They must show by a preponderance of the evidence that Defendant did not exercise reasonable diligence and negligently, recklessly, or knowingly made the defamatory statements. Bobolas v. Does 1100, No. CV-10-2056-PHX-DGC, 2010 WL 3923880, at *3-4 (D. Ariz. Oct. 1, 2010) (denying relief on defamation claim where the plaintiff presented no evidence showing negligence and did not otherwise address what efforts the defendants may have made to discover truth or falsity); see Meador v. New Times, Inc., 36 F.3d 1103 (9th Cir. 1994) (explaining that a private figure must prove by a preponderance of the evidence that the defendant negligently published false statements to recover on a defamation claim under Arizona law) (citations omitted). Fault is an essential element of a defamation claim given the First Amendment's protection of free speech, and even statements that are defamatory per se are not actionable without proof of fault.
; Bobolas v. Does 1-100, No. CV-10-2056-PHX-DGC, 2010 WL 3923880, at *6 (D. Ariz. Oct. 1, 2010) (denying the plaintiff's TRO application and noting that “[p]rior restraints may be issued only in rare and extraordinary circumstances”).
Specifically, IEHI asserts that Railey wrote about a topic of public interest and IEHI merely provided a forum for her to do so. (Id.). It is undisputed that Railey was not IEHI's employee; instead, she maintained a blog on Defendant's website called the "FHA Mortgage Whistle Blower," on which she posted the September 2008 article. (ECF No. 18-2, at 2); see Bobolas v. Does 1-100, 2010 WL 3923880, at *2 (D.Ariz. Oct. 1, 2010) ("the [Communications Decency] Act does provide that GoDaddy cannot be held liable for defamatory statements made by bloggers"). Railey developed an interest in down-payment assistance programs ("DAP") from "HUD's attempts to shut down seller-funded DAPs and the DAP providers' attempts to protect them."
Plaintiff's failure to establish that the two internet companies were in "active concert or participation" with Defendant constitutes an additional defect in Plaintiff's request for a TRO against the internet companies. See Bobolas v. Does 1-100, No. CV-10-2056, 2010 WL 3923880, at *3 (D. Ariz. Oct. 1, 2010) (denying request for TRO against non-party GoDaddy.com, where defendants allegedly posted defamatory material regarding Plaintiff on GoDaddy.com, but Plaintiff failed to sufficiently allege or provide factual support for fact that GoDaddy.com was in "active concert or participation" with defendants within meaning of Rule 65(d)(2)). Plaintiff's alleged need for immediate injunctive relief is based on its claim that if the two non-party internet companies do not restore their previously-provided business services before a trade show occurring on June 22-24, Plaintiff will suffer irreparable harm to its business reputation.
Xcentric Venture, LLC v. Bird, 683 F. Supp. 2d 1068, 1073 (D. Ariz. 2010).Bobolas v. Does 1-100, 2010 WL 3923880, at *2 n. 1 (D. Ariz. Oct. 1, 2010) (expressing "concerns about whether [a court] can exercise personal jurisdiction" over defendants whose sole jurisdictional contact is an internet posting on a site hosted in the forum). Mr. Mealer alleges (and thus recognizes) that Mr. Kordella's comments were "intentionally publish[ed] on a global scale."