This is how the rule of law works: we extend rights to the very people who would deny us those rights if they had the chance.
Ariel Castro imprisoned young women in his basement without anything resembling due process, but he got a lawyer and his days in court until he thoughtfully offed himself. We protected the Nazis' right to march at Skokie, and say what you want about the tenets of National Socialism, dude, but it doesn't protect the free speech or assembly rights of others. We protect the right of Fred Phelps' family to protest at funerals even though the America of Phelps' dreams is a theocratic hellhole.
So it shouldn't be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.
That's how we roll.
Last week the United States Court of Appeals for the Ninth Circuit upheld Crystal Cox's First Amendment rights, and in doing so protected yours, and mine, in important ways. This post is about that decision, and about what Crystal Cox was doing to undercut the First Amendment while the Ninth Circuit was thinking about it. As you will see below, I am one of the people Cox has tried to silence with frivolous litigation even as courts were protecting her right to speak.
Chapter One: The Ninth Circuit Protects Crystal Cox, And In Doing So Protects The Speech of All Citizens
- Cox Attacks Kevin Padrick and Obsidian Finance Group
Back in 2008, a bankruptcy court appointed Kevin Padrick as the trustee of a company called Summit Accommodators, Inc., which was seeking bankruptcy protection as it reorganized. Padrick, an expert on distressed businesses at a financial services firm called Obsidian Finance Group, LLC, was well qualified for the job. No court, and no sane person, has ever found that he did it wrong.
To his great misfortune, Cox somehow heard about him and decided that he was a wrongdoer.
After Padrick’s appointment, Crystal Cox published blog posts on several websites that she created, accusing Padrick
and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations.
More on that extortion allegation soon.
Cox attacked Padrick and Obsidian Finance with a flurry of posts on sites like "obsidianfinancesucks.com," where she made extravagant and mostly incoherent accusations of wrongdoing without factual support.
So Padrick and Obsidian Finance sued her.
- Cox Loses In The Trial Court, Which Gets It Wrong
Padrick sued in United States District Court in Oregon. Cox acted like an archetypical disturbed pro se litigant throughout, filing a bizarre cross-complaint against not only Padrick and Obsidian Finance and their lawyers but also everyone else who had annoyed her recently. United States District Judge Marco Hernandez eventually made two crucial rulings. One was right, and one was wrong.
First, Judge Hernandez found that many of Cox's posts were statements of opinion, not statements of fact, and therefore could not be defamation. Those posts "used figurative and hyperbolic language and could not be proved true or false." As I frequently discuss here, only provably false statements of fact can be defamatory. Hyperbole and mere rhetoric, or statements of opinion that can't be interpreted as implying provably false facts, cannot. Judge Hernandez' first decision was right.
Second, Judge Hernandez wrongly limited Cox's defenses. Judge Hernandez found that one of Cox's posts could be taken as implying a provably false statement of fact: on one of her attack sites, bankruptcycorruption.com, she claimed that Padrick failed in his duty as trustee to pay taxes on substantial amount of money owed by Summit. Judge Hernandez let that claim go to the jury, and the jury found that the statement was false and harmful, and awarded $1.5 million to Padrick and $1 million to Obsidian Finance. But Judge Hernandez incorrectly instructed the jury on the law, so they didn't know what standard should govern their decision. In short, Judge Hernandez didn't require Padrick and Obsidian Finance to prove, or the jury to find, that Cox got it wrong deliberately, or recklessly, or even negligently. To the contrary, he instructed the jury like this: "Defendant’s knowledge of whether the statements at issue were true or false and defendant’s intent or purpose in publishing those statements are not elements of the claim and are not relevant to the determination of liability.” That decision was wrong.
That decision flew in the face of Supreme Court precedent. First, in New York Times v. Sullivan, the Supreme Court held fifty years ago that when someone makes a false statement about a public official's official conduct, the official can't prove defamation without proving actual malice — that is, without proving that the defendant acted knowing that the statement was false or reckless disregard as to its truth. Moreover, even private figures can't prove defamation merely by showing that a statement made about them was false. In Gertz v. Robert Welch, Inc., the Supreme Court held that even a private figure must prove, at least, that a false fact was uttered negligently to prevail on a defamation claim. In other words, defamation liability may not be imposed at all without some showing of fault.1
So why did Judge Hernandez decide that way? He issued an order on the issue during the trial ruling that the Sullivan "actual malice" standard did not apply because Padrick and Obsidian Finance were not public figures or public officials. That's not the troubling part. Judge Hernandez also found that the plaintiffs need not even prove negligence under the Gertz standard, because Cox could not show that she was "media" or a professional journalist. That was the basis of his decision that Padrick and Obsidian Finance could prevail merely by showing that Cox's post was wrong and harmful, and that they need not show any level of fault. The finding was invited by Cox — she argued that Gertz ought to apply because she should be considered "media," when in fact Gertz should apply to everybody. This ruling was widely reported in the media as a federal judge finding that a blogger is not a journalist, which is a bit of an oversimplification.
After trial — perhaps in part because of widespread media coverage, and perhaps in part because Cox was by then competently represented instead of representing herself — Judge Hernandez modified his position in the course of denying Cox's motion for a new trial, stating more explicitly that the Gertz standard only applies to "media" defendants, and that a private plaintiff need not necessarily prove that a private defendant acted negligently in making a false statement.
That was wrong.
- The Ninth Circuit Gets It Right and Eliminates the False Distinction Between "Media" and Citizens
The estimable Eugene Volokh represented Crystal Cox pro bono on appeal, and achieved a result that protected not just Cox, but all of us. The Ninth Circuit opinion is here. Notably, on appeal, Cox did not dispute that her accusation against Padrick and Obsidian Finance was false and harmful.
The Ninth Circuit did one crucial thing and one fairly important thing.
The crucial thing was rejecting the false distinction between "media" defendants and citizen defendants. The Ninth Circuit held that the Sullivan and Gertz standards apply whether the defendant is "media" or a "professional journalist" or not. If someone sues you for what you write or say about them, they will have to prove some level of fault — whether it's negligence (if the plaintiff is a private figure) or actual malice (if the plaintiff is a public figure or official, or the speech is on a matter of public concern). Quoth the Ninth Circuit:
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.
The Ninth Circuit noted that there might be one remaining area where Gertz does not apply and a defamation plaintiff does not need to prove even negligence — if the plaintiff is a private figure and the speech is not on a matter of public concern. But the court found it need not decide that legal question, because Cox's posts were on issues of public concern — they were about allegations of a crime against a trustee in a bankruptcy proceeding. The court noted that "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern" and "even consumer complaints of non-criminal conduct by a business can constitute matters of public concern." That means that the limitations on Gertz — if they exist2 — are narrow. The court rejected, however, Cox's argument that Padrick and Obsidian Finance should be treated as public figures or public officials, triggering the Sullivan actual malice standard, just because Padrick was appointed by a court.
The Ninth Circuit's fairly important achievement was firmly supporting the distinction between statements of fact (which may be defamatory) and statements of opinion or hyperbole (which may not). Rejecting Padrick's cross-appeal, they agreed with Judge Hernandez that Cox's other posts could not be taken as statements of provable fact and therefore could not be defamatory. The Ninth Circuit is polite and professional and would never put it this way, but I will: the court articulated the Batshit-Crazy Rule.3
Cox's posts attacking people — Padrick, attorneys who have opposed her, bloggers and journalists who have angered her, me — come off as batshit-crazy. They make flamboyant and bizarre accusations that normal people would not credit.4 They do so on vividly-named sites, and employ an entire Souplantation's worth of word-salad. They recursively cite each other, or Cox's filings, rather than citing facts or evidence. They carry all the hallmarks of pervasive mental illness — but also, and more importantly for First Amendment purposes, hyperbole, bluster, and opinion.
The Ninth Circuit put this in more genteel fashion. The court explained it looks to three questions in determining whether a statement is fact or opinion — “(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false." Applying those factors, the Ninth Circuit noted that Cox's posts at issue were full of hyperbole and extreme language, were posted on sites with names like obsidianfinancesucks.com that predispose readers to view them with skepticism as one-sided, contain run-on stream-of-consciousness sentences that seem more like diary entries about feelings than statements of fact, and contain bizarre flights of fancy like accusations that Padrick hired a hit man to kill Cox (a common delusional theme in Cox's writings). In short, "the district court correctly found that, in the context of a non-professional website containing consistently hyperbolic language, Cox’s blog posts are 'not sufficiently factual to be proved true or false.'" The Ninth Circuit therefore rejected Padrick's cross-appeal.
The Ninth Circuit's opinion protecting Cox's free speech rights also protects your rights. The ruling means that if someone sues you for something you write or say, your First Amendment protections will not turn on whether a judge views you as a "professional journalist." Rather, the same legal protections that have traditionally been applied to the New York Times will apply to you. That is a substantial comfort, particularly because many jurists are not familiar with things like blogs. The ruling also robustly protects your right to express how you feel, using vivid language, by maintaining that only provable statements of fact are defamatory, and hyperbole and rhetoric are not.
So: the Ninth Circuit's opinion was a substantial victory for free speech. What was Cox doing whilst the Ninth Circuit was mulling it over?
She was working diligently — some would say obsessively — to attack and undermine the free speech of others, as one would expect of a narcissistic hypocrite.
Chapter Two: Crystal Cox Gets Angry
Before I explain what Crystal Cox did in 2013 to undermine the free speech rights of others, I have to explain why she got angry enough to do it.
In short: Crystal Cox is mad because people called out her conduct and fought back.
- I'm Not An Extortionist, I Just Tell People I Will Stop Bad-Mouthing Them If They Pay Me Money
Crystal Cox is very angry that people call her an extortionist. Why would people say such a thing?
Well, it's because of emails like this:
That's an email from Crystal Cox to the lawyer for Mr. Padrick and Obsidian Finance, after she had put up many websites accusing them of criminal offenses, offering to "protect their reputation" in exchange for $2,500 per month. Doubtless that influenced the Ninth Circuit to say this about Crystal Cox in their opinion:
Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.
One instance of interstate extortion isn't exactly a history, of course. But other people have complained of similar tactics by Cox. For instance, she sought the pro bono assistance of First Amendment badass Marc Randazza. When Randazza didn't respond quite the way she wanted, she sent him this:
In other words, after approaching him about a case in which she had been sued for creating defamatory blogs about people, she registered a URL in Randazza's name, told him she needed to make money, and asked if he knew anyone who needed a search engine reputation manager.
Nor is Randazza the only one. The Montana Board of Realty Regulation recently recommended that Cox's real estate license be suspended. The Board explained that Cox became irate when a potential customer backed away from her, and sought to destroy his reputation online with confidential information he had provided to her as a potential broker:
The licensee became enraged that Cain had decided not to work with her. As a result of her anger, soon after Cain severed their business relationship, the licensee began blogging about Cain and contacting Cain through both e-mail and telephone. The licensee’s blogs exposed many of Cain’s real estate purchase plans for his company, information which the licensee had obtained through her discussions with Cain when Cain was having her line up properties in Montana.
And then — in an echo of her accusations against others of hiring hit men — she made him an offer:
On her February 17, 2011 blog on the www.martincain.com website, the licensee posited “Montana Man Admits to Working With Martin Cain to Set Me Up, Harm me, Kill me.” Exhibit 1, February 17, 2011 blog. Afterwards, the licensee deleted the February 17, 2011 blog and then sent an e-mail to Cain telling him that he could purchase the www.martincain.com website and domain name for $550,000.00.
Cox is incensed that people call this extortion. One of her constant refrains is that she's never been charged criminally with extortion, and therefore it's defamation, a hate crime, a criminal conspiracy, a civil rights violation, and a general abuse of her rights to offer the opinion based on these facts that she committed extortion. Of course, Cox's whole schtick is creating web sites accusing other people of a bizarre array of crimes, even though they've never been charged with any such crimes. The hypocritical contradiction is typical of an extreme narcissist.
- I'm An Investigative Journalist, But Other Bloggers Are Just Mean
Cox is also angry because, when some news sources suggested that she might be a free-speech hero, bloggers fought back and showed her for what she is.
Many other lawbloggers — like Jordan Rushie and Scott Greenfield and Mark Bennett and Eric Turkewtiz — also pointed out her conduct and explained that, whatever the merits of her case, she is a villain, not a hero. Even mainstream journalists — like David Carr at the New York Times and Kashmir Hill at Forbes — put her First Amendment claims in the context of her deranged and extortionate behavior.
As a result, a Google search for Crystal Cox's name quickly yielded stories about her bad behavior. Crystal Cox didn't like that. in her mind, only she is allowed to write negative things to impact someone's search engine results.
- Marc Randazza Fights Back, Kicks Ass
Marc Randazza — who is a friend and occasional client, in addition to being a First Amendment badass — is not one to take abuse lying down.
So when Cox registered a bunch of domains in his name (like marcrandazza.com and marcjohnrandazza.com) in order to bad-mouth him and sell advertisements, he fought back. The results have been very upsetting to Cox.
First, Randazza filed an action with the World Intellectual Property Organization, which resolves disputes over domain names. Marc chose wisely by proceeding narrowly — he didn't seek to capture domains that were on their face critical or satirical, like marcrandazzasucks.com. Instead, he sought only to capture those domains that used his name in a way that caused confusion, on the theory that Cox registered those domains in bad faith to cause confusion and make ad revenue. Marc knew to narrow his claim like that because he's successfully defended satirical bloggers who use their targets' names in non-confusing and clearly satirical ways, like glennbeckrapedandmurderedayounggirlin1990.com. WIPO agreed, and awarded Marc several domain names that used his name in a confusing and non-satirical manner, and in the process noted that Cox registered the domains fraudulently to commit extortion:
In any event, for purposes of the Policy the Panel finds the Respondent’s intention, as reflected by the record, was never to solely provide, through her websites, speech critical of the Complainant. Rather, her objective in both registering and using the disputed names was apparently to engage in a rather sinister and tenacious scheme to extort money from the Complainant. Specifically, the Respondent first posted negative and false commentary on her websites that was intentionally calculated to injure the Complainant’s on-line reputation and disrupt the Complainant’s business conducted through his law firm. Thereafter, the Respondent used those sites in a manner that apparently optimized their ranking on the Google search engine in order to increase their visibility and prominence on search results yielded through a Google search of the Complainant, thus likely exacerbating the injury caused to the Complainant. Once all this occurred, the Respondent then offered her reputational management services to the Complainant through which, for a considerable fee, she would remediate the Complainant’s on-line reputation by eliminating all the negative and false commentary of her own making and presumably also ceasing her use of the disputed domain names. Basically, for a price, she would undo the injury to the Complainant for which she was responsible for having created in the first place. This egregious conduct clearly constitutes bad faith under the Policy.
But Randazza wasn't done. He sued Cox in United States District Court in the District of Nevada. In his complaint, Randazza explicitly disclaimed any intent to sue Cox for theories like defamation or infliction of emotional distress. Instead, he accused Cox of registering domains in his name in order to make money of it, in violation of his rights, and as a pattern of extortion. He noted, for instance, one of Cox's posts titled "Marc Randazza Domain Name for Sale.. Here Kitty Kitty…" Based on that, Randazza articulated causes of action under the federal cyberpiracy and cybersquatting statutes, as well as under state right to publicity statutes. The gravamen of his claim — and what distinguishes it from most cases of satirical websites — is that Randazza alleged that Cox acted to extort money from him or make money through selling the domains or collecting other revenue.
Randazza's suit has been successful. United States District Judge Gloria Navarro first issued a temporary restraining order against Cox locking the domains to prevent their transfer, and making this finding:
In this case, Defendants have embarked on a campaign of cyber-extortion. Specifically, Cox sent an e-mail to Plaintiff Randazza that informed him that she had purchased and, in that same email, informed him of her “need to make money.” (Pls.’ Mot. for TRO, Ex. 8, ECF No. 2-10.)
Judge Navarro later issued a preliminary injunction transferring the domains to Randazza. Judge Navarro repeated her finding that Cox was engaged in extortion:
Here, Defendants’ actions leading up to the filing of the Complaint, as well as Defendants’ past behavior, as represented in Plaintiffs’ reply briefing, clearly seems to indicate cyber-extortion. (See Pls.’ Reply in Support of Preliminary Injunction, ECF No. 28, Ex. 1). Specifically, Defendant Cox’s request for $5 million in exchange for and her offering of “reputation management services” indicate her intent to profit from the registration of Plaintiffs’ personal names as Domain Names. Defendant’s post hoc attempt to explain this as a “joke” is not credible. Given the fact that the Defendant has been shown to have engaged in a pattern of cybersquatting and cyber-extortion, this Court finds that she was more likely than not, attempting to sell this domain name to the plaintiff, or to solicit a price for the domain name in excess of herout of pocket expenses related to the domain name.
As you will see below, as a result of these rulings Cox repeatedly and frivolously sued Judge Navarro.
- I'm Mad On Behalf Of My New Friend. Or Am I?
Finally, Cox professes to be outraged on behalf of a new friend.
The friend is a man named Elliot Bernstein. For many years, Bernstein has been asserting that he invented technology called iViewit, and that all of the companies using streaming video have stolen and infringed his rights to that technology in a vast conspiracy. I shall refrain from characterizing Bernstein and his litigation history. Let me, instead, quote from the opinion of a United States District Judge in New York dismissing one of Bernstein's cases:
This action presents a dramatic story of intrigue, car bombing, conspiracy, video technology, and murder. In short, plaintiffs allege that hundreds of defendants engaged in a massive conspiracy to violate their civil rights and, in the process, contributed to the Enron bankruptcy and the presidency of George W. Bush. In plaintiffs' words:
Plaintiffs depict a conspiratorial pattern of fraud, deceit, and misrepresentation, that runs so wide and so deep, that it tears at the very fabric, and becomes the litmus test, of what has come to be known as free commerce through inventors' rights and due process in this country, and in that the circumstances involve inventors' rights tears at the very fabric of the Democracy protected under the Constitution of the United States.
As that Court suggests, Bernstein suggests that the violation of his intellectual property rights are intertwined with many of the most momentous events of the last few decades. For instance:
In fact, plaintiffs suggests that the Iviewit case may have distracted Justice Labarga from his work on Bush v. Gore, leading possibly to its result.
In his various motions seeking to reverse his litigation fortunes, Bernstein brags of seeking state and federal criminal charges against a large swath of the United States Court of Appeals for the Second Circuit, the judges of which are apparently complicit in the conspiracy.
And so on. You may, with caution, visit Bernstein's site and draw further conclusions.
Cox transferred many of her domains to Bernstein, perhaps to protect them from judgment creditor claims by Padrick and Obsidian Finance, and perhaps to protect them from Randazza. She also now asserts that all of the bad things said about her are part of a conspiracy to prevent her from revealing the secrets she knows about the vast conspiracy Bernstein claims in his lawsuits. No. Really.
So. Where did all of this anger lead Crystal Cox?
To court. More accurately, to a whole bunch of courts.
Chapter Three: Crystal Cox Sues Everybody
In 2013, Crystal Cox embarked on a series of federal lawsuits in numerous states, all combining her grievances from the Padrick and Obsidian Finance litigation, her grievances against the journalists and bloggers who wrote unflattering things about her, her grievances against United States District Judge Gloria Navarro and the WIPO for ruling against her in Randazza's actions, some poorly expressed grievances against people who annoyed her when she lived in Montana, and the grievances of her new friend, Elliot Bernstein. I was a defendant in one of those actions, because I wrote about Cox, and therefore was classified as a conspirator.
Cox sued in federal courts in Arizona, California, Florida, Illinois, Massachusetts, New Jersey, New York, Nevada, Pennsylvania, and Wisconsin. I have collected all of her complaints, and the orders dismissing them, in the appendix to this post.5
Cox's defendant list varied a bit from suit to suit6, but generally it included Judge Gloria Navarro (for ruling against her), Kevin Padrick and Obsidian Finance and their lawyers, the New York Times and journalist David Carr and Forbes and journalist Kashmir Hill (for criticizing her), numerous lawbloggers who criticized her (including me) and their law firms, New York Public Radio, the World Intellectual Property Organization and several of its officials, megafirms Proskauer Rose and Greenberg Traurig (who defended against Bernstein's litigation), the Multnomah County Sheriff Office and the Sheriff and one of his deputies, the University of Montana, Warner Bros. (which, as near as I can tell, is alleged to use streaming technology stolen from Bernstein), Godaddy (for allowing courts to tell it to move domains away from her), employees of Intel and Apple (again, apparently premised on the Bernstein claims), and the Free Speech Coalition (because fuck you, apparently).
Like the defendant list, Cox's list of causes of action also varied. However, her complaints include both criminal claims (which, of course, Cox cannot lawfully bring) and civil claims, and include things like criminal and civil conspiracy, conspiracy to violate civil rights, deprivation of civil rights under color of law, "all state and federal laws applying to defamation," "ALL federal and state harassment laws applicable," "all anti-discrimination laws," the Sherman Antitrust Act, violation of the Bill of Rights and the Universal Declaration of Human rights, violation of the International Covenant on Civil Rights and Political Rights, the Hate Crimes Act, abuse of process, tortious interference with contract and prospective business advantage, racketeering and RICO, malpractice, "shield laws," witness tampering, False Claims Act, Deceptive Trade Practices and Consumer Protection Act, "all federal and state whistle blower [sic] retaliation laws," and others.
It is extremely difficult to figure out what Cox says any particular person did. As near as I can figure, Cox — whose avocation is accusing people of crimes on her blogs — is arguing that it is defamation, racketeering, hate crime, and retaliation to point out that her published emails are extortionate. She also seems to be arguing that all of the defendants, somehow, are part of the vast global conspiracy against Bernstein to steal his iViewit technology, and that she is a victim because she has crucial information about the conspiracy and people are writing mean things about her in order to suppress her crucial testimony. Or something. One thing is very clear: just as clearly as she thinks the First Amendment should protect her saying terrible (and entirely bogus) things about Kevin Padrick and Obsidian Finance, she thinks the law should prevent other people from saying negative things about her. Again: narcissistic hypocrite.
Notably, as far as I can tell, Cox never served a single defendant through lawful service. Nobody was ever required to respond. So how did the cases get dismissed? Well, rather than pay the filing fees — which, given the number of cases, would have been substantial — Cox pled poverty and asked the courts to waive the filing fees. Federal courts can do that — but the statute that allows them to do so also allows them to dismiss frivolous and abusive complaints. The courts faced with Cox's claims have done so.
Federal judges across the country have responded to Cox's claims with a mixture of bewilderment and scorn. They've called Cox's claims "fantastical and implausible." Another said "[p]laintiff’s complaint is 153 pages in length, is not presented in numbered paragraph form, and does not clearly state what acts of what defendants are alleged to give rise to her claims." Said another, "[a]t 153 pages, Plaintiff’s Complaint is sprawling and incomprehensible. In what can only be characterized as a barrage of allegations and accusations, the Court cannot discern to which parties the individual claims are directed and on what basis the claims are brought." In Florida the District Judge discussed the bizarre nature of Cox's claims:
The current claim is clearly baseless in light of the fact that the Complaint is comprised of conclusory allegations that are oft-times fantastic or delusional, and substantiated by no facts to support the practicality of the claims. For instance, Plaintiff states that Defendant Randazza and his co-conspirators are involved in prostitution rings, client shakedowns, controlling judges, strong arming or paying off media, and extreme retaliation against those who criticize Defendant Randazza. (D.E. l-2 at p. 94). Plaintiff factually substantiates none of these claims. Plaintiff also conclusively alleges without substantiation that Defendant Judge Gloria Navarro placed Plaintiff's life in danger. Ié. at p. 25.
In Massachusetts, in an very thorough order putting Cox's claim there in the context of her nationwide campaign, the court dryly noted that her complaint is "not entirely intelligible or organized."
Based on their power triggered by Cox's request to proceed without paying fees, the courts have all dismissed Cox's complaints. When they have given her leave to amend, she has either failed to do so or has filed amended complaints that are just as unintelligible as the original ones. In some cases Cox has ceased communicating with the court. Courts sending mail to the post office box she provides in her pleadings have had it returned as undeliverable, even though she continues to use that post office box in recent filings. (Refusing to acknowledge or accept undesirable court mailings is a common vexatious litigant tactic.) Similarly, Randazza notes that she's playing a similar game in his suit against her — she's commenting online about the content of filings and court orders even as she ignores and fails to respond to them.
Cox's federal complaints have gone nowhere. That is unlikely to change. But they have represented an effort to suppress and retaliate against free speech by vexatious harassment of her critics. Being sued — even by a deranged person — is stressful and unsettling. Even when your speech is clearly protected by the First Amendment, like the commentary about Cox has been, it's difficult not to be chilled by frivolous lawsuits.
Cox was uttering censorious demands out of one side of her mouth even as she asked the Ninth Circuit to protect her free speech out of the other side.
Ultimately this case shows the legal system working. A judge violated the rights of an extremely distasteful and justifiably despised litigant, and the Ninth Circuit applied the First Amendment correctly to someone who, herself, abuses it at every opportunity. A disturbed pro se litigant filed a flurry of abusive and frivolous suits, which were dismissed without any defendants even having to respond. I would feel that the system was working even better if an enterprising United States Attorney somewhere prosecuted Cox for interstate extortion, but we don't always get what we want. For now, it is satisfying to know this: Crystal Cox's appeal to the Ninth Circuit produced an important ruling that defends my rights and yours, and that ironically will make it easier to defeat her nonsensical, abusive, and censorious lawsuits if anyone is ever called upon to do so.
- The possible exception, as noted below, is speech about a purely private figure on an issue of purely private interest. But even that exception might not exist. ▲
- I think the better rule is that Gertz applies without regard to whether the speech is of "public interest." It's not clear to me how a false statement could be both "on a subject of purely private interest" and actually harmful to the reputation of the subject. Plus, a more robustly speech-protective rule protects everyone. ▲
- I am aware some people may take offense to that turn of phrase. I have written rather bluntly before about what it is like to suffer from major depression. I am sympathetic, generally, to social prejudice against mental illness. But I am unsympathetic about the sensibilities of people who use mental illness as an excuse or vector to abuse the persons and rights of others. Sorry. ▲
- For instance, for the record, I have not engaged in a conspiracy to murder adult entertainment performers. ▲
- Yes, having a post with footnotes is already ridiculous. Yes, an appendix transcends self-parody. I AM WHAT I AM. ▲
- I am only listing Cox's 2013 lawsuits against this group of defendants on this group of bizarre claims. Separately, Cox also sued a strange array of defendants in federal court in Montana, accusing them of being part of a vast conspiracy back in 2006 to conceal mold in a house. That suit was dismissed by the court. Cox also sued numerous realty (that's realty, not reality, obviously) organizations based on claims of conspiracy and antitrust violations. That claim was
also dismissed by the court. ▲
- The court has not yet dismissed this action. ▲
Last 5 posts by Ken White
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