“I think it’s pretty significant,” says Eugene Volokh, the UCLA law professor and nationally recognized expert on the First Amendment who, along with Benjamin Souede of Angeli Law Group in Portland, now represent Cox and filed a motion for a new trial or remittitur on Jan. 4, 2012.
Volokh says the case raises the question of “whether the First Amendment treats equally all users or gives special protection to the institutional press.”
“There are now millions of users of mass media who are not part of the institutional press,” says Volokh, a native of what is now Ukraine who immigrated to the United States at age 7; graduated from UCLA at 15; clerked for a U.S. Supreme Court justice and, among numerous other endeavors, founded and co-authors the widely read weblog, The Volokh Conspiracy.
“District court decisions become really important,” he says, “because there are no U.S. Supreme Court decisions [on this issue].”
Volokh, who told the Bulletin that he is representing Cox pro bono as part of his “part, part, part, part-time” work as an academic affiliate for the global law firm Mayer Brown, says he learned of the case when his computer flagged it and someone other than Cox brought it to his attention. He said he has talked to Cox by telephone but has not met her.
Volokh’s view of the case’s importance is underscored by the opinions of other lawyers, as well as the fact that it has received attention from the Harvard-based Citizen Media Law Project, which referred to Padrick’s and Obsidian’s lawsuit as a “legal threat,”, and the San Francisco-based Electronic Frontier Foundation (EFF), which filed an amicus curiae brief on Jan. 11. (The EFF and its local counsel, Richard McLeod of Klarquist Sparkman in Portland, did not respond to the Bulletin’s requests for comments.)
“I do think the case is nationally significant, and Eugene Volokh’s involvement is suggestive of that,”says Volokh’s local counsel, Souede, who attended Harvard Law School with Volokh’s younger brother Alexander “Sasha” Volokh, now an assistant professor at Emory University School of Law.
“No matter where you come out on the issues, the question of how you are going to treat new media with respect to the protections generally afforded those who speak to the public is essential. It’s a powerful means of communication, and the lines need to be clear.”
Souede says that while his firm typically focuses on defending complex criminal and regulatory cases, “We always have an eye out for interesting public policy cases that we would like to get involved with. I knew the case involved a blogger, and Prof. (Eugene) Volokh is a pretty prominent blogger. He put up a post that he needed local counsel, and I knew the case to which he was referring.”
Duane Bosworth, a partner at Davis Wright Tremaine in Portland who has represented The Oregonian, other print media and numerous television stations, says that he thinks traditional media outlets “are alarmed” by the case, particularly by Hernandez’s pretrial ruling that bloggers are not covered by Oregon’s right-of-retraction statute.
“This case has an unbelievable number of moving parts,” says Bosworth, who has written about it for the National Media Law Resource Center, a national consortium of newspaper publishers. “It’s been discussed all over: Forbes, the New York Times. It’s significant because it has elements about publishing on the Internet that have concerns for traditional publishers, and it raises concerns for bloggers about whether they have protection under statutes and the constitution.”
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