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..In a pretrial ruling, the judge actually threw out most of the claims against her because, as he wrote:
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...
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.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.
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.
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.
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.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.
“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.”
I can imagine that number being reduced on appeal or reconsideration, and I welcome your thoughts and questions.