The Circle of Crazy Goes ‘Round and ‘Round

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to the public shall be required by a … judicial officer or body … to disclose … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public.”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?


13 thoughts on “The Circle of Crazy Goes ‘Round and ‘Round

  1. Jim Majkowski

    “Or should we suck it up and hope our co-workers know us better than to believe we’re child molesters?”

    1. I don’t think that’s the only choice, as I don’t agree that invocation of a shield law makes it impossible to prevail in a defamation action; as Mr. White implies, the “batshit-crazy rule” does not protect statements sufficiently factual to be proved true or false, which would include an accusation of child molestation;

    2. Winning a defamation action is kind of like what some people say of apologies: your friends don’t need them and your enemies won’t accept them.

    And I agree with Mr. White’s assessment of the Cox decision:

    … Crystal Cox’s appeal to the Ninth Circuit produced an important ruling that defends my rights and yours, and that ironically will make it easier to defeat her nonsensical, abusive, and censorious lawsuits if anyone is ever called upon to do so.

    1. SHG Post author

      I’m afraid you’ve confused to entirely separate matters. Crystal Cox could have, but did not, invoke the shield law, likely because she was a pro se defendant and didn’t understand it’s significance. Had she done so, it would have presented an entirely different problem, which is the subject of this post. Ken’s commentary relates to what, in fact, happened in the case. Mine relates to what could have happened had the shield law been invoked.

      1. Jim Majkowski

        I am relieved that I wasn’t quite so stupid as I feared. The points I was trying to make were, (1) I dispute the validity of distinguishing between “journalists” and “the rest of us” in the First Amendment context; (2) the invocation of a shield law to prevent disclosure of one’s source does not necessarily imply that the statement can no longer be found actionable; and (3) defamation actions, because they don’t, as Ray Donovan put it in another context, restore a damaged reputation, are not such great things anyway.

        While Cox did not invoke the shield law, you expressed concern that she and people like her might enjoy its protections. I sympathize with the concern that irresponsible people posting on the WWW can do a lot of harm. I just don’t think the answer is to create castes of speakers, whether in “Bughouse Square” or on the WWW.

        At the risk of being thought that I “am blowing …,” I take your criticisms very seriously and try to learn from them. You and I had a similar difference of opinion about the status of media in the context of Citizens United.

        The issues aren’t easy ones; if they were they wouldn’t be of constitutional dimension.

        Still friends?

        1. SHG Post author

          Of course we’re still friends. You can’t see the smirk on my face when I type some of the stuff that shows up here. Sometimes I just troll people for lulz (didn’t you notice the Billy Madison reference before I changed my comment?). I know. My bad.

          While invocation of the shield law doesn’t, per se, preclude a defamation action, it makes it nearly impossible to win. Add to that the fact that these defendants are bloodless rocks, and it makes suit expensive, time-consuming, jurisdictionally-challenging and largely pointless. It’s a huge problem.

          One thing that may not be as obvious to those on the other side of the computer from a guy like me is how often this happens. It’s a pretty regular occurrence. For me, I shrug it off for the most part, but then my practice isn’t affected by it and my presence is sufficient that I’m pretty hard to hurt. But for others, it can be devastating, and there may be no way to meaningfully address it.

  2. jakee308

    Oh, here we go.

    Background check and registration for computer keyboards?

    “God made man but QWERTY made them equal”?

    1. John Barleycorn

      If there is ever a law that gets tagged The Ambiguities and Alcohol Act I am going to become a carny and start my own blog dedicated to further encrypting the carnival cant.

  3. Liz

    Okay, here is what I don’t understand. I read the trial transcript, Cox’s “sources”, which was clearly another blog involved with the Summit case, was disallowed because any information she gleaned from it was deemed to be hearsay and there is no mention of a shield law or Cox’s standing as a journalist.

    Did this debate happen pre-trial? Cox clearly got her information from one of the parties involved with the Summit bankruptcy, Stephanie DeYoung, which you can tell by reading both of their blogs. So, how can this be about shielding sources in a whistleblower case when their connection was never a secret? As far as I could see DeYoung crunched all of the numbers and made up all of the talking points and Cox just magnified that times 1000 through all of her blogs, links and Google rankings. How is the shield law even relevant in this case?

    By the way, DeYoung has moved on from this case against Obsidian. But Cox has kept up the fight.

    1. SHG Post author

      The shield law isn’t relevant to the Cox case. The post is about how the Cox ruling would apply to someone who invoked the shield law. Nothing in your comment has anything whatsoever to do with the post.

      1. Liz

        Sorry that I took the time to write a thoughtful comment. What a hostile response to a reader. Time to remove my bookmark to this blog.

        1. SHG Post author

          Sorry that your comment wasn’t as thoughtful as you thought it was, but if you think that was a hostile response, then you have no business here.

          1. Liz (not really)

            You self-righteous bastard. Do you not realize that I am an entitled narcissist, whose every thought is of critical importance to the entire internet, no less to some worthless worm like you? If I say my comment is thoughtful, then it is, because my self-assessment is by definition conclusive.

            You should have given me a red balloon, or a prize, and lavished my thoughtfulness with praise. Even though IANAL, my genius demands your recognition. Where is my trophy?!?

            I will relish the thought of you crying yourself to sleep tonight knowing that I have no longer bookmarked your worthless blog. I am the reason you exist. Without me, there is no reason for your blog to exist at all. In fact, there is no reason for YOU to exist without me. Hah! You’re gone. GONE, I say. Poof!

            I bet you’re sorry now for being so hostile, you worthless worm.

            [Ed. Note: Now this was mean.]

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