When I first saw the headline — “A $2.5 Million Libel Judgment Brings The Question : Are  Bloggers Journalists?” — I have to admit that I felt a bit queasy.  When I write something snide about President Obama, Harry Reid, Nancy Pelosi, or any of the other prominent Democrats I routinely criticize at this site, am I exposing myself to massive liability?  Well, probably not, because they’re public figures and we have enormous latitude to criticize them.  But what about a post I might write criticizing, not a political figure, but a local businessman.  Can he sue me . . . and win?

The answer, it seems to me, is that Mr. Businessman is just as likely to win against blogger as he would have been if, in the old days, I sent nasty letters to the editor, distributed flyers or otherwise widely and impugned his character.  If my statements are true, I win.  If they’re false, I lose.  I would have been at risk in the old days and I’m still at risk in the new if I choose to shout out lies from an electronic rooftop.

So why is the $2.5 million dollar libel judgment an issue?  Because the blogger in question sought to protect herself by claiming that she was a journalist, not a blogger.  She therefore contended that Shield Laws allowed her to hide her sources while successfully protesting her innocence in a defamation lawsuit.  When the judge said she wasn’t a journalist, bloggers got nervous.  After all, we bloggers consider ourselves a “new media,” providing information that the old media, usually for political reasons, often leaves on the cutting room or newsroom floor.  What’s unnerving is that, if we’re not journalists, even when we scrupulously present facts, we’re still at risk of litigation, something that has a very chilling effect even on the most honest writer.

As is so often true with legal cases, though, the details should be comforting — and this is true despite the fact that I think the judge committed a definitional error that must be redressed.  This case, though, is not going to be the one that makes correcting that legal error easy, because the facts really militate against the blogger.  By any standard, Crystal Cox, the defendant against whom the district court judge imposed the $2.5 million libel judgment, was not making any effort to conduct herself according to journalistic norms.  Instead, Cox was the journalistic equivalent of a vexatious litigant.

For those of you who have missed out on the joys of a vexatious litigant (“VL”), a VL is someone who uses the court system to dominate and harass enemies.  These people are often lawyers, and they will file in pro per suits (meaning that they represent themselves) against anyone who crosses their radar.  Since litigation is expensive, a perfectly innocent person might find himself targeted by a plaintiff who has dozens of cases going simultaneously, and who files hundreds of costly motions in each case.  The unwitting defendant can either settle immediately, even though he knows he’s being subject to judicial blackmail, or he must spend the money to answer the case and respond to all the discovery and motions.

While the judge in any given case may impose sanctions against the plaintiff, that’s an uneven remedy.  Eventually, though, if the plaintiff acquires a reputation around the courthouse, a judge can defang him by declaring him a “vexatious litigant” who can proceed in the Court system only with judicial permission.  Although it’s a draconian remedy because we are loath to deny people access to the civil court system, it’s still a necessary thing to do when someone uses the system, not as an instrument of justice, but as a tool for economic blackmail, humiliation and harassment.  As I noted, though, it’s a last remedy, not a first remedy, and a lot of people get badly burned before it goes into effect.

From everything I’ve read about Crystal Cox, her website, titled “www.ObsidianFinanceSucks.com,” was a one woman vendetta against a corporate Bankruptcy trustee and an individual employee, filled with hundreds of posts savagely attacking both of them.  Her claims against them, usually presented in the form of hyperbolic questions, rather than factual statements, accused them of fraud, illegal activity, theft, and just about everything else short of stealing lollipops from babies and using goats for impure purposes.  As the judge made clear in decisions written in both July and August, one would be hard put to classify Cox’s content as objective journalism.

Because Cox’s posts were so over-the-top, the judge concluded fairly easily that they couldn’t possibly be construed as anything other than pure opinion, which is protected under the First Amendment.  He was therefore inclined to dismiss the case against her.  One of her posts, however, had a gloss of journalistic objectivity and, more importantly, showed up at a site where it wasn’t published under the “ObsidianFinanceSucks” heading and where it wasn’t surrounded by dozens of other posts demonstrating that Cox has a monomania that leaves even her “objective” writing highly suspect.  It was in this context that the judge decided Cox wasn’t a journalist, and that her nasty post constituted good, old-fashioned defamation, akin to handing out a flyer in a shopping mall.

Where I differ with Judge Hernandez, although I think he made the correct decision regarding Cox, is in his effort to define objective journalism so as to deny Cox constitutional protection for her statements.  As far as I can tell, his definition puts most of our major media on notice that it’s at risk:

Cox tried to invoke the Shield Law, which allows journalists to protect confidential sources, but Judge Marco Hernandez ruled Cox was not a journalist and therefore not entitled to the protections. He wrote, “there is no evidence of any education in journalism, any credentials or proof of any affiliation with any recognized news entity or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

While the New York Times, the WaPo, MSNBC and other traditional media sites can undoubtedly claim that their writers hold university credentials, it’s becoming increasingly questionable whether they subscribe to such traditional “journalistic standards . . . as editing, fact-checking or disclosures of conflicts of interest.”  Indeed, one of the things internet bloggers excel at doing is catching the MSM when it fails to follow those journalistic ethics (and one does wonder whether the MSM’s disdain for these basic requirements is something individual writers learn at those credentialed schools).

Given that the MSM so frequently falls very far short of what the judge considers to be ethical minimums, being affiliated with these “recognized news entities” in no way assures the reader that he can rely on the truth of the matter asserted in any given news report.  A reputable blog spot, one that rigorously edits, fact-checks and discloses, should qualify as journalism, and be entitled to all First Amendment protections, without having to pay lip-service to establishment conventions (journalism school, major media affiliation) that, in fact, do not provide any assurance that the content is honest, credible, complete or unbiased.

Since Cox strikes me as a monomaniac with a bee in her butt, I’m somewhat surprised that Eugene Volokh, who is one of the most reputable, insightful legal bloggers and new media journalists out there, is getting involved in this particular case:

Crystal Cox did not respond to our emails and phone calls seeking comment. It appears, however, she plans to continue to fight. She represented herself in the defamation suit, but now has legal help from UCLA Law School and blogger Eugene Volokh. He has taken the case pro bono in hopes of getting the decision reversed. Volokh has written about the First Amendment’s protection of the press, arguing it’s not solely intended for the media as an institution, but anyone doing the work of journalism.

Volokh is right as a matter of law, of course.   Judge Hernandez is simply wrong to define journalism to include only people who have trained in establishment schools and who write for establishment (i.e., Leftist) media, a bright line that would astonish and offend the Founders.

Based on what I’ve been able to glean from Judge Hernandez’s opinions, however, both of which quote extensively from some of the hundreds of posts Cox wrote for “www.ObsidianFinanceSucks.com”, Cox is the wrong defendant to use as a standard for expanding the definition of journalism to include citizen journalists writing at blogs.  Cox’s writing isn’t coherent, factual reporting, with full disclosure.  Instead, it’s a malevolent stew of opinion and hostility.  She’s a vexatious blogger, and a common law defamer, not a legitimate journalist.  Indeed, she’s a perfect example of bad facts making for bad law.  I’m just worried that, if Volokh pursues this, this bad law will be enshrined at an appellate level, rather than merely at the district court level.

I tend to check out the Yahoo! News aggregator periodically, because it’s a good way to see what the Yahoo algorithm decides is “popular.”  I’m pretty sure a computer program generates the images that go with the tagged news stories, and sometimes the computer makes some very bizarre choices, that have everything to do with computer logic, and nothing to do with common sense.  That’s how one explains this match-up, which I captured at 9:35 a.m. P.S.T.:

Maybe I’m too much of a literalist, but the combination of caption and picture makes it look as if the woman and children are the “swine” at issue.

It’s easy enough to figure out what went wrong, and it’s a singularly good reminder of the limitations that result when you rely on computers to do all the thinking.  If you click to the news story itself, you again see this picture matched with report of H1N1 in Minnesota pigs — but you get a little more info about the photograph, which is described as follows:

A woman takes her daughter and other girls to school in Baghdad September 27, 2009. Iraq will temporarily shut down thousands of schools in two provinces and some in Baghdad after discovering 36 new cases of the H1N1 flu virus, Iraqi officials said on Tuesday.

What this means is that the computer managed to match a story about H1N1 in pigs, with a picture about H1N1 in Iraq — and at the same managed to make it look as if a caring mother and her sweet daughter are the swine in Minnesota who were found to have H1N1.

I find amusing, in a bitter kind of way, the first sentence in a New York Times article about Jerome Corsi’s book on Obama, The Obama Nation: Leftist Politics and the Cult of Personality (which is, by the way, one of Amazon’s top sellers and will debut this week as No. 1 on the Times‘ own best-seller list).  In the very first clause of the article, there’s an attack on Prof. Corsi:

In the summer of 2004 the conservative gadfly Jerome R. Corsi shot to the top of the best-seller lists as co-author of “Unfit for Command,” the book attacking Senator John Kerry’s record on a Vietnam War Swift boat that began the larger damaging campaign against Mr. Kerry’s war credentials as he sought the presidency.  (Emphasis mine.)

For those unfamiliar with this slightly old-fashioned insult, a “gadfly” is defined as “A persistent irritating critic; a nuisance,” or “a person who persistently annoys or provokes others with criticism, schemes, ideas, demands, requests, etc.”   In other words, a gadfly isn’t necessarily a liar — he may indeed be absolutely right — but he’s so annoyingly persistent that this fact alone negates his message.

The rest of the article points out three factual errors in the book (whether Obama truly stopped using drugs when he said he did; whether he attended a particularly inflammatory Wright sermon; and whether he dedicated a book to his family), along with the implication that there are others.  It does not acknowledge whether the bulk of the book, aside from these three errors is true.  The article’s main point is that this is just another nasty attack, a la the attack on John Kerry (a book that also had mistakes), and that (nudge, nudge, hint, hint) Times‘ readers would do well to avoid sullying their minds by reading the book.

It was interesting to read the article, which complains about fairly small errors while assiduously avoiding larger substance, within minutes of having read Bruce Walker’s John Edwards and the Truth Scandal.  Walker makes a point many of us have seen in the last few days, but he makes it exceptionally well:  namely, that the Edwards’ scandal isn’t about whether he cheated on his wife, but it is about the fact that he lied repeatedly to the American people as he was running for President, and that the media was both complicit in this lie and unwilling to report on its unraveling.

Walker points out that we really shouldn’t be surprised, either that Silky Pony was really a sneaky little stallion, or that the media tried to create its own version of the truth.  (And here’s an update on the lies, and more lies, infecting that story.)  After all, the Left has always considered the truth to be the story that’s expedient at a given point.  Orwell understood this 60 years ago, but we keep being surprised all over again.

And that’s why I get hung up on that word “gadfly” in the opening clause of a New York Times article sneeringly attack a book that, in turn, attacks Obama.  Whether the book is true or not, whether it has big truths and small mistakes, or small truths and big mistakes, is entirely irrelevant.  What matters is that Corsi has distinguished himself by irritating the Left.  He is to be swatted down, not because of any substantive material he advances (and I strongly agree with swatting down people who advance big lies), but because he’s getting in the way of the Leftist juggernaut.  It’s that — not his factual errors — that make him anathema to the Left.  That is why the Times writes a snide article about Corsi, rather than writing a careful analysis of the actual charges in the book itself.

Given this approach to “journalism,” is it any surprise that the New York Times‘ stocks are reaching junk bond status?  Readers aren’t turning away from the Times because of competition from new media.  They’re turning away from the Times because they recognize that the product has become worthless.

In the 1930s, when Walter Duranty was peddling his garbage from the Soviet Union, people had no alternative sources by which to judge those lies, and competition was limited anyway.  The Times therefore could get away with this kind of shoddy Leftist journalism.  Nowadays, however, with the ability instantly to expose errors and bias, and with thousands of alternative media out there, a newspaper no longer can survive based on a sort of monopolistic cachet.  In order to distinguish itself, it needs to have quality writing (that always matters) and scrupulously honest reporting.  Since the Times is unwilling to deliver the latter, people in this fluid marketplace will always look for a better product.