Blog Law Blog

Following up on Obsidian Finance Group v. Cox, should we go ahead and Confront the ELEPHANT IN THE ROOM?

The case introduces an underappreciated strategy for sidestepping defamation liability. Call it the ALL CAPS libel defense.

If you look closely at the decision, the key behind Cox’s victory seemed to be her wild use of ALL CAPS, Title Caps, and bold typeface, combined with a strong helping of over-the-top invective and continual references to forthcoming proof.

Take a look at this analysis from U.S. District Judge Marco A. Hernandez [pdf]:

Finally, the statements are not sufficiently factual to be susceptible of being proved true or false. Cox repeatedly poses her statements as questions or asserts that she will prove her accusations. For example, she asserts that “a Whole Lot” of the “Truth” is “Coming Soon,” that she “intend[s] to Expose every Dirty Deed,” that Padrick “WILL BE EXPOSED,” that “YOU [meaning Padrick] will BE Indicted SOME TIME, someday,” and that she “WILL PROVE IT ALL.” Padrick Decl. at pp. 1-13. She tells the reader to “STAY TUNED,” and she asks “Kevin Padrick, Guilty of Tax Fraud?” Id. She also states that Padrick is a “cold hearted evil asshole” and is a “Cruel, Evil Discriminating Liar.” Ex. 1 to Padrick Decl.

Defendant’s use of question marks and her references to proof that will allegedly occur in the future negate any tendency for her statements to be understood as provable assertions of fact. Her statements contain so little actual content that they do not assert, or imply, verifiable assertions of fact. They are, instead, statements of exaggerated subjective belief such that they cannot be proven true or false.

Considering all of the statements in the record under the totality of circumstances, the statements at issue are not actionable assertions of fact, but are constitutionally protected expressions of opinion. Plaintiffs’ motion for summary judgment on the liability of the defamation claim is denied.

One way of thinking about this is that Cox’s unconventional style underminded her own credibility to an extent that the court was loathe to treat her allegations seriously enough to make them the basis of a libel case. I’m sorry if that’s harsh. (I know Ms. Cox will probably read this.) But that’s how I interpret the judge’s ruling.

So, I guess the lesson is that if you are going to defame someone, (1) put your foot on the gas, (2) put your pinky on the shift key, and (3) DON’T HOLD BACK!

The Mark O Hatfield U.S. Courthouse in Portland, Ore. (Photo: EEJ)

An interesting case out of Oregon has held that because of the “looser, more relaxed communication style” of blogs, it was not defamatory for blogger Crystal Cox of obsidianfinancesucks.com to accuse bankruptcy trustee Kevin Padrick of various forms of perfidy.

Cox’s blogged allegations against Padrick includeed money laundering, perpetrating “fraud on the courts,” and engaging in various “illegal activity.”

Most stunning to me, however, was that in one post, Cox strongly implied that Padrick had engaged in “Solar Tax Credit Crimes.” If that doesn’t sound reputation-harming to you, consider the geographical context: This took place in Portland, Oregon, my friends.

True story: P-Town is so environmentally conscious, that even at McDonald’s, after you bus your own table, you have to separate out your recyclables.

So I can only imagine that for Porlanders, Solar Tax Credit Crimes are right up there with murder, arson, and aggravated failure to compost.

But Cox didn’t merely imply things. Cox blogged that Padrick was a “Thief,” a “CRIMINAL,” and a “Corrupt Attorney.”

If you were taking a law school exam, you would quickly identify those statements as being factual assertions, which, if provably false and reptuation harming, could give rise to a claim for defamation.

But the federal court in Oregon took a more realist approach. It concluded that, under the totality of the circumstances, a reasonable reader could not have regarded the statements as provably false assertions.

Why not?

The court said that “the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” tended to show that Cox’s statements were not reasonably to be regarded as provable factual assertions.

What’s more, it mattered that the medium at issue was a blog. The court’s August 23 order, according to the RCFP report, explained: “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact[.]”

Yikes. If this is a victory for blog freedom, it sure comes with a sting.

More:

• Kristen Rasmussen on RCFP.org: Blog’s context suggests that posts are protected opinion