Quick update.

I suspended blogging while preparing for my clerkship with the United States Court of Appeals for the Federal Circuit. I have now completed my clerkship, and may revisit this blog at some point in the future. In the meantime, I hope my old posts still provide some amusement to readers everywhere!

Strangest defamation case of the year

This has got to be the weirdest defamation case of the year, if not the decade - Copeland-Jackson v. Cutlip (story here). Plaintiff David Copeland-Jackson alleged that the defendant, Joseph Cutlip, had defamed him by falsely accusing the Copeland-Jackson of molesting him years before. The case, brought before U.S. District Judge Ellen Segal Huvelle, appeared to proceed as many do, with service of process supposedly being acknowledged by the defendant, and uncontested proceedings before the court resulting in the rendition of a three-million dollar verdict in favor of the plaintiff. Except, much to the surprise of the court, the entire thing was a sham. The plaintiff forged the defendant's receipt of service of process, and forged and falsified other documents used to win the case. The defendant, so the article reports, did not even become aware of the litigation pending against him until he received notice of the judgment itself.

Some might be quick to point a finger of blame at the judge - Huvelle herself stated her regret that she was "not astute enough" to prevent this fraud. But a realistic understanding of the nature of our courts makes it clear enough that the judge is the last person who should be blamed for such a fraud falling on the court. Ours is an adversarial system, and judges not only expect to be appraised of the opposing viewpoints to be raised in a case by the contesting parties, but are duty-bound to avoid conducting any external investigation of their own. With dozens, perhaps hundreds of complicated cases pending before each federal judge at any given moment, it is folly to expect that a judge would conduct such an investigation even if the resources were at hand. Happily, however, the system works. No money could ever have been collected from the defendant without the ruse being uncovered (as it was), and judgments obtained by fraud are easily vacated (as this was). The conspirators who arranged this deception have been caught and will be jailed, as they should be, for their criminal misrepresentations.

Neatly tying up the frayed ends of this matter, the named defendant, Cutlip, now has his own clear-cut cause of action for defamation against Copeland-Jackson. The latter produced forged documents purporting to be from Cutlip asserting that Cutlip "willfully lied" in making his previous molestation allegations. These were false statements of fact about Cutlip (never mind that they were purported to be by Cutlip, since they are now known to have originated with Copeland-Jackson), which would tend to damage Cutlip in the eyes of his peers, communicated to other parties (here, to the court). Although statements made in court proceedings normally obtain a cloak of immunity from defamation actions, this protection does not inhere where the proceeding is fraudulent. Copeland-Jackson may have contrived to win a temporary victory on paper, but justice prevails in the end, as both Cutlip and the Court have the opportunity to see Copeland-Jackson pay an appropriate price for his actions towards each of them.

Woody Allen's valuable image

Another non-defamation case (at least, not directly), but still worth reporting: Woody Allen scored a settlement today against American Apparel, which had used Woody's image (in a frame out of the Oscar-winning film Annie Hall, no less) without permission. The take, although half of what Woody had sought in his suit, will nonetheless likely succeed in having the preclusive effect that was Woody's stated desire.

The more interesting part of this exercise, I thought, was what didn't end up happening. American Apparel's attorney's had threatened to call some other people from Woody's current and former orbits as witnesses - namely ex Mia Farrow, and current wife, Soon Yi Previn. Ancient history though it may be, Woody had left Mia for Soon Yi, who was 22, and Farrow's adopted daughter. The basis for calling them would, apparently, have been to show that the value of Woody's name/image had been diminished by the whole mess.

Part of the reason a settlement came out of this was that the strategy of dredging up old history would likely have failed spectacularly. The facts of the situation were played out in the press 17+ years ago, and since the basis for the "tainted image" assertion is what was perceived by the public to have happened, rather than what actually happened, there is no reason for Mia or Soon Yi to testify at all. Instead, we would likely have seen what we would have seen anyway, a parade of actuaries calculating the actual value of Woody's visage based on the sum total of his life events. Moreover, this case follows the immortal words of Bela Lugosi, "there's no such thing as bad publicity." In this reality TV-deluged age of celebrity sex tapes, splashing this case across the headlines would have boosted, rather than diminished, Woody's commercial appeal, and heightened the recovery due.

Omaha v. Oprah: an Aha Moment

Okay, not a defamation claim, but too good to pass up for this old trademark hound. Mutual of Omaha has filed an application with the USPTO to register the phrase "OFFICIAL SPONSOR OF THE AHA MOMENT" - but Oprah Winfrey (or her production company) are claiming the right to the phrase, "AHA MOMENT", leading to the filing of a lawsuit by Mutual of Omaha in the District Court in Omaha Nebraska. Oprah's people claim to be seeking an amicable settlement, but stay tuned just in case!

Courtey Love sued for libel (why am I not surprised?)

Courtney love is being sued in California for purportedly using online venues to assert that her former fashion designer, Dawn Simorangkir, is a "nasty lying hosebag thief." I'll just let that sit for a minute.

...

Now for the technical legal analysis. "Nasty"? Opinion, no basis for legal action. "Lying"? More amenable to a claim, but it's easy to prove that you honestly believed someone to have been lying about something, so unless it is attached to a specific alleged lie, recovery is unlikely. "Hosebag"? According to Wiktionary (the dictionary component of Wikipedia) a "hosebag" is:

1. (slang) An undesirable, boorish, unintelligent, or objectionable person; often used in jest; a hoser.
2. (slang) A trashy, dirty, skanky or sexually loose woman.

Characterizing someone as being "sexually loose" used to be pretty much automatic grounds for a defamation suit, but "hosebag" is susceptible to multiple meanings, and ambiguity of that sort is construed against the plaintiff. So "hosebag" will be labelled opinion, no basis for suit. However, happily for Simorangkir, Love also allegedly "accused her of being a drug addict and a prostitute," and calling someone a prostitute is a pretty straightforward claim of sexual impropriety. Finally, "thief" implies a specific criminal act on the part of the subject, so that present a slam-dunk for a libel claim.

'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.