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Education blogger ordered to reveal sources in defamation lawsuit

by John Lynch | February 9, 2021 at 7:11 a.m.

A blogger critical of former Little Rock School Board President Melanie Fox must reveal her sources for a January 2020 post that Fox says deliberately lied about her business dealings among other false character-besmirching insinuations, a Pulaski County Circuit judge ordered Monday.

Judge Mackie Pierce found that Elizabeth Rose Lyon-Ballay, who writes about public education issues on her Orchestrating Change blog, is not protected under the Arkansas shield law, which protects news organizations from being forced to disclose sources except in limited circumstances.

"She's a blogger. She's not a reporter. She's not [an internet] news source," Pierce concluded after a 90-minute hearing.

On the advice of her lawyers, Lyon-Ballay, 40, of Bella Vista, refused to reveal her sources for the claims about Fox when questioned under oath by Fox's attorneys during a May 28 deposition. In court filings, Lyon-Ballay states that her sources do not want her to disclose who they are.

"I have consulted my sources, and they have declined to give me permission to reveal their names, even threatening me in a manner if I do," she said in a sworn statement.

In his ruling, the judge ordered Lyon-Ballay to answer all of the lawyers' questions and, as punishment, she must pay the $1,122 cost of a deposition. Pierce is also considering requiring Lyon-Ballay to also pay Fox’s legal fees.

Fox, 57, sued Lyon-Ballay last March, asserting defamation and false-light invasion of privacy because of a Jan. 28, 2020, blog post titled "Divided We Fall." Fox's lawyers say the suit was filed only after Lyon-Ballay twice refused requests to remove the post.

The lawsuit describes Lyon-Ballay's blog writings as an attempt at character assassination by trying to portray Fox as a racist who associates with thieves and sexual predators. The post, which has since been removed, further accused Fox and her husband of improper business dealings with the school district during her school board tenure.

Lyon-Ballay "doesn't follow any journalistic [ethics] guidelines," Fox attorney John Tull, a media lawyer, told the judge.

The law does not define an "internet news source," and blogs do not get any specific protection under the shield law, Tull said. To decide whether the shield law applies, the judge must determine whether Lyon-Ballay would fall under the category of an "Internet news source" that is protected by the Arkansas Reporter's Shield Statute, Arkansas Code 16-85-510.

Mere publication on the internet does not create a news source, Tull told the judge. He said her blog should not be considered a news source, and, even if it is, shield protection does not apply if the writings in question can be shown to be deliberately false, as Lyon-Ballay's have been, Tull said.

He said Lyon-Ballay's own words -- from the questions she answered in the deposition -- and her decision to remove blog posts that Fox complained about show that Lyon-Ballay acted maliciously to publish "lies," Tull said.

Lyon-Ballay lawyer Lucien Gillham argued that blogs cannot be automatically excluded from shield protections. He said the subjects Lyon-Ballay has written about are "clearly news." Further, her opinions about Fox are protected by the First Amendment, Gillham told the judge.

"Blogs are clearly a source for people to get news," he told the judge. "This lawsuit is about discouraging free speech."

Fox's lawyers state that Fox cannot be considered a public figure, given that her school board tenure ended in 2012, and that she has never again sought elective office. Lyon-Ballay asserts that Fox is a public figure and that what she has written about Fox are "privileged ... fair comment ... truthful" articles that have not damaged her.

Fox just completed four years as one of seven state-appointed members of the Little Rock School Community Advisory Board. The board was established to advise Arkansas Education Commissioner Johnny Key during the agency's takeover of the district that saw Key replace the district's elected school board. State regulators returned control of the district to a locally elected board at the end of the year.

In court filings, Lyon-Ballay describes herself as an internet publisher who regularly features work by other Arkansas writers on her Orchestrating Change blog. She states her credentials include writing a separate blog for the Education Defense League of Arkansas and being commissioned to produce a piece for Arkansas Worker magazine.

She also noted her writings were cited by the Arkansas Times blog at least 12 times between August 2018 and March 2020.

The judge also struck down another part of her defense, a law that Lyon-Ballay was relying on not only in the Fox lawsuit but in another defamation suit involving the Orchestrating Change blog. The judge ruled that the Citizen Participation in Government Act is unconstitutional, siding with Tull, who argued that lawmakers overstepped their authority in crafting the law, Arkansas Code 16-63-504, in 2005.

Legislators intended the law to protect open discussion about issues of public interest or concern from retaliatory lawsuits intended to squelch free speech. The law has never been reviewed by Arkansas' higher courts, and Tull said that when lawmakers wrote the law's procedural elements they violated the separation of powers by infringing on the judicial branch's authority to create its own procedural rules. The law further has the potential to illegally deny plaintiffs their right to trial, Tull said.

The constitutionality of the Citizen Participation law is also being challenged in the other lawsuit against Lyon-Ballay, which involves four posts written between March 2019 and May 2019 about Henderson Middle School Principal Yaa Appeiah McNulty.

McNulty states that those posts defamed and libeled her by implying that she has covered up child abuse and committed other criminal acts. The circuit judge presiding over that litigation, Wendell Griffen, also has called into question the constitutionality of the Citizen Participation law.

CORRECTION: Education blogger Elizabeth Lyon-Ballay has been court-ordered to pay the $1,122 cost of a deposition in which she refused to reveal her sources for a blog post that is the subject of a defamation lawsuit by Melanie Fox, a former Little Rock School District president. Pulaski County Circuit Judge Mackie Pierce is also considering requiring Lyon-Ballay to also pay Fox’s legal fees. An earlier version of this story incorrectly described the sanctions the judge imposed on Lyon-Ballay.

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