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.

Book Review (Preview): Turbulent World of Middle East Soccer, by James Dorsey

My book review of James M. Dorsey's Turbulent World of Middle East Soccer (Hurst 2016) has been published at 52(6) International Review for the Sociology of Sport 772 (2017).  Below is a preview; read more at IRSS from Sage.

Dr. Dorsey's blog also is titled, The Turbulent World of Middle East Soccer.  For the opportunity to write and publish this review, I am indebted to Dr. Colin Howley, Richmond University in London, and to the editors at IRSS.

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 James M Dorsey, The Turbulent World of Middle East Soccer, Hurst Publishers: London, 2016: 359 pp.: ISBN: 9781849043311, £15.99 (pbk). 

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No interest in soccer ('football' in most of the world) is prerequisite to the read. Dorsey himself acknowledges in the book's introduction that soccer was 'a journey into the unknown' for him, and—though he is co-director of the Institute for Fan Culture at the University of Würzburg—he disavows personal fandom. Rather Dorsey analogizes soccer, 'the world's most global cultural practice', to a 'prism'. Just as a prism separates white light into its constituent colours, Dorsey's study of soccer disentwines the modern Middle East into 'sport, society, culture, politics and development'....

Abstract: Arthur on vaccination and consumer protection

Donald C. Arthur, M.D., J.D. UMass Law '17, has published Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017).  Here is the abstract.

Abstract

Some internet marketers offer for sale “vaccination substitutes” that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.

The article is available to Westlaw Next subscribers here.  The Review is published at North Carolina Central University School of Law.

Claiming Don as an alumnus is decidedly my privilege.  Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland.

Book Review: So You've Been Publicly Shamed, by Jon Ronson

In an afterword to his 2015 book, Jon Ronson reported that So You’ve Been Publicly Shamed was not the first-draft title.  

Indeed, it must have been a struggle to name this wide-ranging volume.  Ronson explores shame in many contexts, from the woman whose off-color joke about AIDS on Twitter “blew up [her] life” (as the N.Y. Times put it) to the clients of a busted prostitution outfit, to the featured participant in “a German-themed BDSM orgy” (as the New Statesman put it).  I’m not here naming the Twitter woman, because if you read the book, I think you’ll agree she’s been named—and shamed—more than enough.

By Ronson’s broad definition of public shaming, I’ve been there.  Ronson does little to distinguish those who fairly earned some degree of public shaming—such as a journalist who made up quotes—from those who were disproportionately rebuked, or just misunderstood, or falsely maligned.  Ronson’s light touch with judgment—he admits he has not always been so evenhanded in his own social media life—frustrated me at first, as I’m one who likes to see justice done, or at least to wring my hands when it’s not.  However, I came to appreciate Ronson’s approach.  His reluctance to reach normative conclusions forced me, as reader, to acknowledge my own.  Do I really know how This American Life fact-checks, say, David Rakoff, versus Mike Daisey (see “Retraction”)?  Do I need to have an opinion at all on what consenting adults do in their sex dungeon?  (See also extended adventures with Jon Ronson in the porn world at his 2017 podcast, The Butterfly Effect, coming to iTunes free in November.)

Judgment would get in the way of Ronson’s search.  Chapter to chapter, Ronson leads us in a dogged effort to understand the shaming mob.  (Cf. the excellent work of Prof. Ken Westhues on mobbing.)  When does the mob spring into action, and when does it not?  Ronson tells stories of public shamings from the perspectives of the victims.  He went to the trouble of tracking them all down to get their stories; the Internet doesn’t usually bother.  (In my experience, neither does The New York Times, nor even a respectable author.)  Can the victim do anything to fight back against a public shaming?  Ronson gives us a fascinating glimpse into the sometimes shady world of online reputation management.  And ultimately:  Is there such a thing as redemption in the Internet age?

That was the question that kept me turning pages.  Coverage of Ronson’s book since 2015 really obsessed on the implications of social media, but this book is about so much more than that.  Despite my ongoing research into online erasure, or “the right to be forgotten” (e.g., here and here, and an exciting panel discussion at NCA 2016, reported here and here), I was surprised to see Ronson make the connection.  He considers the RTBF later in the book, tackling the conflicted feelings about RTBF that a lot of people in the journalism world have over interacting rights to expression, privacy, and identity. 

I continue to be captivated by the redemption problem, which I wrote about in a Washington Post opinion column some years ago.  I won’t tell where Ronson’s search leads, because that would spoil the fun.  Suffice to say, there’s plenty of work yet to do, if justice is really our aim.

CFP: Law and Development Conference in Poland

I am privileged to share this CFP.  Deadline October 10, 2017.

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‘Law and Development Conference’

Jagiellonian University in Krakow, Poland

March 16, 2018     

Organizer: The American Law Program of the Catholic University of America at the Jagiellonian University in Krakow, Poland.

Academic   purpose:   The   research   project’s   aim   is   to   look   at   the   concept   of
‘development’ from alternative perspectives and analyze how different approaches thereto influence law. ‘Sustainable development’ is about balancing economic progress, environmental  protection,  individual  rights,  and  collective  interests.  It  requires  a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept present in Catholic social teaching. 

‘Development’  may  be  seen  as  a  value  or  a  goal.  But  it  also  has  a  normative  dimension
influencing lawmaking and legal application. It is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker.

This research project is also about how different approaches to ‘development’ and their
impact on law may coexist in pluralistic and multicultural societies and how to evaluate their  legitimacy.  The  problem  may  be  analyzed  from  the  overarching  theoretical perspective as well as based on case studies stemming out from different legal branches.

Addressees:  Academics  from  US,  Poland  and  other  countries;  alumni  of  the  American
Law  Program,  LLM  Program,  and  International  Business  and  Trade  Summer  Law Program organized by Catholic University of America at Jagiellonian University.

Arrangements: 300-word paper proposals should be submitted by October 10, 2017 at okspo@uj.edu.pl. Successful applicants will be notified by October 20, 2017. Accommodation for selected speakers at the university’s hotel will be provided by Jagiellonian University (two nights for speakers from Europe, 3 nights for speakers from outside Europe). Travel costs must be provided by participants.

Publication: The best conference papers will be published with Catholic University Law
Review.  Final  draft  will  be  due  by  late  January  2018  for  those  who  would  like  to  be
considered for publication. 

Academic  committee:  George  Garvey,  Megan  LaBelle,  Richard  Peltz-Steele,  Leah Wortham, Piotr Szwedo.

Design Patent Infringement Needs a Free Expression Defense / La infracción de patentes de diseño necesita una defensa de libre expresión

From 2017:1 Juriste International magazine, available online now from the Union Internationale des Avocats.  Download issue 2017-1 here and find the whole article at page 44. Download the full research article on this subject here.

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Design Patent Infringement Needs a Free Expression Defense
/La infracción de patentes de diseño necesita una defensa de libre expresión 

Richard J. Peltz-Steele & Ralph D. Clifford

As elsewhere in the world, design patents are propagating copiously in U.S. intellectual property law. Notwithstanding their fertility, design patents face potentially prohibitive and as yet unexplored legal challenges. One possibility is that the U.S. Congress might lack the very power to authorize design patents. Another possibility – our subject here, with implications for design patents in Europe and around the world – is that design patents violate fundamental rights if there is not a defense to infringement founded in the freedom of expression.

Las patentes de diseño se propagan en abundancia en el derecho de la propiedad intelectual. Mientras tanto, las patentes de diseño enfrentan desafíos legales aún inexplorados. Enfocándose en la ley estadounidense, este artículo postula que las patentes de diseño violan los derechos fundamentales si no hay una defensa a la infracción fundada en la libertad de expresión. Diseño es único entre las patentes debido a su capacidad expresiva. Por lo tanto, debe acomodarse a la libertad de expresión con defensa de uso o trato justo, comparable a la ley de los derechos de autor.