Crystal Cox Free Speech Case FIGHTS for ALL. 2.5 Million, ONE Blog Post written Dec. 25th 2010 and Lawsuit filed weeks later January 14th, 2011, No Retraction Request. No First Amendment Rights, no Actual Malice, no Shield Law.

"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. 

A.   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 broad latitude to achieve their legitimate objectives of protecting private individuals but drew a firm line barring strict liability statutes because of theinevitable 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. 

If Gertz left doubt as to whether the rule precluding strict defamation liability applied to 
all defendants and was not limited to the institutional press, the Supreme Court subsequently 
backed off any suggestion to the contrary. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss 
Builders, Inc., 472 U.S. 749, 773 (1985) (“[T]he First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech. 

None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn.”) (White, J., concurring); id. at 783 (Brennan, Marshall, Blackmun, and Stevens, JJ., dissenting) (“[T]he argument that Gertz should be limited to the media misapprehends our cases. We protect the press to ensure the vitality of First Amendment guarantees. 

This solicitude implies no endorsement of the principle that speakers other than the press deserve lesser First Amendment protection.”). 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. 

Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 905 (2010). See also id. at 905-06 (“With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”). 


While agreement is not uniform across all circuits, the Ninth Circuit has plainly interpreted Gertz to require at least a showing of negligence as an element of any defamation claim. 

See Newcombe v. Adolf Coors Co., 157 F.3d 686, 695 n.4 (9th Cir. 1998) (“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). Accord, e.g., Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, 1077 n.5 (3d Cir. 1988) (“[S]tates may not impose liability without fault, even if the injured party is a private figure and does not involve a matter of public concern.”) (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."

Source and Entire Free Speech / First Amendment Supporting Document
http://www.dmlp.org/sites/citmedialaw.org/files/2012-01-11-EFF%20Amicus%20in%20Support%20of%20Cox%20Motion%20for%20New%20Trial.pdf

One Oregon Judge Made ALL the Collateral Damage in Protecting Oregon Corruption. EFF Amicus Brief on Oregon Retraction Laws, the Negligence Standard,

"In a pre-trial hearing held on November 30, 2011, the Court rejected a series of defenses
asserted by Cox, ruling that:  “Because the statements at issue in this case were posted on an Internet blog, they do not fall under Oregon’s retraction statutes.” (Order of November 30, 2011, at 2) (Dkt. 95);

Cox was not entitled to the protection of the Oregon shield law because she “fail[ed] to show that she is 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 that even if she was a member of the “media” as described above, “[b]ecause this case is a civil action for defamation, defendant cannot rely on the media shield law.” (Id. at 3); and Cox did not qualify for “media” status as a First Amendment matter since she “fail[ed] to bring forth any evidence suggestive of her status as a journalist” and thus “I decline to conclude that defendant in this case is ‘media,’ triggering the negligence standard.” (Id. at 9)."

Source and Entire Free Speech Supporting Document
http://www.dmlp.org/sites/citmedialaw.org/files/2012-01-11-EFF%20Amicus%20in%20Support%20of%20Cox%20Motion%20for%20New%20Trial.pdf

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

Eugene Volokh, UCLA Professor, Report on Search Engines and First Amendment Rights.

"White Paper" written by UCLA Law Professor, Constitutional Rights Attorney Eugene Volokh, commissioned by Google, regarding the Free Speech rights of Search Engines and Google being a "Publisher".

http://www.volokh.com/2012/05/09/first-amendment-protection-for-search-engine-search-results/

Here is the Article by Eugene Volokh UCLA Professor

http://www.volokh.com/wp-content/uploads/2012/05/SearchEngineFirstAmendment.pdf

Crystal Cox Free Speech Case; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Amicus Brief in the Crystal Cox Appeal.

"The decision in the trial court below turned on whether a blogger defendant was a journalist and whether her speech involved a matter of public concern – both of which affects the standard of liability under Oregon law.

In addressing the question of who qualifies as a member of the news media, the lower court adopted several restrictive criteria that do not take into account the fast-evolving nature of the journalism profession and that severely limited the class of individuals who can take advantage of the increased First Amendment protections that limit the law of defamation.

The determination of whether a particular person qualifies for such protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform."

"In assessing whether the speech in this case involved a matter of public concern, the lower court focused on the status of the plaintiffs and pointed out the lack of public debate in the subject matter of the speech. But speech that has yet to stir any public controversy may be no less a matter of public concern than speech that arises after a public dispute develops.

To hold otherwise has the potential to provide news gatherers who are first to alert the public to potential misconduct –breaking the story before there is any public awareness, much less interest – a lesser degree of constitutional protection than individuals who speak out only after the public is already aware of the facts of the story. 

Such a rule would turn First Amendment jurisprudence on its head."

"The distinction between media and non-media defendants in private-figure libel suits creates a heightened interest in broadly defining the term “news media.”

In New York Times v. Sullivan, the United States Supreme Court made its first foray into grafting First Amendment protections onto state common law rules that had allowed strict liability in defamation actions, holding that a state cannot award public officials damages for defamatory statements concerning their official conduct without proof that such statements were made with “actual malice” – that is, with knowledge of falsity or reckless disregard of the truth. 376 U.S. 254 (1964).

The Court’s New York Times constitutional fault protections were subsequently extended to public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). With respect to private figures, the Supreme Court in Gertz v. Robert Welch held 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 which injures a private individual and whose substance makes substantial danger to reputation apparent."

"Justice Sandra Day O’Connor’s majority opinion left open the possibility of a different outcome for nonmedia defendants in holding that a private figure plaintiff could not recover damages without first proving the defamatory statements made by a media defendant on an issue of public concern
were false. Id. at 779, n.4.

The Supreme Court has yet to definitively decide whether the constitutional protection afforded by Gertz applies to nonmedia defendants, leaving lower courts split on the issue. Several states do not apply Gertz in situations where there is a nonmedia defendant.1 Other jurisdictions, however, have eliminated the distinction between media and nonmedia
defendants.

In Oregon, whose law the lower court applied in this diversity jurisdiction
case, the state Supreme Court has interpreted the Gertz fault standards to apply
only to media defendants.

Liability for a media defendant and a nonmedia defendant thus makes the definition of that term critically important in libel cases decided under Oregon law.

Courts must interpret the term “media defendant” broadly enough to include any content providers who have the intent, when gathering information, to disseminate it to the public.

Long before the advent of the Internet, the Supreme Court recognized that the definition of “press” does not depend on the medium of distribution of the speech in question. In Lovell v. City of Griffin, the Court made clear that “[t]he liberty of the press is not confined to newspapers and periodicals. … The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” 303 U.S. 444, 452 (1938). Indeed, many courts and legal scholars have openly expressed their concerns with the difficulties of defining who may fairly be classified as a journalist.

Many courts, including this one , have adopted workable definitions of news media in reporter’s privilege cases, holding that a testimonial privilege applies to individuals engaged in the practice of compiling information for public dissemination.

The criteria adopted encompass not simply the traditional press but also nontraditional newsgatherers such as those who, without any affiliation with a recognized media entity, publish their material online.

The U.S. Court of Appeals for the Second Circuit was among the first to establish that a nontraditional journalist can invoke a reporter’s privilege when, at the time of the news gathering, he or she has the intent to investigate and disseminate news to the public. Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987).

The von Bulow case involved a civil lawsuit that Sunny von Bulow’s children brought against her husband, Claus von Bulow, who allegedly drugged her and caused an irreversible coma. Id. at 138-40. The plaintiffs sought information from the author of a book about the investigation into the crime. Id. In determining whether it should apply a reporter’s privilege to the book author, the
court stated that:

[T]he individual claiming the privilege must demonstrate, through competent evidence, the intent to use material-sought, gathered or received-to disseminate information to the public and that such intent
existed at the inception of the newsgathering process. … Further, the protection from disclosure may be sought by one not traditionally associated with the institutionalized press.

Id. at 144-145. On the facts, the court found that the author did not have the benefit of the reporter’s privilege because she was not independent of the von Bulows and did not have the intent to disseminate news. Indeed, the author had a close relationship with Claus von Bulow and admitted during oral argument that her intent in writing a book was to vindicate him, not to publish an account of the
situation. Id. at 145. The Third Circuit also adopted this test in In re Madden, 151 F. 3d 125, 129 (3d Cir. 1998) (holding that an employee of World Championship Wrestling who recorded reports about professional wrestlers for a paid telephone hotline was not a journalist entitled to the reporter’s privilege because he was not independent of World Championship Wrestling and did not have the requisite “intent at the inception of the newsgathering process to disseminate investigative
news to the public”).

This Court in Shoen v. Shoen adopted a test similar to the one in von Bulow
when it held that a reporter’s privilege applied to an investigative book author. 5
F.3d 1289, 1295 (9th Cir. 1993). It reiterated the von Bulow’s reasoning that “[t]he
journalist’s privilege is designed to protect investigative reporting, regardless of
the medium used to report the news to the public.” Id. at 1293.

In noting that “[w]hat makes journalism journalism is not its format but its content,” the Shoen
court concluded that “the critical question for deciding whether a person may invoke the journalist’s privilege is whether she is gathering news for dissemination to the public.”

Similarly, the U.S. Court of Appeals for the First Circuit applied the privilege to two academic researchers, Cusmano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998):

[T]he medium an individual uses to provide his investigative reporting
to the public does not make a dispositive difference in the degree of
protection accorded to his work. …

Whether the creator of the materials is a member of the media or of the academy, the courts will 
make a measure of protection available to him as long as he intended “at the inception of the newsgathering process” to use the fruits of his research “to disseminate information to the public.”

.. The court went on to say that the authors were protected by the privilege because their intent had been to “compile, analyze, and report their findings.” Id. at 715.

More recently, the New Hampshire Supreme Court found that the reporter’s privilege derived from the state constitution’s guarantee offreedom of the press protected a website providing information about the mortgage industry. MortgageSpecialists, Inc. v. Implode-Explode Heavy Industries, Inc., 999 A.2d 184 (N.H. 2010).

The court rejected an argument that the website was ineligible for protection under the privilege because it was neither an established media entity nor engaged in investigative reporting. Id. at 189. Rather, because the website “serve[d] an informative function andcontribute to the flow of information to the public … [it was] a reporter for purposes of the newsgathering privilege.” Id."



Source of BRIEF AMICUS CURIAE OF THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS IN SUPPORT OF Free Speech Rights of ALL
http://www.rcfp.org/sites/default/files/2012-10-17-obsidian-finance-group-llc-et-al-v-crystal-cox-.pdf

"cry baby" Marc Randazza regarding the Crystal Cox Free Speech Case, BEFORE Crystal Cox had the BALLS to Criticize Marc Randazza.

"Oregon: No Country for Old SLAPPers

Hello, world! As the latest victim to roam the halls of The Legal Satyrcon headquarters, it’s my pleasure to kick things off with a little story of SLAPP suits gone wrong in the Pacific Northwest.

Crystal Cox is a woman on a mission.

She obviously does not like Oregon attorney Kevin Padrick or his company Obsidian Finance Group and she has harnessed the power of the internet to make her feelings about him public.

Blogging at a website with the creative url http://www.obsidianfinancesucks.com/ Ms. Cox aired a number of grievances about Padrick and his financial services company. Padrick responded by doing what many crybabies do when people say mean things about them on the internet: he sued her for defamation.

Although Ms. Cox seems to be guilty of many crimes against good graphic design and standard capitalization, her blog posts on the subject of Obsidian Financial should fall under the shimmery force field of First Amendment protection because if you can’t bitch about people you don’t like on the web, then the terrorists have won. The U.S. District Court in Oregon seems to agree, because it recently granted the defendant Ms. Cox summary judgment for the vast majority of the blog posts she published.

Back in July, the court denied the plaintiffs’ motion for summary judgment because Ms. Cox’s blog posts were protected by the First Amendment. Because her online diatribes amount to her opinion, the blog posts are not actionable. The court applied the Ninth Circuit Three Factor test for determining whether a reasonable factfinder could see the blog posts as reasonable assertions of fact:

 (1) whether in the broad context, the general tenor of the entire work, including the subject of the statements, the setting, and the format, negates the impression that the defendant was asserting an objective fact;
(2) whether the context and content of the specific statements, including the use of figurative and hyperbolic language, and the reasonable expectations of the audience, negate that impression; and
(3) whether the statement is sufficiently factual to be susceptible of being proved true or false.  Gardner, 563 F.3d at 987.

Applying these factors to Ms. Cox’s writing, the court concluded that one would generally not go to a website called “obsidianfinancesucks” for an evenhanded reporting of objective facts.

The court rightly recognized that they were dealing with a gripe site; one that was full of delightfully one-sided rants and dedicated to the hyperbolic venting of Ms. Cox’s personal feuds. In short, her blog posts her opinion.

The opinion makes clear that blogs are especially prone to opinionated content and not a great source for cold, hard facts. Bloggers who wish to follow her example should make sure they stay away from posting provable (or disprovable) assertions, but should feel confident in the knowledge that when the bile gets too high they can spew it as long as they stick to their own opinions.

The Oregon District Court did see room for possible liability with just one of the many, many blog posts at the heart of this lawsuit.

An article she wrote for another site was full of language that could imply assertions of fact, including specific allegations that the plaintiffs failed to pay their taxes.

Ms. Cox is apparently representing herself, so you can’t blame her for not taking advantage of every protection the law affords. Oregon, like Nevada, has an anti-SLAPP statute designed to protect people from harassing lawsuits whose only real purpose is to chill speech with legal threats and the grim specter of defamation litigation. OR. REV. STAT. §§ 31.150 et seq. (2001) gives defendants in speech-related civil actions a special motion to strike that they can use to have the Court dismiss the suit at an early stage unless the plaintiff can show that there is a probability that they will actually prevail on the claim.

Generally, the anti-SLAPP provision is available for any lawsuit arising from speech regarding government proceedings or in a public forum in connection with an issue of public interest. There is also a catch all for speech for conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."

Source
http://web.archive.org/web/20111231031041/http://randazza.wordpress.com/2011/10/28/oregon-no-country-for-old-slappers-draft/