Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

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.

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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.

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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.

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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. 

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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.

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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.

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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 http://news.duke.edu/lacrosseincident/.)

As reported in 2008 by WRAL.com, 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.
 

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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.
 

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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.

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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.

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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.

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