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Claiming no harm proved, blogger calls for tossing of suit

by John Lynch | May 1, 2021 at 3:21 a.m.
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

An education blogger being sued for defamation by former Little Rock School Board President Melanie Fox says the lawsuit should be thrown out of court because Fox can't prove her reputation has been harmed or that the blogger, Elizabeth Lyon-Ballay, deliberately tried to malign her.

In February, Lyon-Ballay was ordered to reveal her sources for her writings that Fox claims defamed her after Circuit Judge Mackie Pierce rejected arguments that Lyon-Ballay should be protected by the Arkansas shield law, which protects news organizations from being forced to disclose sources except in limited circumstances.

The latest round of filings in the 13-month-old lawsuit show that now both women have been questioned under oath, and Lyon-Ballay's lawyers say Fox's answers show that her lawsuit should be thrown out.

"Melanie Fox, a wealthy and controversial public figure in education ... cannot meet her heavy burden of proving malice," the summary judgment motion by attorney Luther Sutter states. "Nor can she prove damages. When asked if her family thought less of her ... plaintiff responded that her family supports her. And plaintiff's ... responses do not support her claim for damages either. Thus, plaintiff has failed to show any damage to her reputation as a result of the statements made in the defendant's blog post."

On Friday, Fox's lawyers reported they need more time to respond to the motion because they need to question two of Lyon-Ballay's sources under oath, Lisa Jones and Joyce Jacobs, possibly as soon as next week

Their testimony "will likely be highly relevant" to Fox's response to the motion, attorney Christoph Keller stated, saying Fox's lawyers just learned about the women last week when Lyon-Ballay was questioned under oath.

Fox's lawyers dispute that she's a public figure since her tenure on the school board ended in 2012, and she hasn't held elected office since. Fox has accused Lyon-Ballay of deliberately lying about her business dealings, among other things, on Lyon-Ballay's Orchestrating Change blog.

On the advice of her lawyers, Lyon-Ballay initially refused to reveal her sources for the claims about Fox when questioned under oath by Fox's attorneys last year.

The lawyers got a court order requiring her to fully answer their questions in February after the judge ruled that Lyon-Ballay is not a news reporter.

Her lawyers say that Fox meets the "broad standard" established for public figures set by the U.S. Supreme Court in 1974. To recover damages for injury to reputation, public figures must provide "clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth," the lawyers state, quoting the high court decision.

Lyon-Ballay describes Fox in court filings as a former elected officeholder, business owner, community and education activist as well as the wife of a former major telephone company executive.

The blogger further asserts Fox's four years as a member of the government-appointed Little Rock School Community Advisory board also contribute to her status as a public figure. The now-disbanded board reported to state Education Commission Johnny Key during the state takeover of the Little Rock district.

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