(1) The common law tort of defamation comes from Anglo tradition and long predates the First Amendment, so there’s no reason to think of defamation as some later retrenchment of a fundamental right. (It wasn’t even a “law on the books” early in American history, nor were most other common law criminal and civil violations for which people nonetheless were held liable.) At best, the First Amendment has been read to create defenses against defamation claims, such as the defense of truth in any case, and the defense of good faith or “absence of malice” in cases involving public figures.

(2) There’s a limit to what lawyers can do for you. The Occupy movement is an excellent example: despite having professional legal assistance, their case was simply too poor to win in court after full briefing. There is no First Amendment right to express yourself — even peacefully — when that right conflicts with others’ peaceful enjoyment of quiet (disrupted by bongo drums at all hours) or of public spaces (Zucotti having been rendered effectively unusable for other New Yorkers). The same analysis applies to anti-abortion protesters who think they can’t truly express themselves, even in a perfectly peaceful manner, unless they can get next to the clinic. Too bad — that particular form of speech interferes with others’ rights of access and is “abridged” by federal law mandating that women seeking abortions have a clear path to the clinic door.

I’m not even sure that being deemed a journalist would have won the case for Ms. Cox. According to the AP story, the judge stated that the shield law does not apply to civil actions for defamation, so even if she’d been covered by the shield law, she still would run into the problem of having made false claims about a non-public figure.

(My background, FWIW: NY JD and twice the TA for a media law course at a U.S. J-school.)