A Blogger Not Like Us (Update)

According to the Courthouse News, the judgment of $2.5 million against Crystal Cox has withstood a motion for a new trial, championed by some of the bigger guns in blawgosphere,  Eugene Volokh and the Electronic Frontier Foundation . While the law in the case may be problematic, the decision itself reflects one of the most fundamental and common problems with developing law; It’s based on the outlier.

Remember when the Virginia Bar Association found that Horace Hunter’s blog  would require an advertising disclaimer?  Many shook their heads in dismay, as the free speech hero was smacked.  But then, Horace Hunter didn’t have a blog. Sure, he called it a blog. Sure, the Virginia bar called it a blog. But it was no blog, and it had nothing to do with what others in the blawgosphere did. It was nothing more than blatant advertising masquerading as a blog.

Same for Crystal Cox.  She calls herself an “investigative blogger.” If she called herself a “savior,” she would have a better chance of being Jesus. I won’t link to her because there’s nothing she’s ever written that deserves to see the light of day. She’s a blight on the internet, an affront to any person who has the slightest concern about the insanity that appears regularly in a google search.  She is not like us. 

Anyone with a keyboard and internet access can claim to be a blogger.  There is no test for character and fitness. Or sanity.

Aside from representing herself at trial, which certainly didn’t help matters, and without reference to the utterly bizarre and wholly unfounded allegations she claimed, there’s a special twist that needs to be understood.

 “[T]he uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory materials on several websites, including allegations that Padrick had committed tax fraud, defendant offered ‘PR,’ ‘search engine management,’ and online reputation repair services to Obsidian Finance, for a price of $2,500 per month,” Hernandez wrote.

“The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media.”

How many blogger do you know who stay up all night buying websites with other people’s names on them, write the craziest crap they can dream up and then try to get the victims to pay to take the crap down?  Good work if you can get it, right?  Well, not for most of us.

District Judge Marco Hernandez included a lot of language in his decision that strikes fear in the hearts of legitimate bloggers, diminishing the role they play and the protection they deserve.  He tried to correct some of his language in his denial of the motion for a new trial.

The judge clarified his position on the media status of bloggers, which was an issue that made this case a cause célèbre among some free-speech advocates.

“In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’ I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited,” Hernandez wrote.

The judge said he focused on lack of evidence that would establish Cox as a member of the media.

If you’ve ever read anything Cox published, you too would conclude that she is most definitely not a member of the media. She’s not a member of the blogosphere. Whatever she is a member of, you wouldn’t want to join.

Comparatively speaking, Horace Hunter, self-promoter that he was, is at least a rational, sane person, if somewhat disingenuous in his claim that he speaks for the blawgosphere when he posts self-aggrandizing stories about himself and his greater glory.  Crystal Cox speaks for Crystal Cox.  She’s about a million miles away from anything you will ever see in the blawgosphere, even the absolute worst, most puffy crap that’s become the mainstay of legal marketing.

While the legal reasoning upon which Judge Hernandez based his decision may present a host of problems for bloggers in general, it only matters when totally separated from the facts of the case, the nightmarish content appearing on dozens of websites created by Crystal Cox to scream crazily in the night about whoever became her latest obsession.  It has nothing to do with us. Cox is not a first amendment hero.  Cox’s case will never come back to bite any legitimate blogger in the butt.

It should come as no surprise that our rights are often tested by the worst among us. Cox, however, is not the worst among us, but not among us at all.  Don’t fear this decision. It’s got nothing to do with bloggers. She is not like us.

I applaud the fight by Gene and EFF for the issues of law at stake.  As for Cox, she got what she deserved.

Update: If you need all the gory details,  Marc Randazza spells it out in chapter and verse.  It’s not merely ugly, but truly quite disgusting. This is a bad story of bad things that can happen on the internet. Bad, bad, bad.

16 thoughts on “A Blogger Not Like Us (Update)

  1. Ja

    I haven’t read this case so I can’t say this is the best case to have chosen for this fight, but the issues that have been coming to a head because of existing state and proposed federal shield laws simply must be addressed, and addressed soon.

    As a journalist, the more I’ve seen the less in support I am of the federal shield law. It already is carving out its media elites and it not only hasn’t passed, at the present moment, it is dead in the water – it died last year.

    I am a purest and feel that as hard as it is, journalists need to continue to fight on First Amendment and common law grounds when, for example, they are served with subpoenas and so on. I say that having been served myself without the benefit of a shield law in my career, many years ago.

    A shield law would have been such a relief had there been one in the state where I was working back then, but the price of that comfort is high I believe.

    Press are increasingly being viewed as credentialed or not and the shield laws are creating a quasi-licensed class. Since it is so neat and tidy, state and local agencies are more than happy to model other kinds of access gates based on it.

    It is carving out privileges for some and dampening freedom of speech for everyone else.

    Honestly, the issue is so crucial and reaching such a crisis state that if this Cox case lays out the issue in a way that these lawyers feel provides them solid ground for action then it simply must be done regardless of the character of this web-based hit artist Cox.

    Within the journalism community this has been bubbling beneath the surface. Most journalism organizations support passage of a federal shield law, but the show of force is deceiving. In those organizations are dissenters and among them are some of the most veteran journalists, journalists in fact who were engaged in First Amendment battles years ago that led to the first state shield laws.

    Organizations like SPJ, RCFP and PEN all support passage of a federal shield law

    I’d like to believe that the press can be trusted not to accept excessive privileges but they can’t. They are not as smart a group as you would think. They are taking them hand over fist as fast as they are handed out and rather than standing by ordinary people as they are supposed to, they are abandoning them as fast as they can. They are just selling out as fast as they can.

    So, hard won reprieve for subpeonaed press members, won on the acknowledgement of the service to the public that news is, is being molded into a privileged and licensed class who are more than happy to sit in public meetings the public has been locked out of, sit in court hearings that members of the public have been kicked out of and accept privileged access to public items that the public has been newly denied access to. I have seen it first hand. The press is not being cautious, they are not being shy, they are ignorant, oblivious and reveling in it, like pigs at a trough.

  2. SHG

    While an interesting comment, it’s not at all appropriate for this post. This is about the underlying matter, not a generic soap box to express tangential views on the general topic.  The point of this post is that the Cystal Cox case, and what she’s done, has nothing whatsoever to do with journalism or blogging.

  3. Jordan

    Tell you what, I have a modest proposal for you…

    If you pay me $2500 a month, I will stop saying untrue stuff about you, your wife, and your children on my blog. Because it’s a “blog”, anything I say is protected under the First Amendment, as I am an “investigative journalist.”

    Do we have a deal?

    Is kind of thing that really “journalism?” Is it worthy of any protection?

    I don’t think so.

  4. Marc J. Randazza

    Don’t forget that bad facts make bad law.

    Having someone like Cox carry this flag creates a great risk of an adverse decision that cuts against our free speech rights. Part of taking an appellate case is thinking about that.

    I’m not saying just that she’s unsavory. So are lots of free speech litigants. But, the facts of this particular case are tailor made for a decision that may hurt us.

  5. William Ballough

    Without making a judgment on the facts of this particular controversy,I have observed that the tactics of individuals claiming to be stock bloggers, who employ the their “blogs” solely to drive down the price of particular stocks they have shorted or pump the value of stocks they are long in,appear similar to those alleged here. Individuals claiming their blogs accurately for tell the subsequent price of a stock have been successfully prosecuted by the SEC.

  6. Ja

    Didn’t Judge Hernandez lay out the seven criteria defining a journalist for this case?

    And Jorden, members of the press should just fight case by case, the way they did before state shield laws. Cox would lose in either case.

    Courts have never ruled that publications are immune from libel and it’s never been legal to shake someone down.

    How am I off point?

  7. SHG

    My point (and I suspect Jordan’s) is that the Cox decision is so tainted by her actual conduct as to bring it far outside the law as will be applied to either legitimate bloggers or journalists, and this an outlier. Bad facts make bad law, but no discussion of shield laws can involve Cox, as her conduct is so outrageous, so off-the-law, that there is nothing about this case that applies to anyone else. 

    In other words, this is only about Cox, not legitimate journalists or bloggers, and the two shall never meet. I wouldn’t give her even the veneer of legitimacy by having a serious discussion involving her conduct.

  8. SHG

    It is deeply disapppointing to all readers that you aren’t making a judgment on the facts of this particular controversy. Nothing matters more.

  9. Ja

    I mention the shield laws because they generated certain formulas and vocabulary about “legitimate” media, “journalists,” bloggers etc., and I find the distinctions are used all the time when there is no need and it is harmful.

    She is a press, just like the wire-tapping, police-bribing criminal enterprises run by Rupert Murdoch are presses. We’re not him either.

    I am not her because I am not a shakedown artist who is, well, all over the place.

    And I am not Murdoch because I don’t commits crimes in my work.

    But when I publish a blog or stories for the media I am a member of the press. She is part of a free press, Murdoch is part of a free press. The NYT is part of a free press. Wikileaks is in fact, a publisher, absolutely. These distinctions are not useful. The term media — I don’t agree with your definition of “media.” Media is just another word for press. And I further do indeed believe it is important to reflect on these definitions. It isn’t minor — there are ramifications to how we think about these things.

  10. Ja

    My typos don’t help my credibility, especially when I claim I am not “all over the place.”

    No excuses, I really tend not to proofread comments and that’s the truth. It’s a bad habit. My original post, when I was tired, is in a convoluted voice. I am aware of it. Not proud of it. I’ll turn over a new leaf.

    Thanks for the debate on this case.

  11. SHG

    I appreciate your view, but Cox is not you, me or even Murdoch. She isn’t press. People who intentionally create blogs for the (1) purpose of posting false and defamatory information against their “enemies” and (2) to subsequently try to extort protection money from them, are not press. Just because they have keyboards does not make them press. She contributes nothing to the marketplace of information or ideas. She is a blight. There is good press, bad press, and people who have nothing to do with the press. She falls into the last category.

    Let’s have this discussion on an appropriate post. This just isn’t the one.

  12. SHG

    I have a firm rule that typos are not counted against anyone, so don’t fret. We’re informal around here about such things.

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