Bloggers v. Bloggers
posted by Erica Goldberg
I’m truly stumped by this one. On the one hand, there is no better test of a free speech enthusiast’s commitment to principle than a case where a self-proclaimed “journalist” harasses bloggers by creating websites to ruin their Internet footprints. On the other hand, when the tactics of an individual are so corrosive to the free exchange of ideas, can they really be called speech?
A $2.5 million judgment was awarded against Crystal Cox for defamation after she allegedly purposely destroyed the reputation of Obsidian Financial Group, LLC and its firm principal Kevin Padrick. She’s also targeted popular blogger Marc Randazza (and his daughter), creating websites to affect their Google footprints, then offering her services to undo the reputational harms that she has perpetrated.
Because most of what Cox wrote was too hyperbolic and subjective to give rise to a defamation suit, Cox was sued only for a blog post with specific statements that Padrick and Obsidian committed fraud. Cox claims to have a source for these statements, but she was not able to prove their veracity. Under Oregon’s libel laws, media persons do not have to reveal their sources, and plaintiffs seeking presumed damages against journalists must prove that statements were made with “actual malice.” However, according to the district court, Cox is not a media person. She has no journalistic credentials, does not engage in fact-checking and other techniques of journalists, and does not contact the “other side” to get multiple perspectives on a story.
Cox’s attorneys, Benjamin Souede and Professor (and blogger) Eugene Volokh, argued that all individuals who speak to the public are entitled to First Amendment libel protections, not just media personnel. The district court ruled that this argument had not been made during trial, reaffirmed that Cox was not a journalist (although the court noted that some bloggers could be), and upheld the verdict against her. And now onto the Ninth Circuit.
America has exceptional free speech protections that make proving defamation very difficult, and this balance favors speech over reputational harms. After all, reputation can be remedied with more speech. But this balance only goes so far. We must now contend with some difficult questions. Is Cox a journalist, and should only journalists be entitled to special protections in defamation suits against private plaintiffs? Some bloggers are quick to disassociate from Cox. They claim she is not one of their own because of her apparently unscrupulous motives and her minuscule contribution to public discourse. How much responsibility should bloggers have to bear when someone’s reputation is on the line? Should we require the writers of the most democratic medium yet- the blog- to credential themselves, to call all sources, to fact-check? What is best for free speech, and is that actually the relevant question?
When I worked at the Foundation for Individual Rights in Education, a nonpartisan, nonprofit organization that protects the First Amendment rights of students and faculty at public universities, we defended all manner of speech that I sometimes personally found objectionable. We also championed some speech that I didn’t find particularly bothersome, but that others did, sometimes justifiably. The temptation to argue that certain speech must be curtailed because it inhibits the speech of others is always there, but we must resist it. We must find a way to be tolerant of the intolerant, to allow room for those who would not allow room for us, to gaze into the abyss without the abyss gazing back into us. Yet, perhaps Cox crossed a line by not just speaking objectionably, but by speaking for purposes other than communication.