First Amendment Ethics and the Conundrum of the Despicable Blogger

Attack-blogger Crystal Cox---exercising her rights, jeopardizing yours.

One thing that the public just doesn’t understand about lawyers is that their job sometimes involves fighting for the most despicable people imaginable, because those despicable people have legal objectives they have a right to pursue as citizens, and because the principles underlying the fight are important, even if the particular clients—and often their objectives too–are blights on humanity.

Over at Popehat, Ken has chronicled a classic example, in which First Amendment specialist Eugene Volokh (he of the Volokh Conspiracy) and the Electronic Freedom Foundation are backing blogger Crystal Cox as she appeals a $2.5 million defamation judgment against her, in which an Oregon judge ruled that bloggers did not have the same protection against defamation claims under the First Amendment as journalists do. Cox, of whom I was blissfully unaware until Ken’s post, is clearly the kind of person who is a menace on the internet, lacking basic decency, fairness, scruples and common sense, and yet stimulated by the power that the medium provides her. The signature act that established this for me is revealed by Ken at the top of his post:

“Here’s the most important thing you need to know about blogger and “investigative journalist” Crystal Cox: when she got angry at First Amendment attorney Marc Randazza, she didn’t just register the domains and and in order to attack him. She registered and — the names of Randazza’s wife and three-year-old daughter.”

Yup, that’s enough, all right: signature significance. Is there any chance that an individual who would do this even once could be an ethical, reasonable, fair person?  No! Only an unethical creep would even consider such conduct; with a normal person, the ethics alarms would be ringing so loud that they would be paralyzing.

Ken chronicles how Cox used her blog to savage and quite possibly defame a lawyer; how she then requested payment from him to take her lies off the web; how when First Amendment attorney Marc Rendazza declined to take on her defense, she began trashing him on the web. I urge you to read Ken’s account of all this (here), first, because he has documented it very thoroughly; second, because everything Ken writes is worth reading, and finally, because he has an important message to readers and bloggers about how to deal with Crystal Cox and others like her.

Still, her First Amendment claim, which is essentially that as a blogger she should have the same protection against defamation that a journalist would, is still worth defending, even if she personally is the scum of the earth. As Ken writes, “[F]ighting for free speech often involves rubbing shoulders with evil — the Phelps clan, the Nazis at Skokie, and so forth.”

My message here is a bit different. Crystal Cox and others who use the First Amendment for despicable purposes are within their rights, but are also recklessly putting those rights in jeopardy for the rest of us who are more fair responsible in our exercise of free speech. Because of people like Cox, I have found myself being increasingly drawn to Justice William O. Douglas’s absolutist position on the First Amendment, which is that no law abridging free speech really should mean no law, period, no matter how harmful or vile speech may be. Otherwise, people like Cox, and Rush Limbaugh, and Bill Maher, and Howard Stern, and all sorts of mean, uncivil, vicious, obscene, exploitive, stupid, self-indulgent, bigoted, racist, hateful, venal, misogynistic individuals risk making society fear free speech, and try to restrict it in various ways, thereby crippling America’s greatest asset in order to limit the damage done by its biggest jerks. How long, do you think, before stunts like Spike Lee and Roseanne Barr tweeting private addresses in order to sic harassers and worse on private individuals sparks a movement to make such tweets illegal? Similarly, bloggers and others who misuse the web to destroy reputations, plant rumors, spread lies, and cause chaos risk damaging freedom of expression on the web for responsible users. There are a lot of people, well- intentioned but dead, dead wrong, who would be willing to stifle expression to criminalize words and ideas that they believe have no redeeming social value, and constrain all bloggers to prevent abuse by unprincipled renegades like Crystal Cox.

As Clarence Darrow said in one of my favorite quotes, “In order to have enough liberty, it is necessary to have too much.” People like Crystal Cox call attention to the “too much” and thus jeopardize “enough” by encouraging the law to step in, as it often does and sometimes must when ethics fails.

All the more reason, then, to heed Ken’s call to neutralize Cox on the web the right way, by exposure, criticism, and shunning, so she can’t harm our precious freedom of expression while she’s trying to harm the targets of her vendettas.

23 thoughts on “First Amendment Ethics and the Conundrum of the Despicable Blogger

  1. I’m so dismayed by this I can’t even enjoy these Cheez-its. Here’s hoping the light of day will be the much-needed Lysol for this affliction.

  2. Pingback: First Amendment Ethics and the Conundrum of the Despicable … « Ethics Find

  3. Jack, I went to law school with Marc and I am a contributor to his blog, the Legal Satyricon. While Marc may be biased on this one, he is one of the biggest first amendment supporters.
    You may have been a bit hasty in rushing to Ms Cox’s defense and I’d suggest you read the order. The judge did not say bloggers are not journalists. The judge said SHE is not a journalist. Huge difference. Practicing extortion on a blog or on newsprint does not a journalist make. If the NYT called you up and said “pay us 20k or we will run a malicious editorial against you” it would not enjoy first amendment immunity because that is not journalism. Same rules apply online.

    • Jay,I’m a bit stunned you could read what I wrote to suggest that I’m defending Cox in any way, shape or form. I didn’t opine that what she has done was right or that it wasn’t (or was) defamation. I said that she deserves a defense, not that she actually has a good one. Based on what I read, she crossed the line into defamation whether she’s called a journalist or not. (If Cox is a journalist,I’m a tree toad.)

      • Jack, you wrote:
        Still, her First Amendment claim, which is essentially that as a blogger she should have the same protection against defamation that a journalist would, is still worth defending, even if she personally is the scum of the earth
        A lawyer need not defend a meritless claim. While EFF is free to argue that bloggers are journalists, Cox does not appear to bear the indicia of a journalist. She may as well be arguing that she founded the Church of Cox which requires extortion to get to Coxian Heaven, and that she now has a legitimate free exercise claim. Just as no lawyer should defend such an absurdity, no lawyer should defend her claim that she is a journalist. Journalist bloggers are entitled to 1st Amendment protections; it does not seem that Cox is a journalist blogger. She seems to be a criminal pretending to use the 1st Amendment as a sword to further her criminal enterprise.

        • Jay, surely you aren’t saying the Eugene Volokh is defending a claim he thinks is meritless, which would put him in violation of Rule 3.1 of the legal ethics rules? He obviously thinks it has merit, and he’s a First Amendment scholar; I’m not about to substitute my constitutional judgment for his on this or any other matter.

          I strongly believe that any contention by a citizen regarding their rights with even a scintilla of validity has an absolute right to be litigated, and that lawyers are tasked with providing citizens, even despicable ones, with access to the law, not to pre-emptively play judge and jury. “No lawyer should defend her claim that she is a journalist” is a dangerous view of the role of lawyers that I emphatically reject, just as I reject “no lawyer should defend the DC Sniper,” “no lawyer should defend DOMA,” “no lawyer should defend gun manufacturers” and “no lawyers should defend tobacco companies.” In my view, EVERY lawyer, regardless of his or her personal views, should be ready to do any and all of these.

          • Jack, just because one can do something does not mean one must do that thing. I respect Eugene Volokh, but he is wrong to represent her. She is the wrong poster child for his cause.
            I am not averse to, say, the court appointing a lawyer to defend John Allen Muhammad. However, it is a different thing to volunteer to be his attorney. Same thing here. Ms. Cox is entitled to hire counsel, but I lose respect for the counsel she hires.

            • I respect a lawyer who represents a client whose views he disagrees with more, not less:

              ABA Model Rule: Client-Lawyer Relationship
              Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer

              (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

  4. As the guy with the most skin in the game here, I’ll say this:

    I don’t see this post as defending Cox.

    I also don’t think that a lawyer should be criticized for taking Cox on as a client. Everyone deserves a lawyer.

    I think that moving for the new trial was a good move. It gave the court a chance to clarify its order. The appeal, on the other hand, is a terrible idea. I think that it risks creating bad law that we will all be stuck with.

    When you take on a pro bono client, you’re presumably doing it because you see the case as something that can benefit the greater good. If EV sees it that way, then more power to him.

    My only critique of EV is that when Cox started this whole thing with me, I emailed him and asked him to exercise some client control. His answer was that he could not do much about it. My response was that if I represented someone for free, I’d tell them that they will act ethically while I am their lawyer, or they can give someone else the privilege of representing them free of charge.

    • Marc, you are exactly right about an attorney’s duty to control a client in this regard, and I am disappointed in the Professor.. This is an issue not often discussed in practice and ethics forums, and it should be.

      I’m so sorry this wacko inflicted herself on you. It really is a jungle out there, and the web is breeding some frightening mutants.

      And I’m relieved you don’t read the post as defending Cox, because nothing could have been farther from my intentions,

      • Jack, in defending her defense, you are defending her, even if that is not your intent; I believe you when you say you do not mean to defend her.

        However, I stick by my point above and I am less forgiving than my friend Marc. While 1.2(b) may act as a disclaimer, it does not require that an attorney take an offensive position. We all have to advocate on occasion for positions with which we don’t necessarily agree, but where the entirety of a matter rests on defending the indefensible, that is where I draw the line. The greater good may have warranted the initial representation of Ms. Cox; there is no greater good any more.

        • There are many lawyers who agree with you philosophically. I think it’s a dangerous and slippery slope stance that is against the best traditions of the law. I don’t want lawyers deciding what matters are virtuous and “for the greater good,’ not that law is supposed to be about that either. Judges and juries are make those calls.

  5. It is disappointing that such a person as Crystal Cox has a good point, but I think she does (well, maybe she doesn’t but she stumbled into one at the very least). The point is, why do some people have more first amendment rights than others? If some people do have more rights than others, who are they and what is the justification?

    Some questions that are relevant to this are:

    Who are journalists and why are they privileged above other citizens? Is it because they work for a company with news in its name (such as News Corp?), or is it because they inform the public of what is going on?

    Should reporters have to be licensed by the state? If not, how is a journalist to be defined? How do you distinguish Jalopnik from Car and Driver? How do you distinguish Fark from my local paper? Try to explain how they are different and it may be harder than you think.

    Are only people who work in TV/Radio/and print journalists? If so, why?

    A court case that examines these questions and clarifies them for the public is worthwhile, even though it involves defending Crystal Cox.

    • Journalists get a two-fer: Freedom of Speech, ANDFreedom of the Press. The latter allows more leeway than the first, because we treat FOTP as virtually absolute, whereas FOS keeps getting exceptions nailed to it. The press CAN shout fire in a crowded theater, and I would argue that’s exactly what MSNBC is doing in the Trayvon Martin case right now.

      • Yes, that is how it is treated, but should ordinary citizens have a second class freedom of speech? If so, that still leaves who are the ‘ordinary’ citizens and who are the journalists. The difference has been greatly blurred in recent years. Some ‘blogs’ do cover breaking news and do investigative reports while the ‘mainstream’ media intentionally fabricates or alters what they report and the devote excessive time on the social lives of third rate celebrities. Which ones deserve an enhanced level or protection and how do make such a decision? I’m glad I don’t have to come up with an answer to the last one.

  6. I think the crux of the case really rests on the fact she refuses to disclose her “sources” if in fact she has any. She has attempted to use the protection afforded journalists in order to do this. And the rules for what qualifies one as a journalist deserving of the protection of not naming sources are outlined in Judge Hernandez’s decision as follows:

    “Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent productrather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

    Ms. Cox has a habit of conferring upon herself any number of titles and credentials whether formally recognized by any other institution or not. Furthermore I’ve seen no evidence she has produced of fact checking or as outlined in #7 above, contacting the other side to get both sides of the story – something that any real journalist worth their salt would do in order not to look like a complete boob if they got their facts wrong and moreover not to embroil their employer in a defamation lawsuit.

    Her approach seems to be is she simply states something often enough in enough websites “virtually” shouting over everyone else on the internet that this somehow makes her statements true. If that’s the case, heck I’d like some of what she’s smoking.

    • If that is the case, then my local newspaper definitely doesn’t qualify as journalism. Most of its articles come from AP. Many other articles come from random people who sent them in (like the PR head of the company who just laid off 200 people). I don’t think you are going to find much evidence of fact checking, disclosing conflicts of interest, etc (and to be fair, probably not much of that anywhere in the mainstream media). They rarely contact the ‘other side’ in an article and if they do, that side is often misquoted. I don’t think you will find another newspaper in my state who acts any differently, either. With Jayson Blair, Mike Daisey, the 2004 “November Surprise” article about missing weapons of mass destruction (that had been debunked 6 months ealier by FOX), their 2006 “November surprise” article, and numerous others, I’m not sure The New York Times qualifies either.

      If those are the standards for journalism then fine, journalism is truly dead.

      • I think your point is well taken. “Freedom of the Press” was devised by people who assumed the only way to get news disseminated was a PRESS. Now we don’t need one. Either Freedom of the Press will have to be brought down a peg according to the broadness with which it’s applied, or bloggers will have to get the benefit of it. Cox was told by the judge that some bloggers are journalists, but she isn’t. By the same logic, some journalists should be called journalist’s either.

      • And those journalists who don’t hold themselves to that standard risk the same possibilit of a lawsuit for defamation and the inability to protect their sources if they can’t show they’ve met the standard.

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