Beware the Clumsy Retraction, and Other Lessons from Idaho

A recent Idaho state court opinion ordering an Idaho newspaper to unmask the identity of an anyomous commenter on the newspaper's website demonstrates, among other things, the pitfalls that come with a clumsily worded retraction.

The case, Jacobson v. Doe, arose from a blog entry posted in February 2012 on the Spokesman-Review's website about Tina Jacobson, the chair of the county Republican Central Committee.  The post included a picture of Jacobson posing with then-Presidential candidate Rick Santorum and other local Republicans.  In an anonymous comment to the story, a commenter named "almostinnocentbystander" wrote: "Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse."

That comment drew requests from other commenters for additional details, which "almostinnocentbystander" provided in a follow up post, noting that Jacobson was a bookkeeper by profession and that "a whole Boat load of money is missing and Tina won't let anyone see the books."

Those comments were taken down by the author of the original blog post within a few hours, and after complaints from local Republicans and a request for the identity of the commenter, "almostinnocentbystander" posted an apology:  "I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson."

A libel suit following in April, and a subpoena was served on the newspaper asking for the identity of the commenter.  The newspaper moved to quash, claiming the commenter was a "news source" protected by the First Amendment and the Idaho Constitution.  Idaho does not have a shield statute, but state courts have recognized a qualified privilege.

The court rejected the newspaper's motion, holding that the commenter was not a "source."  Rather, the court held, the newspaper was "acting as a facilitator of commentary and administrator of the Blog."

Recognizing constitutional protections for anonymous speech, the court then analyzed what standard it should apply in deciding whether to quash the subpoena.  This is an issue we have written about often here.  In a positive move for newspapers, the court applied a three-part test, derived from the oft-cited New Jersey case Dendrite Int'l, Inc. v. Doe no. 3, 775 A.2d 756 (N.J. Super. Ct. 2001), and an unpublished Idaho federal court case. 

Under that test, the court may order disclosure if: (1) the plaintiff "makes reasonable efforts to notify the defendant" of the subpoena; (2) the plaintiff "demonstrates that it would survive a summary judgment motion"; and (3) the court must then balance the commenter's First Amendment rights with the plaintiff's case and the necessity of disclosure.  The application of the summary judgment standard at this stage is generally a win for the speaker.

In this case, though, the court held that the plaintiff had established that it could survive summary judgment. Key to this analysis was the court's holding that the retraction posted by the commenter demonstrated "actual malice," the standard of fault required for public figure plaintiffs.

In the absence of any evidence from the commenter, the court held that the commenter's "recanting shows that the speaker knew the falsity of the statement when he said it," or at least acted "recklessly by not only making the statement once, but on two occasions." 

The court's holding should be a caution to anyone considering recanting or retracting a statement because of a fear of a defamation suit.  The lesson -- it is probably best to seek legal counsel before publishing a retraction or apology.  In this case, for example, stating in the retraction that the statements were "unsubstantiated" may have been problematic.

Courts Block "Stream of Commerce" Jurisidiction Claims

Back in March, we reported on a North Carolina federal court's dismissal of a defamation claim brought against two out-of-state publishers and an out-of-state author based on a lack of personal jurisdiction.  In that case, Judge Louise W. Flanagan rejected plaintiff's argument that simply because a handful of books had been sold in North Carolina in the "stream of commerce," the court could exercise jurisdiction over the defendants.

Judge Flanagan wrote that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."

Since that decision, the "stream of commerce" argument has garnered substantial attention from the courts.  In June, the United States Supreme Court reversed 9-0 a decision by the North Carolina Court of Appeals that allowed a North Carolina state court to exercise jurisdiction over several foreign affiliates of Goodyear based on a stream of commerce argument much like the one Judge Flanagan rejected.  In that case, Goodyear Dunlop Tires Operations, S.A. v. Brown, Justice Ginsberg write for the Court:

Under the sprawling view of general jurisdiction urged by respondents and embraced by the North Carolina Court of Appeals, any substantial manufacturer or seller of goods would be amenable to suit, onany claim for relief, wherever its products are distributed.

Finally, in August, the North Carolina Business Court in Charlotte dismissed a libel claim brought in North Carolina against, among others, a TV network from Chennai, India called Sun TV.  The complaint alleged that Sun TV, which broadcasts its programs on Dish Network, caused defamatory statements about the plaintiffs to be broadcast to North Carolina subscribers.  Alleging that it owned no property in North Carolina, did no business in North Carolina, and did not contract with anyone in North Carolina, Sun TV moved to dismiss for lack of personal jurisdiction.

Citing Goodyear Dunlop Tires, the court rejected plaintiffs' argument that jurisdiction was appropriate because Sun TV broadcasts its signal knowing that it might reach Dish subscribers in North Carolina.  More specifically, the court held that while the "stream of commerce" argument had been applied in product liability cases, it had never been applied in North Carolina to a defamation action.  The court declined to be the first.

This flurry of personal jurisdiction cases has affirmed the principle that in defamation cases, plaintiffs cannot simply rely on the theory that the publication at issue "ended up" in the forum state.  This is an important defense for defamation defendants to remember.

N.C. Federal Court Dismisses Libel Claim

North Carolina federal district court Judge Louise Flanagan offered a helpful reminder to lawyers last week that the first month of Civil Procedure class really does matter.   The result of her Order in Dutcher v. Eastburn, Da Capo Press, LLC, and Perseus Books, Inc. was that a libel claim brought in North Carolina against two out-of-state publishers and an author from Colorado was dismissed, relieving the defendants from the substantial cost of taking depositions and attempting to get the case dismissed on summary judgment.

The case arose from the publication in late 2007 of a book titled Simon Says: A True Story of Boys, Guns, and Murder, which focused on the grisly murder in rural Colorado of a high school student and his grandparents on New Year's Eve 2000.  Three high school classmates were eventually sentenced for the deaths.

The plaintiff in this case was one son of the murdered grandparents, who happened to be living in North Carolina at the time the book was published.  He objected to a small handful of statements about him in the book and filed suit in Wake County, North Carolina in November of 2008.  In September of 2009, however, the plaintiff voluntarily dismissed that claim.

Then, in April of 2010, the plaintiff re-filed the lawsuit, again in Wake County.  This time the defendants chose to remove the case to federal court and to file a motion to dismiss on the ground that the North Carolina court could not exercise personal jurisdiction over the defendants.

Personal jurisdiction is one of those law school topics that causes most students' eyes to glaze over, but every once in a while it pays to remember those lectures.  The basic idea is that the Constitution requires that a defendant have a certain level of "contacts" with the state in which he or she is being asked to defend a lawsuit.  Those "contacts" might arise from the incident leading to the lawsuit (i.e., a Virginia resident was driving through North Carolina and ran into another car), or they might arise from the general operations of a company (i.e., a Delaware company that has a number of stores and employees in North Carolina).

The question at issue in this case is one that has challenged courts across the country for years -- what are the limits on personal jurisdiction when dealing with the publication of a book, magazine, or newspaper by out-of-state defendants?  The Supreme Court in 1984 handed down a pair of cases -- Calder v. Jones and Keeton v. Hustler Magazine -- that shed considerable light on this thorny issue.

In Calder, the Court held that an out-of-state publisher and author can only be haled into a California court to defend a defamation claim if they "expressly aimed" their activity at California.  The Court held that they had done so in Calder because the entire article focused on actress Shirley Jones, a resident of California, and her career in Hollywood.  The authors had placed several calls to California in reporting the story, and, in short, the story centered around California.  Under those circumstances, the Court held, there were sufficient contacts to support the exercise of personal jurisdiction.

The Court also found sufficient contacts in Keeton based on on the fact that Hustler sold as many as 15,000 copies in New Hampshire every month.  In Keeton, the plaintiff did not even live in New Hampshire, but had chosen that forum because it had a friendly statute of limitations.

 In Dutcher, Judge Flanagan rejected the plaintiff's argument that personal jurisdiction in North Carolina was appropriate because the defendants knew the plaintiff lived in North Carolina at the time the book was published and therefore knew he might be "injured" there by allegedly defamatory statements.  Judge Flanagan distinguished this case with Calder, pointing out that Simon Says had nothing to do with North Carolina and was plainly not "expressly aimed" at North Carolina.

She also rejected plaintiff's "stream of commerce" argument -- i.e., that a handful of copies of the book available for sale in North Carolina created the required "minimum contacts."   Quoting Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945 (4th Cir. 1994), Judge Flanagan held that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."

Because (1) only 14 copies of the book were sold in North Carolina; (2) no marketing activities for Simon Says were aimed at the state; and (3) the defendant publishers had published only a handful of books over the years that were "aimed" at a North Carolina audience, Judge Flanagan ruled that exercising personal jurisdiction over the defendants in this case would not comport with due process.

Combined with the plaintiff's earlier voluntary dismissal of his first lawsuit, the Court's Order means that the plaintiff's claim is now dismissed with prejudice.  Dutcher has 30 days to decide whether to appeal Judge Flanagan's Order to the Fourth Circuit.

Losing Florida Senate Candidate Files $500 Million Libel Suit

Jeff Greene, who was recently routed in his bid to win the Democratic nomination for the open U.S. Senate seat in Florida, has filed a massive -- in more ways than one -- defamation suit against the St. Petersburg Times and the Miami Herald.  The complaint, which was filed on September 1 and checks in at 54 pages, seeks $250 million in compensatory damages and $250 million in punitive damages.

According to the complaint, Greene's claim arises, in part, from a series of stories discussing a real estate deal Greene was involved in.  One of the other parties to the deal has been indicted by a federal grand jury for fraud and money laundering, in part because of aspects of the transaction in question.  Greene alleges that the papers wrongly tied him to the deal despite the fact that he had informed them of the "facts" before they published the stories.

Greene also complains of an article discussing alleged drug use by boxer Mike Tyson on Greene's yacht.  The article was corrected after Tyson made clear that he had never used drugs on Greene's boat.

The most interesting aspect of the lawsuit, however, is Greene's claim for damages.  According to the complaint, before the defamatory articles were published, Greene enjoyed a "comfortable lead" over opponent Kendrick Meek in the race for the Democratic nomination.  After the articles ran, the complaint alleges, "Greene's lead in the polls dropped to a double-digit deficit."  In the end, Greene lost to Meek 57% to 31% (a difference of nearly 250,000 votes).

Greene also claims that his real estate business has been harmed and that the $24 million in personal funds he spent on the race were wasted by the alleged libels.

Greene then applies a multiplier to these damages, alleging that because the two papers (which often ran the same content) both published the allegedly defamatory articles, readers "were mistakenly led to believe that two newspapers were independent sources for false and defamatory reporting which gave greater combined credibility" to the statements.

In other words, because two papers ran the same content separately, Greene suffered greater damages than he would have had the same two papers "individually libeled him."  The basis for this claim is not clear, though it helps explain how Greene came up with compensatory damages of $250 million.

Because Greene was a candidate for public office, he will certainly be considered a public figure, meaning that he will have to establish actual malice.  This is always a high bar for plaintiffs to cross.  Greene will also be challenged to prove that he lost his lead in the polls because of the stories he complains of.  It is hard to imagine how such causation could be proven with any degree of reliability.

Ninth Circuit Tells ABC, Stossel "You Can't Say That!"

The United States Court of Appeals for the Ninth Circuit recently revived a defamation suit brought by a prominent California preacher against ABC and reporter John Stossel.  The case, which had been dismissed by the District Court under California's anti-SLAPP statute, arose from a broadcast of ABC's 20/20 in which Stossel reported on the financial dealings of ministers like the plaintiff Frederick Price.  In particular, Stossel's story focused on whether money donated to some churches was being put to good use or simply lining the preacher's own pockets.

The Ninth Circuit succinctly characterized the case as follows:

Journalists and publishers risk a defamation action when they put words in a public figure’s mouth. The New Yorker magazine learned this to its chagrin in Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991). The issue in this case is whether there are similar risks when a network television program broadcasts a statement actually made by a public figure, but presents the statement in a misleading context, thereby changing the viewer’s understanding of the speaker’s words.

The facts of the case are quite simple.  ABC played a clip of Price during a sermon in which he said:  “I live in a 25-room mansion.  I have my own $6 million yacht. I have my own private jet, and I have my own helicopter, and I have seven luxury automobiles.”

Stossel then said: “At least he tells people about it, but many preachers don’t advertise how well they live.”

The problem was that in the actual sermon, Price was speaking in hypothetical terms about a rich man who was unhappy because he had lost his faith.  He was not speaking about himself, a fact which ABC acknowledged in a later retraction.

The District Court dismissed the case, holding that the clip was substantially true because Price was in fact very wealthy.  It was undisputed that Price lived in an 8,000 square foot mansion, traveled around the world in a Gulfstream jet, and owned a Rolls Royce.

The Ninth Circuit disagreed.  Relying largely on the Supreme Court's landmark Masson case, the Ninth Circuit held:

[W]hen dealing with material that is portrayed as a quotation, we are to compare the quotation as published with the words the speaker actually said.  Where the published quotation contains a material alteration of the meaning conveyed by the speaker, the published quotation is false.

The District Court had erred, the Court said, by comparing the assets identified by Price in the clip with his actual assets.  In reality, under Masson, the court should have "compared the meaning conveyed by the Clip as broadcast with the meaning of Price’s own words in the context of the sermon he actually delivered."

Analyzed in that way, the clip of Price was false because he was not saying that he had those assets himself (even if he actually did have comparable assets).  In fact, the entire sermon made clear that he was using a parable.

Because of the procedural stance of the case, the only issue before the Court was falsity, so there is no discussion about whether the statements were defamatory or were made with the requisite degree of fault.

Nonetheless, the case provides an instructive lesson in how Masson might apply to broadcast clips.  Reporters almost always have to truncate a quote to make it fit in a broadcast story, so providing enough context -- and making sure to characterize the quote accurately -- are important.

N.J. Supreme Court Applies Fair Report Privilege to Civil Filings

New Jersey's highest court has overturned an intermediate appellate decision that had refused to apply the "fair report" privilege to accounts of initial pleadings filed in civil lawsuits.  The Supreme Court's decision, issued in the case of Salzano v. North Jersey Media Group, Inc., represents an important victory for the press and the public.

We previously reported on the decision of the New Jersey Court of Appeals, which took a narrow view of the application of the fair report privilege.  The privilege is critical to reporting on official statements and actions by government actors.  It shields a media organization from liability if an official document, statement, or proceeding is given a fair and accurate account, even if the official source contains some factual error that someone contends is defamatory.  Without the privilege, journalists would expose themselves and their organizations to defamation claims merely by reporting what a criminal indictment or arrest report contained, for example, or by reporting what a judge said on the bench.  That risk of liability would force journalists to go behind their official sources and confirm the accuracy of the facts they provided, which would severely hamper reporting on government activities.

The intermediate appellate decision in the Salzano case was troubling because it refused to extend the fair report privilege to initial filings in civil cases.  This would have had the effect of chilling reporting on civil complaints, since reporters would face some risk of liability from defendants or third parties who claimed allegations contained in the complaint were defamatory.  The threat of such litigation could be used to deter reporting on important civil lawsuits, especially those in which the filing of the complaint itself was newsworthy.

In a sweeping decision, the New Jersey Supreme Court reversed, holding that a fair and accurate account of a civil complaint is indeed covered by the fair report privilege.  According to the Court, "there is a clear trend away from recognizing the initial pleadings exception" to the fair report privilege.

The Court went on to explain the strong rationale for rejecting such an exception as follows:

Indeed, the initial pleadings exception is at odds with the reality that the complaint is open to public view. . . . If the initial pleadings exception is retained, an anomalous result obtains: Public documents to which the citizens of our state have free access cannot be disseminated or reported on without risk of a lawsuit.

Because it is impossible for the citizenry to monitor all of the operations of our system of justice, we rely upon the press for vital information about such matters.  Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so.  Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.

That interpretation of the privilege more fully advances the principles informing it than any other view.  Indeed, if a citizen presents himself at the local courthouse, there is no question but that he can see filed pleadings for himself.  They are not sanitized nor are they filtered through a veracity lens.  A full, fair, and accurate report of the contents of the pleadings, that is, what plaintiff claims and how defendant defends, places the citizen in the exact same position as if he were present on the scene.  From that perspective, interposing an artificial barrier between the citizen and a truthful and accurate report of what is actually occurring makes no sense.

. . .

In short, we are convinced that the public policy underpinning of the fair-report privilege -- advancement of the public's interest in the free flow of information about official actions -- would be thwarted by the recognition of the initial pleadings exception.  A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.

The Court then expessly adopted the majority view the fair report privilege is absolute -- once the reporter establishes that the report was fair and accurate, then the privilege attaches and cannot be overcome with a showing of malice.

In sum, the Salzano decision marks an important victory against efforts to limit the scope of the fair report privielge, a critical defense for reporters who report on government activity.

Ohio Appellate Court Affirms Summary Judgment for Radio Station on Defamation and False Light Claims by Political Candidate

A panel of the Court of Appeals for the Fifth Appellate District in Ohio has affirmed a lower court’s grant of summary judgment in favor of an Ohio radio station in a defamation and false light invasion of privacy case involving a former candidate for judicial election. The Fifth District’s opinion in Christiansen v. WCLT et al. is linked here

Shortly before the November 2008 general election, radio station WCLT (Newark, Ohio) aired and posted to its website a political editorial in which the station’s general manager expressed his opinion that two of three candidates were inappropriate for the position of Domestic Relations Court Judge. One of the two candidates quickly sought an ex parte temporary restraining order to enjoin the editorial from further distribution (which was later denied) and filed a defamation complaint. Later, because certain of the statements the plaintiff contended were defamatory were by her own admission literally true, the plaintiff amended her complaint to also allege a claim for false light invasion of privacy. 

The statements in the editorial that the plaintiff challenged were these:

In July of 2007 a police report alleging assault was filed with the Newark Police Department against [the plaintiff]. In the report she is accused of striking a person in a courthouse elevator. She has also had several complaints concerning her behavior filed with the Ohio Supreme Court’s disciplinary counsel. 

The plaintiff admitted the statements were literally true, but claimed that the statements improperly created the inference that she had been charged with assault and disciplined by the Ohio Supreme Court’s disciplinary counsel – neither of which had happened. (The Fifth District’s opinion includes the full text of the editorial.)

On cross motions for summary judgment, the trial court denied the plaintiff’s motion and granted the radio station’s motion for summary judgment, finding that (1) the allegedly defamatory statements were not made with actual malice because the defendant believed them to be true (indeed, the plaintiff admitted they were literally true), (2) the statements were protected opinion, and (3) the statements could be construed as non-defamatory.

On appeal, the Fifth District, in a 2-1 decision, denied each of the plaintiff’s five assignments of error by the trial court. The court held that:

  • The lower court had not committed error by finding the allegedly defamatory statements to be literally true. 
  • The lower court properly applied the “innocent construction” rule to the statements. This rule requires that when an allegedly defamatory statement is subject to two interpretations, one defamatory and one not, the court must apply the non-defamatory meaning. 
  • The trial court did not err by finding that the factual statements made in the editorial were true and the rest of the editorial was protected opinion. 
  • The trial court properly held that the statements were not made with actual malice – knowledge of falsity or reckless disregard for the truth – because the statements were literally true. Actual malice could not be inferred from the plaintiff’s evidence of common-law malice or personal animosity.
  • The trial court properly distinguished the plaintiff’s defamation claim from her false light claim, as both causes of action require the plaintiff to prove actual malice. Since the court affirmed the finding that the statements were literally true, the plaintiff could not prove actual malice.

The appellate decision represents an important victory affirming the right of news organizations and others to engage in political speech during election campaigns.

Can You Defame Jefferson Parish, LA?

The answer, of course, is a resounding no (and no, snarky readers, not because of the libel-proof plaintiff doctrine).

The surprising thing about that question, is not the answer, but rather that nearly 50 years after the United States Supreme Court's landmark defamation decision N.Y. Times Co. v. Sullivan the question still has to be asked in the context of a current lawsuit.

The lawsuit giving rise to the headline was brought by Steve Theriot, interim president of Jefferson Parish, Louisiana and by the Parish itself.  In it, the plaintiffs claim that John Does 1 through 100 -- all anonymous online commenters on the website www. -- defamed both Theriot and the parish government as a whole with comments they posted online allegedly implying that Theriot and other government officials are "unethical or deceitful."  The suit seeks money damages from the unnamed defendants.

After filing the suit, which is being paid for by the parish, Theriot backtracked and claimed only to be seeking the identity of the commenters so he could get more information from them about the charges of corruption and parish mismanagement they made online.  That stance is hard to reconcile with the lawsuit accusing those commenters of defamation.

We have written often about the ever-growing body of law regarding efforts to force web sites to disclose the identities of anonymous commenters, though anyone who has ever taken a bar review class knows that Louisiana rarely adopts the majority rule in any area of law.

Setting aside that question for now, this suit faces at least one other crippling defect, as least as it pertains to the plaintiff Jefferson Parish.  The Supreme Court in New York Times v. Sullivan could not have been more clear that the Constitution simply does not allow government bodies to bring defamation claims on its own behalf.  The Court held:

For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. Page 376 U. S. 292 86, 88 (1923).  The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, "reflects not only on me but on the other Commissioners and the community." Raising as it does the possibility that a good faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.  We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.

This rule reflects the absolutely core function of the First Amendment -- to give the public the "breathing space" to criticize its government without fear of reprisal for even the slightest inaccuracy.

Of course, this does not even address the other problems with such a claim.  For starters, how exactly would a municipality prove actual damages?

Given the well-settled nature of the case law in this area, and the fact that Theriot is now quickly stepping back from his own lawsuit, it seems apparent that someone told him that going forward with a meritless claim on behalf of the parish was more likely to result in sanctions than in a legal victory.

UPDATE:  According to news reports, Theriot and the parish have now dropped their lawsuit.

Massachusetts High Court Extends Fair Report Privilege

In late January, the Supreme Judicial Court of Massachusetts affirmed that the fair report privilege applied to information attributed to an anonymous source.  The 6-1 decision in Howell v. The Enterprise Publishing Company dismissing the plaintiff's complaint held that so long as the reporter accurately reported what the confidential source reported to him or her, the privilege applied.

As reported by the First Amendment Center, the case involved claims for defamation, intentional infliction of emotional distress and invasion of privacy brought by the former superintendent of the town sewer department who, the defendant reported, had been fired for having pornography on his work computer and for alleged conflicts of interest.

 The paper wrote a series of more than 10 articles about the scandal, many of which quoted anonymous sources who reported what happened at various closed-door meetings concerning the superintendent (Howell).  For example, the paper reported:

A town official close to the investigation who spoke on condition of anonymity said the allegations against Howell include improper use of town equipment for personal business. The source declined to specify the type of equipment that was used but alluded to a possible criminal investigation by Abington police.

 In a later article, the paper reported: 

"These were images you wouldn't want your children  to see," the commission member said. Commission members would not say who came forward with the allegations against Howell. "The point is, it happened. The board, acting on behalf of the town, was forced into action and would have been negligent if it had not acted. The potential is still very real for a sexual harassment lawsuit," the commission member said. The source added that Howell "thinks he did nothing wrong."

In dismissing Howell's claims, the Court engaged in a lengthy analysis of the history and policy considerations underlying the privilege.  The Court identified two key policies supporting broad recognition of the fair report privilege.  The first, the Court said, "protects the press when it reports on official actions and statements that members of the public could have witnessed for themselves, that is, when it acts as the public's eyes and ears."  The second key policy is that of "public supervision," meaning the role of the media in serving as "a check on the power of government by giving the public the opportunity to be informed citizens and voters."

In the case of a report of government action (i.e., "official action") whose source is anonymous, the Court said

Reports of official statements are covered by the privilege so long as the reports fairly and accurately describe the statements, even though the statements themselves may contain defamatory material, or inaccurately report on official actions in a defamatory way. But an anonymous statement is not an official one. The privilege to report official actions would mean very little, however, if to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents. Consequently, the privilege extends to reports of official actions based on information provided by nonofficial third-party sources.  It should be of no moment that a reporter's source is, in fact, a high official, a low official, or a mere witness who overheard the proceedings, so long as it is official action that is reported. If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory.

Thus, the Court established that so long as a news report of official action based on material from an anonymous source fairly and accurately reports what the source said, it will be privileged.

Given the increasing prevalence of off-the-record or "background" sources in news stories concerning issues of public concern, this decision may be an important landmark in protecting the media from otherwise baseless lawsuits.

N.C. Court of Appeals Holds Libel Complaint Sanctionable

Earlier this month, the North Carolina Court of Appeals affirmed the Rule 12(b)(6) dismissal of a defamation action, holding that the filing of the complaint was sanctionable under Rule 11.  In Ward v. Jett Properties, LLC, the plaintiff filed an action pro se, contending that his landlord defamed him in a letter sent to a representative of the homeowners association of the development where the plaintiff lived.

The matter started with a letter the plaintiff sent to the defendant, complaining about various actions by neighboring tenants.  In response, the defendant wrote back, threatening to evict the plaintiff, to direct the homeowners association to take over his parking spot, and to report him to local law enforcement for failing to obtain North Carolina tags on his vehicle.  The plaintiff contended that the letter was delivered to the homeowners association as well.

The plaintiff filed a lawsuit, alleging that the letter was libelous per se and per quod, in that it accused the plaintiff of, among other things, engaging in "continued harassment" and "pestering behavior," "stalking" others in the neighborhood, being a "nuisance," lodging "irritating and unwarranted complaints," and causing "trouble" and "problems."

In considering whether these allegations stated a claim for libel per se, the Court of Appeals first set out the four categories of libel per se:

a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.

The plaintiff contended that the letter at issue satisfied the fourth category.

The Court of Appeals disagreed, holding that the statements in the letter, understood "as ordinary people would understand them," were not libelous per se because they amounted to rhetorical hyperbole.  In particular, the court held that accusations of dishonesty, harassing behavior, and unfavorable or disreputable personal habits cannot support a per se claim for defamation.  The court concluded that the trial court therefore properly dismissed the plaintiff's claim at the Rule 12(b)(6) stage:

In this case, defendant's letter was sent in response to a demand letter by plaintiff, accusing defendant of misconduct.  In this context and after reading the entire document, defendant's characterization of plaintiff's conduct as harassment, pestering, threatening, irritating, and nonsense amounts to statements of opinion or rhetorical hyperbole that are not actionable as libel per se.

The plaintiff's per quod claim likewise failed to state a claim because the plaintiff failed to allege any pecuniary loss from the letter at issue.

The Court of Appeals also affirmed the trial court's finding that the filing of the complaint was sanctionable under Rule 11.  The trial court rested its sanction on a finding that the plaintiff had filed at least four previous complaints against the defendant, all of which had been dismissed, and had filed a number of other actions against others.  The Court of Appeals held that these findings were sufficient to satisfy the standard under Rule 11 for imposing a sanction.  However, the court remanded the matter for further findings of fact with respect to the $2,000 sanction imposed.


Massachusetts Trial Court Dismisses Defamation Claims, Holds There Was "No Continuing Duty to Investigate" News Reports Posted on Defendants' Website

The Volokh Conspiracy recently blogged about a 2008 Massachusetts Superior Court order granting a libel defendants’ motion to dismiss defamation and business defamation claims because the defendant had “no continuing duty to investigate the accuracy” of a news article that was posted by the defendant on its website. The case, Jenzabar, Inc. v. Long Bow Group, Inc., No. 2007-2075H (Mass. Super Ct., Aug. 5, 2008) is linked from the Volokh site here.

The case is an interesting one, first, for its treatment of the fair report privilege and, second, because it is another example of an unusual and constitutionally troubling Massachusetts state statute that is apparently still on the books.

According to the Superior Court’s order, one of the plaintiffs in the Jenzabar case (Chai Ling) was a student leader during the 1989 Tiananmen Square protests in China who later moved to the United States and founded Jenzabar, a software company. The defendant, Long Bow, Inc., was a documentary production company that produced a film chronicling the Tiananmen Square protests. According to at least one news article, the film included an interview with Chai Ling.

The gist of the plaintiffs’ defamation claims was that beginning in May 2004, the defendant’s website referred to news articles that “‘reported certain concerns third parties expressed with respect to Chai Ling and Jenzabar.’” One such article was an excerpt from an August 2003 story published by the Boston Globe, which stated that “‘five former executives have sued Jenzabar, including the former CEO, who accused Chai and [a third person, apparently Chai Ling’s husband] of ‘a number of unethical, inappropriate, and/or illegal actions.’” The plaintiffs in Jenzabar alleged the Boston Globe article (as republished by Long Bow) was false because the former CEO had retracted his allegations. However, it appears that the defendant first posted the Boston Globe article before the former CEO’s lawsuit had been dismissed. 

The critical question for the court with respect to the defamation claim based on the Boston Globe article was “whether [the defendant] had any kind of continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether [the former CEO] was still accusing the plaintiffs of inappropriate actions.” Ultimately, the court held that “there is no such duty.” Accordingly, the court dismissed the defamation claim based on the Boston Globe article.

Interestingly, the plaintiffs apparently tried to use the fair report privilege as formulated in the Restatement (Second) of Torts, Section 611 to argue that the defendant had a duty to publish a “follow-up” to the Boston Globe story about the CEO’s lawsuit. In so arguing, Jenzabar relied on Comment f of Section 611, which states, “‘when a newspaper publishes from day to day the report of a judicial proceeding, it may not, after reporting derogatory parts, fail to publish the further proceedings that tend to vindicate the person defamed.” However, the Superior Court stated in a footnote that this example from Comment f “is intended to apply to ongoing coverage of proceedings such as trials, and does not impose a duty on Long Bow (or the Boston Globe) to publish the fact that [the former CEO] dropped the suit.” (Long Bow raised the fair report privilege in support of its motion to dismiss).

With respect to articles other than the Boston Globe story, the plaintiffs claimed the articles were defamatory because the defendant “has provided this material [on its website] in a manner that purports to be balanced and fair but, in reality, is biased and deceptive.” However, and notably for the court, the plaintiffs did not allege these other articles were false. Rather, the plaintiffs relied on Mass. Gen. Laws ch. 231, § 92, which provides, “[t]he defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.” Citing the Massachusetts Supreme Judicial Court, the Superior Court stated that “application of that statute to a truthful statement concerning a matter of public concern violates the First Amendment.  Allegations of improper business practices are a matter of public concern. To survive this motion to dismiss, the plaintiffs must allege falsity, which they have not.”

Earlier, we wrote about this troubling Massachusetts statute as applied in Noonan v. Staples.  In that case, a panel of the First Circuit held that a defamation claim could move forward, based on Mass. Gen. Laws ch. 231, § 92, even though the allegedly defamatory statements were true or substantially true. The First Circuit found proffered evidence that the sender of the allegedly defamatory e-mail harbored ill will toward the plaintiff raised a triable issue of fact regarding whether the sender acted with common-law malice toward the plaintiff. Later, as reported here, a federal jury returned a verdict of no liability in favor of the defendant on this defamation claim.

Although the Superior Court dismissed the defamation claims in Jenzabar, it allowed other trademark and unfair business practice claims to move forward. According to Long Bow’s website, the legal dispute over those claims remains ongoing.

Illinois Court Unmasks Anonymous Blogger

In a decision that goes against the grain of a building legal consensus around the country, an Illinois trial court has ordered the disclosure of the identity of an anonymous blogger who the plaintiff, a local politician, claims defamed her 15-year-old son.

The controversy started this spring, as local elections in Buffalo Grove Village were heating up, when an online debate between the candidate's son and "Hipcheck16" got testy.  When challenged to a live debate, Hipcheck16, wrote, according to reports: "Seems like you're very willing to invite a man you only know from the Internet over to your house -- have you done it before, or do they usually invite you to their house?"

In response, the candidate, Lisa Stone, filed on behalf of her son a pre-suit subpoena seeking Hipcheck16's identity in preparation for a possible defamation claim.

As we have reported previously, most courts around the country have imposed some procedural barriers to plaintiffs seeking this sort of information.  Most importantly, though the particular standard varies from state to state, the majority rule is that the plaintiff must allege enough facts to establish that his or her claim has merit.  Some states have even applied a summary judgment standard to a plaintiff's claims before ordering the disclosure of an anonymous blogger's identity.

Though we do not have the text of the judge's actual decision in this case, based solely on the facts alleged in the plaintiff's motion, it is hard to imagine that the plaintiff was required to establish any facts or foundation for her possible claim.  Rather, she states, without any further explication, that Hipcheck16 said something defamatory (though what he/she said is not in the petition).  On this thin reed, the judge ordered Comcast to turn over Hipcheck16's name.

An attorney for Hipcheck16 has indicated that he may appeal the ruling, and, if he does, he will have ample case law from around the country affirming that the First Amendment protects anonymous speech and that plaintiff's must be required to meet some elevated pleading standard -- at the very minimum -- before those rights can be abrogated.

No matter what the actual standard courts eventually apply, a bare pleading that alleges defamation, with nothing more, should not be enough to outweigh a blogger's First Amendment rights.

Fourth Circuit Reverses $5 Million Funeral Protest Verdict

In late September, the United States Court of Appeals for the Fourth Circuit reversed on First Amendment grounds a $5 million jury verdict against infamous Kansas preacher Fred Phelps and other members of his Westboro Baptist Church.

The claim against Phelps and his church members arose from their protest activities at the March 2006 funeral of Lance Corporal Matthew Snyder, a U.S. Marine who was killed in Iraq. At Snyder's funeral in Westminster, Maryland, Phelps and other protesters held up a variety of offensive signs decrying gays, Catholics, and Americans generally.  Members of the church also posted an essay on the church's Web site called "The Burden of Marine Lance Cpl. Matthew A. Snyder."  The essay contained numerous statements indicating that Snyder was a sinner and was going to hell.

Snyder's father did not actually see the protests or essay until after the funeral was over, but said that when he did, he was traumatized.  He filed suit in June 2006 in federal court claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  While the district court granted summary judgment to the defendants on the defamation and publicity given to private life claims, after trial on the other three claims, the jury awarded Snyder $2.9 in compensatory damages and $8 million in punitive damages.  The district court lowered the punitive damages award to $2.1 million, but the defendants appealed the entire award as violative of the First Amendment.

The Fourth Circuit, with Judge King writing for the court, not only reversed the award of damages, but elected not to remand the case to the district court at all, holding instead that "[n]otwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [Web postings] are constitutionally protected."

Though the defamation claim was not at issue, the case law cited by the court was borrowed largely from the Supreme Court's defamation pantheon, most notably Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).  Citing Milkovich, Judge King wrote: "First, the First Amendment serves to protect statements on matters of public concern that fail to contain a 'provably false factual connotation.'"

Second, Judge King wrote, again citing Milkovich, "rhetorical statements employing 'loose, figurative, or hyperbolic language' are entitled to First Amendment protection to ensure that 'public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.'"

With these principles in mind, the Fourth Circuit held that the district court had "failed to assess whether the pertinent statements could reasonably be interpreted as asserting 'actual facts' about an individual, or whether they instead merely contained rhetorical hyperbole."  The court then examined each of the specific signs and the statements at issue from the Web site, and held that they were fully protected by the First Amendment either because they could not reasonably be read to state actual facts or because they were plainly hyperbolic and figurative.

In response to Westboro Baptist's odious activities, a number of states have passed laws sharply limiting, or banning altogether, protesting at funerals. 

North Carolina Court Dismisses Plaintiffs' Appeal in Libel Action against "The Game"

A decision last week from the North Carolina Court of Appeals illustrates an important principle concerning the nature of appellate review in defamation actions -- that non-final orders are ordinarily not subject to immediate appeal by the plaintiff.  The case of Nguyen v. Taylor involved a host of libel and related claims brought by five Greensboro police officers against a rapper, Jayceon Taylor, known as "The Game", arising out of an October 28, 2005, incident that occurred in a Greensboro mall.  Taylor was arrested after he and his entourage were asked to leave the mall and an altercation ensued.

Following his release on bail, Taylor stated to a reporter that the officers involved "thought I was Rodney King."  In addition, footage of the altercation appeared on a DVD entitled "stop snitchin' stop lying," which included an image of one of the plaintiff officers.  The back cover of the DVD stated that it included "the full 15 minute footage of The Game being wrongfully arrested in North Carolina."  A website contained similar assertions, and the footage also appeared on youtube.

The officers sued Taylor, other members of his entourage, and a number of entities related to Taylor, alleging 17 different claims.  These claims fell into seven broad categories: (1) defamation claims based on the statement Taylor made to the reporter; (2) defamation claims based on statements appearing on the website; (3) defamation claims based on the statements appearing on the DVD; (4) claims relating to alleged misleading editing of the footage on the DVD; (5) misappropriation claims based on the image on the DVD; (6) misappropriation claims based on the footage appearing on the DVD and on youtube; and (7) unfair and deceptive trade practices claims.  The defendants, including Taylor, whom plaintiffs served and who were not in default moved to dismiss.  The trial court granted the motion to dismiss in part and denied it in part, dismissing some of the claims.

The plaintiffs attempted to appeal the trial court's decision to the Court of Appeals.  Because the decision was not final -- certain claims against certain defendants remain pending -- it is known as an "interlocutory" order.  Under North Carolina law, interlocutory orders are ordinarily not subject to immediate appeal.  However, if the decision touches upon a substantial right that would be prejudiced absent an immediate appeal, the appeal may proceed.  Media defendants often rely on this principle to assert their right to appeal immediately trial-court decisions denying motions to dismiss or for summary judgment in cases implicating First Amendment issues, such as in defamation actions involving the New York Times v. Sullivan actual malice standard.

In the Nguyen case, it was the defamation plaintiffs who asserted the right to an immediate appeal of a decision dismissing parts of their complaint.  The plaintiffs' theory was that because the remaining claims arose out of the same set of facts as the dismissed claims, proceeding to trial now risked inconsistent verdicts.  In contrast, the plaintiffs argued, if their appeal were heard first, those claims, if any, that were reinstated following appellate review could proceed to trial along with the claims the trial court did not dismiss.

The Court of Appeals rejected the plaintiffs' argument and dismissed their appeal as an improper interlocutory appeal.  In analyzing the various claims plaintiffs had alleged in their complaint, the court held that while all the causes of action arose out of the same incident, the various claims were distinct.  In other words, even though the evidence bearing on the dismissed and non-dismissed claims may overlap to some degree, those claims involved either distinct legal elements or distinct parties, or both.  As a result, according to the court, "plaintiffs have failed to show that they will be prejudiced by the possibility of inconsistent verdicts in two separate proceedings."

The lesson of the Nguyen case is two-fold.  First, its outcome is consistent with a pattern of appellate jurisprudence that looks closely at interlocutory orders to determine whether in fact they are subject to immediate appeal.  Second, it confirms there is value in winning dismissal of some, if not all, of the causes of action in defamation cases involving many claims for relief.  Having those claims dismissed may well narrow the scope of the issues to be litigated, while at the same time not necessarily subjecting the defendant to a lengthy detour to an appellate court.

Jury Returns Verdict of No Liability in Massachusetts Libel Trial

Late last week a federal jury returned a verdict in the defendant's favor in a libel case from Massachusetts that has attracted national attention.  The case, Noonan v. Staples, came into the spotlight because of a ruling from the First Circuit Court of Appeals that the plaintiff's libel claim could go to trial even if the communication at issue were true or substantially true.  We wrote about the decision here, noting the consternation the decision had drawn from First Amendment advocates for its implication that a truthful publication, if published with common-law malice, could constitute actionable defamation.  Such an outcome erodes the principle, long taken as gospel in libel jurisprudence, that truth operates as an absolute defense to liability.

The lawsuit involved a private-figure plaintiff who sued his former employer (Staples) for sending out a mass email discussing his termination of employment.  The plaintiff contended that the email, which asserted that Staples had fired Noonan “for cause” because Noonan allegedly “padded his expense reports,” was libelous.  The trial court dismissed the claim at the summary judgment stage, holding that the email at issue was true or substantially true and therefore could not be actionable as a matter of law.

The First Circuit reinstated Noonan's claim, focusing on a Massachusetts statute that predated the Supreme Court's seminal New York Times v. Sullivan decision and that  provides:

The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.

The First Circuit reasoned that while the statute could no longer be applied as a constitutional matter in public-figure or private figure/public concern cases after Sullivan, it still could operate in defamation actions brought by private figures such as Noonan over matters of private concern. 

The case therefore went to trial on the question of whether Staples representative sent the truthful email with malice.  The jury answered the question negatively, which precluded any liability on the part of Staples.  However, Staples still was put to the time and expense -- not to mention the risk -- of a jury trial on a defamation claim involving a communication that was true.  Courts have long recognized that the mere prospect of facing trial -- even on a legally deficient claim -- can have a chilling effect on speech.

So while the final outcome was a good one for Staples, the legacy of this case may be troubling for media organizations and other defendants who are sued by private-figure plaintiffs, at least in Massachusetts.  Even though Staples ultimately prevailed, the First Circuit's summary judgment decision remains good law unless addressed by the Massachusetts legislature.  The decision is binding on district courts in the First Circuit and available to be cited as persuasive authority in the state courts of Massachusetts and elsewhere, and it therefore may lead to other libel defendants proceeding to trial on claims of dubious validity.

North Carolina Court of Appeals Rules that Duke Lacrosse Coach's Defamation Suit may Proceed

Earlier this month, the North Carolina Court of Appeals released an opinion paving the way for Michael Pressler, former coach of the Duke University lacrosse team, to sue Duke University and a university spokesperson for slander and libel related to statements made in the aftermath of the Duke lacrosse case. 

Pressler was the Duke lacrosse coach in 2006 when the Durham District Attorney Mike Nifong initiated a high-profile, and later discredited, investigation into allegations that members of the lacrosse team raped a dancer at an off-campus party. The North Carolina Attorney General ultimately found the three accused lacrosse players innocent, and the North Carolina State Bar stripped Nifong of his law license. (Duke maintains a website devoted to the lacrosse case at


As reported in 2008 by, Pressler was pressured to resign from the university in April 2006 shortly after the rape investigation began. Thereafter, Duke spokesman John Burness (a named defendant in Pressler’s lawsuit) made statements to the press concerning Pressler’s resignation, which are the basis of Pressler’s lawsuit.  Burness’s statements were published by Newsday in April 2007 and the Associated Press in June 2007.


The decision in Pressler v. Duke University (No. COA08-859) turned on contract principles. As a university employee, Pressler was bound by a university policy that required employees to arbitrate employment disputes. However, after Pressler resigned, he and Duke negotiated a settlement agreement, executed in March 2007, to resolve disputes concerning Pressler’s termination. The settlement agreement made no reference to any arbitration requirement.


When Pressler filed his libel and slander claims against Duke and Burness in January 2008 for comments made by Burness and published by the press, the defendants responded by invoking the arbitration policy—the defendants sought to stay the proceedings while the parties arbitrated the dispute or, alternatively, sought to dismiss the claims. The trial court denied the defendants’ motion and held that the obligation to arbitrate was “extinguished, cancelled and voided” by the settlement agreement executed in 2007.


On appeal, the North Carolina Court of Appeals affirmed the trial court’s decision based on either of two contract theories. The Court of Appeals wrote:

[Pressler’s] claims against defendants arose from alleged defamatory and libelous actions by defendants in June 2007, after the execution of the mutual release. Therefore, under either a theory of agreement of rescission or a theory of mutual release [of claims], plaintiff is not bound to resolve his dispute by arbitration with defendants. Plaintiff’s proceedings in litigation are not subject to a stay. We affirm the trial court’s . . .  order denying defendants’ motion to stay proceedings pending arbitration.

With this ruling, Pressler is now free to pursue his libel and slander claims filed in Durham County Superior Court. We will continue to monitor this story and update you with significant developments.

Google Ordered to Reveal "Skank" Blogger

A New York trial judge ruled recently that cover model Liskula Cohen was entitled to learn the identity of the anonymous author of the short-lived "Skanks in NYC" blog.  Cohen claimed that the blogger had defamed her in August 2008 when the blogger wrote: "I would have to say that the first place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen."   The blogger later called Cohen a "psychotic, lying, whoring . . . skank."

The blog was hosted by Google, so in January, Cohen asked a judge to order Google to disclose the blogger's identity.  A lawyer appeared for the blogger, identified in court documents as "Anonymous Blogger," and argued that the posts were not defamatory and therefore disclosure was not warranted.

In particular, the attorney asserted that the statements were simply "non-actionable opinion and/or hyperbole" that no reader would interpret to be statements of fact.  This is especially true, the blogger's attorney argued, in the context of the blogosphere where "loose hyperbolic" speech is ever-present.

The judge disagreed, holding that Cohen had satisfied her burden of showing a meritorious claim, especially because the speech at issue was linked to several "sexually provocative" pictures of Cohen.  The comments, when read together with the pictures, "convey 'facts' that are capable of being proven true or false."  Specifically, the blog posts can reasonably be read to say that Cohen was sexually promiscuous, which can be defamatory if it is false.

After the ruling, the blogger's identity was revealed in media reports to be a woman angry about things Cohen allegedly said to the woman's boyfriend.  According to the New York Post, Cohen initially filed a $3 million defamation suit against the woman, but quickly decided to drop it.

Appellate Court in D.C. Protects Anonymous Speech

The District of Columbia Court of Appeals, the highest court for cases arising in the District of Columbia, continued the recent trend of requiring defamation plaintiffs to meet an elevated legal standard when they serve a subpoena seeking the identity of an anonymous speaker.  Like Maryland's highest court, the District of Columbia appellate court held that a plaintiff must proffer sufficient evidence to survive summary judgment before a motion to compel will be granted.

The D.C. case, Solers, Inc. v. John Doe, was brought by Solers, a software company, alleging that Doe had defamed the company and tortiously interfered with prospective business opportunities by submitting an anonymous complaint against Solers to a software industry group.  In the anonymous complaint submitted to the Software & Information Industry Association, Doe alleged that Solers was using pirated software.  SIIA investigated the charge but ultimately took no legal action against the company.

Solers filed suit against Doe and served a subpoena on the SIAA seeking his identity.  SIAA moved to quash the subpoena, and a D.C. superior court ultimately quashed the subpoena, holding that the complaint would not survive a motion to dismiss and therefore Doe's rights outweighed those of the company.

The Court of Appeals, like the Maryland Court of Appeals, engaged in an exhaustive review of the various standards that have been applied to defamation plaintiffs seeking the identity of an anonymous commenter.  As we have reported throughout the year, the clear trend is to protect anonymous speakers unless the plaintiff meets some elevated standard. 

The D.C. court adopted the test outlined in Doe v. Cahill, 884 A.2d 451 (Del. 2005), with some slight revisions.  The D.C. court held that a court faced with a subpoena seeking the identity of an anonymous speaker must:

(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

The court was careful to emphasize the "within its control" language in the fourth element, pointing out that the plaintiff should not be required to satisfy elements of the claim "dependent upon knowing the identity of the anonymous speaker."  In contrast to the Maryland Court of Appeals, however, the D.C. court did not require any First Amendment balancing test as a final step to the analysis, judging that to be unnecessary in light of the first five steps.

Applying this test, the court remanded the case to allow Solers an opportunity to present additional evidence supporting its claim of defamation.

Defamation in 140 Characters or Fewer

The Twitter phenomena has seemingly gone viral this summer. What started out as a quirky way for people to send brief (140 characters or fewer!!) updates on their daily activities, thoughts, or opinions, is now a major source of breaking news. From the streets of Iran to the Pittsburgh Steelers’ practice field, correspondents of all stripes are Tweeting first, blogging second, and (maybe) writing a story for the crusty old newspaper third.

It should come as no surprise, then, that we are just now seeing our first claims for Twitter defamation.  As has been widely discussed, a Chicago area real estate company has sued a former tenant for defamation based on a Tweet (that is, a message sent via Twitter) she sent to her 20 followers. The Tweet said “You should just come anyway. Who said sleeping in a moldy apartment is bad for you? Horizon Realty thinks it’s okay.” Horizon is seeking $50,000 in damages based on harm to the company’s business reputation.

While commentary on the suit has focused on the company’s perhaps overly litigious approach to what was at most a very minor annoyance, the suit does raise some interesting legal issues.

First, the fact that the Tweet only went to 20 readers may be legally significant to the issue of how much Horizon’s reputation was really harmed, but it does not make the words any less defamatory. All Horizon would need to show is that the post went to even one third party.

The harder question is whether the Tweet was, in fact, defamatory. Does the Tweet accuse Horizon of maintaining moldy apartments as a matter of fact, or is it simply opinion or commentary not intended to be interpreted as a statement of fact? The former is actionable (unless it is true, of course), the latter is probably not.  The ultimate answer to that question is less important, for our purposes, than the fact that it is a close legal question that is not going to be dismissed easily or cheaply.

While this lawsuit raises more chuckles than anything else, it should give pause to reporters, editors, and publishers of all varieties. Twitter is meant to be an intimate kind of affair—readers getting an insider’s view of someone’s day-to-day existence, for better or for worse. This intimacy, and the short-hand nature of the medium itself, breeds an informality that can be very dangerous for reporters and others with a lot of subscribers and a high profile. When your White House correspondent Tweets about a breaking news event, thousands of readers may be seeing that message, a message that was not edited, not vetted, and probably not even seen by anyone other than the reporter before it went out. That problem is exacerbated by the fact that many blogs and other news organizations now pick up and re-publish Tweets from high-profile reporters (and, yes, politicians).

Again, that level of intimacy and immediacy is what makes Twitter popular, but it should give newsrooms heartburn as well. The bottom line is that you can easily defame someone in 140 characters or fewer, but even the best lawyer in the world can’t draft a successful motion to dismiss that short.

"Libel Tourism" Bill Passed by U.S. House

The U.S. House of Representatives on June 15, 2009, passed a bill to combat so-called “libel tourism”—a practice where United States reporters and media outlets are sued for defamation in foreign countries to circumvent the limits the U.S. Constitution places on defamation claims. The text of H.R. 2765 is available here, while the House report on the bill is here.

H.R. 2765 provides the following:

  1. U.S. state or federal courts must not recognize or enforce a foreign defamation judgment if the person opposing the judgment argues that the judgment is inconsistent with the First Amendment. The domestic court may enforce the foreign judgment if it independently determines that the judgment is consistent with the First Amendment.
  2. U.S. state or federal courts must not recognize or enforce a foreign defamation judgment if the person opposing the judgment shows that the foreign court failed to comport with Due Process in exercising personal jurisdiction over the defamation defendant. (For more information on personal jurisdiction, this website provides an overview.) 
  3. U.S. state or federal courts must not recognize or enforce a foreign defamation judgment against an “interactive computer service” provider, as that term is defined in Section 230 of the Communications Act, if the person opposing the judgment raises Section 230 as a bar. The domestic court may recognize or enforce the foreign judgment if it independently determines that the judgment is consistent with Section 230. (Section 230 generally requires that “interactive computer service” providers are not to be treated as the publishers or speakers of content posted on their websites by third parties. We have written about Section 230 here and here.)

The burden of establishing that the foreign judgment does not run afoul of the First Amendment or Section 230 is on the party seeking to recognize or enforce the foreign judgment—not the defamation defendant. That makes it more difficult for the holder of the foreign judgment to have the judgment enforced in the United States if the defamation defendant raises the First Amendment or Section 230 as a bar. 


The burden of showing a foreign court failed to give the defamation defendant Due Process is with the person opposing the foreign judgment—the defamation defendant. This, of course, makes it more difficult for a defamation defendant to avoid a foreign judgment based on the foreign court’s lack of personal jurisdiction. 


H.R. 2765 also provides that “appearing” before a foreign court to contest the court’s jurisdiction or defend against the claims does not preclude the defamation defendant from opposing the judgment in the United States on jurisdiction grounds or otherwise.


Additionally, the bill provides that the party opposing recognition or enforcement of a foreign defamation judgment may be awarded reasonable attorneys' fees if the party prevails based on one of the three grounds described above. 


If enacted, H.R. 2765 would represent a significant victory for media companies, particularly in this age where media websites may be accessed anywhere around the world—including places that have few if any restrictions on defamation claims.  However, the bill, as currently written, does not include any additional penalties (other than attorneys' fees) to further deter defamation plaintiffs from pursuing these problematic foreign judgments in the U.S.


H.R. 2765 was reported favorably out of the Judiciary Committee on a voice vote on June 10, 2009.  With passage by the full House on June 15, 2009, the bill next moves to the Senate.

Former Raleigh Mayor Sues for Defamation

According to a recent story in the Raleigh News & Observer, a former Republican mayor of Raleigh, and current candidate for chairman of the North Carolina Republican Party, Tom Fetzer, has sued a Wilmington radio station and disc jockey for defamation because the disc jockey forwarded an email to others that "insinuat[ed] that Fetzer is gay."  Fetzer's civil complaint can be read here.

As has been widely reported, there is a North Carolina Court of Appeals decision that would appear to make Fetzer's claim a legal long shot.  In Donovan v. Fiumara, 442 S.E.2d 524 (N.C. Ct. App. 1994), the plaintiffs brought a sander claim against the defendant for stating to others that the plaintiffs were "gay and bisexual."  The trial court had granted the defendant's motion to dismiss, and the Court of Appeals agreed that the purported comments did not fit into any of the three categories of slander per se.  It did not impeach the plaintiffs in their trade or business, it did not allege they had a "loathsome disease," and it did not impute to them the commission of a crime.

Much of the court's opinion was spent analyzing the final category, since, as plaintiffs asserted, North Carolina has an anti-sodomy law.  The court held, however, that the law banned all kinds of activity not particular to gay people, and so calling someone "gay" "is not tantamount to charging that individual with the commission of a crime."    Thus, as a matter of law, implying someone is "gay," as the News & Observer says Fetzer is claiming here, does not support a claim of slander per se.

In Donovan, because the plaintiffs had not alleged special damages, slander per quod was not an option.  Fetzer's complaint, by contrast, does include an alternative claim for libel per quod, based on the diminished value of Fetzer's professional reputation.

It is worth noting that Fetzer's complaint does not actually allege what the defamatory statement or statements were, though in public statements concerning the lawsuit Fetzer has made clear the basis for his claim. It will be interesting to track the progress of both Fetzer's lawsuit and his candidacy for state party chair to see whether his success or lack of success in the political arena affects his conduct in the legal arena.

Fourth Circuit Splits the Defamation Baby

In late February, the United States Court of Appeals for the Fourth Circuit agreed with a trial court ruling that a jury was entitled to decide whether calling the plaintiff a “gangster” and a “thug,” and alleging that he had been intoxicated at a convention, was indeed defamatory. In a Solomonic twist, however, the court nonetheless vacated the trial court’s judgment for the plaintiff because of reversible errors in the jury instructions.

The claim arose from a column in the Korean-language Inside the World newspaper, which opined that a prominent businessman in the U.S. Korean community was “not just an organized gangster, but a thug.”  The column also claimed that the plaintiff had been visibly intoxicated at a Federation of Korean Associations of America convention in 2005.

The court held that such statements could “reasonably be understood as stating actual facts about” the plaintiff, not just “hyperbolic, shorthand label[s].”  Taken the statements as a whole, the court said, it was not an error for the trial court to conclude that a jury question as to defamation had been created.

That said, however, the court vacated the verdict because the trial court’s jury instructions were wholly inadequate.  First, the trial court simply defined defamation as “a false statement of fact as opposed to a statement of opinion.”  This definition, the Fourth Circuit said, did not provide enough guidance as to the “line separating constitutionally protected speech from actionable defamation.”


In addition, the Fourth Circuit held, the trial court’s instruction as to the intoxication claim was inadequate because it did not make clear that defamation requires that the statement be both false and defamatory.  The trial court had not made clear that the statements had to be more than simply false.


So, even though the plaintiff had created a jury question as to defamation, the Fourth Circuit sent him back to square one as a result of the reversible abuse of discretion on the part of the trial court in giving its instructions to the jury.

First Circuit Affirms Summary Judgment on Claim against Cable News Network for False Quotation, Citation

The First Circuit recently affirmed summary judgment in favor of Fox News Network and Fox personalities Steve Doocy and Brian Kilmeade over a three-hour cable program during which the hosts discussed a report of an alleged “hate crime” at a public school in Lewiston, Maine, where the plaintiff was the superintendent of schools.  During the program, Doocy and Kilmeade repeatedly quoted an article about the incident that contained false quotations and false citation to the Associated Press but also contained substantially true information.

The facts underlying Levesque v. Doocy, No. 08-1814, slip op. (Mar. 19, 2009), involve commentary about an incident at a public middle school in which a student placed a bag containing a leftover ham steak on the cafeteria table where Somali Muslim students were having lunch.  School investigators and police classified the event as a “hate crime.”  A reporter for the Lewiston Sun Journal wrote an article (linked here) on the incident and interviewed the plaintiff, who was superintendent of the school system where the incident occurred.  The plaintiff was quoted in the article describing what happened as “‘a hate incident,’” and another source stated that without a response “‘more degrading acts will follow, until at some point we’ll end up having violence.’”

Several days after the Lewiston Sun Journal article, another writer (Nicholas Plagman) published an article about the Lewiston incident on Associated Content, a website that allows writers to post their own material.  According to the First Circuit, the Plagman article “mischaracterized some facts, such as reporting that the students left a ham sandwich, rather than a ham steak, on the cafeteria table.”  Additionally, the Plagman article included “fictitious quotations” based upon quotes accurately reported in the Lewiston Sun Journal article (e.g., the school and others were developing “an anti-ham ‘response plan,’” “These children have got to learn that ham is not a toy,” and more as reported in the opinion) and falsely listed the Associated Press as a source for the piece.

Plagman posted his article to Associated Content in both the humor and news categories, and the story was picked up and distributed by the news aggregator Google News where a Fox line producer found it.  Fox conducted additional research and was able to confirm some of the facts and sources.  Additionally, Fox located the earlier newspaper article and confirmed that the Lewiston Sun Journal was a legitimate paper.

During the three-hour cablecast of “Fox and Friends,” Doocy and Kilmeade discussed the incident as reported in the Plagman article, “frequently ridiculing Levesque” and reporting the fake quotes that Plagman attributed to the plaintiff.  During the program, Doocy made a few comments the plaintiff later tried to use to show that Doocy and Fox doubted the truth of the report—for example, “I’m not making this up,” “I thought this was a joke,” and “I hope we’re not being duped.”  At some point after the program, the plaintiff contacted Fox to complain about the inaccuracies in the program, and Fox retracted and apologized.

The plaintiff filed claims for libel, libel per se, false light invasion of privacy, and punitive damages based on five statements made by the defendants during the program.  He stipulated that he was a public official for purposes of defamation law.  The district court granted summary judgment for the defendants based largely on the requirement that a public-official plaintiff must demonstrate by “clear and convincing” evidence—even at summary judgment—that the defendant acted with “actual malice.”

Although the First Circuit was sympathetic to the plaintiff’s claim and critical of Fox’s reporting on the matter, the court affirmed the district court’s decision that the plaintiff failed to present clear and convincing evidence of “actual malice.”  The First Circuit affirmed the lower court’s ruling that two of the statements were not defamatory in nature—one of the statements was substantially true while another (the “anti-ham ‘response plan’”) was non-actionable “imaginative expression” or “rhetorical hyperbole.”

As for the three other statements that served as the basis for the action, the First Circuit agreed with the district court that a jury could find them to be defamatory.  The court then turned to the “actual malice” inquiry.

Levesque contends that the defendants' failure to corroborate the fabricated quotes from the Plagman article coupled with incredulous statements during the cablecast (e.g., "I hope we're not being duped," and "I thought this was a joke") establish that the defendants acted with reckless disregard for the truth. He notes that Fox rushed to broadcast the two-week-old story even though it was not breaking news. It is true that a more deliberate consideration of the Plagman article should have caused reasonable skepticism about the source and that the defendants were careless in relying on it, but this is an indication of negligence, not actual malice, and Superintendent Levesque faces the heavy burden of providing evidence that the defendants recognized the carelessness with which they were proceeding.

Ultimately, the court concluded that Fox used reputable sources to authenticate the incident and various facts that were reported by Plagman.  “In the present case, the two actionable statements attributed to Levesque were certainly absurd, but the Plagman article presented them within larger, accurate comments that could be corroborated with the [Lewiston Sun Journal] article.”  (An expert testified during deposition that the discrepancy between an Associated Content and Associated Press piece should have been noticed, but the court found the oversight to be merely negligent.)  Further, although the statements by Doocy and Kilmeae that arguably expressed doubt about the truth of the Plagman article (e.g., “I hope we’re not being duped”), the First Circuit found that “in the context of a consistently irreverent (and to many, insensitive) morning television show, . . . such statements frequently are used as devices to magnify the presentation and grab viewers’ attention”—the statements did not present clear and convincing evidence of actual malice.

Note that the First Circuit distinguished Levesque from Noonan v. Staples, a decision reached by a different panel (with one shared judge) only a few weeks earlier.  As we discussed in our post about Noonan, the First Circuit applied the Massachusetts common-law definition of malice, whereas the court in Levesque applied the constitutional standard.  Levesque demonstrates that the First Circuit obviously knows how to apply the “actual malice” standard to public officials—but getting to the point where the standard applies has not been easy for media defendants in the First Circuit recently.

First Circuit Denies Rehearing En Banc of Decision Recognizing Common-Law Malice "Exception" to Truth Defense

On March 18, 2009, the First Circuit denied a petition for rehearing en banc of a case in which a panel of the First Circuit recognized that, under Massachusetts law, truth is not an absolute defense to a libel claim.  The defendant raised a constitutional attack against the state statute that served as the basis of the panel's decision, but the First Circuit determined that the constitutional argument was not properly before the court.  The outcome—in which common-law malice may defeat the truth defense—cannot easily be squared with the federal constitutional requirements for state defamation law.

The denial of rehearing en banc follows the First Circuit’s February 13, 2009, decision upon rehearing the case in which it reversed and remanded a lower court decision granting summary judgment for a libel defendant because the allegedly defamatory statement at issue was true and because the plaintiff could not defeat the defense of truth by showing the defendant acted with “actual malice.”  With this rehearing opinion in February, the First Circuit reversed its own earlier decision in August 2008 in which it affirmed the district court’s ruling.

In Noonan v. Staples, Inc., No. 07-2159, slip op. (1st Cir. Feb. 13, 2009), the plaintiff (Noonan) was a former employee of the defendant (Staples).  Staples claimed that it fired Noonan “for cause” because Noonan allegedly “padded his expense reports.”  According to the First Circuit, the evidence demonstrated that Staples investigated Noonan’s expense report filings and determined that he “deliberately falsified” some reports in violation of company policies.  After terminating Noonan, a representative of Staples sent an e-mail to 1,500 to 1,600 people (the exact number could not be determined) that stated that Noonan’s employment was terminated because he did not comply with the company’s travel and expenses policies.  Noonan subsequently filed a complaint against the company and claimed libel based on the e-mail and breach of contract based on the company’s refusal to allow him to exercise stock options and to receive severance.  Noonan did not dispute that he had made errors on his expense reports, but he claimed that the company’s travel and expense report policies were not routinely followed by employees or enforced by Staples.  The district court rejected the plaintiff’s claims and entered summary judgment for Staples.

In reaching its decision to reverse the district court’s decision as to the libel claim (the First Circuit affirmed district court on the breach of contract claims), the First Circuit first analyzed the evidence in the context of the essential elements of a libel claim. In setting out the governing law, the First Circuit wrote:

Since a given statement, even if libelous, must also be false to give rise to a cause of action, the defendant may assert the statement’s truth as an absolute defense to a libel claim. Massachusetts law, however, recognizes a narrow exception to this defense: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with “actual malice” in publishing the statement. (citations omitted)

The court cited a Massachusetts statute, Mass. Gen. Laws ch. 231, § 92, which states: “The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libelous; and the truth shall be a justification unless actual malice is proved.”

In its initial decision in August, the First Circuit agreed with the district court and found that “actual malice” as referred to in the statute meant constitutional actual malice—knowledge of falsity or reckless disregard for the truth.  However, the First Circuit reversed itself in February and held that “actual malice” as referenced in the statute means common-law malice or ill will.  That is, instead of focusing on the defendant’s attitude toward the truth, the First Circuit decided in February that the court should focus on the defendant’s attitude toward the plaintiff.

The First Circuit justified its holding based on the fact that Mass. Gen. Laws ch. 231, § 92 was passed before the development of the definition of “actual malice” by New York Times v. Sullivan and its progeny; indeed, the court cited a 1903 case interpreting the term as meaning of “actual malice” in the statute as “‘malicious intention.’”  Additionally, the court found that the “legal context” supported interpreting “actual malice” as “‘ill will’ or ‘malevolent intent’” because (1) the statute deals not with public figures but with defenses under traditional tort law, (2) application of the “modern” meaning of “actual malice” would mean liability for true statements could only occur where the speaker utters a true statement but has serious doubts about or sincerely disbelieves its truth (the court found the statute was “not likely” meant to be limited to such an “odd result”), and (3) “in the public-figure context, the ‘actual malice’ test applies to statements of public concern, an area in which defamatory true statements are not actionable at all” (see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)).

Ultimately, the First Circuit found that the statements made in the e-mail about Noonan—that Staples fired Noonan after an investigation determined he had not complied with the company’s travel and expense policy—were true or substantially true.  However, the court found Noonan’s proffered evidence that the sender of the e-mail harbored ill will toward Noonan raised a triable issue of fact regarding whether the sender acted with common-law malice toward the plaintiff.  The libel claim was allowed to proceed.

To understand Noonan and the Massachusetts statute that supposedly creates an exception to the truth defense, it is helpful to consider Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129 (Mass. 1998).  The First Circuit cited the case (see footnote 7) for the proposition that the actual malice exception “is not constitutional when applied to matters of public concern.”  In Shaari the plaintiff, the proprietor of a youth hostel, sued the preparer and publisher of Let’s Go: Egypt & Israel over allegedly defamatory statements made in the travel guide about him—the guide stated that there were multiple sexual harassment claims against the plaintiff.  The Massachusetts Supreme Judicial Court held that plaintiff was a private figure involved in a matter of public concern, and, as such, Mass. Gen. Laws ch. 231, § 92 could not be applied to the defendants without violating the First Amendment.  As noted in Shaari, the body of law developed by the U.S. Supreme Court, particularly Philadelphia Newspapers, Inc. v. Hepps, requires that a private figure involved in a matter of public concern “cannot recover damages without also showing that the statements at issue are false.”  The Shaari court also stated that, in an earlier case, the Massachusetts Supreme Judicial Court held that the statute cannot, consistent with the First Amendment, apply to a public figure or public official. See Materia v. Huff, 394 Mass. 328, 333 n.6 (Mass. 1985).  Noonan, Shaari, and Materia collectively mean that the only types of libel claims the statute may apply to, consistent with precedent, are private figure, private concern claims.

As noted above, the Noonan rehearing opinion acknowledges that Staples raised during rehearing the argument that the statute may never be constitutional.  However, because, according to the court, Staples did not develop or raise that argument in its initial brief to the court, the First Circuit did not consider the constitutionality of the statute.  The March order denied rehearing for the same reason and because Staples had not timely argued the matter at hand was an issue of public concern.  Additionally, the court wrote that the constitutional issue was not "so clear" that the court should sua sponte strike down the statute without notice to the state attorney general.

The First Circuit also denied the defendants’ request to certify the matter to the Massachusetts Supreme Judicial Court for resolution.  At least for now, the statute is still good law in Massachusetts, and observers will have to wait and see if the statute survives constitutional scrutiny when applied to a private figure involved in a matter of private concern.

Arkansas Supreme Court Affirms Fair Report Privilege

The Arkansas Supreme Court held last week in a unanimous decision that the fair report privilege protected reporters from The Courier newspaper who had reported allegations about a rape investigation based on the contents of a police report.

The decision arose out of a defamation claim against the paper made by Kevin Whiteside, who was named in the police report of a rape investigation in December 2006.  The report said that a witness at a party hosted by Whiteside saw Whiteside with the alleged rape victim.  In January 2007, The Courier published a story about the allegations based on the police report.  The story was quite high-profile, since in 2005 Whiteside and his friend, also named by the witness, had found the dead body of a local beauty queen.  In fact, at the time of the alleged rape the friend was free on bond awaiting trial on charges relating to the woman's death.

Whiteside claimed in his lawsuit, however, that after the police report was taken, but before the story was published, the witness recanted her story.  While the paper published a "clarification" of this fact, Whiteside said in his complaint that it was insufficient.  The trial court granted the newspaper's motion for summary judgment and subsequently denied Whiteside's motion for new trial and for relief from judgment.

On appeal, Whiteside claimed that the witness statements in the first police report should not have been released and should not be considered a report of an "official action or proceeding" under Section 611 of the Restatement (Second) of Torts.  While the Arkansas Supreme Court agreed that the witness statement should not have been made available to the reporters according to police policy, the court said that the report was indeed covered under Section 611 and that the paper had done nothing improper in obtaining it.

Whiteside argued, however, that the privilege should not apply here because the paper knew, or should have known, that it was not supposed to be able to see the witness statements.  Citing The Florida Star v. B.J.F., the court rejected that argument, holding:

It seems clear that an inadvertent release of information is not analogous to an involuntary release or an illegal gain of information.  As discussed, the record is devoid of any evidence of any wrongdoing on the part of the Newspaper in obtaining the information.  It was not incumbent upon the Newspaper to determine what information could or could not be published after its release by the police.

Finally, Whiteside asserted on appeal that the description of the contents of the police report was not substantially accurate.  Specifically, Whiteside said that the story was misleading because it interspersed comments in the report from the police officer and comments from the witness in unclear ways.  The court said that the organization of the story may have been confusing, but it was essentially "an accurate and complete or a fair abridgment of the occurrence reported."

For general information on the fair report privilege, click here.  For a previous report we have published on the privilege, click here.

Lobbyist and N.Y. Times Settle Libel Suit

We previously reported that Vicki Iseman, a Washington lobbyist, filed a defamation lawsuit in December against the New York Times over an article published during the 2008 presidential campaign.  In particular, Iseman contended in her complaint that the article falsely implied that she and then-candidate John McCain had carried on an illicit and inappropriate romantic relationship while Iseman worked for clients before a Senate committee chaired by McCain.

Yesterday Iseman and the Times announced that her claims had been resolved and the lawsuit dropped.  The terms of the settlement were somewhat unusual in that the Times neither paid money to Iseman nor retracted the article, which remains available on its website.  Instead, the Times permitted Iseman's lawyers, including noted First Amendment scholar Dean Rodney Smolla, to express their views about Iseman and the article on the Times' website.  Her lawyers' statement appears here.

The Times and Iseman also issued a joint statement, which stated in part:

The Times has maintained that the article was an accurate, important examination of the record of Mr. McCain, then the presumptive Republican presidential nominee, as an ethics reformer who was at times blind to potential conflicts of interest; the section of the article referring to Ms. Iseman focused on the fact that some top McCain advisers had confronted the senator with their concerns that the relationship had become romantic.

To resolve the lawsuit, Ms. Iseman has accepted the Times’ explanation, which will appear in a Note to Readers to be published in the newspaper on February 20, that the article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust.  Several of Ms. Iseman’s clients and others state that she is respected, professional and effective in representing her clients’ interests.

The "Note to Readers" referenced in the joint statement appears here

Settlement spares the Times the time and expense of litigating several knotty legal issues we identified in our previous post.  As James Rainey of the Los Angeles Times reports, the extent of the Times' success in the legal arena over the disputed article is clear; the degree of its journalistic success in publishing the article as written in the first place remains open to debate.  In addition, the flurry of statements issued in connection with the settlement, including from Times executive editor Bill Keller, has sparked its own commentary.

N.Y. Appellate Division Dismisses Libel Complaint as Non-Actionable Opinion

On January 29, 2009, a panel of the New York Supreme Court, Appellate Division, reversed a trial court’s order denying a motion to dismiss a plaintiff’s libel complaint, holding that the allegedly libelous statements constituted non-actionable opinion.  A copy of the decision is linked here.

In Bonanni v. Hearst Communications, Inc., No. 505007 (N.Y. App. Jan. 29, 2009), the plaintiff, a member of the City of Albany Police Department, sued the owner of the Times Union newspaper (actually the Hearst Corporation, not Hearst Communications) over the content of two articles that were labeled as “commentary.” 

In the first article, the author wrote that the plaintiff should be dismissed from the police force because the plaintiff had allegedly reported for work intoxicated and also had a history of disciplinary actions taken against him for “a series of serious incidents.”  The incidents mentioned in the article included the beating of a college student while not on duty and the accidental shooting of a suspect during a police chase.  The article did not mention that another officer fired the shot that killed the suspect in the car chase.

The second article mainly criticized the police officer’s union because it evidently opposed the Albany police chief’s “zero-tolerance alcohol policy.”  However, the commentary mentioned that the union supported the plaintiff in an arbitration proceeding.  The commentary discussed again that the plaintiff allegedly reported for duty under the influence of alcohol and restated the plaintiff’s history of disciplinary actions.  Once again, the writer called for the plaintiff’s ouster.

The plaintiff filed his complaint alleging that the defendant newspaper had defamed him by stating (among other things) that he had been intoxicated at work and was unfit to serve as a police officer.  He further alleged that the defendant had acted with actual malice (which, as a public official involved in a matter of public concern, he would be legally required to prove).  The defendant filed a motion to dismiss for failure to state a valid cause of action based in part on the fact that the allegedly defamatory statements were non-actionable opinion.

On review, the Appellate Division determined as a matter of law that the statements were opinion and, therefore, could not serve as the basis for a libel complaint.  In reaching its conclusion, the Appellate Division considered three factors to determine whether the statements constituted actionable fact or non-actionable opinion:

(1) whether the language of challenged statements has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether, considering the context in which the statements were made, readers are likely to understand the statements to be opinion, rather than fact.

When applying the test, the court stated that the immediate context of the statement and the “broader social context and surrounding circumstances” must be considered.

Applying the test for fact versus opinion, the Appellate Division found that the content and the context of the articles and their tone and purpose would lead a reasonable reader to understand that the articles were the writer’s opinion, not statements of fact about the plaintiff.  The clear identification of the articles as “commentary” in the print version of the newspaper and the articles’ location in the “opinion” section of the online version of the publication were persuasive (although not determinative) to the court.  The “tenor” of the articles also “signaled to the reader that [the author] was expressing his opinion.”  For example, the writer used colorful, subjective language such as this:  “’At long last, [plaintiff] is going to be shown the street instead of pounding it.  The city’s patience is exhausted, and so is the public’s, and radical action is way overdue.’”

Additionally, the Appellate Division found language in the articles qualifying the nature of the charges and disciplinary actions supported a finding that the articles constituted opinion.  For example, the first article characterized the accusation that the plaintiff arrived at work intoxicated as an “allegation.”  The second article qualified disciplinary charges stemming from that same accusation as “pending.”  According to the court, the discussion of the pending charges was not intended to convince readers of the plaintiff’s guilt but, rather, to encourage the union to support the police chief’s zero-tolerance alcohol policy.

Given the overall context of the articles and the broader social context in which the articles were published, which apparently included what the court characterized as “years of widespread television and print media coverage of the allegations of misconduct by plaintiff,” the court determined that a reasonable reader would understand that the author was expressing his opinion, not engaging in “objective news reporting.”  Therefore, the Appellate Division reversed the trial court and granted the defendant’s motion to dismiss.

NY Times Sued Over Article Linking Lobbyist to McCain

Vicki Iseman, a Wasington lobbyist, yesterday filed a defamation action against The New York Times, four of the newspaper's reporters, its executive editor, and the chief of its Washington bureau in federal court in Richmond, Virginia.  In her complaint, she contends that a February 2008 article published in the Times that linked her to Senator and then-Presidential candidate John McCain was susceptible of defamatory meaning.  She seeks to recover $27 million in damages for the alleged defamation.

Iseman alleges the article, through its literal words and by implication, conveyed a defamatory meaning that "Ms. Iseman exploited an alleged personal and social friendship with Senator McCain to obtain favorable outcomes for her clients, engaging in 'inappropriate' behavior that constituted a conflict of interest and a violation professional and ethical norms in breach of the public trust."  She further alleges that the article, again by its literal words and by implication, conveyed a second defamatory meaning that "Ms. Iseman and Senator McCain had engaged in an illicit and inappropriate romantic relationship while Ms. Iseman was a lobbyist conducting business on behalf of clients before the committee chaired by Senator McCain."

In response to Iseman's complaint, the Times issued a statement that "[w]e fully stand behind the article.  We continue to believe it to be true and accurate, and that we will prevail.  As we said at the time, it was an important piece that raised questions about a presidential contender and the perception that he had been engaged in conflicts of interest."

In asserting that the article falsely stated that Iseman and McCain had engaged in a romantic relationship, Iseman cited in her complaint the article's second paragraph, which read as follows:

A female lobbyist had been turning up with him at fund-raisers, visiting his offices and accompanying him on a client’s corporate jet.  Convinced the relationship had become romantic, some of his top advisers intervened to protect the candidate from himself — instructing staff members to block the woman’s access, privately warning her away and repeatedly confronting him, several people involved in the campaign said on the condition of anonymity.

The article went on to note that both McCain and Iseman "say they never had a romantic relationship."  Iseman contends the publication of these denials "did not negate the defamatory meanings" she says the article conveyed, as "most readers would understand [such denials] as 'obligatory,' and therefore precisely what Ms. Iseman and Senator McCain would be expected to say."  She alleges further that the defamatory meaning she pleads in her complaint is the very meaning most readers and media outlets in fact took away from the article, citing the "chorus" of broadcast, print, and Internet media that, after the article's publication, expressed that the article's "core meaning . . . was that Senator McCain and Ms. Iseman had engaged in an improper romantic relationship and improper professional relationship."  She includes over three pages of examples of these expressions in her complaint.

We will follow closely the progress of Iseman's lawsuit.  News reports about relationships between lobbyists and politicians, as well as about politicians' alleged affairs, are common fare these days.  Iseman's case may prompt significant legal wrangling over whether the "gist" or "sting" of the Times' article was substantially true, as well as over Iseman's contention that she is a private figure, rather than a public figure, for purposes of the standard of fault she must prove.  The case may also prompt a legal fight over the identity of the two anonymous sources cited in the article as the basis for many of the statements Iseman challenges.

Finally, the case is also noteworthy in that a well-known First Amendment scholar and Dean of the Washington and Lee University School of Law, Rodney Smolla, is listed in the complaint as one of the attorneys representing Iseman.  Smolla successfully represented the plaintiffs in the famous "hit man" lawsuit, also litigated in the Fourth Circuit, prevailing in an appeal from the entry of summary judgment in the publisher's favor in that case.