Crystal Cox Case; EFF Amicus Brief Quotes in Crystal Cox Free Speech Case, in Support of Online Speakers, Free Speech and the First Amendment Rights of All online Speakers

"The the proper defamation standard was not applied"

"The jury’s verdict of November 29, 2011, finding the Defendant Crystal Cox liable for $2.5 million in defamation damages, is troublingnot only because of the erroneous defamation standard applied and because of the excessively high award but also because of the speech chilling message it sends to the broader Internet community. The First Amendment protects all speakers, not just the press, from strict defamation liability."

"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.”

"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"

"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. "

"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."

"Indeed, in its 2010 Citizens United v. FEC decision, the Supreme Court strongly
reaffirmed that it has “consistently rejected the proposition that the institutional press has any 
constitutional privilege beyond that of other speakers,” explicitly noting how the emergence of
the Internet has all but eroded any basis to support such an untenable distinction."

" (“A private person who is allegedly defamed concerning a matter that is not of public concern need only prove, in addition to the requirements set out by the local jurisdiction, that the defamation was due to the negligence of the defendant.”) (citing Gertz)."

"Without a constitutional basis for enforcing the artificial distinction between media and non-media defendants, this Court should have recognized the negligence “floor” and instructed the jury in this case accordingly.

As the Court explicitly refused to do so (see Order of November 30, 2011, at p.9) and allowed the jury to return a verdict without such an element, the verdict must be overturned and a new trial ordered."

"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 theresult 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. "


"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. 

"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. "

Full EFF Amicus Brief in support of Online Speakers and First Amendment Rights
http://www.dmlp.org/sites/citmedialaw.org/files/2012-01-11-EFF%20Amicus%20in%20Support%20of%20Cox%20Motion%20for%20New%20Trial.pdf