the Supreme Court in Gertz.
Not only may they be subject to strict defamation liability and disproportionate damages awards based on search engine placement, independent online publishers may be denied the opportunity to limit their damages
(pursuant to the retraction statute) and compelled to produce their sources even though they fall within the letter and spirit of the shield law.
In addition to granting a new trial, amicus
urges the Court to reconsider the broader holdings discussed above in order to ensure that speech is not unduly restrained in this new medium.
V. CONCLUSION
While the scope of the First Amendment protections afforded to Internet journalists is a salient and important question, here the primary question was not whether
“a self-proclaimed ‘investigative blogger’ is considered
‘media’ for the purposes of applying a negligence standard in a defamation claim” but whether
all speakers enjoy the same affirmative First Amendment protections regardless of media status.
Order of November 30, 2011, at p.9. Amicus supports Defendant’s motion for a new trial because the proper defamation standard was not applied below and because the jury verdict was excessive.
Moreover, amicus believes that the question of
Defendant’s “media” status unfortunately and improperly emerged to overshadow the merits of the case to the detriment of both the Defendant and of Internet publishers generally.
Accordingly, amicus respectfully asks the Court to grant Defendant’s motion for a new trial and to reconsider its rulings of November 30, 2011, as to the applicability of
Oregon’s retraction statute and shield law."
Source of Post
http://www.docstoc.com/docs/110847626/Obsidian-V-Cox---Retraction-Laws-Shield-Laws-Free-Speech-First-Amendment
More on Obsidian V. Cox
http://www.obsidianvcox.com/
More on Kevin Padrick's pattern and history
http://www.kevinpadrick.com/
More on Tonkon Torp
http://www.tonkontorpsucks.com/
ObsidianFinanceSucks.com blog
http://obsidianfinancesucks.blogspot.com/
Crystal Cox Blog
http://www.crystalcox.com/
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