When Eugene Volokh took up the pro bono cause of Crystal Cox, whose insane rantings and accusations bought her $2.5 million in judgments for having smeared Kevin Padrick and Obsidian Finance, it was believed to be a principled stand. Ken White described it best:
So it shouldn’t be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.
That’s how we roll.
And the 9th Circuit agreed, reversing the judgment and holding that anyone, not just bloggers as has been widely misreported, who publishes publicly, without regard to whether they are mainstream media or, well, Crystal Cox, is entitled to a jury charge requiring a finding of negligence, at minimum, before she could be held to account. A big win for speech, courtesy of Eugene.
But there was a belief that when Volokh got into bed with Cox, it was for the issue, not because of anything else. Yet, a motion was filed that calls this into question. On Cox’s behalf, Eugene seeks to amend the 9th Circuit’s opinion:
Appellant Crystal Cox does not ask this Court to modify the substance of its opinion. She does, however, respectfully request that the Court amend its opinion to withhold the sentence that now says,
Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1.
As he notes, this sentence is of no consequence to the holding, the principle at stake. Rather, it’s a matter of hurt feelings, that Cox doesn’t like what the court wrote about her. The sentence impugns her dignity and motives, at least from Cox’s perspective.
The point raised by Eugene, that citation to a New York Times article does not prove the point, has some validity.
A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word “apparently,” could be based on the record in a case, or on authoritative findings by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process. The claims in the columnist’s assertion are neither facts found by a factfinder nor facts subject to judicial notice under Fed. R. Evid. 201.
Of course, the motion presents a potential flaw that neither Cox nor Eugene may appreciate. While Carr’s article may fall short of irrefutable proof, that doesn’t mean there aren’t a ton of other sources to substantiate the point with overwhelming evidence.
After all, Crystal Cox is not, her protestations to the contrary, a blogger like us. If Eugene wants more and better support, he may get it. In spades. The rule of thumb is never ask a question when you don’t already know the answer. Eugene asks whether the evidence supports this sentence in the hope of the court saying, “meh, it wasn’t necessary anyway. Whatever.” That may not be quite the way it goes when the prevailing party takes a swipe at the winning opinion.
But all that aside, why? Why is Eugene Volokh still representing Cox? He’s made his point, won the principle, and had his moment of glory. Yet, he still takes her phone calls. Why?
There are four possibilities that immediately come to mind:
1. Despite Eugene’s pro bono principled involvement in the case, he feels a sense of duty to serve her personal interests, independent of the cause upon which his involvement was grounded.
2. He just likes Crystal Cox and wants to make her happy.
3. He thinks the sentence taints his victory and wants to beat the horse to death.
4. Crystal Cox has done, or has threatened to do, something to coerce Eugene to continue to serve her personal interests even after the principled position has prevailed.
Which, if any, of these possibilities drives Eugene to make this motion? Beats me, but inquiring minds want to know.
Update: Marc Randazza has submitted an Amicus Curiae Motion to the 9th Circuit with regard to Eugene’s challenge to a newspaper story as the foundation for the sentence. Ask, and you shall receive. Citations are set forth under the argument heading, “Cox is an extortionist,” and this time, they don’t cite to a newspaper article.
Update 2: Eugene has submitted opposition to Randazza’s amicus curiae motion, arguing that the authorities provided by Randazza should not be given preclusive effect. Randazza, in turn, has replied to the opposition, noting that Cox “doth protest too much.”
Since the sources support the Court’s determination, the Court should make note of them, and should give Cox what she asked for: More authoritative sources for the proposition that she has “a history of making similar allegations [of wrongdoing] and seeking payoffs in exchange for retraction.”
Mind you, this is all to erase or support one sentence, prefaced by the word “apparently.”
Update 3: Obsidian has moved for rehearing en banc of the decision. This, obviously, is clearly within Eugene’s representation. I also hear that there is an additional amicus filed (or to be filed?) with regard to the motion to strike the offending sentence by another “victim.”