< Combating "Bad" Speech with More Speech


Friday, April 06, 2012

The EFF’s strategy was not to appeal the verdict, but to write an amicus brief on Cox’s behalf, seeking a retrial based on Judge Hernandez’ rulings. Judge Hernandez denied Cox a new trial, but in a small victory for the EFF, he did clarify his ruling on Cox’s journalistic bona fides, making it clear that it was she, not bloggers in general, who cannot claim journalistic protection.

That clarification was good enough for First Amendment lawyer Marc Randazza, who has a unique perspective on this case, being both a First Amendment expert and one of Cox’s online targets. He says Cox had asked him to represent her, pro bono, in an appeal, but after she became angry with him for reaching out to opposing counsel to come up with the solution amendable to both sides, Cox began an online campaign against Randazza.
MARC RANDAZZA:  She send me an email saying, by the way, I registered a domain name with your name in it, and I’m wondering if you know of anybody who wants a really good search engine reputation manager. The implication seemed pretty clear to me. There’s this long line of people that she’s decided to focus on, publish crazy screeds about them. And then she offers to take it down if she becomes your PR agent.

It would be akin to you doing a, a hit piece on me and then saying, well, I can be a journalist today, but I can be your public relations agent tomorrow. And if I do that, well we can clean up all this mess that I made. And I told her I thought that that was unethical and uncalled for and asked her to give the domain name to me. And she refused and went off on a tear.
BOB GARFIELD:  Tell me about the tear.
MARC RANDAZZA:  I could go through it and find portions of it that were defamatory. Much of it was opinion, and it was negative opinion, but it’s – you know, she thought I was pompous and arrogant and well – I mean, that’s a requirement to be a member of the Bar, I think. She didn’t like my tactics. She didn’t – didn’t like me. She – had some crazy idea that I didn’t respect her because she’s a woman. It was just nuts.

Now, I’m a First Amendment attorney. I have a really lucky position in life that people can say crazy things about me and, you know, what do my clients care? My clients are often people who need help because someone’s telling them they can’t say what they want to say.
BOB GARFIELD:  The advantages of having clientele in the lunatic fringe. You probably didn’t think of that when you started at your practice, but serendipity!
MARC RANDAZZA:  In some ways, it wound up being to my advantage. I always preach this mantra, that the cure for bad speech is more speech. And when I get into a, a defamation case where I’m defending somebody who’s been sued for something they said, I always get this thing thrown at me, and they say, you’d feel differently if it was you.
Now, it’s me to the factor of 10. And it’s not just somebody who’s saying something bad about me. It’s somebody who’s saying something bad about me in a really weird Google-bomb way that for the first couple of days occupied most of the first page of hits on Google about me. If somebody had come to me and said, should I file a suit over this, I probably would have said maybe. But because it was me, I need to draw that line further down.

I’m happy that when I finally got tested, that I passed that test. And then failing to get that reaction from me, she upped the ante. And then she started to target my wife. My wife is just a wonderful person. I mean, she is – in her wedding vows to me she wrote that she would stand like an Anita Garibaldi next to me in all my crazy fights. And, you know, that actually chokes me up to even repeat that. But I thought, wow, she’s gonna be tested now. I said, I – I got to tell you something. You’ve been now dragged into one of my battles. I was stunned at, at how much it just rolled off her back. She said, I – I don’t really care.

So when that didn’t have the desired response, then Ms. Cox went after Natalia, who is my three-year-old daughter. While I considered legal action at that point, I thought this is the time where I have to tell the story. In telling the story, other people saw that story and said enough’s enough. I knew I had to stand up and say something because the next person is not gonna be a First Amendment attorney. The next person might be somebody particularly vulnerable. The next person might actually pay her requested 2500 dollars a month in, quote, unquote, “reputation service management.”
BOB GARFIELD:  At any point in this siege, did it ever occur to you to call the FBI?
MARC RANDAZZA:  That discussion came up. But I wanted the front line of this to be that the First Amendment works. Even an unsavory person like her has First Amendment rights. And I even still believe in her First Amendment rights. If we’re gonna believe in the First Amendment, we have to believe in it for the American Nazi Party wanting to march in Skokie, and we have to believe in it for, you know, somebody like her going absolutely crazy anytime somebody doesn’t do her will. And if you can withstand that without involving Federal authorities, I think you ought to.
BOB GARFIELD:  Judge Hernandez declined the motion for a new trial, but in his ruling clarified the language about the relationship between bloggers and journalists. And from a First Amendment point of view, are you – are you now satisfied that the record makes sense?
MARC RANDAZZA:  There’s a few rough edges in it, but they’re very complicated. When people who aren’t legally trained look at a court case, there’s a tendency to try to simplify it as much as possible. And if you oversimplify it, there are still problems in it.

What I didn’t like about the initial order is it seemed to create this strict test for whether somebody was a journalist or not, with these seven factors, you know, one of them being does somebody have a journalist degree. Well, I have one but I haven’t yet defended a blogger who had one.

The new order makes it clear. The court isn’t saying bloggers aren’t journalists. The court is saying, “This blogger is no journalist.”
BOB GARFIELD:  Marc, in your darkest moment, when your three-year-old was being dragged into your own personal First Amendment nightmare, at any point did you come to doubt the sanctity of free speech?
MARC RANDAZZA:  Fortunately, I thought about this before my daughter was born. I talked to a former partner of mine, Jessica Christensen, who has been a real good barometer for, for my beliefs, and when I – when I need something like this, I talk to her. And I said, doing what I do has been one thing when it’s only been me.

When I represent these unpopular causes, when I’m standing up for the rights of adult entertainment companies and – I can weather that because this is what I’ve chosen to do. But now there’s an innocent person coming into the world, and she’s gonna be at school and the kids are gonna learn how to use Google, and are they gonna look at her and go, “Your father’s a smut lawyer”?

And Jessica’s advice has always resonated in me, and she said, you know, “You have to take care of your family, but part of taking care of your family is showing moral leadership. And this is what you believe in and this is what you want your family to believe in when, you know, God forbid – I mean, you know, we all rebel against our parents. So who knows, maybe one day she’ll be working for the Department of Justice on the Obscenity Task Force-
-and I’ll, I’ll be saying, I have no daughter.
But un – until then I have to live with my daydream that one day she’ll be sitting there as my law partner and, and we’ll be fighting these cases together.
BOB GARFIELD:  Marc, thank you very much.
MARC RANDAZZA:  It’s my pleasure, anytime.
BOB GARFIELD:  Marc Randazza is a First Amendment lawyer, and he blogs at The Legal Satyricon.

We reached out to Crystal Cox for comment, and she directed us to the most recent blog post at crystalcox.com.


Marc Randazza

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