PORTLAND, Ore. (CN) - A jury's defamation award against a blogger who wrote articles criticizing a financial company should be overturned because it threatens free speech, the Electronic Frontier Foundation claimed in a brief in federal court.
     Crystal Cox, who calls herself an "investigative blogger," operated the website obsidianfinancesucks.com, which accused Oregon-based Obsidian Finance Group of illegal activities, corruption, tax fraud and money laundering.
     Obsidian and its co-founder Kevin Padrick sued Cox for defamation in January 2011. Before the case went to trial, the court found that only one blog post on "bankruptcycorruption.com" was capable of a defamatory meaning, and the trial centered around that single post.
     In November 2011 a jury found Cox was liable for $2.5 million in damages based on the one blog post. Cox filed a motion for a new trial, challenging Judge Marco Hernandez's order.
     Last week the Electronic Frontier Foundation filed an amicus curiae brief, arguing that the jury award should be overturned because it is a threat to free speech, was excessive, and was based on the wrong standard of defamation law.
     "The First Amendment protects all speakers, not just the press, from strict defamation liability," according to the brief. "Moreover, protected-though-critical speech cannot be the basis for a verdict reached by a sympathetic jury."
     "The judge identified a tiered defamation standard depending on what your media status is," Zimmerman told Courthouse News. "That's a bit of a dangerous precedent."
     Electronic Frontier claimed there was no evidence to support the jury's finding that Obsidian suffered $2.5 million in damages from a single blog post, and any harmed reputation was the result of Cox's protected free 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," Electronic Frontier claimed. "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 should also reconsider two of its decisions about Cox's "media" status under the First Amendment, Electronic Frontier argued.
     "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," Electronic Frontier said.
     On Cox's website where she investigates alleged fraud and scams in business, she prominently features the quote, "First they ignore you, then they laugh at you, then they fight you, then you win," often attributed to Mahatma Gandhi.
     Attorney Matt Zimmerman from Electronic Frontier said he hopes Judge Hernandez will apply the defamation standard "equally and across the board."
     "The judge identified a tiered defamation standard depending on what your media status is," Zimmerman told Courthouse News. "That's a bit of a dangerous precedent."
     Zimmerman said they were also concerned with Judge Hernandez's "unnecessary rulings on whether or not Cox was a journalist."
     That ruling affects Oregon shield law and "leaves Oregon online speakers in a bit of a state of flux," Zimmerman said.
     "One doesn't necessarily have to agree with what Ms. Cox said to believe that the court came to the wrong opinion here," Zimmerman said.
     "Our objective, and hopefully the objective of other observers, is to make sure that the court accurately applies the First Amendment and doesn't pick and choose winners based on what people might think of the substance of the speech," he added.