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Update: Protected Blogger Wants Elaboration on Alleged Extortion

By William Peacock, Esq. | Last updated on

When we last saw Crystal Cox, she was celebrating a victory in the Ninth Circuit. Instead of owing $2.5 million for defamation, the Ninth Circuit held that citizens, speaking on matters of public concern, get Gertz v. Welch protections and can't be held liable for defamation absent proof of negligence regarding the truth of the allegedly defamatory material.

It was  victory for her. It was a victory for the First Amendment. Journalist, blogger, or just crazy person with a keyboard, Obsidian Finance Group v. Cox was an important victory for your speech.

So why is she still hounding the Ninth Circuit?

Ninth Circuit Implies That She is an Extortionist

"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."

That subtle reference to Cox's extortionist tendencies is what Cox, and her famed counsel, Eugene Volokh, took issue with in their request for rehearing. They want the court to remove the sentence, which bears little relevance to the holding. It also implies misconduct on her part, even with "apparently" preceding the claims. Volokh cites media reports where "apparently" was not repeated and argues that such an assertion, which relies on a single source, should not be included.

Scott Greenfield, at Simple Justice, is wondering why Volokh is still involved, now that the First Amendment remains intact, and the only issue remaining is the reputation of a blogger with a record of domain squatting, cyber-bullying, and extortion.

Cox Victim Strikes Back (Again)

Marc J. Randazza has a history with Cox. When he turned down her request for representation, she bought, along with other domain names using his name, as well as the names of his family members, including his three-year-old daughter.

Ken White at Popehat has a lengthy recounting of Cox's saga,  including her losing dispute with Randazza. Randazza, despite the legal victories, isn't finished with Cox.

He submitted a "Brief of Amicus Curiae in Support of Neither Party" to the Ninth Circuit, addressing Cox's request. (H/T to Simple Justice.)

His take?

It probably was improper to make the statement with only one source cited. Instead, the court could rely on the record of the case. The District Court noted that the "defendant offered to repair the very damage she caused for a small but tasteful monthly fee."

Or, better yet, the Ninth Circuit could properly take judicial notice of the orders of another court. And there are orders a plenty that describe Cox's conduct, including these two from Randazza's case:

  • A district court in Nevada noted that Cox has been "shown to have engaged in a pattern of cybersquatting and cyber-extortion."
  • A World Intellectual Property Organization opinion noted that "Respondent then offers to provide 'reputation management' services to her target in return for a fee. Such websites are not 'criticism sites' but merely a pretext for the Respondent's bad faith extortionate use."

There's more. A lot more, especially at Popehat, but you get the point.

Why Not Delete It?

As Randazza notes, one of the most important aspects of the Ninth Circuit's opinion was that it "sent the signal that even criminals deserve First Amendment rights -- thus dispelling the usual truism that 'bad facts make bad law.'" Well played, Mr. Randazza.

He also points out that should the court delete the line, that she'll likely use the cleaned-up opinion as evidence that the court approves of her conduct. That is especially troubling considering the vast amounts of frivolous litigation she has filed in courts across the country, again, much of which is listed at Popehat. (He was a codefendant in one of her many lawsuits.)

It's a hilarious ending to one of the least sympathetic people to ever make legal history.

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