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BLOGGERS DELIGHT, INSURERS TAKE HEART
Crystal Cox (“Cox”)accused firm and him of a number of nefarious acts–fraud, corruption, money laundering, etc; many of Cox’s statements were obviously wild-ass carryings-on. Mere opinions that do not involve an assertion of fact, even if the proposition is not a fact, are not defamatory under constitutional law.
Cox appealed the judgment, and the defendants appealed the district court’ dismissal of 19 out of 20 separate causes of action.
There were various procedural matters, but this blog is about only three of them. In addition, there were numerous cites by the appeals court of various background cases. In sum, the prevailing law is that under circumstances like this one, the finder of fact must conclude that the accused defendant asserted proposition motivated by “actual malice,” and under controlling authority that includes negligence.
First, defamation arising out of asserting a false proposition that would otherwise be “actionablely” defamatory is not actionable when the statement addresses a matter of public concern and the “speaker” is not negligent gathering a basis for making the assertion.(The burden is on the plaintiff to prove negligence This is true if made about a person who is not a public official.
Second, the court of appeal held that the topic of Cox’s actionable statement was a matter of public concern even though the targets of the assertions were not public officials or tantamount to them, though they may have come close-ish to it, based on appearances, though not applicable sophisticated property law.
Third, the United States Supreme Court has repeatedly provided First Amendment protection to these sorts of statements, although not to blogging yet. There is no reason to think that it would not apply that freedom to individuals as well as institutions operating on the Internet, a medium of communication unknown when the high court made its controlling decisions.
The problem was that the jury instructions did not warn the jury that “it could not award presumed damages unless it found that Cox had acted with actual malice.) So the judgment was reversed and sent back for a new trial.
If I were the plaintiff in this case, I could well imagine blowing the whole thing off, or settling for policy limits, if there was a policy. I am certain that the insurance company, if any, that is defending under Coverage B, would like to get rid of the case. Its defense costs have already far exceeded policy limits, probably. (Of course, being certain does not make you right or even epistemologically rational.)
If the plaintiff has not lost business, why not focus on other matters? The entire matter has completely discredited Cox, I would expect, and she may be, and probably is, now regarded as a “crazy” “witch” in the better circles. (Nota bene: I not saying that these proposition are true. I am simply hypothesizing, and some might call it speculating.)
Of course, there may be an important component portion of the business community that has intensely negative fillings about her. Said the Ninth Circuit panel: “Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, NYT, Dec. 1l, 2011, at B1.”
[A blog-essay is to be found on and blog group, Quinn’s Commentaries on Lawyers and Lawyering.]
Originally posted on 07/17/2014 @ 6:30 pm