Comment by nate_meurer | Hacker News Reader

Comment by nate_meurer | Hacker News Reader

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This is an interesting and important case; the limits of the first amendment being tested by a true scoundrel.

Crystal Cox was clearly, unambiguously running a protection racket, where she publishes scurrilous claims about somebody and then offers to remove them in exchange for a "reputation management" fee. She turned this racket on her former lawyer Marc Randazza -- a lawyer famed for his first-amendment efforts -- after he recused himself from her case. You can get a taste of how ugly this woman behaves here:

http://www.popehat.com/2012/03/30/investigative-journalist-c...

http://randazza.wordpress.com/2012/12/17/this-domain-name-se...

Note that she is now represented by Eugene Volokh, another highly esteemed champion of the first amendment.

Crystal Cox never really denied that the things she wrote were false and damaging; she merely claimed that she can't be held liable for anything she writes because she's a journalist.

The appeals court decided that she does indeed qualify as a journalist in this case. It did NOT let her off the hook for defamation. This is very important. Journalists can still commit defamation. The district court convicted her of that, but it used the wrong test because it assumed that she's not a journalist.

So what does this decision mean exactly? For Crystal Cox it means that the case will be retried in district court, this time using a more precise definition of libel. I think it is highly likely that her conviction will stand.

For the rest of us it's a precedent that modernizes first-amendment protections for the Internet age, the attainment of which was well worth the defense of a scoundrel.

> Crystal Cox never really denied that the things she wrote were false and damaging; she merely claimed that she can't be held liable for anything she writes because she's a journalist.

Actually, she claimed that she can't be held liable because the alleged victims were public figures, and that the required standard of proof for defamation charges where the alleged victim is a public figure were not met.

> The appeals court decided that she does indeed qualify as a journalist in this case.

No, it, explicitly did not. It said that the test for libel against public figures articulated by the Supreme Court does not rest on a determination of whether the person accused of the defamation is a journalist or not, it depends on whether the subject of the claim is a public figure and the matter under discussion is one of public interest.

It's not about Cox getting some special journalistic privilege, its about the Ninth Circuit rejecting -- as every other circuit that has heard similar cases has rejected -- the idea that the Supreme Court rule on defamation of public figures is a special journalistic privilege at all.

The whole "journalist" misrepresentation is the institutional media pretending that the courts are simply (and implicitly unacceptably) adjusting the scope of a special privilege that belongs to the institutional media, rather than rejecting, again, the idea that the First Amendment creates special privileges that belong to the institutional media.

I strongly agree with your underlying point, but I think you're trying to have a semantic argument over sloppy language. The word "journalist" in lay writing (like that of the Atlantic article, and mine as well) is too vague to be picked apart like this. And in fact the appeals court decision gives some credence to the common bloggers' refrain that "we're all journalists now".

Using more precise terms, you might say that the court did not decide that Crystal Cox is a member of the institutional media. If this is your actual assertion then you needn't have bothered, because we can read it for ourselves in the opinion:

We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants.

If we're not bound by the traditional but increasingly outdated definition of the word "journalist", then I think you and I are saying the same thing. Let me illustrate with another bit of pedantry (on the part of both of us):

> "Actually, she claimed that she can't be held liable because the alleged victims were public figures"

Yes, but that only works if she qualifies for first amendment protections commonly (and now perhaps erroneously) understood to belong to institutional journalists. Which she now does. So what do we call her? A non-institutional journalist? A blogger? Tomato? Tomahto?

None of the appellate court decisions in the issue have ever held that the protections applied based on who was speaking, whether they were in the institutional media or not. They've always been based on the status of the subject on the content of the material. The institutional media interpretation is an invention of the institutional media itself that has been rejected by every circuit court where it has been raised.

The self-regard of journalists never ceases to impress me. What other profession would believe that they have priveliged claim to the most fundamental of the rights enumerated in the Bill or Rights?

But, but... they took college classes. And they have a badge or something.

she merely claimed that she can't be held liable for anything she writes because she's a journalist

This sounds like S&P and Moody's arguments about why nobody should listen to (or hold them liable for) their Credit Ratings. The question of acting in good faith or with malice, however, seems to be still an open point. That is after all, the difference of expressing your opinion and shouting 'fire' in a movie theatre.

If I may pick a nit, the test to be used in this case is not malicious intent, but negligence. In other words, in order to convict her of defamation, the jury must only be convinced that she acted negligently, i.e., that she failed to take a reasonable level of care to determine whether her published statements were true.

In contrast, the malicious intent test looks for either "reckless disregard" for a statement's veracity, or positive knowledge of its falsity (is that a word?). This is a much stronger test reserved for situations where the victim is a public official, which the appeals court found was not the case here.

This is a useful clarification.

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