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Crystal Cox, Marco Randazza, Joseph Rakofsky, and “Internet Mobbing”

April 03, 2012 By: John Kindley Category: Uncategorized

I don’t write this blog to “win friends,” although I have it on good authority that it has “influence[d at least one or two] people.”

I also don’t get paid enough for writing this blog to investigate and have an opinion on whether or not Crystal Cox in fact falsely defamed Kevin D. Padrick and Obsidian Finance Group and earned the $2.5 million judgment entered against her by an Oregon federal district court. I will say, however, that as someone who has himself Fought the Power for no pay and got himself slapped silly and called crazy for his efforts, I probably tend more than most to give the benefit of the doubt to people who conceive of themselves the same way.

Cox has been accused of attempting to Extort the plaintiffs in the above-mentioned case, first (in so many words) by the judge in his opinion denying her motion for a new trial and now by a whole slew of media relying on that opinion. She has also been accused by some of the same media of similarly attempting to Extort Marco Randazza, a First Amendment attorney who apparently in the recent past communicated with her about possibly representing her post-judgment in the Oregon defamation case. Those discussions obviously at some point went very very sour. For purposes of this post, however, I’m going to set aside these allegations of attempted Extortion, for a few reasons: First, as a criminal defense attorney I prefer my allegations of criminal conduct proved in a court of law beyond a reasonable doubt. Second, at least with regard to the first of the two alleged instances of attempted Extortion, it’s surprising how much “Settlement Negotiations” can sometimes resemble Extortion. Third, it’s not really relevant to what I want to talk about here in this post.

Fourth, Cox bought marcrandazza dot com for $10 (as well as other domains that include Marco’s last name) and is blogging there about, among other things, why she did so, the allegations of attempted Extortion, and her perceptions of the origins of her War with Randazza. (Short version: He started it.) Check it out for her side of the story. The other side of the story is all over the internet.

What I want to write about here is the unwarranted and troubling expansion by some of the “criticism” being directed at Cox to encompass Eugene Volokh, the UCLA law prof and blawger extraordinaire who is representing her on appeal to the Ninth Circuit.

On second thought, screw it: I’ve already written about this elsewhere. (Like I said, I don’t get paid enough to write this blog.) See Marco’s comment at Popehat, where he wrote “If this thing goes to the 9th Circuit, I’m afraid it will be an ego trip and not a real desire to clean up the state of the law,” and my comments following; Marco’s comment at his own blog, where he wrote that I was “understanding it incorrectly,” and my replies thereto; and my comment this morning at The Salty Droid.

As for the mention of Joseph Rakofsky and “Internet Mobbing” in the title of this post: I note that Marco is defending a number of blawgers in a civil suit filed by Rakofsky in which Rakofsky has alleged, among other things, a cause of action for “internet mobbing.” I note that Cox appears to constitute all by herself a One-Woman Internet Mob. I note that she is now characterizing on her marcrandazza dot com blog those who are up in arms against her as a “Lynch Mob.”

As I wrote in a comment at Popehat:

I am probably about to reveal how ignorant I am of First Amendment litigation, but these parts of Judge Hernandez’ opinion denying the motion for new trial struck me as especially interesting:

“It is also important to note that in the new trial motion, defendant raises an entirely different argument. Instead of arguing that her status as “media” inserts a fault component into the defamation claim, she contends that there is no special First Amendment protection for “media” defendants and that all defamation claims, even those between a private plaintiff and a private defendant on a matter of private concern, require at least negligence by the defendant. This argument was not raised and therefore not addressed at trial. In addition, while the Supreme Court may one day expressly reach the conclusion urged by defendant in this motion, I do not believe it has done so and thus, the jury instructions in this case did not erroneously state the law. . . . It is not enough to say that post-Gertz cases have held that media and non-media defendants are treated alike because that statement fails to answer the pivotal question in this case and fails to support the basis of defendant’s motion: that a negligence standard, at a minimum, is required in all defamation claims even absent a public figure, public official, matter of public concern, or a media defendant.”

I am exposing my ignorance of First Amendment litigation by admitting that I assumed it was already true that a negligence standard, at a minimum, is required in all defamation claims. If this question has not yet been decisively decided by the SCOTUS, it should be, and by itself suggests that this appeal should be taken. Consider the Rakofsky case for a minute: Imagine that whatever media outlet it was that first reported the story in fact got the facts wrong and that that story in fact defamed Rakofsky. Wouldn’t all the bloggers who then repeated that story be liable for defamation, negligence or no negligence, given the jury instructions in this case?

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