In January, the circuit held for the first time that bloggers like Cox have the same First Amendment protections as traditional media. That was a big victory for bloggers generally and included overturning a $2.5 million libel verdict against Cox based on her accusations of fraud against a bankruptcy trustee.
What Cox didn’t like was a single sentence in the opinion by Judge Andrew Hurwitz that stated,
“Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.”
Last week, her lawyer Eugene Volokh asked the court to amend its opinion, not to change the substance of the ruling, but to delete the offending sentence. The claim of “payoffs” was based on a single New York Times article in 2011.
“A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word ‘apparently,’ could be based on the record in a case, or authoritative finding by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process,” Volokh wrote. He said there “seems to be no ‘history’ of ‘seeking payoffs’ claimed in the article, he said.
Not surprisingly, some news outlets repeated the sentence but omitted the term “apparently,” he said. Journalists may perceive it as a factual finding, not just recitation of a newspaper column’s claim.
Thus Cox has asked for the court to redact the sentence from its opinion."
Source of Post
http://www.trialinsider.com/?p=4569
Here is Eugene Volokh's Motion to Rehear
https://docs.google.com/file/d/0Bzn2NurXrSkib1NraEFFb1Rac2M/edit
Crystal Cox's Statement In Support of Motion to Rehear
https://docs.google.com/document/d/1Sfa6KPy3ur6pBOcUF64CfvRFKM-n0ASMWhpUPC4G43Q/edit
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