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December 2011

Are Bloggers Journalists?

An Oregon court says no

Crystal Cox, a self-described “investigative” blogger, was sued for defamation by investment firm Obsidian Finance Group after she posted numerous negative comments about the company and its co-founder, Kevin Padrick. Cox argued that calling Padrick a “thug” and a “liar” on her blog was protected under Oregon’s shield law – which allows journalists to keep their sources secret – because she obtained the information from a confidential source.

The judge disagreed, and awarded Obsidian $2.5 million in damages:

Although the defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ the record fails 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. Thus, she is not entitled to the protections of the law.

Although this case is not exactly a textbook use of the shield law, it does spotlight the very interesting issue of exactly what constitutes a “journalist,” especially when anyone can broadcast “news” from their phone or home computer. Is the answer found in what the blogger writes, or is it determined by her journalistic training and affiliations? Does the need to protect confidential sources in order to uncover wrongdoing really apply to anyone who conveys information? Or should it be limited to members of the fourth estate, whose job and training is to keep the public informed?

From a legal perspective, the more relevant question is not the protection of sources, but the ability of a single person to effortlessly clog Google search results with so much negative information about an individual or business that it causes serious financial and emotional harm. While defamation law is alive and well, the barriers to entry for a would-be slanderer are very low in the digital age, leading many bloggers to believe that they can say whatever they want about anyone. Verdicts like this one help send a message that – Internet or not – the justice system can and will hold any speaker accountable for defamatory remarks.

Posted: 12/15/2011 11:01:47 AM by On the Merits Editor | with 0 comments

When Celebrity Doesn’t Help

How many times have we heard complaints about “celebrity justice,” where the nation’s rich and famous get away with things for which ordinary folks would ultimately be punished? Sure, celebrities probably do fare better in the legal system – primarily from their ability to sustain large legal bills – but lawyers can’t fix everything.

Case in point: a bankruptcy trustee in Los Angeles is quietly making life difficult for some celebrities who were involved in clandestine high-stakes poker games hosted in area hotels. Actors Toby Maguire (“Spider Man”) and Gabe Kaplan (“Welcome Back, Kotter”) and others were sued by the trustee to recover their winnings from a former investment adviser, Bradley Ruderman, who allegedly was using funds from a Ponzi scheme to play high-stakes poker. The celebrities won big at the tables, and after the scheme was discovered and Ruderman filed for bankruptcy, the trustee sued, recovering more than $100,000 from Maguire and Kaplan alone.

Bankruptcy trustees are lawyers whose job is to look out for the interests of the bankruptcy estate, i.e., those who are owed money by the debtor and have not been paid. In this case, the trustee is representing the interests of at least 22 investors who gave Ruderman more than $44 million that allegedly was used to fund his poker habit.  The trustee sued the celebs on the theory that their winnings really came from the pockets of Ruderman’s investors and should be returned. Oh, and gambling is illegal in California.

Bankruptcy trustees don’t become rich, famous or beloved doing what they do; they are, after all, employees of the federal government. But in a case like this, where their efforts result in repairing some of the damage from an egregious crime, these attorneys epitomize every lawyer’s obligation to seek justice.

Posted: 12/6/2011 12:00:00 AM by On the Merits Editor | with 0 comments

A Silent Threat to the Rule of Law

Kudos to the New York Times for highlighting a serious problem that gets too little attention. Because of recession-era budget cuts at all levels of government, the judicial system is facing an unprecedented funding crisis. According to the Times, in the last three years, 42 states have reduced their judicial budgets, 34 states have laid off court employees, 39 are no longer filling clerk vacancies and 23 have reduced court operating hours. The results can be distressing:

Chief Justice Carol W. Hunstein of the Georgia Supreme Court said that after two and a half years of budget cuts for her state’s courts, “it has gotten to the point where it is difficult to say that we are delivering the constitutionally required judicial system. . . . I don’t know that you would have a new business or corporation that would want to relocate in a state where you couldn’t get your contract disputes or your business disputes resolved in a timely fashion.”

The impact on individuals is even worse. In New Hampshire, two parents successfully sought visitation rights to their own children (who were forced to live with grandparents because of financial hardship) but were unable to see them for another three months because of delays in processing the court order. Another court in Ohio announced that it could not take new filings unless the litigants donated their own paper for the court’s use. In times of economic hardship, courts are called on more than ever to hear a variety of urgent consumer matters, including debt disputes, bankruptcy matters and related family law disputes.

The American Bar Association is trying to call attention to the issue by creating the Task Force on Preservation of the Justice System. The Task Force is chaired by David Boies and former Solicitor General Theodore Olson, two prominent attorneys who are perhaps best known for representing opposing sides in Bush v. Gore.  In Texas, Supreme Court Chief Justice Wallace Jefferson has been an outspoken advocate of properly funding the justice system.

As former ABA President Stephen Zack points out, funding of the judicial branch is not like funding bridges or libraries, as important as those may be. The inability of the judicial system to carry out its necessary functions threatens the rule of law, a critical element of any democratic society.

Posted: 12/5/2011 8:59:49 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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