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Sep 26, 2013

Crystal Cox Free Speech Case FIGHTS for ALL. 2.5 Million, ONE Blog Post written Dec. 25th 2010 and Lawsuit filed weeks later January 14th, 2011, No Retraction Request. No First Amendment Rights, no Actual Malice, no Shield Law.

"Under the First Amendment, contrary to the Court’s Order of November 30, 2011, a 
successful defamation action requires at least a showing of negligence, regardless of the “media” status of the defendant. 

As the jury found Cox liable for defamation pursuant to jury instructions that did not include such a limitation, the verdict must be overturned and a new trial granted. 

Moreover, the jury’s award – $2.5 million based on a single blog post, undifferentiated from the myriad other allegedly defamatory posts that the Court eventually found to be protected speech under the First Amendment – was excessive and unsupported by sufficient evidence and thus cannot stand. 

Combined with the other overreaching rulings regarding Cox’s media status, these errors will leave online speakers in the district unnecessarily and unconstitutionally chilled

Defendant’s motion should be granted. 

A.   The Court Failed to Instruct the Jury that It Must Find the Defendant at 
       Least Negligent In Order to Find Her Liable for Defamation

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court identified a 
constitutional floor regarding the intent requirement in defamation claims, holding that “so long 
as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz at 347. 

Noting that “erroneous statement of fact” is “inevitable in free debate,” and that “punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press,” the Court gave States broad latitude to achieve their legitimate objectives of protecting private individuals but drew a firm line barring strict liability statutes because of the inevitable chilling effect: “Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship.” Id. at 340. 

Fashioned in a pre-Internet context (addressing a defamation claim concerning a traditional magazine publisher), and couched in terms of “media,” “press,” “broadcasters,” and “publishers,” the Gertz Court nonetheless did not limit its ruling to the “media” per se. Rather, the Court addressed a factual claim before it that involved the (then relatively expensive and limited) ability to “broadcast” a message to a sizable audience, an ability that is now not just commonplace but ubiquitous. 

If Gertz left doubt as to whether the rule precluding strict defamation liability applied to 
all defendants and was not limited to the institutional press, the Supreme Court subsequently 
backed off any suggestion to the contrary. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss 
Builders, Inc., 472 U.S. 749, 773 (1985) (“[T]he First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech

None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn.”) (White, J., concurring); id. at 783 (Brennan, Marshall, Blackmun, and Stevens, JJ., dissenting) (“[T]he argument that Gertz should be limited to the media misapprehends our cases. We protect the press to ensure the vitality of First Amendment guarantees. 

This solicitude implies no endorsement of the principle that speakers other than the press deserve lesser First Amendment protection.”). Indeed, in its 2010 Citizens United v. FEC decision, the Supreme Court strongly reaffirmed that it has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers,” explicitly noting how the emergence of the Internet has all but eroded any basis to support such an untenable distinction. 

Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 905 (2010). See also id. at 905-06 (“With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”). 


While agreement is not uniform across all circuits, the Ninth Circuit has plainly interpreted Gertz to require at least a showing of negligence as an element of any defamation claim

See Newcombe v. Adolf Coors Co., 157 F.3d 686, 695 n.4 (9th Cir. 1998) (“A private person who is allegedly defamed concerning a matter that is not of public concern need only prove, in addition to the requirements set out by the local jurisdiction, that the defamation was due to the negligence of the defendant.”) (citing Gertz). Accord, e.g., Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, 1077 n.5 (3d Cir. 1988) (“[S]tates may not impose liability without fault, even if the injured party is a private figure and does not involve a matter of public concern.”) (citing Gertz). 

Without a constitutional basis for enforcing the artificial distinction between media and non-media defendants, this Court should have recognized the negligence “floor” and instructed the jury in this case accordingly. 

As the Court explicitly refused to do so (see Order of November 30, 2011, at p.9) and allowed the jury to return a verdict without such an element, the verdict must be overturned and a new trial ordered."

Source and Entire Free Speech / First Amendment Supporting Document
http://www.dmlp.org/sites/citmedialaw.org/files/2012-01-11-EFF%20Amicus%20in%20Support%20of%20Cox%20Motion%20for%20New%20Trial.pdf