Crystal Cox vs. Jenkins vs. Georgia

A mobile TV news truck

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shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]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.