'Tis the season for musicians to sue and be sued

Three music-related lawsuits have sprung up in the past few weeks and caught my attention (although, sadly, one is not defamation-related).

Satriani v. Coldplay

The non-defamatory claim is by guitar hero Joe Satriani who has sued British rockers Coldplay on a claim that they plagiarized one of his songs. Decide for yourself:



But plagiarism, where's the fun in that?

Dixie Chick v. some dude

Here, on the other hand, is a straight-up defamation case:

Dixie Chicks singer Natalie Maines is the target of a defamation lawsuit by the stepfather of one of three 8-year-old boys slain in 1993.

Maines spoke out for three people convicted of the slayings and alleged the stepfather was instead involved in the killings.

...

Maines attended a Dec. 19 rally in Little Rock, where she claimed Jason Baldwin, Damien Echols and Jessie Misskelley — known to sympathizers as the "West Memphis Three" — were innocent and that supposed new evidence pointed to Hobbs. Her comments echoed a Nov. 26, 2007, letter that was still on the Dixie Chicks' Web site on Thursday, in which she claimed that new DNA testing of hair from the crime scene linked Hobbs to the killings and that his behavior after the slayings indicated his guilt.

Accusing someone of being involved in the murder of children is pretty straight-up defamatory, so this case will rest on whether that is in fact what Maines said (or whether she was merely expressing her opinion that the subject of her claims had "acted guilty"). A more interesting aspect is the possibility that Maines could raise truth as a defense, and could therefore take upon herself the burden of proving (by preponderance of the evidence) that the plaintiff is indeed responsible for the acts to which her comments were addressed.

Guns & Roses v. Dr. Pepper

My favorite case of the bunch, the facts are preposterous. Hard rockers Guns n' Roses (which, for any true fan of the early stuff, has not been Guns n' Roses since Slash left, but merely Axl Rose with a backing band) had been promising a new album for well over a decade. Soft drink company Dr. Pepper, apparently doubtful of that outcome, promised a free can of their soda to everyone in America if the album were to actually come out in 2008. And behold, on November 23, 2008, Guns n' Roses indeed came out with Chinese Democracy. And Dr Pepper reportedly botched the job of making good on its promise, claiming to fulfill it by making coupons available on its website for a single day, and then not having the capacity to even keep the website up.

Okay, you may have figured out that this is not a defamation case either, but at least one plank of the claims put forth by Guns n' Roses in a threatened lawsuit, for Guns n' Roses lawyer says:

"When you go on the blogs and you read the responses from the fans, they associated Axl with this promotion ... and blame him for the fact that they didn't get their free soda."

In other words, the band believes that Dr Pepper created a false impression of an association between the entities, such that the failure of the promise to be properly carried out would be falsely viewed by the public as a failure on the part of the rockers, and not the soda stockers.

In my opinion, a lawsuit by Guns n' Roses will have slim legs. Dr Pepper may have reneged on its promise to some degree, but this is a PR problem, not a legal one (the promise was made without any consideration and therefore unenforceable). The use of the name of Guns n' Roses might be excused as a fair public comment (it was, after all, really an expression of a lack of faith in the band's ability to come through). But perhaps Dr Pepper could defend themselves by pointing out that the album was not put out by the "real" Guns n' Roses at all, but by Axl Rose with a backing band.

Murtha's defamation defense

Democratic Congressman and decorated Vietnam vet John Murtha is defending a defamation action brought against him by one Staff Sgt. Frank Wuterich, based on Murtha's assertion that Marines in Iraq engaged in "cold-blooded murder and war crimes" with respect to certain civilian deaths in Haditha.

Specifically, Murtha is resisting an order to give a deposition in the case, against which Murtha is asserting immunity to suit "because he was acting in his official role as a lawmaker when he made the comments to reporters." This is something that is, obviously, rarely going to come up in a defamation action. One precedent is in former Senator William Proxmire's failed defense against a 1979 suit brought by a professor in response to Proxmire "awarding" the professer a "Golden Fleece" award, predicated on the professor's supposedly useless government-funded research. Proxmire tried to shield himself with a provision in the Constitution called the "Speech and Debate clause," which says that members of Congress:

...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In other words, no Congressman can be held liable for what they say in Congress. The Supreme Court held in that case, Hutchinson v. Proxmire, 443 U.S. 111 (1979), that the clause does not cover press releases or interviews outside of Congress, so Murtha may be out of luck there.

Still, one thing the Proxmire case doesn't tell us is what happened after the Supreme Court sent it back to the lower courts for adjudication. I suspect Proxmire's Supreme Court win turned out to be the pinnacle of his success in that litigation. In Murtha's case, if the privilege does apply, the plaintiff must still demonstrate that Murtha's comments could be seen as reflecting on him individually - and Murtha will have to decide whether to take the political risk of asserting truth as a defense.

2008 post-election defamation report.

2008 post-election defamation report.


There are a few reasons why political candidates rarely sue over over-the top accusations amidst the fiery rhetoric often brought up in campaigns. For one thing, it is exceedingly hard for a "public figure" to win such a claim, because the First Amendment creates a higher standard for assertions that touch upon matters of public interest. For another, it usually doesn't play well politically. However, perhaps the modern rarity of politicians suing other politicians over alleged slanders is exactly the thing that might make this politically feasible. The filing of the lawsuit, in essence, declares this to be beyond the bounds of decent politics. And if the plaintiff wins and receives a judgment, it may well result in a reduction of extremism in negative political advertising.


Sinclair's video

Plenty of flatly absurd allegations were spread around the blogosphere during the presidential election. However, by far the best example of a claim for which no First Amendment protection would apply against a potential defamation suit is that made by a person named Larry Sinclair, who claimed that he did cocaine and engaged in a gay sex act with Senator Obama:



If Mr. Sinclair can not prove the truth of this allegation, then a court could find this to be a knowingly false statement, and one unquestionably designed to damage Senator Obama's reputation and bring public disdain upon him. Of course, Senator Obama has no reason to bring attention to this sort of thing, and certainly he has more important things to do than press a lawsuit (or fifty, since Mr. Sinclair could be sued separately in every state where his assertion was broadcast). But if I were the subject of this sort of allegations, I would not hesitate to file a defamation suit.


Elizabeth Dole's "Godless" advertisement.

Here is an actual case of a politician suing another for defamation in a high profile Senate race.

In the North Carolina Senate race, challenger Kay Hagan filed a lawsuit against the campaign of Senator Elizabeth Dole over an ad which Hagan - a Sunday school teacher and Presbyterian church elder - characterized as "an attack on my Christian faith."

The 30-second spot at the heart of the suit claimed that Hagan was the subject of a "secret fundraiser" by one "Godless Americans Political Action Committee." According to CNN:

The ad then shows members of the group, which promotes rights for atheists and the separation of church and state, declaring that neither God nor Jesus exists.
"Godless Americans and Kay Hagan," the ad continues. "She hid from cameras. Took 'Godless' money. What did Kay Hagan promise in return?"
The ad ends with a picture of Hagan and a voice that sounds like hers declaring, "There is no God."

The heart of the claim, from my view, is not really whether Hagan attended a secret meeting, but whether the ad would lead a reasonable viewer to believe that it was Hagan quoted as saying "There is no God." A few weeks ago I blogged about a woman in Florida who sued Jews for Jesus for intimating that she had converted into their beliefs, and noted that the Florida Supreme Court had found the disrepute she might suffer among her own minority group to be enough to sustain a claim.

I will not venture to say whether accusing someone of atheism might generally be thought of as something that brings the speaker into ill repute - but there is no question that there is at least a substantial portion of the population who would think that the voice in the ad was Hagan, and for whom it would bring that negative response.

Al Franken's "Fishing Buddies" ad

In Minnesota, the incumbent Norm Coleman has filed a defamation suit against challenger Al Franken over an ad which "claimed Coleman was a stooge of oil interests":



This one presents a much harder case to prove than the Dole case. If Franken can show that Coleman did in fact receive money from the people or entities discussed in the ad, the remaining accusations become a matter of opinion.

California Mormons attacking a gay couple

Finally, there is the controversial anti-Proposition 8 ad in California showing a pair of Mormons stripping rights from a gay couple:



Although this has raised controversy and condemnation from some quarters, I have blogged before on the absence of a "group defamation" claim in the United States. Since Mormons are a fairly large group, no individual Mormon would have standing to assert that the ad was about them in particular, which is probably why no defamation suit has resulted from this ad.

No False Light in Florida!

With Halloween upon us, the Florida Supreme Court has ruled just this past week that there is no such thing as a "false light" action in Florida. "False light" is a close cousin on defamation said to arise from the right to privacy - the elements are usually set forth as (1) the public use of a person's name or image (2) in a context that creates a false impression of that person, (3) such impression being one which would be offensive to the reasonable person, and (4) this was done with intent or at least with reckless disregard for the truth, and for the rights of the aggreived party.

The case in which the Florida Supreme Court took this question up was Rapp v. Jews for Jesus, Inc., and the claim was that the defendant religious organization had put out a newsletter which falsely characterized plaintiff, a Jewish woman, of having "joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus." The newsletter had told a stepson's story of how Rapp had "began to ask me questions about Jesus," and after a good talking-to on the subject:

...began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d!

Whether this describes an adoption of or conversion to another faith, well that would have been a question for the jury. However, the trial dismissed Rapp's defamation claim (because "the 'common mind' reading the newsletter would not have found Edith to be an object of 'hatred, distrust, ridicule, contempt or disgrace'") and sent the false light claim up to the Fourth Circuit Court of Appeals to review (from which it was sent right on up to the state Supremes).

The Florida Supreme Court then found that there was too much overlap between the false light cause of action and the pre-existing defamation cause of action for both actions to be required. Although false light has often been posited as being available as a means to counter "literally true statements that create a false impression," the Court noted that defamation will allow recovery in those circumstances as well. The Court also found that a false light cause of action runs into First Amendment problems that have been long settled with respect to defamation claims.

However, the ruling was not all bad news for Rapp. With false light off the table, the Court found that her other claim, the defamation claim, had been improperly dismissed. Even though an alleged conversion to another religion would not have held her up to contempt to society at large, the trial court should have considered whether Rapp's reputation was injured with a "substantial and respectable minority of the community." So this case gets sent back down to the intermediate appellate court, with an invitation to determine whether Rapp's initial complaint supports a finding that she was defamed in the eyes of a respectable minority of the community.

Even if she loses, Rapp has had an additional measure of revenge through the lawsuit, however. Her Complaint contained a number of assertions which, although stricken by the court, were mentioned (albeit in a footnote) in the Supreme Court's decision. She complained, for example that:

Jews for Jesus attempts to convince Jews that they can accept concepts which are alien and contrary to Jewish beliefs yet remain Jewish in order to fraudulently induce them to join their movement.

And that:

A further motive for fabrication was to help advance the erroneous concept that many Jews have adopted the beliefs of Jews for Jesus. In order to promote its false teachings, Jews for Jesus attempts to inflate the number of its converts."

Whether or not Rapp's own claims about Jews for Jesus are true, she is doubly immunized from any liability for making them, first because neither defamation nor any related tort recognizes a cause of action for defamation of an entire group (rather than names individuals) and secondly because the allegations were made in a format - the complaint filed in a legal proceeding - in which the claimant can make just about any statement with impunity.

My final word on this is that the Florida Supreme Court made a great deal of sense. False light has always been a sort of odd lesser form of defamation claim, but defamation is itself a flexible enough doctrine to capture all kinds of falsehoods, even those dressed innocuously. Some attorneys may grumble at having a sword permanently sheathed from the arsenal of causes of action, but they would be better admonished to polish and weild wisely the powerful weapons that remain.

Unfair credit report? Fair game for defamation!

Here's a decision that is timely enough to warm some hearts: Roybal v. Equifax, 2008 U.S. Dist. LEXIS 79789 (E.D. Cal. 2008)

In this case, the Plaintiffs were husband and wife Daniel and Vida Roybal. They sought to refinance their mortgage, only to learn that "approximately 100 inaccurate, derogatory entries were being reported on Mr. Roybal's credit report by Rickenbacker Industries ("Rickenbacker"), a collection agency." The couple went through a variety of steps, documented in the opinion of the court, to have these false entries removed from their credit history - but the inaccuracies kept showing up, until the couple finally had to hire a lawyer to get their credit history cleared.

Mr. and Mrs. Roybal didn't take things lying down. They sued, for a number of counts including (well, look what blog you're reading, after all) defamation. Now, in complete candor, the motion that this decision addresses is just a motion for summary judgment. That is, the defendants asked the court to throw the case out before it even got to a jury, claiming that even if everything the plaintiffs are saying is true, those facts do not support the claims for relief. The court will deny a motion for summary judgment if there is a "genuine issue of material fact" - that is, if the facts might indeed support the claims, and there is some dispute about what the facts are.

The Roybal's main claim was not defamation, but defendants' alleged violation of the "Fair Credit Reporting Act," a federal statute which requires the folks who provide credit histories to do so accurately, and to double-check if inaccuracies are brought to their attention. The Roybal's other claims were state law causes of action, including a number of negligence-based theories, as well as defamation, invasion of privacy, and false light.

The defendants argued pre-emption - that the plaintiffs could not bring those state law causes of action because the federal law prohibited negligence and defamation actions over incorrect information provided to the consumer - but the court disagreed, because here the incorrect information was provided to the bank that the consumers were trying to get a loan from.
The court also found that no privilege was invoked simply because the Roybals, in seeking a loan, had authorized the bank to get the credit report. In order to escape this privilege, the Roybals had to show malice, and this they could do:

Defendants do not dispute that inaccuracies appeared on Mr. Roybal's credit report during 2004, nor do they dispute that copies of Mr. Roybal's credit report were provided to lenders in 2004. Defendants instead argue that they are entitled to protection... because Plaintiffs have not shown that Defendants acted with "malice."

However, since Plaintiffs claim to have provided notice of the inaccuracies in Mr. Roybal's credit file to Defendants on multiple occasions beginning in 2004, Plaintiffs have sufficiently shown, for purposes of the current Motions, that Defendants had knowledge of the falsity of the information contained in Mr. Roybal's credit report.

The Court gives little specific discussion to the defamation claim, because little is needed: "Defendants argue that Plaintiffs' Defamation cause of action must fail because Plaintiffs cannot produce any evidence of "malice"... The Court addressed this argument in detail above." End of discussion. The false light claim is similarly treated, along with the comment that there's no reason plaintiff's can not bring both a defamation and a false light claim.

As a practical matter, the Court denying summary judgment means that these questions will go before a jury, and under the current economic situation a jury is not likely to be kindly disposed to a credit agency that reports false information, thus harming a couple's ability to get credit. In these trying times, things are bad enough without having negative falsehoods piled into credit reports, and it is good to know that a Court is letting folks who have suffered such an indignation have a shot at convincing a jury that a remedy is due.

However, as I said, a jury is not likely to be too friendly to the credit agency, and there's no point in these defendants - wealthy companies though they may be - to pay a lot of attorney's fees on the way to losing a big verdict. I would expect to see a settlement in this case favorable to Mr. and Mrs. Roybal, before a juror is ever seated.

Oprah defamation suit, arising in Africa, filed in Philadelphia

Oprah Winfrey is the subject of a defamation lawsuit filed in a Philadelphia court - the alleged defamation being that "Winfrey suggested that [plaintiff] Nomvuyo Mzamane, 39, of Philadelphia, knew about alleged abuse by a dorm matron [in a Winfrey-sponsored South Africa girls' school] and tried to cover it up." Mzamane, ex-headmistress of the school, claims that she can't get work in the field because of Oprah's allegations, but the litigation strategy may be risky. Is Mzamane an involuntary public figure, or perhaps a limited-purpose public figure in her role as (former) headmistress of a school sponsored by one of the world's most famous people?

It is likely that a court will find that there is at least a compelling public interest in the behavior of a school official with respect to the alleged abuse of students by a person under the official's control. Although Mzamane may not have intently thrust herself into the controversy, she may well be regarded as a public figure for purposes of discussing this controversy, in which case she would have to demonstrate actual malice on Oprah's part to carry a suit forward. And actual malice will be hard to prove given that Mzamane herself, in a previous interview, had suggested that Oprah "may have been guided with bad information" and described Oprah as possibly having been "ill-advised." Absent a specific statement by Oprah specifying wrongdoing on Mzamane's part, and evidence that Oprah knew the truth to be otherwise, this lawsuit likely does not survive a motion for summary judgment.

Interestingly enough, this is not the first time the talk show diva has been sued for defamation. In 1998, Texas cattle ranchers sued--and lost--over a show in which Oprah discussed mad cow disease, and the practice of cattle being fed "protein supplements produced from the wastes of slaughtered cattle" (ewww!) resulting in "Winfrey's disgusted vow that she would never eat another hamburger." The plaintiff's claimed that even though Oprah "never touched specifically on Texas cattle or named the plaintiffs," she seriously harmed their market, causing prices to plummet. Now that's market power.

Oprah moved her show to Texas for the duration of that trial. So, will she be setting up in Philly for this one? Time will tell, but this case just might be a bigger boon to Oprah's ratings than a hit to Oprah's pocketbook.

Here comes the pun: stay tuned!

Unless otherwise indicated, all images on this blog are from the Wikimedia Commons.

Anthrax - a suspect case

Just a few weeks ago, in Hatfill v. N.Y. Times Co., 2008 U.S. App. LEXIS 14901 (4th Cir. 2008), the Fourth Circuit affirmed the dismissal of a long-litigated defamation case brought against the New York Times by Dr. Steven J. Hatfill, a biodefense research scientist that a Times reporter had suggested as a possible suspect in the 2001 anthrax mailings to the U.S. Congress and various news organizations. There is some irony that this opinion was handed down two weeks before the suicide of Dr. Bruce Edward Ivens, also a biodefense researcher, who the FBI has since identified as the lone party responsible for the mailings.

The court summarized the alleged defamation as follows:

In a series of five columns appearing in The New York Times from May 2002 to August 2002... Kristof used information provided by experts and other sources to profile a suspect in the attacks, ultimately focusing on Dr. Steven J. Hatfill, a biodefense research scientist. With each publication, Kristof identified new evidence suggesting Dr. Hatfill as a prime suspect. The columns noted that Dr. Hatfill had access to anthrax, had knowledge of how to make it, and had a motive. In the same columns, Kristof criticized the FBI for not investigating the facts against Dr. Hatfill. He characterized its investigation as "lackadaisical" and "unbelievably lethargic" and admonished that the FBI's investigatory attitude "continues to threaten America's national security." By August 13, 2002, however, when Kristof wrote his last column on this issue, he observed that the FBI had appreciably intensified its investigation, leading Kristof to conclude, "there is reason to hope that the bureau may soon be able to end this unseemly limbo by either exculpating Dr. Hatfill or arresting him."

The question that the appellate court focused on in determining whether the case was properly dismissed was whether Hatfill was a "public figure," which would give the newspaper additional protection under the First Amendment. If Hatfill was such a figure, he would be required to show "actual malice" on the part of the newspaper to recover for false claims. In this case, Hatfill was not an elected official or a person of particular celbrity or notoriety prior to the attacks, but the Court noted that Hatfill could still be considered a "limited purpose public figure" if he had taken steps to thrust himself to the forefront of the public controversy at issue in the defamation case. The Court found that the public controversy at issue went beyond the particular attacks in 2001, and related to bioterror attacks in general - a topic for which Hatfill had promoted himself as an expert through lectures and and in newspaper interviews before and the attacks, and in additional media appearances after the attacks but before the New York Times columns ran.

Once Hatfill was found to be a limited purpose public figure, the Court easily found that there was no "actual malice," which would have required the New York Times reporter to have actual knowledge that the claims were false. To the contrary, the Court found:

[T]he record contains substantial evidence to support The New York Times' contention that Kristof actually believed that Dr. Hatfill was the prime suspect. At the time that Kristof wrote his columns, he knew from several sources that Dr. Hatfill fit the profile that the FBI had developed and that he had been identified specifically by the FBI as a suspect who should be investigated carefully. In conducting research for his columns, Kristof had reviewed many previously published articles about Dr. Hatfill, which recounted that he had been questioned by the FBI more than once; that he had voluntarily vaccinated himself against anthrax shortly before the mailings; that he had access to labs where anthrax was stored; that he had knowledge about anthrax's use as a weapon; that he had strong views about the bioterrorism threat; that he had agreed that his "background naturally drew the FBI's attention"; that he had spoken frequently about possible bioterrorism; and that he lost his security clearance after he failed a polygraph test shortly before the mailings. In addition, Kristof reviewed numerous documents, including Dr. Hatfill's resume and various reports, papers, and letters written by him describing his knowledge of bioterrorism and biological weapons.

The protections that the First Amendment extends to defamation defendants are broad, and have been criticized for their breadth. There can be little doubt that Hatfill was injured by accusatory writings directed against him, and it is likely that the litigation was a great expense. Perhaps a countervailing concern that the courts should consider is the need for private citizens who happen to develop expertise in areas where controversy might arise to be restored to some level of public footing when a controversy does indeed arise. After all, every biodefense researcher is a potential suspect in a biological attack, and it would therefore be good policy to avoid discouraging people from entering this useful field by assuring them that incorrect suspicions against them would be recompensed to some degree.

Election year trademark politics

I am again straying away from defamation matters to note that within the past week and a half, the United States Patent and Trademark Office has rejected applications for trademark registration incorporating part or all of the names of two of our current leading presidential candidates. BARAK? OH BUMMER! (Application #77420522) was rejected on July 28, 2008, while MORE OF THE SAME JOHN MCCAIN (Application #77437466) was rejected on August 1, 2008. In both instances the rejection was "refused under Section 2(c) of the Trademark Act, for the record does not include the written consent" of the person named.

The McCain mark was also rejected on the basis of "likelihood of confusion with the mark in U.S. Registration No. 3333658" - which happens to be the familiar "McCain" logo under a star which Senator John McCain has been using throughout this campaign (and for which McCain's "consent is of record").

Of interesting note, the application for BARAK? OH BUMMER! was filed on March 12, 2008, the application for MORE OF THE SAME JOHN MCCAIN was filed a few weeks later, on April 2, 2008, and by a completely unrelated party. Both rejections were authored by USPTO examiner Karen Bush, who has authored a number of other rejections for marks containing McCain and/or Obama, leading me to suspect that Ms. Bush has been designated as the go-to person for handling these election year issues.

As I said, this is not a defamation matter. The purpose of the restriction on unconsenting use of a person's name is not to prevent the registration of marks which defame that person (although there is a separate restriction under Section 2(a) for "matter which may disparage or falsely suggest a connection with persons, living or dead"). Rather, it is to prevent sellers from taking advantage of the reputation of the referenced indivual. Although this policy is not spelled out in the statute, surely no one would mistake the above marks as efforts to fool the public into thinking that products bearing them were made by or endorsed by the named individuals.

An interesting sidenote on the nature of trademarks is that John McCain's ownership of the "McCain" mark not only prevents uses such as the above, but would also prevent a person whose name was in fact McCain from obtaining a trademark registration in their own name in support of their own candidacy for public office. "McCain" is not a terribly uncommon surname, and in fact there are several Canadian politicians who share that name. Indeed, John McCain could conceivable sue such a person to prevent them from selling campaign materials under their own name!

Did John McCain invade Paris Hilton's rights?

While not quite a "defamation" issue, John McCain's campaign recently made news by using - and according to some, abusing - the image of Paris Hilton, purportedly as a means of painting rival candidate Barack Obama as "the biggest celebrity in the world." However, Hilton has the legal right to control the use of her image, especially when it is being used to market a product. And, as it turns out, the McCain camp did not check with Hilton before using her image to market their product. This has not passed unnoticed by Hilton, who "blasted the McCain camp for using her image without asking for permission," and whose representatives reported that "Miss Hilton was not asked, nor did she give permission for the use of her likeness in the ad."

In short, the ad may constitute a violation of the privacy or right of publicity laws of quite a few states (a quirk of the area of law is that the term "privacy" is often used to denote "publicity" rights). This opens the door for Hilton to potentially recover a financial penalty from the McCain Campaign. However controversial the basis of her publicity may be, there can be no doubt that, with the price Paris Hilton is typically paid for the use of her image, it is well-recognized as a valuable commodity.

The likely counter-argument is that McCain's use of Hilton's image was protected "political speech," for which a higher degree of leeway is generally permitted than for pure commercial speech. However, even the political speech doctrine is not without limits. If McCain's campaign staff decided to make a commercial showing bouncing basketballs in order to decry Obama's athleticism, they could not walk out of a sporting goods store with armloads of basketballs and refuse to pay for them because they were to be used as part of a political message. Nor could campaign workers use film on a privately-owned basketball court without first obtaining the permission of the owner (and likely paying the going rate to rent the space) - even if they left the edifice exactly as they found it. So it is with the image of Paris Hilton, an article of commerce of determinable value which could have been ascertained prior to its use, and for which permission should have been asked.

Were I advising McCain's campaign, I would tell them to immediately pull that ad (or at the very least remove the imagery of Paris Hilton, and of Britney Spears if it too is unauthorized). Even campaign donors unrelated to the victim are unlikely to be pleased with the prospect of some portion of their donations landing in Hilton's pockets, by a settlement or a judgment.


All images used in this blog are from the Wikimedia Commons.

An orgy yes, but no Nazi theme.

This is a pretty straightforward case, but the facts are memorable, to say the least. In March of 2008, the British tabloid News of the World reported that Max Rufus Mosley, the London-born president of the Fédération Internationale de l'Automobile, had hired five prostitutes to act out a Nazi prison camp fantasy. Mosley does not dispute that he had hired the ladies to help him act out certain fantasies - the report indicates that "the court was played covertly recorded videos that showed Mosley being bound and whipped, then relaxing naked with a cup of tea." The part that Mosley denied, however was the "Nazi" aspect:

Mosley told the court he had an interest in sadomasochism going back 45 years, but said he found the idea of Nazi sex fantasies abhorrent. He said he and the women acted out a German prison scenario, with no Nazi overtones.

Really, there's not much more that can (or must) be said with respect to the facts. Judge for yourself:



So why the blog? Because Mosley sued the News of the World, for invasion of privacy, and in part for falsely claiming that there was a Nazi angle to his, ahem, hobby. And, with a speed that would spin heads in an American court, the UK tribunal completed a trial and came down with a decision awarding Mosley $120,000 in damages and legal costs of about $1.7 million.

In the U.S., aspects of this case may well have turned out differently, as Mosley's prominent position in a popular sport would have made him a public figure, held to a higher standard for a defamation cause of action. Put up against an "actual malice" standard, it would be hard to say that the tabloid had acted with reckless disregard for the truth in using "Nazi" to describe a German prison scenario in which one participant wore a Luftwaffe jacket. Seriously, how big a leap must one make to get there from an abusive "German prison" fantasy? Does that not, by itself, bring Nazism to mind? In Mosley's defense, utterly bizarre as it is, at least the role-playing prostitutes suggest that he is in prison for committing an actual crime, rather than for his ethnic origin.

A final note - although U.S. law on the subject varies widely from state to state, many jurisdictions pose harsh penalties for surreptitious audiotaping. In Florida at least, the defendants would have been subject to a fairly stiff penalty - although not stiffer than the penalty faced by Mosley for being such a naughty prisoner!

A win for Wikipedia

Literary agent Barbara Bauer has lost a defamation action against Wikipedia, the volunteer-created internet encyclopedia. Bauer "alleged that Wikimedia Foundation defamed her by publishing numerous false statements, including one that said she was 'The Dumbest of the 20 Worst" literary agents and that she had "no documented sales at all'" - pretty harsh statements, so why did the judge throw out the case? Did Wikipedia successfully raise truth as a defense, and offer proof sufficient to defeat the claim? No, Wikipedia slid out through a side door - the Communications Decency Act (CDA).


Passed by Congress in 1996, the CDA is best known as the vehicle that tried to stop internet porn by preventing the posting of materials that might reach persons under the age of eighteen. However, one provision of that act was addressed to the defense of companies hosting blogs, forums, bulletin boards, and the like. This is Section 230, which immunizes everyone who is a "provider or user of an interactive computer service" from liability for posting content from some other source. The corporate entity behind Wikipedia, it should be noted, plays virtually no editorial role in the content of the site, only rarely stepping in to delete content after people have raised complaints about it.

However, potential defamers, don't take this as a license to go out and post defamatory content on Wikipedia! Bauer's case is still alive with respect to nineteen other defendants, and I would not be at all surprised of some of those were specific Wikipedia editors - the ones who posted the complained of content. The CDA does nothing to immunize individual creators of content against such suits, and it very well should not provide such immunity. The Internet provides the broadest means of communication to have ever existed, and Wikipedia is almost universally one of the top ten cites to come up when a search engine seeks out any person, place, or thing that is the subject of an article therein. Although Wikipedia has a policy of prohibiting editors from making legal threats, this policy does not effectively prevent any lawsuits (in fact it says "If you must take legal action, we cannot prevent you from doing so") - but sometimes legal action is the very thing called for to maintain the civility of our society.

As to the merits of Bauer's claims, this blog will not comment - but may very well report what the court has to say, when all is said and done.


All images used in this blog are from the Wikimedia Commons.

Hulk Hogan can not be defamed

Wrestler and sometime actor Hulk Hogan has been in the news a lot lately, and it has not all been flattering, but a few years ago, a court found that Hogan could not recover for some similarly unflattering commentary - the reason being that "Hulk Hogan" does not really exist. In fact the person pictured below was born Terry Gene Bollea, the son of Peter and Ruth Bollea of Augusta, Georgia. When Terry Gene Bollea entered the world of professional wrestling, he adopted a new name - no, not Hulk Hogan, not yet. First, he was Terry Boulder. Then, Terry "The Hulk" Boulder (although occasionally billed as Sterling Golden). According to wrestling magnate Vince McMahon, at some point between 1979 and 1980 McMahon's father indulged an obsession with Irish names by re-dubbing Bollea with the surname "Hogan."


We now flash forward twenty-five years to the case of the day, Bollea v. World Championship Wrestling, Inc., 271 Ga. App. 555, 558 (Ga. Ct. App. 2005). Bollea sued for defamation over comments another wrestler made on air which went outside of the script for an otherwise scripted fued between Hogan and the other wrestler. The court found:

Wrestling is a form of entertainment and the characters involved are fictional. ... During his "promo" speech, Russo never mentioned Bollea, only the fictional character Hogan. Further, according to Russo's affidavit, he made this speech solely as his on-air character to advance the story line and thus to lead in to the final match of the event between Jarrett and Booker T. In light of the above, the trial court correctly concluded that the allegedly defamatory speech could not be understood as stating actual facts about Bollea.

(Emphasis added). Id. at 558.

This decision is made on the premise that defamation must be "of and concerning" the plaintiff, the same basis for the rejection of cases alleging defamation of large groups instead of identifiable individuals. However, this case is truly a stunner (I could be so crass as to pun, and call it a "stone cold stunner"). There is precious little precedent to support this finding. In Perry v. Columbia Broadcasting System, Inc., 499 F.2d 797 (7th Cir. 1974), Lincoln Theodore Perry, the actor who had made his fame under the stage and screen name of Stepin Fetchit, sued the producers of a documentary which had Bill Cosby suggest that the character had damaged views of Blacks. There, the Seventh Circuit stated:

Perry contends that Cosby's statement was false in that he was neither lazy nor stupid, [and] that the characters he portrayed in the movies never shot craps or stole chickens.... The record shows that, first, Cosby did not say that Perry was lazy or stupid but that the characters he portrayed represented such a "tradition." Second, the commentary did not state that Perry shot craps or stole chickens...

Id. at. 799. In Feche v. Viacom Int’l, Inc., 233 A.D.2d 125 (N.Y. App. Div. 1996), where an MTV personality known as 'Kennedy’ called the plaintiffs "whores," the court found that the statement "was not 'of and concerning’ plaintiffs, and is therefore nonactionable as libel," because "[a]n average viewer would not, taking into account the context in which the remark was uttered, perceive that 'Kennedy’ was making a factual statement about plaintiffs, but rather was indulging in hyperbole and protected opinion about the fictional characters that plaintiffs were portraying." Id. (emphasis added).

However, in none of these cases can it possibly be contended that the "character" is as closely identified with the actual person as Hulk Hogan can claim to be. Indeed, in the very year that this case was decided, VH1 premiered its reality show, "Hogan Knows Best," identifying not only the wrestling star, but his entire family by the surname "Hogan." Although the children are really named Nicholas Allan Bollea and Brooke Ellen Bollea, the world knows them all as members of the Hogan family. Surely, therefore, the type of injury that is intended to be addressed by the law of defamation, particularly damage to standing in the community, is even greater when a defamer slanders "Hulk Hogan" than when the same commentary is announced towards the obscure persona of "Terry Gene Bollea"!


All images used in this blog are from the Wikimedia Commons.

The Basis of an Opinion

Here's an interesting recent decision, Lassiter v. Lassiter (the 6th Circuit has chosen not to publish the case, so no citation will be forthcoming here). The core of the dispute lies in a book written and self-published by Sharlene Lassiter, a professor of law at Salmon P. Chase College of Law at Northern Kentucky University. Ms. Lassiter recounts the alleged tribulations of her marriage to Christo Lassiter. also a professor of law (but at the University of Cincinnati College of Law).

The allegations that led to a defamation action were of "ongoing mental cruelty and abuse by her husband throughout the marriage," that her husband "physically assaulted her on two occasions," and that he "committed adultery during the marriage." The court lays out a number of quotes from the book which set forth these allegations, for example Ms. Lassiter's comments that "My husband exploded with rage. He grabbed me and dragged me down two and a half flights of steps, leaving me in a heap on the floor," and that "For the next two days, I repeatedly asked God whether my husband was committing adultery, as I admitted that I might not have heard the Lord clearly. Each time the answer was the same. Yes, Sharlene, he is."

The trial court found that Ms. Lassiter was not a "media defendant" despite the self-publication of her book, described as a "single publication of very limited circulation" and that Mr. Lassiter was not a "public figure." No First Amendment protections were implicated, but the court nevertheless found a lack of defamation, and the appellate court agreed. Why?

With regard to the alleged physical abuse (of which two specific instances were reported), the court simply found Ms. Lassiter to be credible. That is, they felt that it was as likely as not that she was telling the truth. As for the adultery, this would be defamation per se if it was defamatory at all. Ms. Lassiter had no direct evidence for it, so she was basically expressing her opinion that it had happened. An unanchored expression of opinion - that someone is "cheap" or "a jerk" does not render the utterer susceptible to a defamation charge. However, an expression of opinion that a person has done a specific act - that someone is unfaithful to his spouse, for example - may reap such liability.

The court quotes the restatement of torts: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion." In short, if I say that my opinion about someone is that they are an unfaithful spouse, the listener may presume that I know something about that person that leads me to think this. In this case, however, the trial court found "that defendant arrived at the conclusion that the plaintiff had committed adultery on the basis of rumor and circumstantial evidence which was persuasive to her. The facts on which she based the conclusion were disclosed in the book." Emphasis in the original. In other words, there is no presumption about what Ms. Lassiter might know - she set out exactly what she did know. It might or might not have been enough to persuade the next person, but there is no implication that she possesses hidden knowledge that would prove the claim.

This is certainly a sound principle, since people ought to be able to express opinions if they have a reason to believe the truth of them, but such reasons should be available for the public to scrutinize, lest more substantial evidence be imagined than is known to the speaker. It is interesting, however, that one item of evidence which weighed on Ms. Lassiter's certainty was the result of her prayers to God - and God's purported answers. Since the origin of thought, people have claimed to have received communications from higher powers, and it often seems that these communications have an uncanny knack for confirming what the receiver believes (or would like to believe) is the truth. It would be an odd legal world if any person could make a potentially defamatory statement of opinion against another, and be relieved of liability by asserting that the whole basis of this opinion was that "God said so."

Iran picks up China's tactic - sort of

The government of Iran is now threatening to sue Western nations for libel, because of the bad press it is receiving. See Iran threatens to sue Western nations. This is somewhat different than my recent posts on Chinese people suing for defamation of "the Chinese people," but would fail (in the U.S., at least) for the same reasons.

More to come.

Group defamation (of 1/5 of the world)

As I make the final preparations for an immanent trip to the People's Republic of China, I found by appropriate coincidence that a case has been filed which fits the theme of both my blog and my trip. One of the reasons for my travels is to get a sense of the state of intellectual property law being practiced in China (which, for my view, includes the state of defamation law). And here we have a suit being filed on behalf of China, CNN now sued for $1.3 billion - $1 per person in China.

The suit, in which the plaintiffs are a Chinese primary school teacher and a beautician, has been filed in New York (the story says the plaintiffs “filed a suit against CNN in New York” which I take to mean that the suit was filed in New York, and not simply against CNN’s New York bureau). The defamation alleged is that CNN commentator Jack Cafferty said that goods imported into the U.S. from China has included "junk with the lead paint on them and the poisoned pet food" and that the Chinese are "basically the same bunch of goons and thugs they've been for the last 50 years."

The New York plaintiffs are not alone in their outrage. The article relates that another suit has been filed in Beijing by lawyers incensed about the same remarks. The New York suit, I predict, will face a swift dismissal, because United States law rejects the concept of “group defamation.” An essential element of a defamation claim is that the defamatory comments must be "of or concerning" the plaintiff. The larger the group alleged to be defamed, the thinking goes, the less likely any particular individual will ascribe the defamatory commentary to the specific individual bringing the suit. Since the plaintiffs in this case sue on behalf of 1.3 billion people, this may well be the largest group on whose behalf such a suit has ever been brought (unless someone has, in recent history, brought a suit alleging defamation of all men or all women).

The defamatory comments alleged here, however, would seem to go more specifically against exporters of goods made in China, and the Chinese government, respectively. Thus, it would be very difficult to impute the defamation to be referring to a school teacher and a beautician who bear no responsibility in the governance of China and play no apparent role in the importation of goods therefrom.

The suit brought in China may have a different outcome, not merely because of possible home-court bias, but because the law differs from country to country. Throughout most of the world, defamation of a group is prohibited and may be remedied. It is therefore more likely than not that a remedy is available under Chinese law if Cafferty’s comments are found to be defamatory.

There has been scholarly discussion of whether group defamation should be a permissible cause of action in the United States, and commentators have suggested that the continued repetition of false accusations against a particular group, taken as a whole, can have the effect of causing non-members of the group to change their behavior towards even the most innocent member of the group (see, e.g. Racial and Ethnic Group Defamation: A Speech-Friendly Proposal by Professor Michael J. Polelle of the John Marshall Law School. This is certainly food for thought in light of historical situations in which groups such as Jews, and Muslims, Hispanics and Native Americans, and numerous other ethnic and religious denominations have been the subject of campaigns sponsored by governments and other powerful interests aimed at denigrating all members of the group.

All images used in this blog are from the Wikimedia Commons.

Defamation before the birth of the nation.

I have been posting on very recent cases, but I felt the urge to look to history a bit, to see how far back defamation cases reach in the annals of American causes of action. Unsurprisingly, they go back all the way. Here we have Respublica v. De Longchamps, 1 U.S. 111 (Pa. Ct. of Oyer & Terminer 1784), a case decided by the Supreme Court of Pennsylvania (then styled the Pennsylvania Court of Oyer and Terminer) in 1784 - three years prior to the ratification of the United States Constitution.

The case is one of assault and battery, as well as defamation. "Charles Julian De Longchamps, commonly called the Chevalier De Longchamps," had a dispute with "his Excellency the French Minister Plenipotentiary... François Barbé-Marbois." Marbois refused to provide papers acknowledging De Longchamps' service in the French military, and De Longchamps became irate. The court below found:

• that De Longchamps and Monsieur Marbois, having met in Market Street, near the Coffee House, entered into a long conversation, in the course of which, the latter said that he would complain to the civil authority, and the former replied, "you are a Blackguard."

1 U.S. at 111. The assault and battery, by the way, was occasioned by De Longchamps striking Marbois' cane with his own - in a manner that caused no injury to Marbois, but was one "in which the insult is more to be considered, than the actual damage." 1 U.S. at 114.

A jury convicted De Longchamps of the common-law crimes alleged, from which the appeal was taken. The Pennsylvania Supreme Court delivered a seriatim opinion in which the key issues of the allegedly defamatory content were addressed by the Chief Justice, Thomas McKean. A colorful character in American history in his own right, having earlier been a delegate from the state of Delaware to the First Continental Congress, which adopted the Declaration of Independence. For some odd reason he was permitted to simultaneously hold various offices in the state government of Delaware, while serving for over twenty years as Chief Justice of the Supreme Court of Pennsylvania. McKean's opinion asserts that "[t]his is a case of the first impression in the United States," and recites that:

• In actions of Slander, words were formerly construed in the mildest sense they would admit; but reason has superceded such forced interpretations, and words are now to be taken according to their ordinary import and meaning. Those expressed by the defendant, are evidently of a tendency so opprobrious and violent, that they cannot fail to aggravate the outrage which has been committed.

1 U.S. at 114. McKean concludes, in a directive voiced at De Longchamps:

• You then have been guilty of an atrocious violation of the law of nations; you have grossly insulted gentlemen, the peculiar objects of this law (gentlemen of amiable characters, and highly esteemed by the government of this State) in a most wanton and unprovoked manner: And it is now the interest as well as duty of the government, to animadvert upon your conduct with a becoming severity, -- such a severity as may tend to reform yourself, to deter others from the commission of the like crime, preserve the honor of the State, and maintain peace with our great and good Ally, and the whole world.

1 U.S. 111 at 117. Note, now, that this is a criminal case, one in which France actually sought to extradite De Longchamps to face punishment there (a remedy which the U.S. trial and appellate courts denied), and also sought to have De Longchamps imprisoned for such a period as to make amends for his wrongdoind (granted by the trial court and upheld on appeal). I blogged earlier about how some countries still have criminal libel; imprisonment of this type is a thing of the past.

A few other points worth noting. First, these were common law crimes, which are a rarity in this modern age of statutory criminal codes. Second, note that De Longchamps' insult was merely to call Marbois "a blackguard," which the court felt was exacerbated by Marbois status as a gentlemen. It generally remains a defense in the U.S. to say that the victim of a slander has so poor a reputation that the slander will do that person no harm; conversely, a person who can show their impeccable reputation prior to the slander will have an easier time showing that their reputation is susceptible to soiling in this manner.

However, the particular statement in this case would fail modern tests for slander on three distinct fronts. First, it is more readily understood as a statement of opinion than of fact (defamation must falsely assert a fact. Second, calling someone a "blackguard" really isn't much of an insult. It is akin to calling someone a lowlife or claiming that they are of bad character - far below the standards of the comment typically deemed defamatory today. Finally, Marbois was a widely know diplomat who would, in modern times, be deemed a public figure, against whom the higher standard of "actual malice" would apply in adjudging liability for defamatory comments. Of course, this standard is imported by the First Amendment, but the Constitution itself would not exist for three years after this decisions!

Under the standards of an 1784 court, then, De Longchamps was reasonably found guilty. But in a modern courtroom, Marbois would be laughed out of the chamber for raising this as a defamation.

A succint opinion.

Another case that has caught my eye, Randle v. Viacom, 2008 U.S. Dist. LEXIS 32092 (S.D. Tex 2008). Interesting facts, no-nonsense conclusion. For a taste of this judge's style, look no further than the opening salvo:

• Two music promoters visited a friend in prison and posed for a photograph with him. Years later, a television program used the picture in a documentary about the friend. The promoters sued the television channel, its parent company, and an Internet vendor for defamation and misappropriation of their image. They lose.

Why read any further? You know how it ends - still, the facts are entertainingly novel. The documentary series was called "American Gangster," and the gang member being visited was Larry Hoover, of Chicago. The visit at issue occurred more than twenty years before the picture taken during that visit was used. The most serious alleged defamatory statement occurred in a commercial for the series, in which the faces of the music promoters "showed on screen for one second as the words 'they were killers, they were criminals' were spoken."

The judge concludes that the plaintiffs suffered no compensable harm to their reputations, noting that viewers "would not know who [the promoters] were after seeing their 20-year old picture; they would not know what crime they had helped Hoover commit." I think the judge is a bit too quaint in observing:

• Reasonable viewers may conclude that the promoters are disreputable people from the picture and the explanation of Hoover's history. A viewer might infer that normal people do not visit guys in prison -- and have a snap shot taken with him. To that extent, the promoters may have lost standing in their community, but they cannot complain of a broadcast of accurate pictures of their social choices.

There are over two million Americans in prison now, and they may have parents, spouses (Hoover's visitors were accompanied by his spouse, who took the picture at issue), siblings, children, extended family members, and yes, even friends who visit them in prison. On the other hand, this statistic should hurt the plaintiffs rather then helping them, as it reduces any negative inference to be drawn from a picture of people visiting a prisoner. Indeed, another point raised in the opinion is the utterly flimsy nature of the alleged harm, supported only by "an affidavit of vague hearsay statements about why a potential partner dropped out of a deal."

At the end of the day, I think this is the correct outcome, although I also think that a reasonable viewer would understand the reference to "killers" to refer to the subjects of the series generally, and not the pair flashing in the pan in a one-second photo spot. If this was indeed the tenor of the narration, I would like to have seen a bit more analysis of this point, but the judge had the evidence in front of her, so I won't continue to second guess more than I already have.

When celebrities defame.

Just a quick news item to throw out here. Dateline: London. Nicholas Cage has settled a defamation suit which he brought against Peggy Sue Got Married co-star Kathleen Turner, arising from some comments that Turner set down on paper in her pic-bio Send Yourself Roses. The suit was against Turner as well as her publishers. The gravamen of the complained-of comments were that Cage had been "arrested twice for drunk-driving and, I think, for stealing a dog. He'd come across a Chihuahua he liked and stuck it in his jacket."

A few thoughts on this. First, why was this suit brought in London? Possibly because the defamation laws of that country are more favorable to plaintiffs (with no pesky First Amendment to impose heightened scrutiny of public comment on public figures). Also, note that the allegations were of crimes - drunk driving and theft (even if the theft alleged would likely have been a petty one).

Publishing a falsely accusation that someone has committed a crime is libel per se, meaning that damages are presumed based on the very fact of the publication. And a criminal record is a fairly easy thing to prove or disprove. So, presuming that no such criminal record was forthcoming, having these three strikes against them (hostile local law, lack of need to prove damages, ease of proving falsity), it is easy to see why this case settled.

And on one final note of interest, under the settlement Cage gets his attorneys' fees (I would not be surprised in the least if those are substantial in a case like this, with high profile players on both sides), and the defendants will make a donation to charity.

Deception, caught on film... defamation?

In the very recently decided case of Damon v. Moore, 2008 U.S. App. LEXIS 5905 (1st Cir. 2008), the First Circuit upheld the dismissal of a defamation claim by a double amputee from the Iraq War who was quoted in Michael Moore's documentary, Fahrenheit 9/11.

The Court framed the alleged defamation as follows:

• Moore: While Bush was busy taking care of his base and professing his love for our troops, he proposed cutting combat soldiers' pay by 33% and assistance to their families by 60%. He opposed giving veterans a billion dollars more in health care benefits, and he supported closing veterans hospitals. He tried to double the prescription drug costs for veterans and opposed full benefits for part-time reservists. And when Staff Sargent Brett Petriken from Flint was killed in Iraq on May 26th, the Army sent his last paycheck to his family, but they docked him for the last five days of the month that he didn't work because he was dead.
• Rep. McDermott: They say they're not gonna leave any veteran behind, but they're leaving all kinds of veterans behind.
• * * *
• (Video of Walter Reed Hospital)
• Veteran: To say that we're forgotten - I know we're (in wheelchair) not forgotten. But missed? Yes. Yes, you know there's a lot of soldiers that have been missed, you know, they've been skipped over. Um, that didn't get the proper coverage that they deserve.
• Veteran: They have the death toll but they're not showing the amount of people that have been injured and been amputated because of the injuries, you know.
• Subtitle: (Nearly 5,000 soldiers wounded in the first 13 months of the war.)
• Damon: Like I still feel like I have hands.
• Voice: Yeah.
• Damon: And the pain is like my hands are being crushed in a vice. But they do a lot to help it. And they take a lot of the edge off of it. And it makes - makes it a lot more tolerable.

Damon contended that he was not told that the interview in which he made that comment would go into Moore's film, a film which Damon (quite correctly) characterized as:

• an attack upon the integrity of the Commander-in-Chief and the war effort, and it denounced the United States' military action in Iraq by, among other things, "attacking the credibility of the Commander in Chief of the United States Armed Forces about the justification for the war, its cost and consequences . . . ."

Damon alleged that he was defamed by his "unwitting appearance" in Moore's film because it "falsely portrays him - and has been interpreted by members of the military and veteran communities - as sharing, adopting and endorsing Moore's attack on the President and the war effort." The Court undertook two examinations of Damon's appearance, one from the point of view of the "reasonable person," the other from the point of view of the "Reasonable Military Viewer," the subset of the community from which Damon would receive the most harsh attention from a perceived agreement with the film.

With respect to the first analysis, the Court concluded that the movie in which the interview was wrapped "does not propel his otherwise benign interview into one reasonably susceptible of defamatory meaning." With respect to the second analysis, the Court logically notes that it would be unfair to let a defamer off the hook if the defamation would only be understood by a specialized community, quoting a case exhorting courts to take a closer look at members of professions which "have a standard of judgment of their colleagues which is peculiar to their profession which differs sharply from the appraisal of the uninitiated." Nevertheless, the Court concluded that no defamation followed from even that narrow font of examination:

• Taking the documentary as a whole, no reasonable member of the military or veteran community could possibly view Damon's appearance in the documentary as being disloyal to the United States. As explained above, Damon makes no statements in opposition to the war effort, nor was his interview manipulated in such a way to imply that he was "attacking the war aims of the United States." In fact, as pointed out by the district court, the documentary's portrayal of Damon shows an individual who is discussing with great dignity and obvious pain what his participation in the conflict in Iraq has meant and not in any way suggesting that he thinks that his service was demeaned, but rather expressing his opinion that the medical treatment that he received has been something that helps to make his pain more livable and that Damon's appearance "transcends the alternative views that others present there with . . . considerable dignity and no suggestion of disloyalty."

This case is not all that unusual. There has been a trend of late for documentary filmmakers to portray unknowing interviewees in a light starkly different from what the interviewee expected. Other examples occur in Fahrenheit 9/11, for example with Raymond Plouhar, a recruiter who was later killed in Iraq, who was led to believe he was being interviewed for a politically neutral documentary on military recruitment.

Richard Dawkins, a well known proponent of atheism, wrote of his similar experience in being interviewed for a film favoring Intelligent Design. The film was titled Expelled, but Dawkins (and several colleagues) were told that they were being interviewed for a documentary called Crossroads. Asked to give an example of a scientifically plausible version of intelligent design, Dawkins hypothesized about the unlikely possibility of aliens seeding life on Earth. And in the film, this was mischaracterized as Dawkins actual belief - a far more likely candidate for a cause of action, although more clearly a false light claim than outright defamation.

However, so long as these tactics abound, it is only a matter of time before a filmmaker pushes the envelope beyond the legal limit. And then we'll have some really interesting case law to talk about.

Images posted on this blog originate from Wikimedia Commons.

Italian Scallion

Another blast hot off the presses:

An Italian court (by which I mean a court in Italy, not one in the U.S. with an Italian judge) has sentenced a man to two-plus years in jail for posting nude pictures of an ex-girlfriend on the Internet (see Italian man jailed for emailing nude photos of ex-lover). So what brings this story to a blog on defamation? At first glance, this would seem to be a simple case of the related (but distinct) matter of invasion of privacy. However, one of the charges in the case was "aggravated defamation." Yes, that is indeed a criminal charge in Italy, one that carries the weight of the state's power to incarcerate. In fact, contrary to the free speech-leaning laws of the United States, many countries around the world prosecute defamation as a crime (and here's the bizarro kicker: particularly against public officials).

In the Italian case, the crime went beyond the mere posting of pictures. Far beyond that, the defendant "created a Web site that appeared to show his ex-girlfriend offering sexual favors and erotic games, with her phone number also on display." Okay, the phone number is not defamatory (if it's her real number), but the web site's false implication that the girlfriend was a willing participant in this, and was essentially a prostitute, clearly falls into the ballpark of defamation.

If this case had occurred in the United States (and there have been several such incidents here), jail time may not have been as likely, but a fat civil judgment would almost certainly have followed (and deservedly so). Of course, circumstances matter. For example, in 2005, a Canadian teen faced child porn charges for posting nude pictures of his ex-girlfriend (she was reportedly fifteen when the photos were taken). In 2006, A Wausau man was charged with identity theft for actions remarkably similar to the Italian case - in this case, posting photos to a faux MySpace account. The article says nude photos, but since those would almost instantly get deleted from MySpace, I'm guessing they were merely racy enough to raise hackles. And in 2007, a Macomb
man (and a local Mitt Romney campaign chair) was charged with "unlawful posting of a message on the Internet and using a computer to commit a crime" for again carrying out that sort of activity.

Kind of makes you wonder, why are women ever willing to pose nude for pictures for guys who turn out to be the kind who will post those on the internet with a false come-hither websites?

Scarlet Haze

Dear friends have advised me to shorten my posts and cut to the point. So, here's Kappa Sigma Fraternity v. Richard G. Miller Memorial Foundation, 2008 U.S. Dist. LEXIS 12379 (W.D. Va. Feb. 20, 2008). This is an interesting case out of my current state of abode, Virginia (although this case is from the U.S. District Court for the Western District of Virginia, and I'm residing within the Eastern District). This case brings to the fore issues of vicarious liability and internet defamation, within the framework of that great American institution, the fraternity.

The short background is that the Foundation was created by the fraternity in 1966, but with independent governance, the newly created body took a different path and eventually wound up in litigation with its former creator (much like Frankenstein's monster would have, if he had decent counsel--boy, if ever there were a wrongful birth case--but I digress). The Foundation is the defendant here, but the defamation claim is a counterclaim which the Foundation brought against the Fraternity.

The juicy part of the defamation claim is twofold.

First, the Fraternity passed a resolution noting that the governing body may "designate certain organizations as "Prohibited Memberships" for organizations for which membership in or support of is inconsistent with the principles and values of Kappa Sigma Fraternity," and further stating that "membership in or providing support to Kappa Sigma Memorial Foundation represents conduct unbecoming a Kappa Sigma."

Harsh. But defamatory? Possibly so, according to the court, which denied a motion to dismiss on the grounds that the resolution "could be interpreted by a reasonable person as at least implicitly disparaging, criticizing, or impugning the Foundation." My prediction is that once some evidence has been developed, this will not survive a motion for summary judgment - it's simply too vague and too much of an opinion to long survive as a charge that the Fraternity has made a false statement of fact.

Now to the second. The Fraternity maintains a listserve (which for some reason is named the Bologna1400), with access and use restricted to members of the Fraternity. On that listserve, some disgruntled young men made some nasty comments about the Foundation. Specifically... shucks, we don't know, the Court doesn't go so far as to report the nastiness (and I'm not going to spend 8 cents a page on PACER to download the complaint).

The Fraternity argues that:

• [S]tatements made on the Bologna1400 listserve by "rank and file" members cannot give rise to a cause of action against the Fraternity because the Fraternity cannot be held vicariously liable for such statements. The Fraternity concedes, however, that vicarious liability would attach if the Foundation could "establish that the Fraternity authorized or ratified the alleged statements by 'rank and file' members.

Vicarious liability is not, strictly speaking, a doctrine of defamation specifically, but of tort liability in general. The Foundation characterizes those 'rank and file' members as agents of the Fraternity, noting that the Fraternity, through its aforementioned resolution, had encouraged such conduct, and that Fraternity officers also post on the listserve, including the posting of disparaging comments. The Court finds this to be enough:

• Whether the Foundation will ultimately be able satisfy its burden of proving its allegations remains open to question, if not skepticism. Nevertheless, I find that the allegations of the Counterclaim, assuming that they are true and viewing them in the light most favorable to the Foundation, could show that the "rank and file" members who allegedly disparaged and defamed the Foundation did so as agents of the Fraternity and with actual authority, apparent authority, or subsequent ratification.

Again, I share the Court's skepticism (although it would help to exactly what alleged defamation was uttered). My prediction, again, is that the Foundation loses. In order to succeed on this claim against the Fraternity, the Foundation must show that the offending members were the equivalent of employees acting within the scope of their employment. That is, perhaps, a step too far for a Court to assess liability for a fraternity, considering that the same argument could be made against any number of tortious acts carried out by members of fraternities.* Of course, the Foundation is not without recourse, as it could sue the individual members who made the defamatory posts, but it is doubtful that those individuals have either depth of pocket to be worth pursuing. In any event it hardly seems likely that the Foundation, whatever its goals, would be interested in pursuing 'small fry' of the type that can be described as 'rank and file.'

*The author concedes that he was, in fact, an active member of Tau Epsilon Phi, back in college days which he can now barely remember. The author disclaims having committed any tortious acts during such period of active membership. If there were any, they were few and minor.

A hometown case.

Thanks to my former colleague, David M. Rogero, Esq., of Coral Gables Florida for bringing the following item from my hometown paper to my attention:

From the Miami Herald, Miami blog postings spark $25 million lawsuit

By PATRICK DANNER

• Developer Tibor Hollo has filed a $25 million defamation lawsuit against a Miami real estate agent who blogged that the octogenarian went bankrupt in the 1980s and is headed for a fall with the upheaval in the condo market. Hollo last week sued agent Lucas Lechuga and the Coral Gables brokerage Esslinger-Wooten-Maxwell alleging they have engaged in a smear campaign against him and his Opera Tower condo development on Lechuga's Miami Condo Investments blog.
  

The asserted defamation? A November 25 blog post wherein the defendant stated:

• "This developer went bankrupt in the 1980s and I think we'll see a repeat performance within the next 6 months. What do I know, though? I'm no real estate oracle."

The developer (and now plaintiff) counters that he never went bankrupt. Note that the original post does not say that the plaintiff had filed for bankruptcy, which is a legal nicety. One can go bankrupt (in the sense of having more debt than capital) and recover just fine. Since truth is a defense to defamation, this matter may await the discovery process to determine if there was any point in the 1980's where the statement holds true.

Fellow blogger Marc Randazza was quick to identify this as a SLAPP suit (the clever acronym for a "strategic lawsuit against public participation") - an effort to use litigation to intimidate or silence a critic from speaking badly about the litigant, even where the matter is protected speech about a matter of public importance. There is a question of infinite recursion there - could Hollo sue Randazza for deeming this a SLAAP suit? Almost certainly not, since the lawsuit itself is clearly a matter of public importance.

In this case (as in most cases), if the intent of the litigant was to squelch bad speech, it has badly backfired, and the assertion - true or not - has been spread much farther and wider than the defendant blogger had intended (or likely could have imagined).

This also raises the somewhat interesting issue of defamation over the Internet - I say "somewhat" because it really is not much different from defamation through any other media, except as to how quickly it spreads. There are also some immunity issues that arise with respect to internet service providers under provisions of the Digital Millennium Copyright Act ("DMCA"), but those issues are not present in this case, as the defendant is the blogger himself, and not whichever service hosts the blog.

My utterly confident prediction in this case is that the plaintiff will not win the $25 million in damages that he seeks. You can take that to the bank.

Recent cases on privilege, pt. 2

Here is the second of two recent cases that caught my attention considering the privilege defense in the law of defamation, Harris v. Bornhorst, 2008 U.S. App. LEXIS 724 (6th Cir. 2008). The facts underlying this case are both tragic and fascinating, among the most interesting I have seen:

On the afternoon of June 27, 1998, Lori Duniver discovered that her five-year-old daughter, Devan, was missing from her home in New Philadelphia, Ohio. The following day, Devan's body was found in a wooded area near her home. She had been stabbed seven times in the neck.

Captain Jeffrey Urban of the New Philadelphia Police Department... identified several "persons of interest" who might have killed Devan, including Devan's mother, Lori, who had recently called a suicide hotline to report that she was depressed and considering harming herself and her children; Lori's boyfriend, Jaimie Redmond, a drug addict and felon of whom Devan was afraid, who had previously kidnapped Devan for three days and beaten her with a belt, who may have been in the neighborhood of Devan's house at the time of her disappearance, who was later found in possession of an unexplained pack of children's playing cards, and whose alibi witness was later discovered to have given a false name and Social Security number to the police; Devan's father, Richard, a violent alcoholic who had recently complained about having to pay child support for Devan and who refused to help Lori search for Devan after Devan's disappearance, claiming to be too drunk to drive; Devan's brother, Dylan, who was described by several individuals as violent and who had recently stabbed a cat; and Harris, a twelve-year-old, African-American neighbor of the (Caucasian) Dunivan family.

Harris is the plaintiff in this lawsuit. Despite an apparent rogues gallery of other likely suspects, it was Harris who was brought to the police station and coerced into confessing to the murder. This confession came under the threat of severe punishment if he was found guilty without having made a confession, and was quickly recanted. More importantly, the confession was full of holes. Harris didn't know how many times Devan had been stabbed; he guessed two. He said there had been no blood, but a forensic expert testified that this was impossible, given the number and nature of the wounds. Like an episode of CSI played in reverse, the forensic evidence indicated the lack of any connection between the boy and the body, but prosecutor Linda Spies pressed ahead with the prosecution, and the court found Harris guilty on the strength of his confession alone - a result which was thrown out only after two years of juvenile confinement.

The first defamation issue arose on June 8, 2000, the day Harris was released from prison:

Spies held a press conference that day, at which she stated, "[F]rankly, in my heart and in my gut, I feel that Anthony Harris is responsible for the murder of Devan Duniver." No further charges were ever filed against Harris, and no one has since been arrested for or convicted of Devan's murder.

Following his release, Harris filed a civil suit against various parties-including Spies-in August 2003; in 2004, he applied to enlist in the Marine Corps,and disclosed that he had been convicted of murder, even thought that conviction had been overturned. When the Marines sent someone to ask Spies for documents concerning the matter, the second defamation issue arose:

When Brahen [that's our Marine] arrived in Spies's office and requested the documents, Spies reacted by saying, in a hostile tone of voice, "[A]re you fucking kidding me?" She asked Brahen to accompany her to a conference room, where she "proceeded to tell [him] a little bit about the case and what happened." She asked Brahen whether "the Marine Corps would actually take Anthony Harris into the Marines." Brahen became uncomfortable and asked Spies to speak with Baker on the telephone. Spies agreed and proceeded to inform Baker that Harris would always be a suspect in the murder of Devan Duniver because there were no other suspects.

This comment disrupted Harris' efforts to enlist (later news reports indicate that Harris was eventually able to join the Marines, and is now serving in Iraq), and was frankly an unadvisable step for Spies, already the target of a defamation suit by Harris.

Back to the civil suit, Spies sought both absolute and qualified immunity for her alleged role in the decision to arrest Harris (and her subsequent comments on the arrest, and to the Marines) and the district court held that she could get qualified immunity. The difference between qualified and absolute immunity in this case comes with the scope of the job - the prosecutor gets absolute immunity from the things she says while trying the case, even if she is flat-out maliciously lying; but she only gets qualified immunity for acts of an administrative or investigative manner. Spies wasn't trying the case when she held the press conference (she had already lost), and she certainly wasn't trying the case when she told the Marines that Harris would always be a suspect, and claimed there were no others. In fact, Spies position as a prosecutor worked against her in this case:

Under the circumstances in which it was made, Spies's statement at the press conference was a mixed statement of opinion sufficient to give rise to a defamation claim. Spies made the statement during the workday, in a public venue, during an appearance at which she was accompanied by her second-in-command in the county prosecutor's office. All of these elements combined to imply that her statement was based upon facts not known to the general public.

So, being the prosecutor in this case not only failed to protect Spies from liability, but created an appearance of special knowledge which bolstered the potential of the statement to defamate. A similar issue arises with the statement to the Marines:

The district court also erred in concluding that Spies's statements to the recruiters were true and thus could not constitute defamation. Spies's statement that Harris would always be a suspect because there are no other suspects is directly contradicted by Urban's deposition testimony.

Many of the news reports of the case seem to have glossed over what I thought was the single most damning thing the prosecutor was alleged to have said: that there were no other suspects. The facts reported by the court indicate that this was blatantly false, and surely cast Harris in a light much harsher than the facts allowed. The press conference statement may have been a bit of understandable puffery; but the latter half of the statement to the Marines does appear to have been an outright falsehood. If the court's recitation of the facts is correct, then the prosecutor in this case bit off quite a bit more than she could chew, and would have been wise to recuse herself from further dealings resulting from this case the minute the initial conviction was overturned - but especially in light of pending litigation.

But what separates this case from Western American Transportation, which I wrote about in my last blog, and in which the plaintiff's lawyer did receive qualified immunity? Probable cause. In Harris, the appellate court found the district court in error, because there was no probable cause for Spies to order the arrest of Harris in the first place. There was never enough suspicion for Harris to be questioned, and the confession was meaningless in light of the circumstances. A thoughtful prosecutor simply should have known better.

This case may turn out to have more than local importance. The ruling has been used as fodder in a local judicial campaign, and in a well-deserved self-congratulatory note to the lawyers from Baker Hostetler representing Harris. It certainly bespeaks caution with respect to the conduct of prosecutors outside the courtroom, and particularly in press conferences following acquittals.