Showing posts with label libel. Show all posts
Showing posts with label libel. Show all posts

Monday, February 8, 2021

UK court: Long arm of GDPR can't reach California

Image my composite of Atlantic Ocean by Tentotwo CC BY-SA 3.0
and "hand reach" from Pixabay by ArtsyBee, licensed
A High Court ruling in England limited the long-arm reach of European (now British) privacy law in a suite of tort claims against Forensic News, a California-based web enterprise doing "modern investigative journalism."

The complainant is a security consultant investigated by Forensic News and a witness in the U.S. Senate Intelligence Committee probe into Russian interference in the 2016 U.S. elections.  A British national, he accused Forensic News of "malicious falsehood, libel, harassment and misuse of private information," the latter based on violation of the British enactment of the European General Data Protection Regulation (GDPR).

The extraterritorial reach of the GDPR has been a hot topic lately in privacy law circles, as U.S. companies struggle to comply simultaneously with foreign and burgeoning state privacy laws, such as the California Consumer Privacy Act (CCPA).  

Forensic News has no people or assets in the UK, but the complainant tried to ground GDPR application in the news organization's website, which accepts donations in, and sells merch for, pounds and euros.  No dice, said the court; it's journalism that links Forensic to the plaintiff and to the UK, not the mail-order side show.

The case is Soriano v. Forensic News LLC, [2021] EWHC 56 (QB) (Jan. 15, 2021).  Haim Ravia, Dotan Hammer, and Adi Shoval at Pearl Cohen have commentary.

Wednesday, January 13, 2021

'Seminal' South African defamation case instructs on limited remedial reach of American speech torts

A politician prevailed in defamation against a critic who accused him of nepotism in a South African Supreme Court of Appeal case that a media law expert called "seminal."

Julius Malema in 2011, then a member of the ANC Youth League

Economic Freedom Fighters, a self-described "radical and militant economic emancipation movement" (EFF, definitely not to be confused with the Electronic Frontier Foundation), criticized former South African Finance Minister Trevor Manuel of "patently nepotistic and corrupt process" in recommending to public appointment "a dodgy character called Edward Kieswetter, who is not only a relative of Trevor Manuel, but a close business associate and companion."  EFF published its statement on Twitter to 750,000 followers, and EFF leader Julius Malema retweeted the statement to his 2 million followers.

The Gauteng high court ruled the statement defamatory, and the Supreme Court of Appeal (SCA) affirmed in December 2020, though remanded for reconsideration of the award, 500,000 rand, about US$33,000, because of procedural error.

South African lawyer and scholar Dario Milo, also an English solicitor and expert with the Columbia University Global Freedom of Expression project, described the case as the most seminal in South African defamation law in two decades, writing about the case for his blog, Musings on the Media, the Daily Maverick, and The International Forum for Responsible Media (INFORRM) blog.  Important, Milo wrote, was that the court allowed recovery for a genuinely aggrieved plaintiff, even if a public figure, upon a dearth of evidence to support the defendant's defamatory allegation.

Trevor Manuel, when Finance Minister in 2008
Photo by Valter Campanato/ABr CC BY 3.0 BR
According to Milo, the law should not protect the likes of former South African President Jacob Zuma, who weaponized defamation in 15 suits against news media and political commentators, nor of Johnny Depp, whose suit against his ex-wife was recently bounced by English courts.  (Depp's suit resulted in an awkward factual determination that he had beat up his wife, a legal result Milo characterized as an "own goal."  I like that.)  But the genuinely aggrieved, public officials and figures such as Manuel included, deserve their day in court, he maintained.  And the SCA ruling ensures that "dignity" will not be sacrificed even on the altar of political speech.

From an American perspective, the case offers some thought-provoking points of divergence from First Amendment doctrine.  The South African common law of defamation, rooted in English common law, is not so different from the American.  But the American speech-protective doctrine of New York Times v. Sullivan (U.S. 1964), justly born of the civil rights era, but, I assert, run amuck since, marked an enduring point of divergence between America and the world.

An important if nuanced divergence arises in the problem of EFF's culpability.  As to the underlying truth of the alleged defamation, EFF was sunk; the defense could not refute Manuel's denial that he is "related" to Kieswetter.  Looking, then, to culpability, the South African court found EFF in utter dereliction of duty.  It had no facts to support the allegation of nepotism and made no effort to ascertain any.

In the United States, the Sullivan rule of "actual malice" would require a plaintiff to prove that the defendant published falsity knowingly or in reckless disregard of the truth.  At first blush, that approach might seem compatible with the South African ruling.  But in practice, instructed by a Supreme Court that places a heavy thumb on the scale to favor a defendant's political speech, the rule de facto for American journalists has been that ignorance is bliss.  However much journalism ethics might counsel a duty of investigation, courts have been unwilling to find actual malice without smoking-gun evidence that the defendant had contrary facts within reach and deliberately ignored them.

In recent years, there has been a modest uptick in litigation over alleged actual malice, and I suspect, indeed hope, that that might be a function of a correction.  Recognizing the folly of a de facto bar on defamation suits by persons in politics has undesirable collateral effects, inter alia, deterring political involvement and feeding divisive discourse.  I wonder that American judges, consciously or not, might be increasingly inclined to treat the actual malice standard more as the "recklessness" rule it purports to be.

2019 EFF campaign poster
Photo by DI Scott CC BY-SA 4.0

Another curious takeaway from the South African case is the remedy.  Though the SCA muddied the outcome with its remand on procedural grounds, the court had no substantive objection to high court orders that would raise First Amendment issues.  For in addition to the R500,000 monetary award, the high court ordered that EFF take down its statement and not repeat it subsequently, and that EFF apologize to Manuel.

American thinking about defamation has limited remedies to the reputational-loss proxy of pecuniary award.  First, to "interdict" subsequent speech, to use the South African legal term, goes too far in U.S. remedies, violating the rule against prior restraint—probably.*  There has been some case law lately suggesting that that rule might yield in exceptional circumstances, such as when a destitute or determined defendant cannot pay recompense but has the will and means, especially through readily accessible electronic media, to persist in the defamation.

(*Or probably not. I am kindly reminded that injunction is available now as a defamation remedy in two-thirds of U.S. states.  Professor Eugene Volokh's 2019 publication presently is the truly seminal work in the area; read more, especially the thorough appendices.  Injunctions are variable in kind, for example, preliminary versus post-trial, and the circumstances play into the constitutional analysis.  Regardless, a confluence of legal trends and a changing world seems likely to result in constitutional approval of the injunction remedy in appropriate circumstances. —CORRECTION added Jan. 13.)

Second, a compulsion of apology would unnecessarily abrogate a defendant's right not to speak.  And how genuine an apology might one expect, anyway?  Yet Milo ranked it as important that apology is on the table in South Africa.  For as he observed, a public apology, even if empty of sentiment, is often the symbolic gesture that a defamation plaintiff truly desires, even to the exclusion of financial compensation.

This empirical observation, well established in American legal culture, too, highlights a limitation of the First Amendment system.  Even friend-of-N.Y. Times v. Sullivan Anthony Lewis, in his seminal case biography, recognized criticism of the doctrine in that the Court's rigid constitutionalization of state defamation law foreclosed state experimentation with remedies that might prove more socially desirable and judicially efficient.

I'm not ready to abandon the First Amendment.  But we should accept the invitation of comparative law to be critical of American norms and willing to talk about change.  EFF awaits our RSVP.

The case is Economic Freedom Fighters v. Manuel (711/2019) [2020] ZASCA 172 (17 December 2020) (SAFLII).

Thursday, November 5, 2020

Court: Pseudonymous WeChat user cannot be libeled

As matter of law, statement is not 'of and concerning' plaintiff

Statements about a person on a social media platform are not defamatory as a matter of law when the person is known only by a pseudonym, the Massachusetts Appeals Court held this week.

Defendant and plaintiff exchanged spiteful messages in a WeChat group.  The group comprised 437 persons and was organized to support plaintiffs accusing Harvard University of discriminating against Asian-American applicants in admission.  The defendant referred to the existence of "pink-news" about the plaintiff.  As the court explained the term, "'pink-news' is a Chinese expression that refers to sex gossip or rumors."

The trial court awarded judgment for the defendant on the pleadings on the alternative grounds that the plaintiff had failed to show damages, or that the allegation of "pink-news" was "imaginative expression" or "rhetorical hyperbole," not a factual assertion capable of defamatory meaning.

The Appeals Court affirmed on different grounds.  Plaintiff had been known in the chat group only by a pseudonym.  She failed to allege that anyone in the group knew her identity.  So she could not prove that the statement in question was "of and concerning" the plaintiff, as the test for defamation requires.

The Appeals Court disavowed the grounds of decision in the trial court.  The court's discussion of the "pink-news" issue suggested that there might have been some factual question about the meaning of the term as to preclude judgment on the pleadings.  And in a footnote, the court wrote that written communication in WeChat probably is libel, not slander, so would entitle a plaintiff at least to nominal damages under Massachusetts law.

Probably the "pink-news" allegation later would have failed for the reason the trial court supposed, even if further factual investigation was warranted.  Courts in a number of cases have recognized the hyperbolic nature of social media posts.  In 2018, recognition of "hyperbole" cost "Stormy Daniels" Stephanie Clifford her claim against Donald Trump for his tweet accusing her of a "con job."  In 2019, Elon Musk successfully defended a tweet in which he had referred to the plaintiff as "pedo guy."

At the same time, this anything-goes approach to social media means, for better and worse, that tort law cannot be relied on as a social media regulator in our age of coarsening discourse.

The case is Li v. Zeng, No. AC 19-P-1546 (Mass. App. Ct. Nov. 3, 2020).  The opinion was authored by Justice James R. Milkey for a unanimous panel that also comprised Justice Wendlandt and Chief Justice Green.

Tuesday, September 29, 2020

Court greats both cautioned us on NYT v. Sullivan

I'm indebted to Trump Litigation Seminar student Kevin Burchill, who timely unearthed this interview with the late Justices Ruth Bader Ginsburg and Antonin Scalia by journalist and journalism professor Marvin Kalb.  From the cue linked below (at 21:42, for six or so minutes), they discuss New York Times v. Sullivan (U.S. 1964).

 

Nonetheless a First Amendment advocate, I have long shared Justice Scalia's unpopular position that Sullivan was incorrectly decided.  I don't contend that the newspaper should have lost.  In the civil rights context in which the case arose, Sullivan played a critical role in relieving segregationists of state tort law as a weapon.  However, there were many paths to that outcome that did not require the wholesale federalization and constitutionalization of state defamation torts.

The consequences, as suggested even by chapter 19 ("Back to the Drawing Board?") of Anthony Lewis's classic 1991 panegyric and case biography, Make No Law, have been disastrous, because Sullivan undermined the laboratory of common law experimentation in the states.  Today, for example, the "public interest" approach to public-figure defamation in the UK Defamation Act shows great promise as a model to balance the rights of reputation and free speech.  And other countries, such as Australia, seem to be getting along well with much more limited Sullivan-like protection for free speech on public affairs, without the big sky of democracy collapsing across the outback.  Yet we in the United States remain tethered to a near-immunity doctrine born of a bygone era.

RBG (Kalb Report)
In this interview with Kalb, Justices Ginsburg and Scalia characteristically state their opposing positions on the correctness of Sullivan, for and against, respectively.  What I find compelling, though, is that Justice Ginsburg acknowledged Sullivan's unintended problematic consequences.  Sullivan was a product of civil rights exigency, she reiterated.  But, she recognized, its doctrine was tailor-made for a press on the same page of mighty ideals in the mission and ethics of journalism.

What if, say, new technology caused mass media entry barriers to fall?  And then we had a proliferation of partisan pundits, or even disinformation, pouring through our information flows?  If Sullivan were then not up to the job, we might find our hands tied by unyielding constitutional cable.  We might flail, helpless, in trying to restore integrity to the democratic space.

Perish the thought.

Monday, September 7, 2020

Immunity shields tweeting legislators from libel suits, Elizabeth Warren from high school plaintiffs

High schoolers from Kentucky will not get their day in court against Elizabeth Warren.

The students' lawsuit, high profile in the political sphere, was resolved in the Sixth Circuit yesterday on mundane grounds that offer a reminder to torts students of a simple immunity rule.

Remember the fuss in January 2019 over that video of Catholic high school students on a field trip said to be taunting a Native American elder demonstrating at the Lincoln Memorial?

Remember when people used to stand really close together like that?

There were two dramatically different sides to the story about what was really happening there, and they were as far apart as young people joining in celebration of Native American heritage, on the one side, and "MAGA" has inspired privileged youth to racism, on the other side.  For a breakdown that gets closer to the truth, see, e.g., Vox, Jan. 24, 2019; Reason, Jan. 21, 2020.

Senator Elizabeth Warren (D-MA) and Representative Deb Haaland (D-NM) tweeted about the affair from the perspective that cast the students in the wrong.  Haaland wrote, "The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration. Heartbreaking."  And Warren: "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better."

The students sued the legislators for defamation, asserting that the darker interpretation of events was false.  On Thursday last week, the Sixth Circuit affirmed dismissal of the lawsuit—which is not to opine one way or the other on the students' claim of falsity.

As the court observed, the Speech and Debate Clause has no application on Twitter.  But a much simpler analysis pertained.  Whilst tweeting, Haaland and Warren were acting within the scope of their employment with the U.S. Government.  And the Federal Tort Claims Act (para. (h)) does not waive federal sovereign immunity for defamation committed by its employees—even the elected kind.

The case is Does 1 through 10 v. Haaland, No. 2:19-cv-00117 (6th Cir. Sept. 3, 2020).  Circuit Judge Eric Clay authored the opinion for a panel that also comprised Judges White and Readler.

Tuesday, September 1, 2020

Libel suit must follow first online post in less than three years, Mass. court rules, applying U.S. norm

The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.

In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content.  The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff.  That amplification can count toward damages if the plaintiff prevails.  But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication.  The rule is said to serve interests of both judicial efficiency and fairness to defendants.

A newspaper is printed in 2013 on an 18th-century press
in Colonial Williamsburg. (Maggie McCain CC BY 2.0)

There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished.  The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download.  Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."

The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication.  In a decision today, the Massachusetts Appeals Court followed that norm.

The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence.  In each of two incidents, Wolsfelt was arrested.  After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report."  When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."

After the second incident in June 2012, the Times again published online a story that "largely tracked the police report."  When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months."  Charges were dismissed in 2012 and 2014, respectively.

In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment."  But the complaint was not filed until more than three years after the first article, its update, and the second article.  The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update.  The plaintiff said he learned about the articles only upon applying for employment in February 2013.

The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run.  Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods.  The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.

The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions.  The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.

However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States.  Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless.  Accordingly, the single publication rule has gained traction as a U.S. export.  The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013.  And the rule has been a point of proposal in Australia's ongoing defamation reform.  The single publication rule became law in New South Wales in July (Lexology).

The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020).  Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.

Monday, May 20, 2019

The summer beach read you've been looking for:
Don Herzog on 'Defaming the Dead'


Looking for the perfect gift for that tort lover in your family?  The perfect read for the beach this summer?  Look no farther.  Pick up Don Herzog’s Defaming the Dead (Yale University Press 2017).

Herzog, a law professor at the University of Michigan, published this odd delight.  He makes a cogent argument against the common law rule prohibiting defamation actions predicated on injury to the reputation of the dead.  I was skeptical: a whole book about this little common law trivium?  Turns out, the history of defamation and the dead is compelling: at times bizarre, thought-provoking, and often funny, especially in Herzog’s capable conversational style.

Do you care what people say about you after you die?  It’s human nature to put a lot of thought into the future beyond your lifespan.  But it doesn’t really matter.  You won’t be here to be injured by defamation, nor gratified by its omission.  And if you’ve moved on to a heavenly (or other) afterlife, why would you care what mortals are saying back on earth?  Sometimes we imagine that we care about the future because we want happiness for our survivors.  But we won’t be here to know whether they have it, so is the interest really ours, or theirs?  Should the law protect either?  These problems, which Herzog posits in the beginning of the book, force some deep thought about what we want to accomplish with tort law—e.g., compensation, deterrence, anti-vigilantism—and accordingly, how we think about tort’s elements—duty, breach, causation, and injury—in the context of dignitary harms.

To oversimplify, Herzog pits what he calls “the oblivion thesis”—you can’t assert legal rights from beyond—against the Latin maxim and social norm, de mortuis nil nisi bonum, loosely meaning, “speak no ill of the dead.”  Common law defamation observes the first proposition, while as to the second, Herzog cautions: “No reason to think that just because it’s stated in Latin and has an imposing history, it makes any sense.”

Yet as Herzog then well demonstrates, we observe the Latin maxim in American (and British) common law in all kinds of ways.  The law’s purported disinterest in protecting reputations of the dead never became a rule in criminal libel.  And 19th century precedents that excluded post mortem defamation recovery seem to have been motivated by the same illogic that survival statutes were meant to redress.

Meanwhile we recognize a range of legal interests that appear to reject the oblivion thesis:  We honor the intentions of the dead in trusts and estates.  Attorney and medical privileges can survive death, even as against the interests of the living.  In intellectual property, copyright and publicity rights survive death, and trademark discourages disparagement of the dead.  Privacy in the federal Freedom of Information Act protects survivors by way of the decedent’s personal rights.  And Herzog devotes an entire riveting chapter to legal prohibitions on—and compensations for—corpse desecration.

Whether or not you’re convinced in the end that the common law rule on defaming the dead should yield, Herzog’s tour of the field is a worthwhile interrogation of much more than defamation, and much more than tort law.  His thesis unpacks the fundamental question of who we think we are, if we are so much more than the sum of our carbon compounds; and how that understanding of our personhood is effected and perpetuated by our most curious construct: the rule of law.

Friday, March 22, 2019

Roundup and other stories: Monsanto, Sandy Hook, Aaron Hernandez, Monica Lewinsky, Summer Zervos, and One Montana Statute

A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog.  I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup.  Hat tip to my Torts II class, which is ever vigilant.



Strict product liability—Roundup.  In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide.  (NYT, Mar. 19.)  Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported.  This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides).  Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.





Gun liability—Sandy Hook.  The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law.  (NYT, Mar. 14.)  The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act.  The dissent was unpersuaded.  Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here.  The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.



Wrongful death, collateral estoppel—Aaron Hernandez.  The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd.  Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017.  Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died.  Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed."  In the case of Lloyd, the victim's mother had settled her civil claim.  But the Court recognized 
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion....  There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).



Invasion of privacy, infliction of emotional distress—Monica Lewinsky.  John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight.  Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace.  The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.




Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections.  Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice.  In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes.  The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events.  Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court.  The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video.  Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety.  The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning.  The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).



Criminal libel, First Amendment—Montana statute.  The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault.  The case arose from an ugly dispute in election of a county district judge.  The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness.  The federal court acknowledged that the state high court had read First Amendment standards into other state statutes.  But the criminal libel law had been applied without modification.  Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity.  Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019).  Professor Eugene Volokh wrote about the case for Reason.

Friday, August 25, 2017

Mass. App. upholds $2.9m 'actual malice' verdict over 'bitter feud' in local politics

The Range Feud (Columbia Pictures 1931)
The Massachusetts Appeals Court today rejected appeal of a defamation verdict.  The case is Van Liew v. Eliopoulos, no. 16-P-567 (soon available from the Reporter of Decisions), per Justice Blake.

The case arose amid what the court described as "a bitter feud ... between Chelmsford residents," focusing on the redevelopment of a historic property.  Plaintiff Eliopoulos was a selectman, real estate attorney, and project developer; defendant Van Liew was a business owner and project opponent.  The latter's vigorous opposition included a newsletter titled, "Why Perjury Matters."  The jury found, and the trial court entered judgment, against the defendant for 29 defamatory statements, to the tune of $2.9m.  The Appeals Court affirmed upon 26 statements.

Because the plaintiff was a public official and public figure, the case occasioned review of some First Amendment basics, namely, the Sullivan (FindLaw) "actual malice" standard and the Bose Corp. (FindLaw) standard of independent appellate review, besides the common law fact-opinion dichotomy.  Actual malice was supported, inter alia, by evidence that the defendant had reiterated charges of unethical conduct knowing that an ethics commission had exonerated the plaintiff.

The jury's damages award comprised $2.5m for reputational injury, $250,000 for emotional distress, and $150,000 in other compensatory damages.  Refusing remittitur, the Appeals Court held the damages sufficiently supported and neither excessive nor punitive.  A real estate broker had "testified that potential real estate buyers and sellers do not want to work with [plaintiff] because 'a lot of folks think that he is a—a corrupt, unethical person, because it's been said hundreds ... of times, over the past few years, in mailings and e-mails to their homes.'"  The Appeals Court opined, "The jury well could have found that the defamation turned [plaintiff] into a pariah in his own community, a status for him that has no end in sight."

Not many years ago, a politician-plaintiff's favorable verdict on actual malice was about as likely as, well not quite a unicorn, but maybe a California condor.  I advised more than one public-figure colleague not to pursue a cause because of cost, emotional toll, and mainly the overwhelming probability of loss under prophylactic free speech rules, all notwithstanding merits.  The "actual malice" standard on its face suggests no more rigor than a thoughtful recklessness analysis, but trial courts seemed to find it, to borrow the sometimes critique of strict scrutiny, "fatal in fact."

The efficacy of that conventional wisdom has been on the wane in recent years, and I welcome the return to fairness.  The $3m defamation verdict against Rolling Stone and its reporter in November  for "Rape on Campus" (NYT) and the Hulk Hogan (Bollea) privacy win against Gawker (settlement in NYT; new Netflix docko in The Atlantic) are high-profile instances of what might be a sea change underway to balance the scales.  Much hand-wringing has attended the President's "open up our libel laws" statement (NYT), and rightly so.  But that doesn't mean that the frustration that propelled Trump into office is wholly ill derived, on this point any less than on jobs and the economy.

The Appeals Court's application of "actual malice" was workaday and workmanlike.  That's the kind of cool rationality we need in our courts, now more than ever.