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Cox
Crystal Cox, "Investigative Blogger"
We've all read a lot about the $2.5M defamation verdict against "Investigative Blogger" Crystal Cox who was declared to not be a journalist as part of her case. But most of the reporting has missed the mark; here's what you actually need to know.

First off, the Citizen Media Law Project has compiled many of the case documents. I rely on them heavily here, and will link a bunch.

1. Crystal Cox wasn't doing journalism; at best, it's a close call.

This post is representative of what's at issue here:

Hey Kevin Padrick - Just a Reminder I ain't going anywhere.. Regardless of What you do to Summit..

My Investigative Blogging Team will Always Be ON YOUR ASS.

You are a Cruel, Evil, Discriminating Liar. And I intend to Expose every Dirty deed you have ever or will ever participate in.. So don't be thinking I have give [sic] up on EXPOSING you. You are a Corrupt Attorney, you Create Victims, you take money from real estate consumers, you are abusive and controlling, you pay off media, you pay of [sic] politicians and well.. I intend to prove all of that in great detail over the next..DECADE...

Stay Tuned..

In a pretrial ruling, the judge actually threw out most of the claims against her because, as he wrote:
The majority of the statements made by defendant are not sufficiently factual to be proved true or false.  The statements accusing  plaintiffs of being "thugs," or "evil," or "greedy," are evaluative, subjective expressions not subject to proof.  As to those statements that might suggest a sufficient factual basis to be provable, for the reasons explained in the preceding paragraph, the context in which those statements were made dispels a reader's understanding that they are assertions of fact.   Additionally, while, as noted above, the use of a question mark is not an absolute protection from liability as a provable statement of fact, it is a commonly recognized rhetorical device which can create an impression for the reader that the author is supposing facts rather than stating provable facts.  Moreover, defendant regularly states she "will" prove her allegations or that information and facts are "coming soon."  While this might suggest that she actually possesses facts but simply has not posted them yet, in this case any reasonable reader would view the promise of future proof and defendant's failure to contemporaneously post the relevant facts as one more reason why the posts do not constitute provable assertions of fact.

I recognize that simply because statements are posted on the Internet, or contain a
question mark, does not immunize the statements from being actionable in a defamation claim.  But, here, none of the statements quoted above create liability for defamation because when the totality of the circumstances are considered, no reasonable juror could conclude that the statements contain provable assertions of fact.

One commentator has referred to this as the ALL CAPS defense; if your posts don't look credible and people don't expect to find assertions of fact in your writing, you won't be taken seriously enough to be found liable. (This "sliding scale" came up in the Tucker Max/Anthony DiMeo litigation about which I've written.) Accordingly, this one post on a separate site was the only one he deemed sufficiently fact-ish to be subject to liability.

More importantly, in terms of whether this was "journalism": Cox was engaging in search engine optimization practices by setting up a bunch of sites dedicated to trashing this guy ... and then sent his attorney an email saying "So I want to let you know that I am now offering PR services and search engine management services starting at $2,500 a month." Which, I hope we can agree, isn't something journalists do for their subjects, but Cox has denied that this was attempted extortion/blackmail.

2. Even if she were deemed a "journalist," it wouldn't have mattered.

Whether she was a journalist was of legal relevance for two arguments. One, as to whether a "media shield" applied to protect her sources. On that, everyone's in agreement on two things—that the fault lies on Oregon's dated statute, not with the judge; and even with a more tech-friendly statute, it still wouldn't have helped her, because the shield affords no protection for any journalist from having to disclose her source when she’s claiming that the source would help her prove that what she wrote was true.

The second place where this issue arose is on the mens rea test of how wrong Cox had to be to be liable here. On this, Cox argued that as "media" she had to be deemed negligent, and not merely wrong. Here's what the judge said:

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 important thing about this standard is that it's not dependent on the medium, but rather on the individual's alleged journalistic practices.

3. The verdict seems excessive.

The jury awarded damages in the amounts of $1M to the guy's company and $1.5M to him personally based on the harms to their respective reputations that Cox caused. According to one article:

Padrick said Obsidian Finance’s advisory business is off 80 to 90 percent this year, forcing it to cut jobs. He attributed the drop in business to the barrage of accusations from Cox.

“The damage to me is forever,” Padrick said. “The Internet is not capable of being undone. Google ‘Kevin Padrick’ and you’ll see the first 10 pages are from Crystal Cox.”

That may well be the case. Regardless, if the judge has already ruled that only one post of Cox's was potentially defamatory—as opposed to her entire course of conduct—then I'm not seeing the linkage between that one post and all the damages claimed. From the outside—without having sat through the trial and heard all the evidence, and certainly the jury is entitled to much deference—but from the outside it's hard to understand how that much in damages can be attributed to the one legally defamatory post, as opposed to a verdict based on a general assessment of Cox's practices.  

I can imagine that number being reduced on appeal or reconsideration, and I welcome your thoughts and questions.

Originally posted to Adam B on Fri Dec 09, 2011 at 07:24 AM PST.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics and Daily Kos.

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Comment Preferences

    •  Nice post, Adam B (7+ / 0-)

      Thanks for taking the time to delve into this to find out the truth.

      If you don't have anything nice to say about anyone, come and sit by me -- Alice Roosevelt

      by djsands on Sat Dec 10, 2011 at 09:25:25 AM PST

      [ Parent ]

    •  As a lawyer, let me commend you (7+ / 0-)

      Particularly in a touchy area like this, I find it really noble that you took the time to read the judge's reasoning and laid out what the legal standards are and are not and where the key issues are.  I love dispassoinate reporting and analysis.  (Legal reporting often goes too quickly to outrage  before analyzing the tricky and technical bits.  AFter such analysis, outrage may be called for but not before.  It's a pet peeve of mine.)

      I find that standard/test for is one a journalist as meeting a professional standard really good and something we should all write on the backs of our hands when posting diaries.  Did we do these things?  If so, that's great!

      Many many thanks.

      Intelligent, passionate, perceptive people will always disagree, but we should not let that disagreement, however heartfelt, lead us to become deaf to those better angels of our nature.

      by Mindful Nature on Sat Dec 10, 2011 at 10:51:33 AM PST

      [ Parent ]

  •  being stupid (3+ / 0-)
    Recommended by:
    Cedwyn, devtob, Siri

    shouldn't cost that much.
    I know many who make a living out of being stooopid.

  •  Thanks for the reality check (8+ / 0-)

    I figured this was just another example of overblown internet hysterics and grandstanding. Thank you for looking into it and putting out the facts in an intelligent, reasoned piece.  

    Our judicial system isn't perfect and the Republicans have done considerable damage with their 20+ years focus on installing conservative judges. Even the most conservatives judges do try to take their jobs seriously. Before we go off half-cocked over headline decisions, we should take the time to fully understand the decision.

    Coming Soon -- to an Internet connection near you: Armisticeproject.org

    by FischFry on Fri Dec 09, 2011 at 07:39:00 AM PST

  •  Stupid questions (2+ / 0-)
    Recommended by:
    Plubius, Siri

    How would a person, who is not of means, ever be able to pay off such a fine?

    Could a person lose everything and be forced to live on the streets?

    Or do the courts allow a person to keep enough of their income to maintain a home, buy food, pay utilities, and if children are involved, support their children?

    And if I may, another question unrelated -

    In a small court claim, in which the plaintiff is awarded the maximum, how does the court ensure that the defendant actually pays the claim?

    Thank you so much for this diary, Adam B.

    I love Pootie Diaries

    by arizonablue on Fri Dec 09, 2011 at 07:50:31 AM PST

  •  I just don't see why the judge had to go there... (3+ / 0-)
    Recommended by:
    jayden, Siri, Neuroptimalian

    ...with the journalist-vs-non disquisition.  It doesn't seem necessary to the analysis and the decision, and it just risks impugning what otherwise seems like a very reasonable decision against a malicious crank.

    But nobody's buying flowers from the flower lady.

    by Rich in PA on Fri Dec 09, 2011 at 07:50:45 AM PST

  •  Thanks for putting context and coherency first. (4+ / 0-)
    Recommended by:
    jayden, FischFry, Plubius, Siri

    I still don't follow what it is exactly Crystal Cox was trying to accomplish.  According to your report on the search engine optimization angle, it was to seed and distribute tons of spam that engulfed and stuck to the law firm's media presence  followed by her offer to them to "deal with it" at a fee.

    Is that any different from malware that purports to be a hot shot spam/virus fighter that comes in unwanted, unbidden onto your computer  pop up disrupting your own programs and you have to send a $69.99 Visa or Mastercard payment to activate it and it will help "clean " your system.

    It seems Crystal Cox has some "explainin' " to do.

    finally points 3 thru 6.

    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;

    Was there any merit to any of the allegations made about Obsidian, or are they an innocent party doing a good job unjustly attacked by the blogger?  All the drama and fire over the $2.5MM,  tactics used are diminishing that story.

    ;

    If you think that you and a bunch of other people can just show up on Wall St, camp out and have any effect whatsoever, you're dreaming. *YUP!* h/t Hamden Rice

    by BeeDeeS on Fri Dec 09, 2011 at 07:54:14 AM PST

  •  Journalist or Troll? (5+ / 0-)
  •  If the bulk of her writing consisted of rants (6+ / 0-)
    Recommended by:
    shaharazade, Plubius, Siri, TooFolkGR, MKSinSA, TomP

    name calling and irrational accusations, then how can one small part of it be taken as credible.

    I, too, think the damages are excessive.

    Thanks for writing a cogent analysis of this case.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Fri Dec 09, 2011 at 08:50:10 AM PST

    •  from the August 23 Partial SJ ruling (7+ / 0-)

      Basically, because it was on a separate site.  

      Link, start at page 24:

      Because this post appears on the "bankruptcycorruption.com" website, the reader is unable to view it in the context of the dozens of serial posts defendant has placed on the "obsidianfinancesucks.com" website.  Thus, although the website title "bankruptcycorruption.com" suggests a certain bias, it is not as strong or specific as the title of the "obsidianfinancesucks.com" website.  And while the setting and format of a blog tend to reduce a reader's expectation that provable assertions of fact will be found there, the use of a blog does not, as I noted earlier, automatically insulate the poster from liability.  Moreover, on this record, with plaintiffs having submitted only two postings from "bankruptcycorruption.com" into the record, a full assessment of the flavor and tenor of the website is not possible.  In contrast, the several postings from "obsidianfinancesucks.com" which are in the record show the broad context in which the statements on that website are made.

      The December 25, 2010 posting does contain several non-provable, figurative, or subjective-type words which tend to negate the impression that defendant asserts provable statements of fact.  For example, defendant refers to Padrick as a "thug," a "liar" and a "thief"; she accuses him of "double talk" and "greed"; she suggests he was "unethical"; and she accuses him of "stealing" the trustee's job.  Id. at pp. 28-30.  However, this is a fairly long post and overall, these words do not dominate the statements made there.  Additionally, in contrast to the posts from "obsidianfinancesucks.com," I cannot, for the reasons explained in the preceding paragraph, collectively examine the surrounding posts to determine the frequency with which defendant uses these words.  

      This post contains no references to "corrupt" Oregon judges or to a "corrupt" Bend, Oregon District Attorney, facts which suggested that the collective posts on "obsidianfinancesucks.com" would be viewed less seriously.  And, while the post is somewhat confusing and uses some unclear terms such as "liquidating trust," it reads more like a factual narrative than the posts made on the "obsidianfinancesucks.com" website, particularly in regard to the allegations regarding a failure to pay taxes.  

      The last one-third of the post, following defendant's question of whether Padrick and Obsidian Finance committed tax fraud, contains several statements which contain or imply provable assertions of fact. Notably, defendant alleges that as trustee, Padrick engaged in certain transactions on behalf of the "liquidating trust," which I understand to mean the bankruptcy estate for Summit Accommodators, which should have generated a $174,000 tax liability which Padrick did not pay.  She asserts that there are "missing tax dollars" as a result.  Given that these are fairly specific allegations, a reasonable reader could understand them to imply a provable fact assertion.

      In contrast to the statements made on the "obsidianfinancesucks.com" website and discussed above, the broader and surrounding context of this post does not necessarily negate the impression that the statements are incapable of being proved true or false. On the one hand, a reasonable reader may view the title of the website, the fact that the statements appear on a blog, and the use of loose, figurative language, as dispelling such an impression.  However, as to this post, and in particular as to the statements made regarding tax fraud, a different reader could reasonably understand the statements to imply provable assertions of fact.  As such, summary judgment to either plaintiffs or defendant is inappropriate as to the December 25, 2010 post appearing on the "bankruptcycorruption.com" website.

      All emphasis mine.
  •  On Damages (4+ / 0-)
    Recommended by:
    Siri, Adam B, MKSinSA, mmacdDE

    Juries do that.    They don't care if Cox legally engaged in only one act of defamation; they accept the prosecutors story that she is a bad egg who needs to be stopped.  And thus punish her for all her bad acts.

    So, yes, the amount will very most likely be reduced.

    But remember, that reduction in damages will likely not be front page news.

    In short, message sent: if you are going to cyber bully some one, particularly someone who has the means to defend themselves, be careful.

    They will sue you.  And even if they can't prevail, they can bury you in discovery.

  •  I really appreciate the clarification (3+ / 0-)
    Recommended by:
    MKSinSA, TomP, doingbusinessas

    of this decision. I do agree that the award seems excessive. It seems as if they based it on the totality of her work as opposed to the one defamatory piece. The plaintiff claims the 1st 10 pages of google search results were negative pieces by the defendant. I just wonder where the piece that was found to be defamatory was in the google ranking and if that had any weight in the damage award.

    I do have a question regarding the standards the judge used to decide whether or not she was a journalist. How many of those have to apply? One? All of them? Is there some magic combination?

    Thanks for digging into this and helping us understand what happened.

    48forEastAfrica - Donate to Oxfam "Compassion is the radicalism of our time." ~ Tenzin Gyatso, 14th Dalai Lama -7.88, -6.21

    by Siri on Fri Dec 09, 2011 at 09:29:02 AM PST

  •  Thanks AB... I had read a Couple Diaries (4+ / 0-)
    Recommended by:
    MKSinSA, TomP, wilderness voice, elmo

    ...on this here.  One of them seemed to be written by a personal friend of hers and the other one kind of said: "Because this has the word blogger in it, she's just like us and a hero."

    Not that I was dismissing them out of hand but it didn't seem like a very even treatment of the case.  I appreciate the detailed explanation.

  •  Nice post (1+ / 0-)
    Recommended by:
    TomP
  •  Thanks, Adam. (3+ / 0-)
    Recommended by:
    TomP, doingbusinessas, grover

    Sorry I missed this earlier. Have you ever addressed here any danger of republishing libel in discussions like these? We watch for copyright violation, but I've never seen anything on this. Granted, a lot of the identifiable people discussed on the site are public figures, but I could imagine it happening. Or is it that by the time it would hit a discussion here, the horse would be -- as in this case -- so far out of the barn that there's no practical concern?

    Just insomniac wonderings...

  •  Good lord. (2+ / 0-)
    Recommended by:
    Scott Wooledge, paxpdx

    Makes me look like a fucking genius:

    Hey Kevin Padrick - Just a Reminder I ain't going anywhere.. Regardless of What you do to Summit..

    My Investigative Blogging Team will Always Be ON YOUR ASS.

    You are a Cruel, Evil, Discriminating Liar. And I intend to Expose every Dirty deed you have ever or will ever participate in.. So don't be thinking I have give [sic] up on EXPOSING you. You are a Corrupt Attorney, you Create Victims, you take money from real estate consumers, you are abusive and controlling, you pay off media, you pay of [sic] politicians and well.. I intend to prove all of that in great detail over the next..DECADE...

    Stay Tuned..

    "No doubt many are offended by the idea of same-sex marriage. But, of course, those who don’t like the idea of same-sex marriage don’t have to marry someone of the same sex." - Prof. Erwin Chemerinsky

    by indiemcemopants on Sat Dec 10, 2011 at 09:01:40 AM PST

  •  I don't have a lot of thoughts on most of it, but (2+ / 0-)
    Recommended by:
    TomP, wilderness voice
    “The damage to me is forever,” Padrick said. “The Internet is not capable of being undone. Google ‘Kevin Padrick’ and you’ll see the first 10 pages are from Crystal Cox.”

    He's mostly wrong.  Google search results frequently change, and the 'internet' is indeed malleable and capable of 'being undone'.

    Where he's right is the same way that all of us are liable to damage - once you lose income, you lose the possibility of continued interest on that income over time, assuming you were making enough to start saving/investing some of it.  That damage is 'forever'.

  •  Simple question: (0+ / 0-)

    If she had done everything she has done online, but had put it on newsprint and distributed it by leaving stacks of printed paper at 7-11 and the local mall, would she then not be a press under the meaning of the 1st amendment?

    "I'm sorry Mr. Franklin, but you have no credentials whatsoever, the Crown has not recognized you as a news entity, you keep no notes on your research, and your writings are very one-sided. We'll have to shut you down."

    •  yes, but so what? (3+ / 0-)
      Recommended by:
      elmo, Scott Wooledge, grover

      She still can be found liable for defamatory writings.

      •  Irrelevant (0+ / 0-)

        to my point. You clearly want to argue that she's not a journalist, as did the judge. I don't think either the judge or you should get to appoint themselves the authority of who is or isn't a  journalist, what is or isn't a press. Even more to the point, in any case in which things are  "close call," then the benefit of the doubt ought to govern. Whether or not you can be sued for defamation is a separate issue.

        •  here's the thing (2+ / 0-)
          Recommended by:
          elmo, Scott Wooledge

          If we're going have a legal system which affords certain privileges to The Press (esp w/r/t shield from disclosing sources), then there needs to be some objective standards to use to determine who gets the privilege. Otherwise, what: anyone who claims to be press gets the privileges?  Then legislatures would retract the privileges.

        •  But wait... (2+ / 0-)
          Recommended by:
          Scott Wooledge, grover
          I don't think either the judge or you should get to appoint themselves the authority of who is or isn't a  journalist

          But isn't that why we have judges in the first place? To sort out the tough calls in the gray areas?

          I support OWS. But that doesn't mean I support every dumb idea someone has about it.

          by kenlac on Sat Dec 10, 2011 at 10:37:39 AM PST

          [ Parent ]

        •  the legislature granted certain privileges (1+ / 0-)
          Recommended by:
          Scott Wooledge

          to the press that wouldn't otherwise exist (the privilege of being able to shield sources) via the enactment of a statute that specifies who is and who isn't a journalist for purposes of this special privilege.

          The judge here was just applying the statute as it exists.

        •  read the block quote under #2 (0+ / 0-)

          You seem determined to argue she's a journalist but here is a legal standard for determining if one is a journalist.

          I doubt that had her work been in print it would have mattered. She still would fail to meet the other criteria.

          And the criteria seems perfectly reasonable to me. I know I would have many points I could argue on that list that definitely apply to me as a blogger.

          0: Number of Wall Street bankers arrested over crash of 2008. 4784: Number of Americans arrested protesting Wall Street's fraudulent practices 11/29/2011

          by Scott Wooledge on Sat Dec 10, 2011 at 11:51:01 AM PST

          [ Parent ]

    •  The National Enquirer meets those standards (1+ / 0-)
      Recommended by:
      hmi

      and still has been found liable  for defamation. And of course, there is no question of shutting anyone down, just making them responsible for the harm they do with their lies.

  •  Good explanation, Adam. (0+ / 0-)

    It does seem to be an excessive verdict.  I doubt she has that kind of money.  Even if reduced, she may bankruptcy it away anyway.

    I'm not very familiar with slander/libel law.  I assume he was not deemed a "public figure."

    I'm from the Elizabeth Warren and Darcy Burner Wing of the Democratic Party!

    by TomP on Sat Dec 10, 2011 at 09:26:51 AM PST

  •  Great stuff (0+ / 0-)

    I do wonder, though, about the wisdom of the jury. From your presentation, it seems that in essence, they seem to have been deciding upon a case not brought, which is the Google-sinking and search-besmirching (besmearching?). After all, if the business is off by 80%, one assumes it is due to infamy, and that infamy would come either from the law suit (a risk the plaintiff must assume) or from the successful actions of the defendant.

    I suspect that, if there is not a precise statutory cure for this or precedent that can be adapted (and I rather think it would be better for common law than statute to do this, as I'd prefer judges to legislatures), we're going to see Santorum's Law, where Google Bombing becomes a crime, if not a tort.

    Every reductio ad absurdum will seem like a good idea to some fool or another.

    by The Geogre on Sat Dec 10, 2011 at 09:42:41 AM PST

  •  I wish someone (0+ / 0-)

    could direct me to something she wrote that would indicate why she was so exercised by the attorney.

    Yeh, bankruptcy court is nasty. I've lost my last paycheck to a phony bankruptcy, the judge let the employer buy a new truck before paying the wronged workers, it was awful, and so on, but what did Padrick actually do or give the impression of doing, that would motivate someone to set up 10 web sites to attack them?

    I'd like to know, because if there was a kernal of truth that needed protection, it changes the whole color of this litigation.

  •  Why was it not attempted extortion/blackmail? (0+ / 0-)

    IANAL, so I ask why her denial was accepted. Based on the one sentence, while there is no threat, there is an expectation of remuneration for services she herself had made necessary.

    "Are you bluish? You don't look bluish," attributed to poet Roger Joseph McGough, for the Beatles' Yellow Submarine (1968).

    by BlueStateRedhead on Sat Dec 10, 2011 at 10:41:03 AM PST

  •  It's good to see this post. (1+ / 0-)
    Recommended by:
    Villanova Rhodes

    This week I'm wearing a bag over my head for leaping to conclusions on this case for superficial reasons before digging into the facts.  I'm a thoughtful lawyer in my law practice, but I sure get it wrong sometimes on the Internet.

    Padrick's right that if you google his name you get page after page of venemous attacks from Cox.

    I'd sure hate to be attacked by anybody like that. It would destroy my business.

    I can't track this down myself right now, but does anybody have quick answers to two questions:

    1. Why is Cox so fixated on Padrick?

    2. Is there a public record of Padrick's business actually doing anything really shady?

    "Oh wow. Oh wow. Oh wow." -- last words of Steve Jobs.

    by Timaeus on Sat Dec 10, 2011 at 11:01:13 AM PST

    •  On this, I asked the same, found this related note (1+ / 0-)
      Recommended by:
      Adam B

      http://www.nytimes.com/...

      NYT link to David Carr reporting, interview with one of  the trustees as to the recovery efforts of Padrick.

      If you think that you and a bunch of other people can just show up on Wall St, camp out and have any effect whatsoever, you're dreaming. *YUP!* h/t Hamden Rice

      by BeeDeeS on Mon Dec 12, 2011 at 10:52:04 AM PST

      [ Parent ]

  •  I agree the damages seem excessive (1+ / 0-)
    Recommended by:
    Adam B

    I am guessing the jury didn't really keep their eye on the fact it was only one post she was being held accountable for. And having found her guilty held her responsible for the entire vendetta (and it does strike me more of a vendetta than an investigation).

    She made a foolish error representing herself. I suspect she totally lost the jury's sympathy. A good attorney might have saved her from herself.

    I, as a blogger am not overly concerned about this. I do not see much overlap between her style and work methods and my own. Many of the mistakes she made, I would not have made.

    0: Number of Wall Street bankers arrested over crash of 2008. 4784: Number of Americans arrested protesting Wall Street's fraudulent practices 11/29/2011

    by Scott Wooledge on Sat Dec 10, 2011 at 11:25:16 AM PST

    •  Patrick's economic expert may have easily (1+ / 0-)
      Recommended by:
      Villanova Rhodes

      shown economic. damages far in excess of the $1m. Because she represented herself, I assume she didn't bring in an opposing expert to refute those numbers. Oregon has unique laws when it comes to expert discovery anyhow, so Cox needed to be even more on the ball than in almost any other state. Not having your own damages expert (which I assume she didn't) hurts.

      So I can easily see a scenario where the esteemed economist or forensic accountant says his whole loss is $50M, and when the judge tosses most of that, the jury says to itself, "ok, one million." I don't know that this happened (I haven't read the transcript, but I can easily see this being the case).

      Happens a lot. And it's not the jury's fault. Juries are only allowed to consider evidence they've been given. if one side fails to give them reasonable evidence to refute that or to consider instead, you end up with verdicts that seem hard to understand.

      Yet another reason why lay people should never represent themselves.....

      © grover


      So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not.

      by grover on Sat Dec 10, 2011 at 01:27:32 PM PST

      [ Parent ]

  •  Honestly, if "truth" played a part in whether (0+ / 0-)

    or not she was a journalist...

    Do I even have to finish that? And are you saying you agree with this, Adam?

    •  ANd #2 is just horrible. Journalism school? (0+ / 0-)

      Fuck the fuck off. Same with affiliiation. And this:

      (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest

      Tell it to the NYT! Or WaPo!

      Is ther anything like precedent for this?

      •  2007 Small Business Journalist of the year (0+ / 0-)
      •  But J school is not required. (1+ / 0-)
        Recommended by:
        Adam B

        No individual characteristic was required. The context is sort of like this:

        Cox:  "I claim the protections due a journalist!"

        Judge: "Well, the state shield law doesn't apply to you, so that part's out. Whaddaya got to show that you're a journalist for purposes of the first amendment analysis you're saying I should do?"

        Cox: "Uhhhh...I blog." Actually, I don't know what she showed here, just what she didn't, to wit:

        Judge: "OK, let's consider some of the characteristics often associated with journalists --

        (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.

        Got any of these?"

        Cox: "No."

        Judge: "I don't see how I can call you media, then."

        He didn't say she had to meet all of these criteria. He didn't say 2 or 3 out of 7. He found no controlling law on what definition he should use, came up with a reasonable set of factors to look at, and said (in effect) "I may not be able to define journalism, but I know its absence when I see it."

        Now, I don't know if there is controlling law that he should have found, but assuming there isn't, he spelled out his decision process to enable the appellate court to issue some. That's how it's supposed to work. She's free to argue that he applied the wrong standard.

        Assuming you think journalists or media or press or whatever should have protections, what objective standard would you suggest the judge should have used to decide whether she qualified?

  •  Why do some posts have no rec or hide (0+ / 0-)

    buttons? And some do?

  •  Great analysis (0+ / 0-)

    I think this type of analysis is crucial to understanding the real meaning and implications of this decision.  The mainstream media is just giving its typical superficial treatment.  But, the case is complicated and it does not necessarily mean that Bloggers will never be considered by law to be journalists.  

    Thank you.  

  •  I concur - this analysis is above the standard. (0+ / 0-)

    While I do adore Crystal's patriotic heart - it is hard enough to prove a case in the court of Public Opinion -  with facts that are beyond dispute. It is even harder to try to do so with rants tossed in more often than the facts.

    But the issue here is 1 simple item. Where her allegations true or not. That is the question.

    It is my belief - knowing Crystal as I do - that the facts are overwhelming and irrefutable. Yet she, like yours truly, lacks the Magna Cum Laude Degree in Journalism. As a result - the case is not made "sufficiently".

    I would also tend to believe, that the Court is seeking to obfuscate the issue by the banter that most of her items are "evaluative" - but this suspiscion has to take time to review the facts in evidence. For I really believe the court seeks to help Crystal's accuser, by giving him a "Color of Law" 2 step from addressing the "evaluative" issues in this remark;

    The statements accusing  plaintiffs of being "thugs," or "evil," or "greedy," are evaluative, subjective expressions not subject to proof

    By dismissing all the other allegations - he makes any argue by a lay person - moot. Whereas a competent counsel would point out as a defense - the apple to orange compare - that the court has tossed all the "true" supported allegations and held one ambiguity to be the only item in question.

    It will take me a week - as Crystal is overwhelme with national attention right now.

    But I "Will" get to the bottom of all this.

    Thank you for a proper discussion and a most definite "conclusion of law" on the amount of award - Mr. Adam B.

    Verbal repetitive reinforced Bull S; is MSM weapon of mass destruction!

    by laserhaas on Mon Dec 19, 2011 at 04:50:02 PM PST

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