The saga of Crystal Cox continues for the time being, as the 9th Circuit correctly rules that Judge Marco Hernandez neglected to include neglect in his instruction to the jury. Ken White at Popehat has graciously provided a remarkably thorough post about the saga to date, including footnotes and an appendix of the many federal suits she has sought to commence against the better part of humanity.
And Ken makes the only salient point to be made of this otherwise hot mess: that a robust First Amendment can withstand the rantings of one more crazy while providing the protections that would apply to everyone else. And that means bloggers, but it also means anyone and everyone else who chooses to express themselves publicly.
To be crystal clear: Crystal Cox is no blogger. Crystal Cox may be batshit crazy. But Crystal Cox is still entitled to the protections of the First Amendment. And it is of no consequence that she would be the first to deny free speech to anyone else. Crystal Cox is not the bar by which our rights are protected. Rather, she’s the worst and lowest point of free speech, and yet she is still protected.
After reading Ken’s post, I looked back at my own post about Cox and noted that the comments included some from a journalist who was less concerned about the particulars of the case, and more about the issues arising from the journalist shield law. As the post had nothing to do with that aspect of the case, I shut down the discussion until a more appropriate post.
An aspect of the case back then was whether Cox, who fancied herself an “investigative blogger” could be compelled to reveal the sources of her insane allegations of fraud, conspiracy, rampant murder and world hegemony, by virtue of Oregon’s shield law. Via Trevor Timm of EFF:
Judge Hernandez plainly misapplied the Oregon shield law. O.R.S. 44.520 clearly 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to the public shall be required by a … judicial officer or body … to disclose … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public.” Whatever else she may have been doing, 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.”
This raises the troubling problem of whether protections are due only the “media elite,” or every shmoe with a keyboard and a claim.
First, courts occasionally identify a reluctance to extend journalistic protections to non-traditional “media” sources such as bloggers because of a perceived lack of a limiting principle. How can everyone potentially be a journalist? courts seemingly ask. This sentiment is frequently echoed by mainstream journalists who, rightly or wrongly, balk at the perceived threat of dilution of legal protections for traditional journalists posed when (as here) self-proclaimed journalists might go too far and risk protections for established media. As EFF and many others have pointed out, the proper approach to this question is to focus on what amounts to journalism, not who is a journalist.
Judge Hernandez, in a clarification ruling, explained that he did just this, not denying Cox the protection afforded the media because she wasn’t formally a journalist, but because what she wrote was not journalism. And indeed, it was not.
This has been, and remains, a vexing problem. The 9th Circuit’s decision held that it doesn’t matter whether it’s “journalism,” rejected the idea that the media elite is entitled to any special treatment in its reporting, and that everyone who writes about a matter that is of public concern is entitled to the same protections. Fair enough.
But is Crystal Cox entitled to the protections of the journalist shield law? Am I? Are you? The immediate reaction would be, “you bet I am, and I’m damn glad to have it.” But consider how this plays out. You wake up tomorrow morning to find someone writes a story about how you molest children. The person is nuts and there is absolutely no truth to the allegations, but there it is anyway. You are a child molester. It can happen.
Your boss sees it. Your mother sees it. Your mother-in-law sees it. And they want to know whether you stopped molesting children. You are enraged, as well as getting unpleasant looks from co-workers. What to do?
Aside from the efficacy of suing some batshit crazy person in some far away jurisdiction who inexplicably decided to include you on her hit list, is a financial rock and has nothing to lose, you realize that she can simply invoke the shield law, refuse to disclose her “sources” (which turn out to be the neighbor’s dog whispering truth via her favorite deity into her ear) and assert that it is true and you can’t touch her.
The questions and concerns raised by many about the creation of a media elite, which by definition excludes many who are neither formal mainstream media nor remotely elite, are both real and sensible. They fail, however, to address the problem that there is no sanity test required for purchasing a keyboard or internet access. That puts us all at the mercy of the craziest among us. And as my time on the internet has shown me, there are a lot more crazies than most of us ever would have thought.
In the past, I’ve been a reluctant supporter of a line between journalists and the rest of us, not because I can see the line or think journalists are special, but because I fail to see any way to protect the relatively normal people from the relatively crazy and broke people. We empower the worst among us by imbuing them with protections without having any real protection from them.
This reflects a disturbing doctrinal conflict on my part, which I manage to get through by my enormous tolerance for ambiguity and the occasional glass of wine. But in the interest of intellectual honesty and purity, the Cox decision puts the screws to such conflicting views.
It would be fine if there was no such thing as batshit crazy people writing insane lies about others on the internet, but there is such a thing, and there is more of it than most people realize. Should there be a line? If so, where should the line be drawn? Or should we suck it up and hope our co-workers know us better than to believe we’re child molesters? Is this our future?