Crystal Cox vs. Jenkins vs. Georgia
Perhaps some of you have heard of the recent court case wherein the Obsidian Finance Group won a $2.5 judgment against blogger Crystal Cox for defamation.
Blogger Cox was accused of making false and defamatory statements about the Obsidian Finance Group, and if I understand her assertion, she claims she could only prove the truth of her statements by reveling her sources, and under Oregon’s shield law she could not be compelled to do so. Here’s a portion of the Oregon shield law:
No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]
It’s not clear to me how the law applies in this case. So far as I have read, no court was insisting that blogger Cox reveal her source; it was she who was insisting that the only way she could prove the truth of her statements against the Obsidian Finance Group was by revealing her sources. Is this a distinction without a difference? I don’t know. Perhaps one of the assembled can shed further light.
In any case, the intricacies of journalist shield laws are not why this case is interesting to me.
The case is interesting to me because in invoking Oregon’s shield law blogger Cox seems to have opened a door for U.S. District Judge Marco A. Hernandez to rule on whether or not she is in fact, a journalist. He decided she is not:
. . . although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law
This is not the first time a judge has ruled that a blogger or other self-publisher is not a journalist and therefor not entitled to the special protections afforded journalist, and I expect we’ll see more of these sorts of cases, with various outcomes.
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As some of you may have inferred from my previous posts, I have a strong interest in the intersection of technology, communication and society.
I have written at some length about this intersection in the context of sexuality and cinema at TheIntentToArouse.com, and this formed the basis for a week’s worth of guest-posting at TheAtlantic.com.
For me the issue of sex and the moving image is largely settled.
In the fall of 2009, facing mounting frustration on what direction to take my filmmaking, I decided to take a break, and that break came in the form of sailing my Catalina 38 from Montauk to San Maarten via Bermuda.
I stayed in the Caribbean for the Winter, swimming, diving, working on my boat, but mostly thinking. And after seven months of thinking what I decided was the only possible way forward for my work was for me to return to school (a prestigious one) and get a Ph.D in Media Studies and an MFA in film.
At the time it seemed to me that garlanding my work with credentials was the only way I could move forward and be sure that my family and I were protected from the law and that the work would be taken up by the culture in the way that I wanted it to be.
I moved forward with purpose, determined that by the Fall of 2011 I would be enrolled at NYU, or Yale, or Stanford, or some such. Then suddenly the wind went out of my sails. From January of 2011:
[A] few weeks before Jim asked me to fill in, I had come to the conclusion, for all the reasons outlined in this last week, that I couldn’t win. I had come to the conclusion that writing about my work, explaining and framing, was in essence, admitting that I was wrong. You can’t just make movies about love and sex and say that explanations don’t matter. The truth is, the explanations matter more than the movies themselves, and mine weren’t good enough.
This realization; that who is speaking is as important as what is said marked the end of my inquiry into sexuality and cinema. The entire purpose of my effort was to create films that, as Tim Gunn would put it, “worked without the narrative”. I have always regarded this as my highest artistic aspiration, to make work that doesn’t require a resume along side it, and I realized that for me, at least, this was not possible.
This has not, however, extinguished my curiosity about technology, communication and society; and I have looked on with keen interest as we grapple with what it means when every citizen carries a miniature mobile television truck, and when every computer is an instant printing press with worldwide reach.
And where I find my mind going as I contemplate these questions is to a lessor known Supreme Court Obscenity case.
In 1974 the court ruled on Jenkin vs. Georgia, a case involving the screening of Mike Nichols’ film Carnal Knowledge in Albany, Georgia in 1972 and the resulting conviction of Jenkins on under Georgia’s obscenity laws. The Supreme Court ruled that 1) Although Jenkins was convicted in 1972 (a year prior to Miller) he was entitled to protection under Miller. 2) That under Miller Carnal Knowledge was not obscenity, and there for was constitutionally protected speech. This passage seems pertinent (emphasis added):
Thus, it is clear that as long as the Miller test remains in effect “one cannot say with certainty that material is obscene until at least five members of this Court, applying [418 U.S. 153, 165] inevitably obscure standards, have pronounced it so.” Paris Adult Theatre I v. Slaton, 413 U.S., at 92 (BRENNAN, J., dissenting). Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly `obscene’ contents.”
Before Miller, the Supreme Court of the United States spend a surprising amount of time screening films in its basement, in order to make a determination of whether this film or that film was obscene. I have been lucky enough to have correspondence with a now emminant law scholar who clerked for Justice Potter Steward during this era and he remembers fetching coffee while the justices reviewed sexually explicit films.
I hope we can all agree this is not an especially good use of the court’s time.
The genius of the Miller Test is that it was written in a way that prevents the question of whether or not a particular film is or is not obscene from ever being a constitutional question. Via Miller, the question of obscenity is constitutionally defined as a local question.
Whether or not you agree, Miller v California has stood for almost 40 years, and Jenkins vs. Georgia would be the last time the US Supreme Court would issue a direct ruling on whether or not a particular film was or was not obscene.
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A few days ago, thinking about Crystal Cox and Jenkins vs. Georgia, I tweeted “RE: Crystal Cox, We crave bright lines, but wide DMZs is what actually makes things work”. This was retweeted by Lisa Williams, a Knight Challenge Fellow at the MIT Media Lab/Center for Future Civic Media. I’ve made a pretty big bet on How Things Are Now. It’s reassuring to have my opinion, if not confirmed, at least acknowledged by someone whose thinking about these questions from a different point of view.
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UPDATE
A couple of things to help keep this comment thread on track:
1) Journalist or not, there is no constiutional right to refuse to name your source. Most states have shield laws, many do not. There is no federal shield law. The Supreme Court of the United States has had the opportunity to visit this question and declined. Again, there is no constiutional right to refuse to name your source.
2) Journalism is not the only profession or category of relationship that has special rights with regard to being compelled to testify. Doctors, attorneys and spouses all receive special treatment under certain circumstances.
“Freedom of The Press”, when it was written, wasn’t saying “Freedom of Journalists who have Official Credentials” but more and more people seem to think that there is a difference between “The Press” and “The Citizenry”.
It really irritates the hell out of me when one of these “more and more people” is a judge.Report
Yes, the modern notion of “The Press” didn’t exist back then. It seems pretty clear to me that the Founding Fathers were protecting the right to publish, not the right to be a journalist per se.
This becomes even clearer if you understand the importance of pamphleteers (who were basically the bloggers of their day) to the early revolution.Report
Jay got here before me. The United States was a country founded in a society of citizen journalists. The idea that one has to be “affiliated with” a larger media company for press freedoms to apply is one they would have found ridiculous.Report
Going back to the original understanding of the founders doesn’t do those of us in favor of extensive freedom of the press much good. It’s a fair bet that the founders had the British common law definition if the concept in mind when writing the bill of rights- and the common law interpretation was breathtakingly narrow, essentially only protecting against a government censor from having a preemptive veto on publication but still allowing for post-publication incarceration for pretty much any reason the sovereign or parliament would want.Report
So let’s just be honest that we’re pitching the Founders, instead of appealing to them.
Report
While the judge’s declaration that Cox is not a journalist is interesting, I’m not seeing a 1st Amendment issue here. The 1st Amend. is not a lisence to defame, and as far I can tell, the court was not insisting Blogger Cox reveal her source; she was claiming she could not mount an affirmative defense (ie the truth) without revieling her source.
If we accept the legal principle of her claim, then anyone with a blogspot account could defame you, me, or anyone else and claim “What I am saying is true, but I can’t prove it’s true because I would have to reveal my source, and I’m a journalist so you have to take my word for it.”
That doesn’t strike me as an especially thoughtful way to run a railroad.Report
So you feel that a official journalist should be able to use that defense but a civilian shouldn’t be able to?
If she were defaming someone, it’d be okay if she worked for the Daily Bugle?
My position is that there is no difference between a journalist and a citizen: None. If there is a defense for “journalists” that is based ostensibly on the first amendment that they can use because they work for a particular institution that isn’t available for citizens, then we do have an issue here. I pretty much guarantee you that the people giving the speeches before those laws were voted upon talked about the first amendment when they passed them.
The laws either should (and I see the arguments why they should) or shouldn’t (and I also see the arguments why they shouldn’t) apply to citizens. They shouldn’t apply to the one but not the other.Report
I think that’s exactly right. Surely the courts have dealt with this defense in the past. A journalist has to have attempted to defend against a libel claim through unnamed sources in the past. How have courts tended to rule in these situations?Report
So JB, out of curiosity which way would you prefer everyone universally group up? That journalists should be forced to reveal their sources, or that citizens should not be allowed to?
I am uncomfortable with the idea that journalists have no assumed rights to protect their sources, especially in stories pertaining to government or corporate malfeasance. And yet I confess I am somewhat skittish about having a system where anyone can say anything about someone else without fear of some kind of consequence. I may end up thinking that I prefer the current system; but I have to think about it.
Report
I think the appropriate form of protection in cases of government or corporate malfeasance is whistleblower laws.Report
Whistleblower laws exist to protect people with working knowledge from coming forward to management; they do not exist to protect outsiders from making unsubstantiated claims.Report
My point is that whistleblower statutes help make it so that you don’t need the shield at all, for journalists or bloggers.Report
I have had one co-worker who blew a whistle, once. He won a settlement in court… and, immediately, management started writing him up for *EVERYTHING*.
Showed up at 7:01? Written up for being late. Took a 16 minute break? Written up for abusing breaks. Went to cnn.com during work hours? Written up for abusing the company’s internet policy.
Everything was technically in the company employee handbook do’s and don’ts. When he was terminated, management had several pieces of paper with policies printed out on them and his signature at the bottom. By the book.Report
Todd:
As I wrote before, she isn’t being forced by the judge to name her source. She is free to defend herself without naming names. If she can’t too bad, I guess you shouldn’t write potentially defamatory stuff about folks without planning to defend yourself.
She is the one trying to twist the law shielding journalists into a law that she can use to get away with defamation. The law is a shield not a sword.Report
Scott – I was not addressing this case in particular; I was just asking JB to flesh out his broader point.Report
I see much more harm being done by narrowing the protections provided to journalists (citizens or employees) than by broadening them.
I see much more potential good in broadening the protections than in narrowing them.
Can we come up with outliers where there was a malicious person who went nutzo? Yes, we can. I think we can come up with more examples of SLAPP suits, however.Report
And yet I confess I am somewhat skittish about having a system where anyone can say anything about someone else without fear of some kind of consequence.
Bring back dueling with pistolas.Report
So you feel that a official journalist should be able to use that defense but a civilian shouldn’t be able to?
No, that’s not what I think.
What I think is that Blogger Cox, acting as her own defense, misunderstood how Oregon’s shield law works; it shields a journalist from being compelled by the State to reveal their source. So far as I can see, there was no such compulsion. Blogger Cox said she could not mount a defense without revealing her source. I am still not seeing how any 1st Amendment protection applies.
It was a civil case, in which a preponderance of the evidence prevails. Apparently the judge did not find Blogger Cox’s testimony more credible than whatever other contrary evidence he was presented. You can’t possibly be suggesting that “Because someone I won’t name told me so” be given preferencial treatment because the testimony comes from someone who says they are a journalist?
And please do keep in mind, shield laws are not federal. They are state by state, and many states do not have them. Journalist or not, there is no constitutional right not to be compelled by the State to reveal your source.Report
it shields a journalist from being compelled by the State to reveal their source
Then what we have here is the idea that a “journalist” is a different and separate category of citizen than merely a person with access to a printing press.
It seems to me that the state’s law would cover a citizen who was writing things on the internet.
I mean, let’s make a grid.
You can have a citizen accuse a citizen.
You can have a citizen accuse a corporation.
You can have a corporation accuse a citizen.
You can have a corporation accuse a corporation.
So let’s say that each one goes to court.
What are the dynamics? Assuming all other things being equal, in the first case, we’ve got a person vs. a person. It seems most likely to me that the truth will out and justice is most likely to be served (all other things being equal). The truth is likely to be the deciding factor here… and laws like this one aren’t likely to be involved.
The second? Well, the corporation is much more likely to be able to withstand a lot of court dates. It’s much more likely to be able to ask for a continuance or other time-wasting maneuvers. It’s much more likely to have lawyers on retainer (if not a legal department). It’s much more likely to be able to sacrifice 60 man-hours a week to a court case. (My evidence for this is stuff like SLAPP suits.) Of course, if the citizen is malicious, justice is served… but if the citizen ain’t, the corporation is likely to steamroller over the citizen without laws like this one. The truth, sadly, is a secondary concern.
The third? It seems to be a lot like the second. The truth is a secondary concern.
The fourth? Corporation vs. Corporation? It seems most likely that a newspaper corporation would want the other corporation to buy advertising… and, beyond that, the story would not only have to be true to run, it’d have to be interesting enough to attract enough eyeballs to justify any potential lost ad revenue. The truth isn’t exactly secondary but it’s not exactly primary either. It’s fuzzy… but it seems to me that the law would protect a lot more journalists telling the truth than journalists just making things up out of whole cloth.
All in all, the laws seem to protect citizens from malicious corporations to a much greater degree than anything else. The laws are a good thing… and, in this case, are protecting a citizen who seems to have been telling the truth about a malicious corporation.
To say that the only people who should be protected are “journalists” is to narrow the protections given by the first amendment to corporate employees.Report
Let me restate the section from Jenkins v Georgia that I emphasized:
Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciaryReport
Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary
Given the existence of SLAPP suits, I think that it has been established that corporations are far less likely to give a rip about attendant uncertainty and inevitable institutional stress upon the judiciary to their own benefit from the chilling effects on speech that even a lawsuit that the corporations know that they will lose will have on citizens.
Again: Corporations can eat 60 man-hours a week… if they think that they’ll benefit more from silencing their critics than they would from changing their ways.
I’d give a great example but I don’t want to be sued.Report
So you feel that a official journalist should be able to use that defense but a civilian shouldn’t be able to?
Does the name Judith Miller ring a bell?
Judith Miller, has decided to accept a jail sentence rather than testify before a grand jury about one of her confidential sources.Report
The Judith Miller thing struck me as one hell of an ugly precedent. I tried to argue against jailing her with my friends who were all for it but they opposed the war and they wanted to see Karl Rove “frogmarched” out of the White House.Report
People need to be careful what they wish for. I think Jaybird said that once.Report
“If she were defaming someone, it’d be okay if she worked for the Daily Bugle?”
Presumably if she worked for the Daily Bugle it would be the Bugle getting sued, rather than her personally, and the Bugle could choose to end her employment if it found her actions indefensible.Report
David, of your more recent posts, this has been the one I have enjoyed the most, for its relating the legal, cultural, and personal to articulate a concept about the relationship of government and individual, of rights and powers, which while it differs from my own, ought to be part of the dialogue. Thanks for giving us a nice bit of thought to chew on.Report
Yes, what Burt said.Report
Agreed, good thoughts.Report
Thanks for your kinds words, Burt. It’s nice to have a venue for the things I think.Report
No person connected with, employed by or engaged in any medium of communication to the public
Constitutional/historical argument of Jaybird and Rufus accepted completely, but want to add a comment on the statute: how in the hell is a blogger not “engaged in [a] medium of communication to the public”?Report
Even if she is a journalist, which I don’t believe that she is, she isn’t being forced by the judge to name her source. She is free to defend herself without naming names. If she can’t too bad, I guess you shouldn’t write potentially defamatory stuff about folks without planning to defend yourself.Report
http://www.nytimes.com/2011/12/12/business/media/when-truth-survives-free-speech.html?pagewanted=2&_r=2&ref=media
Ms Cox’s real crime was use of random capitalistion, for which there can be no pardon.Report