Ego
Canadian Lawyer and Atheist Antonin Pribetic tweets to Marco Randazza and Jordan Rushie that he’d like to know what my “malfunction” is. Marco charitably replies that while he had trouble figuring out the point of my last post he doesn’t believe I have ill intentions. Jordan appears to make fun of some of my choices in capitalization. Let me spell it out for yinz. The Salty Droid suggested that [EV] is a “media whore” for representing Crystal Cox on appeal. Prior to that Marco himself insinuated at Popehat that [EV] is motivated by his own ego to represent Cox on appeal rather than his love for the First Amendment. That is fucking bullshit, and is particularly tasteless and suspect given Marco’s past and present “relationship” with Ms. Cox. I’ve read the briefs [EV] has filed in the case and posted on his blog. As one might expect, his arguments are persuasive. If they win on appeal people similarly situated to those presently being sued by Joseph Rakofsky and defended by Marco would presumably benefit significantly.
But I have to suppose Marco’s own ego is now bound up with the outcome of this appeal. When it’s over will he be able to say “I told you so,” or will he look like an ass?
That is the fucking Point.
You wrote: “prior to that Marco himself insinuated at Popehat that [EV] is motivated by his own ego to represent Cox on appeal rather than his love for the First Amendment.”
Stop trying to create MORE drama in a story that has plenty already. Never once did I say, or insinuate, that this was about [EV]‘s] ego. I said that about Cox. I have nothing but respect for [EV]. My only critique of [EV] is that he doesn’t seem to have a lick of client control.
Get your facts straight, dipshit.
1You wrote at Popehat: “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. This was a trial verdict. This isn’t precedential. This isn’t even remotely likely to affect other bloggers. Ultimately, even if there’s a new trial, do you think another jury is going to side with her?”
I don’t know about you, but when I handle appeals, I write the briefs and make the oral argument, not the client. If there’s any ego involved, it’s mine. So you say you were referring to Cox’s ego and not [EV]‘s. You say it is Cox and not [EV] who does not have “a real desire to clean up the state of the law.” But in my experience it’s lawyers (particularly appellate lawyers like [EV]) and not laymen who do or do not have “a real desire to clean up the state of the law” anyway. So it was most natural to interpret this statement as referring to the lawyer and not the client in this case.
I already suspected that it galls you to no end that Cox continues to write what she writes despite being represented by [EV]. It would teach her good if [EV] dropped her, wouldn’t it? I guess he really does believe in free speech.
2So how about a correction?
3It is no secret that lawyers have egos. You, me, and probably even [EV]. It’s also no secret that high profile cases are known to gratify some lawyers’ egos. You obviously believe what everybody knows: that EV is no dummy. You also obviously believe that him taking this appeal to the Ninth Circuit is not likely to “clean up the state of the law” and in fact will probably be bad for the First Amendment. Why would EV take the case then? Ego? I believe you said what you said in an unguarded moment, and that I interpreted it correctly. Did I need to make a big deal out of it, and create unnecessary DRAMA? My last post did not focus on you, but addressed a very real problem, exemplified by The Salty Droid (a lawyer) who flat out called [EV] a “media whore.” Then I come across your friends Pribetic and Rushie trashing me on Twitter and so I say what I think more explicitly. Maybe I’m too easily baited that way.
4I’ve explained it on PopeHat.
http://www.popehat.com/2012/04/04/crystal-cox-not-a-free-speech-advocate/comment-page-1/#comment-824870
And your post may not have focused on me, but I find it pretty fucking offensive that you’re putting words in my mouth (about someone I idolize). You clearly have the ability to ask me what I was referring to. You did not.
5Marc, I’m going to take down this post in a little while. You undoubtedly know a lot more about the First Amendment than I do. But I read EV’s briefs for a new trial in the district court, raising issues that will undoubtedly also be raised on appeal, and I think these are fantastic issues for appeal, as Judge Hernandez pretty much acknowledged in his order denying the motion, and who better to raise them on appeal than someone like you or EV? Then I see you tearing down the decision to appeal, which I have to assume (as the typical scenario when pro bono representation is involved) EV is on board with, for reasons that don’t seem persuasive to me, especially in light of what I perceive to be the merits of EV’s arguments. Then I see Salty Droid’s outrageous statement. Then I look at your statement, which sounds awfully similar.
But you actually were “charitable” in your response to the twits which provoked this, although I need and ask for no one’s charity. I try to call them like I see them.
Let me know you’ve seen this reply, and I’ll take the post down.
6I’ve seen it. I see no similarity between my comments and Salty Droid’s. SD says Volokh is a “media whore,” which seems silly to me.
I say that the appeal is about Cox’s crazy mushrooming ego.
I see no similarity whatsoever.
Try listening to the EFF attorney who wrote the amicus brief in the case:
http://www.onthemedia.org/2012/apr/06/problematic-test-case-bloggers-journalists/
Even he sees that the outcome at the end of the case will likely be no different after appeal.
At this point, any problems in the Order are limited to one unreported decision. The Order on the motion for a new trial takes care of the vast majority of the problems. Bringing it to the 9th will, at best, be neutral. If the 9th makes a decision that is perfect, then no harm will come. If the 9th wavers by a few degrees from perfect, we’ll wind up with bad law.
7You seem to be doubling down on your insistence that your “ego trip” remark was only about Cox and not about EV, when I have seen YouTube evidence that Cox was more than willing to follow your advice and not appeal if that was for the greater good, and an email she sent you in which she said if EV couldn’t represent her she would not appeal. Here is what I think: You disagree with EV’s opinion that an appeal serves the interests of the First Amendment and you ill-advisedly attributed what you think is EV’s error in judgment to his ego. We have all said things we wished we hadn’t. I agree that what you said is not equivalent to calling EV a “media whore.”
Seems to me based on EV’s briefs a “perfect” decision at the Ninth Circuit would eliminate the distinction between journalists and non-journalists for First Amendment purposes and require at a minimum proof of negligence in all defamation cases. But I have to wonder whether you think such a “perfect” decision would actually be bad for the First Amendment, or at least bad for journalists.
8Seems to me based on EV’s briefs a “perfect” decision at the Ninth Circuit would eliminate the distinction between journalists and non-journalists for First Amendment purposes and require at a minimum proof of negligence in all defamation cases. But I have to wonder whether you think such a “perfect” decision would actually be bad for the First Amendment, or at least bad for journalists.
You’re entitled to that difference of opinion. I have no beef with that.
And yes, I am tripling down on what my remark was about. If you’re taking Cox at her word, I guess that pretty much ends the conversation. Unless that is the one and only thing you’re taking her at her word on — in which case I ask why limit it to that?
It seems to me that you’re more interested in creating some false dispute between EV and myself. EV himself harbored doubts about whether a 9th Cir. appeal was smart. He may be beyond that, as I haven’t spoken to him about it in months. But, last I talked to him, both of us had strong reservations about what might happen if this case wound up in San Francisco.
Maybe you ought to try to do some research – I dunno, talk to some primary sources. You didn’t talk to me, although you are fully aware of how to do so. You didn’t talk to Volokh, and I guess you might have felt that you didn’t have access to him. You didn’t talk to Cox. You don’t even really read what is in front of you — hence your question “But I have to wonder whether you think such a “perfect” decision would actually be bad for the First Amendment, or at least bad for journalists.” — did you read my comment above before asking that?
I appreciate that you might think that you can stake out some unique space on this issue by taking a yet unrepresented view on it. But, in doing so, you’re doing some serious damage to your credibility.
9Somebody invited the whole blawgosphere to gaze upon and comment upon and weigh in on this train wreck. And it is a train wreck because it involves a very ugly public dispute between and an attorney and his former potential client. I’m not going to automatically take the train’s side in this dispute, although my initial predisposition was to do so. I did read your previous comment. It claimed the best that could be hoped for after an appeal was nothing better than the law already in place. It appears to me from EV’s own briefs that he is shooting for something better than the law already in place. The last thing I want to do is create a false dispute. I’m confident my remarks in this little obscure blog won’t have that effect and it sounds like you are too. The whole thing is distasteful to me.
10I see that you’re previous comment that an appeal at “best” will be “neutral” could be parsed differently than I have. Fair enough.
11You refer to me as a “Canadian Lawyer and Atheist”, both of which are true.
12However, since you appear to have gleaned the description from my Twitter profile, you omitted the additional descriptor:”Anti-Flawger”. I assume this oversight was unintentional and that you consider reference to my Atheism as relevant to your post. Admittedly, I fail to see how it is relevant, and some may be easily led into concluding that it was some form of ad hominem attack. Parenthetically, I recall that you originally took down this post and considered it “silly” in light of Marc Randazza’s post about his recent hospital visit. Clearly, you had a change of heart. That said, I still remain utterly confused by your post, but I will concede that this may be my fault, in whole, or in part.
I explain in a post above why I put this one back up. This whole blawgospheric battle, in my opinion, is “silly,” in a non-funny way. I don’t know what the first page of a Google search for Marc Randazza looked like because of Crystal Cox before that round of applause for Marc fixed it, but I didn’t and still don’t have a problem with that. The round of attacks on Ms. Cox, however, seem to me ill-advised and unprofessional. Whatever their merit, they invite scrutiny of how and why this all happened. Those posts aren’t coming down in light of Marc’s recent hospital visit. Let me know if they are and I’ll take this one down. Everybody believes Ms. Cox is an extortionist. I too believe what I wrote in this post, and in subsequent comments. See in particular my post titled “Declaration of Neutrality . . .”
You got me on the ad hominem thing. If it makes you feel better, it makes this post less credible. I agree that your description of yourself as an Atheist is not relevant to this post, and I didn’t mean to imply that it was. I meant it as roughly equivalent to your description of me as “malfunction[ing].”
Don’t blame yourself for this post, although you’ll probably have to blame yourself for remaining confused by it. This one just makes more explicit what I thought I’d already said in my previous post.
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