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• In actions of Slander, words were formerly construed in the mildest sense they would admit; but reason has superceded such forced interpretations, and words are now to be taken according to their ordinary import and meaning.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