A case regarding citizen journalists proves, once again, that bad facts make for bad law
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.