You want to know the lesson of the Crystal Cox case?
If you’re going to court, get a lawyer.
Crystal Cox is the Oregon blogger who got hit with a $2.5 million defamation judgment for a blog post wrote critical of Obsidian Financial Group. According to the Seattle Weekly, she was unable to use Oregon’s shield law to protect her sources for the post in question, because Oregon’s law does not explicitly cover online publication. Since she was otherwise unwilling to produce any sources to verify her piece, the judge sided with Obsidian and hit her with the multi-million dollar judgment.
Cox represented herself in the case, and that was her biggest mistake. Remember the old saying: “He who represents himself in court has a fool for a client.”
I don’t care what Cox’s motivation for writing was. (Heck, as I’ve written many times before, I wish journalists would get far more aggressive about taking a stand and going after the crooks and cons in their communities. Neutrality shouldn’t be a requirement for journalism.) Nor do I care whether Cox followed SPJ or J-school rules when writing her posts, either. That shouldn’t matter. There’s nothing in the First Amendment about being a J-school grad or SPJ member. Or even a newspaper or TV station employee. Freedom of speech applies to everyone.
In case you haven’t committed it to memory, here’s the First Amendment, again:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Obviously, though, we’ve got plenty of laws on the books abridging the freedom of speech and of the press – defamation laws being just a few of them. And ask the protestors at the Occupy encampments around the country about their right to peaceably assemble.
Fact is, the First Amendment, by itself, is pretty much meaningless today and is totally useless to anyone defending himself or herself in a court of law. The First Amendment is relevant only within the context of two centuries of case law that have refined its meaning within America’s criminal and civil justice systems.
That is why you need a lawyer when you go to court. Because only someone with extensive legal training is going to be able to navigate that immense body of case law in order to tailor those decisions to influence a judge or jury to rule in your favor. And if there’s no way to construct a winning case, a lawyer should have the experience to know how to craft you the best possible deal so that you can minimize the judgment or sentence you face.
Crystal Cox failed to use a lawyer. And that, more than anything else, is why she lost and got hit with that judgment.
So do you need a lawyer, right now? I’ve done plenty of work on my own that others hire lawyers to do. I’ve successfully filed my own trademark applications, signed basic, boilerplate advertising contracts and even sent out and responded to mild cease-and-desist letters. Friends who are attorneys have agreed with me – you don’t need a lawyer to handle every legal task you might face in life, provided you’re willing to do some research and get educated before you act.
But they also agree with me on this – if I’m in sniffing distance of a courtroom, I’m hiring a lawyer. Trademark applications are one thing – if I screw it up, I just get rejected and have to try again – but a court case can cost me my livelihood and my freedom. That’s nothing to address half-way.
Journalism schools require students to take classes in media law for a reason – so that they will have a basic familiarity with the case law that guides judges to make decisions in media suits. If you’re going to publish online, you need to have that knowledge, whether you went to J-school or not. (FWIW, I was a Political Science Law and Politics major as an undergraduate, so I’d taken enough Constitutional Law classes to be exempted from a media law class in graduate journalism school.)
So if you’re writing online and don’t know the basics of media law, yeah, it might be a good idea to ask a media lawyer out to lunch for a quick overview. Learn the names of some precedent cases and write them down for some future Google searches. Educate yourself. Ideally, you want to avoid any situation where you would need to hire an attorney.
But if you find yourself in one, you’d better go ahead and do that. If you’re going to court, get a lawyer.
About Robert Niles
I differ with a couple points in this post.
(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.)