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Wednesday, January 29, 2014

Judges Cautioned Not to "Friend" Parties in Pending Cases

We have previously reported on the potential ethical minefield for judges on social media.  A Florida appellate court recently addressed that issue in Chace v. Loisel, decided on January 24, 2014.  In that case, a party filed a motion to disqualify the judge presiding over her divorce case after the judge sent her a "friend" request via Facebook. The judge denied the motion, and she appealed claiming that the Judge retaliated against her by awarding a "disproportionately excessive alimony award" to her spouse.  

The appellate court reversed the trial court, finding that a judge's ex parte communication with a party is a legally sufficient claim for disqualification. In this case, the judge's "friend" request placed the party in a difficult place of either engaging in improper ex parte communications or risk offending the Judge by not accepting the "friend" request.  

In conclusion, the appellate court cautioned judges to avoid situations such as this one that might undermine the public's confidence in a judge's neutrality.

Monday, January 27, 2014

Jury Decides First "Twibel" Case

According to a variety of news sources, the jury in the first known "twibel" case (i.e., a defamation case involving Twitter) found in favor of the defense - in this case, Courtney Love.  Love's former attorney had filed the case after Love tweeted the following:  "I was (expletive) devastated when Rhonda J Holmes Esq of san diego was bought off."  Holmes had previously represented Love in a fraud case against the estate of her late husband, Nirvana front man Kurt Cobain.  She claimed that the tweet and other statements the singer made against her after she was fired from that case caused her substantial damage, to the tune of $8 million.  

The jury disagreed.  Although the jury found that Love's tweet was a false statement, because Love didn't know it wasn't true, she wasn't liable for damages under traditional defamation law.

Monday, January 20, 2014

Bloggers Have Same First Amendment Rights as Mainstream Media

In Obsidian Finance Group, LLC v. Cox, the Ninth Circuit Court of Appeals held that bloggers enjoy the same First Amendment rights that apply to more traditional journalists.  

Blogger Crystal Cox posted a variety of accusations on her blogs alleging that Obsidian Finance Group and a bankruptcy trustee were guilty of fraud, corruption, money-laundering, and other illegal activities in connection with a pending bankruptcy. According to the opinion, Cox had a history of making similar allegations and seeking payoffs in exchange for retraction.  

Obsidian filed a defamation suit against Cox, and the federal district court held that all but one of Cox's blog posts were constitutionally protected opinions. The court allowed the defamation case to continue based on one of Cox's posts that alleged specific factual allegations. Cox argued that her blog post involved a matter of public concern, and that plaintiffs had the burden of proving her negligence in order to recover for defamation.  She alternatively argued that the plaintiffs were public figures so they were required to prove Cox made the statements with "actual malice."  The district court rejected her arguments, first finding that the negligence standard did not apply to her because she was not a journalist.  The court also held that the plaintiffs were not public figures. At the end of the trial, a jury ruled in favor of the plaintiffs, awarding them $2.5 million collectively.

On appeal, the court of appeals first reviewed the Supreme Court's standards for defamation cases. For defamation involving public officials, the plaintiff has to show "actual malice" of the defendant.  NY Times v. Sullivan.  For private defamation, the plaintiff must show negligence. Gertz v. Robert Welch.  The court of appeals rejected the plaintiffs' argument that the Gertz negligence standard only applies to institutional press, finding that although those cases had not addressed internet publication, the same standards should apply. The court of appeals cited to the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission - "With the advent of the Internet and the decline of print and broadcast media...the line between the media and others who wish to comment on political and social issues becomes far more blurred."    

Because the district court had not applied the correct standard (negligence), the court remanded the case back to the district court.



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