Crystal Cox vs. Jenkins vs. Georgia

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David Ryan

David Ryan is a boat builder and USCG licensed master captain. He is the owner of Sailing Montauk and skipper of Montauk''s charter sailing catamaran MON TIKI You can follow him on Twitter @CaptDavidRyan

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32 Responses

  1. Avatar Jaybird says:

    “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

    • Avatar James K in reply to Jaybird says:

      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

    • Avatar Rufus F. in reply to Jaybird says:

      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

    • Avatar James Vonder Haar in reply to Jaybird says:

      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

    • Avatar David Ryan in reply to Jaybird says:

      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

      • Avatar Jaybird in reply to David Ryan says:

        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

        • Avatar James Vonder Haar in reply to Jaybird says:

          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

        • Avatar Tod Kelly in reply to Jaybird says:

          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

          • Avatar Will Truman in reply to Tod Kelly says:

            I think the appropriate form of protection in cases of government or corporate malfeasance is whistleblower laws.Report

            • Avatar Tod Kelly in reply to Will Truman says:

              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

              • Avatar Will Truman in reply to Tod Kelly says:

                My point is that whistleblower statutes help make it so that you don’t need the shield at all, for journalists or bloggers.Report

              • Avatar Jaybird in reply to Will Truman says:

                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

          • Avatar Scott in reply to Tod Kelly says:

            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

          • Avatar Jaybird in reply to Tod Kelly says:

            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

          • Avatar Patrick Cahalan in reply to Tod Kelly says:

            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

        • Avatar David Ryan in reply to Jaybird says:

          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

          • Avatar Jaybird in reply to David Ryan says:

            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

            • Avatar David Ryan in reply to Jaybird says:

              It seems to me that the state’s law would cover a citizen who was writing things on the internet.

              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

              • Avatar Jaybird in reply to David Ryan says:

                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

        • Avatar wardsmith in reply to Jaybird says:

          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

        • Avatar DensityDuck in reply to Jaybird says:

          “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

  2. Avatar Burt Likko says:

    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

  3. 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

  4. Avatar Scott says:

    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

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