The Question Of Defamation Negligence

Blogger Crystal Cox has been battling a serious online defamation lawsuit for over a year. In short, her case involves derogatory statements about Obsidian Finance and one of the company’s executives, Kevin Padrick, whom she called “a theif and a thug” on her blog. After losing at trial, Cox was ordered to pay millions. She is now appealing the case and some heavy weight legal minds are helping. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of Cox, and Eugene Volokh, a UCLA professor, is now serving as Cox’s attorney and appealing her case to the 9th Circuit Court. Her appeal, it appears, centers around the concept of defamation negligence.

In the original case, Judge Marco Hernandez dismissed several of the charges argued in the claim. The legal definition of defamation is very specific, and as such statements of opinion are often dismissed immediately. In the Crystal Cox defamation lawsuit, by the time the trial rolled around, only a couple of counts of libel still stood.

Before the jury went into deliberations, Judge Hernandez gave his instructions. According to accounts, he failed to instruct the jury to consider the element of negligence. In United States defamation law, negligence plays an important role. If the plaintiff is a public figure, they must prove that the defendant acted with malicious intent; if the plaintiff is a private citizen, then the claimant only has to prove that a reasonable person would not have posted the material in question. In other words, people in the public must meet a higher standard of proof when filing a defamation lawsuit. This was done to ensure that those in power did not hinder free speech via the use of strategic lawsuits.

In their friend-of-the-court brief, the Reporters Committee for Freedom of the Press explained:

“The determination of whether a particular person qualifies for…protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform.”

Basically, the committee is saying that Cox was performing as a journalist, had sufficiently checked her sources, and then and only then published the story. As such, she should not be held liable for defamation. In Volokh’s appeal, he argues that since the jury was not given explicit instructions on “defamation negligence” the ruling should be overturned. Both parties are essentially arguing that since Cox reasonably believed the statement to be true, they were not defamatory. Inaccurate? Sure. Defamatory? Not unless Cox had substantial reason to believe the statements were false and published them anyway.

Defamation negligence is just one nuance of U.S. slander and libel law. If you’re interested in learning more about defamation law in the United States, check out our one-stop-shop legal resource center.


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