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• In actions of Slander, words were formerly construed in the mildest sense they would admit; but reason has superceded such forced interpretations, and words are now to be taken according to their ordinary import and meaning.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.