Libel Case Filed by Laurie Fine Against ESPN

June 4, 2012,

Laurie Fine, the wife of Bernie Fine, former Associate Coach of the Syracuse University men's basketball team, has filed a libel and defamation action against ESPN and two of its employees, Mark Schwarz and Arthur Berko. ESPN published several stories about her relating to her husband's alleged molestation of minors. She seeks compensatory and punitive damages.

In the 1980s, the Fines took in a Syracuse basketball 'ball boy,' Robert Davis, who later accused Bernie Fine of molesting him while he lived there. Davis also accused Laurie Fine of knowing about the molestation and allowing it to continue. He also claims to have had a sexual relationship with Laurie while he was in high school.

The complaint paints a picture of a troubled young man who financially took advantage of the Fines, often fabricating stories to trick them into giving him money. It asserts that, to elicit sympathy and funding, Davis told Laurie that Bernie had molested him in the 1980s but that the couple continued to enable him. The complaint portrays the plaintiff as suffering through conversations with Davis in hopes he would outgrow his problems, using sarcasm to keep from 'going off' on him and asking questions to 'test' how far the young man would go. These allegations appear to offer a different interpretation of statements attributed to her in a 2002 taped recording Davis made.

According to the complaint, Davis offered his molestation story to a Syracuse newspaper in 2002. The paper did not publish it due to lack of corroboration. He then approached ESPN and gave Schwarz and Berko a taped recording of a conversation he'd made, purportedly of a conversation he'd had with Laurie in which Laurie discusses her husband's activities. ESPN did not publish the story, but Ms. Fine says the ESPN reporter and producer remained interested and kept in touch with Davis.






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Ms. Fine claims Davis used the publicity surrounding the Penn State child abuse scandal to reignite his story. She says the reporters had developed ill will toward the Fines and had become so personally invested in the story that they accepted questionable corroboration of a recanting witness and sent another potential corroborating witness to Davis for coaching on what to say and then leaked the story to a newspaper to bolster the story.

In late 2011, ESPN published excerpts from Davis' taped recording and published over 40 minutes of it last month. ESPN published several stories about Laurie Fine including one in February 2012 that quoted a Davis affidavit stating it was openly known that multiple Syracuse basketball players had engaged in sexual relationships with her.

Ms. Fine maintains that all these stories are false and ESPN's publication of them with actual malice and reckless disregard for the truth constitutes libel and defamation. Her claims could depend on whether she was a public figure at the time of disclosure. Public figures do not enjoy the same level of privacy in their personal lives and carry higher burdens of proof when bringing defamation suits.

Ms. Fine was an active member of the Syracuse community, raising money for various charities that sought her out, especially child-related charities. She seeks damages for her damaged reputation, emotional distress, mental pain and suffering, permanent impairment of employability and related losses.

First Amendment Right to Anonymous Internet Speech Challenged by Florida Doctor

May 28, 2012,

The First Amendment protects the right to speak anonymously on the Internet, but that right is not absolute. Defamatory statements, in particular, are not protected. Freedom of speech does not include the right to commit libel or other torts anonymously. As demonstrated by a new case filed in Henrico County Circuit Court, however, not everyone agrees on the extent to which an online review can go before a poster's identity must be revealed.

Armando Soto is a plastic surgeon in Orlando, Florida. A former patient, unhappy with the results of a breast augmentation procedure, posted negative comments about Dr. Soto on www.RateMDs.com. The comments included statements that scars were "horrific," "frightening and unnecessary," that breasts were "uneven," that Dr. Soto charged for procedures that he did not perform, and that he is not skilled or caring.

The online comments were posted anonymously, so Dr. Soto filed a "John Doe" action and subpoenaed Internet provider Comcast for records revealing his critic's identity. The anonymous reviewer hired a lawyer and moved to scope.jpgquash the subpoena to protect his identity. (Apparently the allegations are that "John" received breast augmentation surgery, which is why I'm referring to "his" identity).

John Doe's Motion to Quash argues that to reveal his identity would stifle free speech and that the First Amendment protects anonymous speech regarding matters of public concern such as the performance of a physician and his products. John Doe also contends that Dr. Soto filed the case in Virginia in order to cause him expense and hardship as the case has no apparent connection to Virginia. According to Doe, Dr. Soto filed the case solely to chill online criticism and coerce him into removing the postings.

Dr. Soto's attorney apparently concedes that some of the posted comments constitute protected opinion, but he contends that comments about unevenness and scarring are defamatory because they are not true. Soto's attorney learned that the online critic is a Florida schoolteacher and says he plans to transfer the suit to Florida.

Online review sites such as Yelp, Angie's List, Trip Advisor and Healthgrades.com, on which users can comment on the quality of service or care they received have flourished in recent years and are useful tools for consumers seeking information about service providers. However, professionals on the receiving end of criticism argue that these sites can become a forum for disgruntled consumers to unfairly bash them. In this author's view, Dr. Soto's case fails to state a defamation claim sufficient to overcome the First Amendment right to online Internet speech, and the court should quash the subpoena to Comcast.

Defamation Claims Asserted by Church Against Former Members

May 17, 2012,

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for "subversive conduct," the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must "recant" or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were "excommunicated."

Mrs. Smith began posting comments about the church under Google's "reviews" of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

Shortly thereafter, the church and its Pastor filed a defamation complaint against Mrs. Smith and her daughter based on statements they posted online. The allegedly defamatory comments included statements that the Pastor misled the congregation and used "control tactics," that the church was not a healthy or safe place, was destructive and disturbing, and that it had a spiritually abusive environment. Mrs. Smith wrote that there is something "creepy "about the church, and she claimed that the church turned a blind eye to known sex offenders. She stated that the Pastor's "extra-biblical legalistic teaching" was wrong and that he was a liar. Mrs. Smith's daughter posted a Google review stating that the Pastor micro-managed things and bullied people and that one could not find grace at the church.

The Smiths responded with a Special Motion to Strike under Oregon's anti-SLAPP statute which allows a defendant to move to strike a claim that "arises out of" a statement made in a public forum in connection with an issue of public interest. If a defendant shows that the claim indeed "arises out of" such a statement, the plaintiff must present substantial evidence that the claim will prevail.

The anti-SLAPP statute should apply, in my view, because the Internet is a "public forum" and the statements concern matters of public interest. Various segments of the population have an interest in the statements at issue, including members of churches all over the world, people concerned with questions of personal salvation, radio listeners who hear the Pastor's sermons broadcast in the greater Portland area, persons who are the focus of the Church's evangelism, and those debating the impact of "spiritual abuse."

The church may end up having to pay the Smiths' attorneys' fees, because it's unlikely it will be able to demonstrate a likelihood of success on the merits. The statements at issue concern matters of opinion, which are not actionable. Moreover, the statements involve matters of church practices and personal religious conviction, which are protected by the "church autonomy doctrine." Finally, even if the court determines that a statement could be considered defamatory, the court will most likely find the church to be a "public figure," which would mean it could not recover absent a showing of malicious intent. Expect to see the SLAPP act put into action out in Oregon.


D.C.'s Anti-SLAPP Act to Be Tested in Maddow Defamation Case

May 12, 2012,

Christian minister and hard-rocker Bradlee Dean and his non-profit foundation, You Can Run But You Cannot Hide International (YCR), brought a defamation suit against liberal talk show host and commentator Rachel Maddow for comments Maddow made on The Rachel Maddow Show. Maddow is hitting back hard, filing a motion to dismiss under the District of Columbia's relatively new anti-SLAPP Act. If Maddow's motion is successful, Dean's defamation case will not only be dismissed with prejudice, but Maddow will be entitled to recovery of her attorneys' fees.

The complaint alleges that Maddow disparaged Dean's physical appearance, first name, profession, and standing in the community and represented that he and YCR advocate the execution of homosexuals. In her commentary (excerpted below), Maddow mentioned that Dean denied having called for the execution of homosexuals, but Dean and YCR contend that Maddow did so begrudgingly and in a way that suggested their denial was disingenuous.

Dean charges Maddow with referring to him as a "bloodthirsty" individual calling for the "upping of the bloodshed in America's culture wars," and accusing him of advocating the use of foreign enemies against America because Christians "aren't doing the job by killing gays and lesbians." According to the plaintiffs, Maddow's comments proliferated in the media and led to Dean receiving Internet death threats from gay activists. The plaintiffs contend that Maddow made these comments as a liberal member of the media and lesbian activist in order to harm the presidential campaign of Congresswoman Michelle Bachman to whom Maddow linked Mr. Dean and YCR on several occasions.

Maddow has moved to dismiss the case under D.C.'s Anti-SLAPP law. SLAPP is an acronym for Strategic Litigation Against Public Participation. The D.C. Anti-SLAPP Act of 2010 is designed to discourage frivolous lawsuits aimed at chilling the exercise of free speech rights. Virginia does not have an anti-SLAPP statute, and the law in D.C. did not become effective until March 31, 2011.

In her motion, Maddow gives three reasons why Mr. Dean's lawsuit should fail: 1) Maddow merely abridged and replayed original audio of Dean speaking on his own radio show; therefore, Dean cannot claim that he did not make the statements, and the fact that she abridged the original audio is irrelevant; 2) Maddow's commentary on Dean's statements is classic opinion and rhetorical hyperbole--fanciful language that may be exaggerated but is not grounds for a defamation suit; and 3) the fair comment privilege protects Maddow's commentary--the broadcasts featured Dean's actual statements and indicated the source of those statements such that viewers were free to make up their own minds regarding Maddow's remarks. Maddow contends that Dean's lawsuit is without merit and was instead filed to further his self-described mission to stop the "radical gay agenda." She asks the court to punish Dean for filing the suit by dismissing it and granting legal fees.

This is one to watch...stay tuned.


Facebook "Likes" Not Protected Speech, Says Virginia Court

May 6, 2012,

Think twice before clicking that Facebook "like" button. You may think you're expressing a constitutionally protected right to express support for a political candidate, for which you cannot be terminated, but Judge Raymond A. Jackson of the Eastern District of Virginia recently ruled that merely "liking" a candidate on Facebook is not sufficiently substantive to warrant First Amendment protection. Expect this ruling to get appealed.

Sherriff B.J. Roberts of the Hampton Sherriff's office was up for re-election when he learned that several of his employees were actively supporting one of his opponents, Jim Adams. The employees alleged that Sherriff Roberts learned of their support of Adams because they "liked" Adams' Facebook page. They also attended a cookout with Adams and told others of their support, but there was no evidence that the Sherriff was aware of these activities. One employee sported a pro-Adams bumper sticker on his car and used choice words to describe the Sherriff's campaign literature in speaking with a colleague at the election booth.

After winning re-election, Sherriff Roberts did not retain the employees. Sherriff Roberts claimed various benign reasons for the firings, including a reduction in force and unsatisfactory work performance. The employees sued Sherriff Roberts alleging that the firings were in retaliation for exercising their right to free speech and that the Sherriff Like Button.jpghad violated their right to free political association. Sherriff Roberts argued that plaintiffs had not alleged protected speech or political association and that he was entitled to qualified and sovereign immunity even if plaintiffs' speech was protected.

To state a claim under the First Amendment for retaliatory discharge, public employees must prove that they were terminated on the basis of "speech" on a matter of public concern. Here, the court concluded that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. The court examined holdings in which constitutional speech protection extended to Facebook posts, and it noted that in those cases, actual statements existed within the record. Conversely, it found, simply clicking the "like" button on a Facebook page is not the kind of substantive statement that warrants constitutional protection. Likewise, the court found that the presence of a bumper sticker supporting Adams did not constitute protected speech without any evidence that the Sherriff was aware of the bumper sticker. The court also found that statements describing the Sherriff's campaign literature, regardless of expletives, did not constitute protected speech because they did not address a matter of public concern but were instead descriptive of personal opinion.

The court also held that even if the plaintiffs' First Amendment arguments had merit, their claims would have failed anyway because the Sheriff was entitled to both qualified and sovereign immunity.

As several commentators have already pointed out, this ruling seems contrary to Supreme Court precedent affording First Amendment protection to such acts as saluting a flag, refusing to salute, and wearing an armband. But I disagree with Professor Eugene Volokh, who writes that "the whole point" of the "like" button is to convey "a message of support for the thing you're liking." When you "like" a Facebook page, you get updates from the page you liked in your news feed. Therefore, "liking" a person's Facebook page may be intended as nothing more than a means of monitoring that person's public statements; it doesn't necessarily mean you like or support those statements. It will be interesting to see how the Fourth Circuit deals with this.

Public Figure Fails to Present Plausible Defamation Case

May 2, 2012,

When a public figure alleges defamation, he must demonstrate by clear and convincing evidence that the speaker made the defamatory statement with actual malice. Judge Henry E. Hudson of the Eastern District of Virginia confirmed this heightened standard when he dismissed the complaint brought by Wayne Besen, the Executive Director of Truth Wins Out ("TWO"), a non-profit organization that addresses anti-gay behavior.

Besen filed a claim for defamation per se against the non-profit organization Parents and Friends of Ex-Gays, Inc. ("PFOX") and Gregory Quinlan, the President and CEO of the organization, after Quinlan made comments about Besen on local television and the organization's blog. Specifically, Quinlan asserted that Besen once stated that someone should run Quinlan over with a bus or inject him with AIDS. On the PFOX blog, Quinlan also suggested that Besen had been fired from the Human Rights Campaign. Quinlan refused to retract either statement, even after Besen approached him about the comments.

Under Virginia law, defamation per se can be found where there are "words that impute to a person the commission of a crime of moral turpitude or which prejudice a person in his profession or trade." If the plaintiff is a public figure, he must prove that the defendant published a false and defamatory statement with actual malice, meaning that it was made with knowledge of its falsity or with reckless disregard for the truth. Plaintiffs can be public figures for all purposes and in all contexts, or may be "limited public figures" with respect only to a limited range of issues.

The district court found that Besen was a limited-purpose public figure because he used his access to channels of communication to influence a public controversy in which he had voluntarily assumed a role of special prominence. First, the issue of gay rights and equality is clearly a public controversy and Besen had a special role within this controversy as a result of his position in TWO. Moreover, the court found that even though most individuals on the street in the Washington, D.C. metropolitan area would not recognize Besen, he had enough "publications, media appearances, and self-acclaimed ability to impair the opposing campaign," to be treated as a public figure, at least when limited to the gay rights controversy.

Because Besen is a public figure, the district court dismissed his claim because he failed to demonstrate how Quinlan made his statements with actual malice. No facts were alleged sufficient to show a plausible claim that Quinlan knew or should have known that his statements were false.

Defamed Lawyer and Wife Win $13.7 Million Against "Anonymous" Posters

April 27, 2012,

The First Amendment does not protect the "right" to post anonymous comments online that defame the reputations of others. Libelous statements posted in Internet forums can come back to bite those who post them. In most cases, posters will not be able to conceal their identities once the gears of litigation start grinding. A jury in Texas recently awarded $13.78 million to a couple who were targeted by online posters -- one of the highest verdicts ever recorded in Texas for an Internet defamation case.

In 2008, Shannon Coyel sought to divorce her husband and gain custody of her two children. She accused her husband of being a sexual pervert and claimed he had abused their daughter. Mark Lesher, an attorney, and his wife tried to help her with her divorce. The Coyels reconciled, however, and Mrs. Coyel then accused the Leshers and their ranch hand of sexual assault. Moreover, she claimed she had only reported an incident of abuse by her husband against her daughter because the Leshers had drugged her with pills.

The Leshers were indicted as a result of Mrs. Coyel's sexual assault accusation. They also came under attack on Topix.com with some 25,000 comments, many anonymous, posted about them. They were called molesters, murderers, sexual deviants and drug dealers, and were accused of encouraging pedophilia. The Leshers said the attacks were so laptop.jpgvicious, they had to move out of their town and Mrs. Lesher lost her business, a day spa. Mr. Lesher lost substantial business as well.

The Leshers were tried and acquitted on Coyel's sexual assault claim. They then brought a libel suit against those who had posted the comments on Topix.com, naming the 178 pseudonyms associated with the comments they considered the most damaging and promptly issuing subpoenas to uncover the posters' identities. Topix moved to quash the subpoena as overly broad and sought a protective order to withhold the identities of those sued. A California court granted the motion to "protect the identities of the anonymous Internet posters," but permitted the Leshers to obtain their IP (Internet Protocol) addresses.

The IP addresses led the Leshers to the Coyel salvage yard. The Leshers amended their petition to focus on Mr. Coyel, his business, his brother, two of his employees, and Mrs. Coyel. The case was tried, and the jury returned a verdict totaling $13.78 million against Mr. and Mrs. Coyel and one of the salvage yard employees for mental anguish, loss of reputation, and Mrs. Coyel's loss of her business.

It is not unusual for individuals to suffer defamation, threats, having their home addresses posted, and other such attacks, through the anonymity of the Internet. Website owners are generally not required to moderate inflammatory posts and often will refuse to remove damaging content. There is a common misconception that "free speech" includes the right to post defamatory material on the Internet anonymously. This case should serve as a wake-up call to those who would attack others online.

Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

April 23, 2012,

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person's professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to "prejudice" the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to "cover it up."

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin's complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-IBM_mouse.jpgPackage contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.

The publication requirement contemplates publication to a third party. An intra-corporate communication heard solely by those who have the duty or authority to receive the information has not been "published" for purposes of a defamation claim. Moreover, internal corporate communications are usually deemed privileged when made in the ordinary course of business. In Tomlin, the plaintiffs contended that Ms. Minton-Package communicated the allegedly defamatory statements to other employees at IBM. Plaintiffs did not claim that those employees did not have a duty or authority to receive the communication and therefore failed to establish publication or overcome the privilege.

The court dismissed plaintiffs' defamation claims for failure to plead any exact words constituting the allegedly defamatory statements by defendants other than Ms. Minton-Package, and it dismissed the claims against Ms. Minton-Package for failure to sufficiently allege publication. However, the court granted plaintiffs leave to amend their complaint.

Middleburg Writer Dee Dee Hubbard Turns Tables On Accusers with Defamation Suit

April 16, 2012,

Shortly after being found "not guilty" of embezzlement by a Loudoun County jury, Deanne "Dee Dee" Hubbard, editor of the Middleburg Eccentric, has filed a defamation action against her chief antagonists, Jack J. Goehring, III, and his wife, Mary Kirk Goehring, in Loudoun County Circuit Court.

For over a decade, Deanne "Dee Dee" Hubbard managed Middleburg, Virginia properties co-owned by Jack Goehring and his wife. She also lived in one of their rental properties with her son and daughter-in-law and she and her daughter rented space in one of the Goehrings' commercial buildings. Ms. Hubbard was responsible for collecting rents from the Goehring properties. When Mr. Goehring discovered several rent checks had found their way into accounts Ms. Hubbard controlled, rather than into his accounts, he urged the Commonwealth Attorney's office to prosecute Hubbard. Ms. Hubbard claimed she'd mistakenly marked the checks for the wrong accounts and set the accounts right as soon as the error was discovered.

Ms. Hubbard was prosecuted on fourteen felony embezzlement charges but was acquitted of all charges. Now, she and several family members have sued Goehring and his wife for waging "a campaign of malicious prosecution, libel, slander, and defamation." The complaint paints Mr. Goehring as a vindictive man intent upon securing the charges against Ms. Hubbard and ratcheting up the surrounding publicity so as to defame and humiliate her. It accuses Goehring of filing an affidavit with the Middleburg Bank accusing Hubbard and her family members of identity theft, using his personal identifying information to obtain money, goods, services and other benefits without his authorization. The plaintiffs claim Goehring made false statements to law enforcement authorities that led to Hubbard's arrest, arranged to have a friend photograph Hubbard being taken into custody in handcuffs, and then helped the photographer find a buyer for the photos. Ultimately, the photos appeared on television, in the local paper and on the Internet.

The complaint recites a series of allegedly libelous statements Goehring made, on behalf of himself and his wife, to the Assistant Commonwealth's Attorney handling the case. For example, in one email, Goehring reportedly called Hubbard a "crafty talented thief' and accused her of stealing $122,000 from him and his wife over a two-year period. In others, he allegedly called her a "master criminal/con artist" and accused the family of fraud, conspiracy, forgery, and embezzlement and referred to them as a "crime family."

The plaintiffs claim Goehring maliciously defamed them--and continues to do so--so he could evict them from his properties and obtain back rents from them to which he is not entitled. Each plaintiff seeks $500,000 in compensation as well as punitive damages for damage to reputation, emotional distress, embarrassment, humiliation and similar losses. Ms. Hubbard seeks an additional $500,000 against the Goehrings for malicious prosecution.

Virginia courts generally disfavor actions for malicious prosecution arising out of criminal proceedings so as to ensure appropriate criminal cases are brought without fear of civil reprisals. But the law allows such cases where the allegations were false and the individual instituted or cooperated in the criminal action maliciously, without probable cause, and the case terminated favorably for the plaintiff.


Slander of Pilot by Airline Results in $1.4 Million in Damages

April 14, 2012,

Workplace defamation suits can result in high damages awards. A former pilot and federal flight deck officer (FFDO), William Hoeper, successfully sued his former employer, Air Wisconsin, for defamation after one of its managers, Patrick Doyle, reported Hoeper to the Transportation Security Administration (TSA) as a potential threat to airline security. Last month, the Supreme Court of Colorado, applying Virginia law, upheld a $1.4 million jury verdict against Air Wisconsin.

Hoeper had been taking a test to fly a new plane. According to test administrators, Hoeper ended the test abruptly, raised his voice at the administrator, and used profanity. Afterwards, while Hoeper was waiting for his flight home, Doyle called TSA to report that Hoeper may be carrying his government-issued FFDO firearm and that he was concerned about Hoeper's mental stability because Hoeper had been terminated that day.

When a plaintiff alleges defamation involving a "matter of public concern," the defendant is entitled to First Amendment free speech protection unless the plaintiff can demonstrate that the statement was false and made with actual malice. Actual malice is present if the statement was made by the defendant with (1) knowledge of the statement's falsity or (2) reckless disregard as to the AW plane.jpgstatement's falsity. However, even before the plaintiff presents his case, an airline defendant may be able to avoid liability altogether under the Aviation and Transportation Security Act (ATSA), which provides immunity from civil suits to "an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes." If the disclosures are made with actual knowledge or reckless disregard as to the statement's falsity, however, ATSA immunity is lost and the plaintiff can proceed to demonstrating that a statement was defamatory.

Holding that Air Wisconsin was liable for defamation, the Colorado Supreme Court first found that the ATSA immunity did not apply to Air Wisconsin because Doyle recklessly disregarded the truth when making his statement about Hoeper to TSA. Specifically, Doyle knew Hoeper had not been terminated that day and he lacked information to form an opinion on Hoeper's mental stability or to imply that Hoeper was armed. The court further pointed out that Doyle could not have been very concerned about Hoeper's mental state because he sent Hoeper to the airport that same day with another Air Wisconsin employee and did not initially write down any of his concerns in his notes. While his statements to the TSA suggested that Hoeper was so unstable that he might pose a threat to security, his actions demonstrated that he did not truly believe that to be the case.

Since Air Wisconsin was not immune to Hoeper's suit, the court went on to apply Virginia state law to find that Doyle made a false statement to TSA with actual malice. Air Wisconsin was therefore liable for damages.

Defamation Case Against Barbara Walters Dismissed

April 7, 2012,

A federal court in Massachusetts has dismissed a defamation case against Barbara Walters brought by a woman claiming to be the former lesbian lover of Walters' daughter. In Walters autobiography, Audition: A Memoir, she refers to the woman, Nancy Shay, by first name only in a two-sentence statement. Walters wrote that "Nancy" was kicked out of high school for "bad behavior" after being "found in a nearby town high on God-knows-what" with Walters' daughter. Shay did not deny being suspended from school but claimed the statements were defamatory because they falsely portrayed her as a user of illicit drugs. The court found the allegations were insufficient to state a claim for defamation and dismissed the case.

In Massachusetts, as in Virginia and every other state, there can be no defamation liability without "fault" on behalf of the defendant. For private plaintiffs (as opposed to public figures), this requires (at a minimum) an allegation that the defendant acted negligently with respect to determining the truth. Moreover, a statement is incapable of defamatory meaning unless it would tend to hold the walters.jpgplaintiff up to scorn, hatred, ridicule or contempt "in the minds of any considerable and respectable segment in the community." In other words, a statement will not be considered defamatory if only a very small group of persons would view it as derogatory.

In her brief, Shay argued that Walters was at fault for making a false statement as to the reason for her suspension and that the statement damaged her reputation amongst the former faculty and students of the high school from which she was suspended. Alternatively, Shay suggested that, even if the statement that she was expelled for "bad behavior" was true, the allusion to drug use was made maliciously.

The court found that Shay failed to make any showing of fault beyond her self-serving and conclusory allegations. It found further that the segment of the population who would read the statements in Walters' book and draw negative inferences from them about Shay was too small to sustain a finding of defamatory meaning. Those few people who would recognize the reference to "Nancy" in Audition as alluding to Shay would likely also know the real circumstances of the situation and would not have their opinions of Shay influenced by the memoir, the court found.

Duck Creek Energy Says Fracking Accusations Defamatory

March 30, 2012,

Duck Creek Energy, an Ohio oil and gas development company, has sued two local environmental activists, Tish O'Dell and Michelle Aini, for various claims arising from their publication of statements characterizing Duck Creek's product as "a product of fracking." Duck Creek claims the defendants are liable for (1) defamation per se; (2) tortious interference with existing business relationships; and (3) tortious interference with prospective business relationships. According to Duck Creek, the activists acted with malice and/or negligently disseminated false information, even after being apprised of the true facts.

Duck Creek manufactures and distributes AquaSalina, a salt solution used for de-icing roads. AquaSalina is made from raw brine, a byproduct of oil and gas exploration, which Duck Creek purifies at a plant in Cleveland. It has been used for years because its heavy salt concentration works on surfaces in temperatures as low as -10 degrees Fahrenheit. In contrast, a liquid solution made with rock salt only works in temperatures down to about twenty three degrees Fahrenheit. AquaSalina was environmentally tested in 2004 and found to be safe.

The Complaint alleges that shortly after an article appeared on Cleveland.com discussing the effectiveness of AquaSalina, O'Dell sent a "Dear Neighbors" email to various recipients, including the mayor of Brecksville, Ohio. Brecksville was an AquaSalina customer. In her Fracking.jpgemail, O'Dell characterized AquaSalina as "waste fracking fluids" and criticized the reporter for failing to mention toxic chemicals and radioactive material in liquid from fracking. She encouraged the email recipients to read other articles she attached, which, Duck Creek claims, had nothing to do with AquaSalina. O'Dell allegedly continued to claim, at public meetings, that AquaSalina was environmentally unsafe. Brecksville thereafter decided not to use the product. O'Dell and another member of an environmental group also allegedly warned a second city to "stop spreading carcinogens on our streets" which, Duck Creek asserts, refers to AquaSalina.

Whether this is a case of overzealous environmentalists or merely concerned citizens exercising their right of free speech remains to be determined. However, this litigation should serve as a reminder to activists and other public speakers to always be careful to check their facts before making public accusations.

Defamation Per Se By Former Judge Yields $350,000 in Damages

March 21, 2012,

Earlier this month, the Virginia Supreme Court affirmed the decision of the Williamsburg Circuit Court to uphold a jury verdict against former circuit court judge Verbena Askew in the amount of $350,000 for defamation. Askew had made a comment to The Daily Press that plaintiff Brenda Collins, who had worked in the court over which then-judge Askew presided, "was institutionalized - that's the only way you qualify for family leave." The Daily Press did not actually publish the statement, but the Court found that the defamation occurred when the statement was made to the press.

A private individual claiming defamation must prove by a preponderance of the evidence (1) that the defamatory publication is false and (2) that the defendant "either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief or acted negligently in failing to ascertain the facts on which the publication was based." If the publication amounts to defamation per se, such as defamatory statements that impute an unfitness to perform official duties, the plaintiff is presumptively entitled to compensatory damages.

Askew first argued that she should not have to pay damages because her statement about Collins was never published by The Daily Press and thus did not proximately cause any injury to Collins. The Virginia Supreme Court rejected this argument, holding that theWburgCt.jpg evidence supported the jury's finding that Askew made a defamatory statement to the press either knowing it was false or negligently failing to ascertain the facts. Because the jury found the statement amounted to per se defamation, it was entitled to presume that Collins suffered damages as a result, regardless of whether The Daily Press republished the statement.

The court also rejected Askew's argument that the verdict should be reduced by the amount of a settlement with other defendants. The court pointed out that Section 8.01-35.1(A)(1) of the Virginia Code only provides for such an offset when two or more defendants are liable for the same injury. In this case, Askew was found liable for the injury caused by her own statement, not by any injury caused by her co-defendants.

Libel Per Se? Libel Per Quod? Neither, Says Virginia Court

March 14, 2012,

Professional Timothy B. Hanks is a professional tax preparer who took offense at a television segment aired by WAVY Channel 10 in the Hampton Roads area that promised to inform viewers "how to avoid unscrupulous tax preparers," then proceeded to tell a story involving an admitted mistake made by his company, Reliable Tax & Financial Services. Hanks sued the station for libel, libel per se, and libel per quod, seeking five million dollars in damages. Judge Doumar (Norfolk) rejected all three theories and, last month, dismissed the entire case with prejudice.

Libel per se and libel per quod are variations of a defamation cause of action. Under Virginia law, a claim for libel per se may exist for certain categories of defamatory statements deemed serious enough to warrant presumed damages. This includes statements such as those accusing a plaintiff of committing a crime involving "moral turpitude," of being infected with a contagious disease, or, more commonly, of being unfit to perform the duties of his profession. Libel per quod, on the other hand, refers to statements the defamatory nature of which is not readily apparent, but which are understood by the recipient to be of a defamatory nature in light of extrinsic facts known by that person.

Hanks claimed the "unscrupulous" remark constituted defamation per se in that it imputed to him "an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal Taxes.jpgoffense." The court disagreed for several reasons, holding that the statements (1) are not "of or concerning" Hanks, (2) are not capable of defamatory construction, and (3) are constitutionally-protected opinion. The court also found that Hanks failed to sufficiently plead actual malice or special damages.

First, the court pointed out that Hanks failed to explain why he was suing personally, rather than Reliable Tax, the company mentioned in the broadcast. Rather than dismiss the case for lack of standing, however, the court took judicial notice of the fact that Hanks was the president of Reliable Tax and proceeded to address the merits.

The court found that Hanks failed to show that the statement about "unscrupulous tax preparers" as a class was directed at him. Hanks never pleaded any facts to show how he was personally affected by this story or that it would be plausible for viewers to know that the story was about Hanks merely from the reference to tax preparers as a class.

The court also ruled that the term "unscrupulous" was not of a defamatory nature in that it was broad, unfocused, and constituted wholly subjective opinion. It did not, as Hanks argued, imply criminal behavior.

Lawyer's Tortious Interference Claim Against Former Lovers Dismissed

February 27, 2012,

A federal judge in the Southern District of New York has dismissed a claim by a lawyer who claims that his ex-lovers tortiously interfered with his prospective business relationships by posting allegedly defamatory material on the Internet. In Matthew Couloute, Jr. v. Amanda Ryncarz and Stacey Blitsch, the judge held that the lawyer failed to state a claim upon which relief could be granted and denied his motion for leave to amend.

Couloute had previously dated both Ryncarz and Blitsch. After the relationships ended, Ryncarz and Blitsch posted comments on an Internet site, www.liarscheatersrus.com, painting Couloute in an unfavorable light. Both women expressed their views that Couloute was a liar and a cheater, that he was manipulative and that he used the people in his life to get what he wanted. Couloute sued them both, arguing that these statements were defamatory and that they caused him damage by interfering with his law practice in New York. He claimed that the woman made the statements with the specific purpose of causing him financial trouble. The court disagreed.

Applying New York law (which closely parallels Virginia law in this area), the court said that the plaintiff's complaint could not stand because it did not contain all of the elements for a claim of tortious interference with prospective business relations. To state a proper claim, the plaintiff would have to allege: "(1) business relations with a third party; (2) the defendant's interference with those business relations; (3) the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship." In this case, Couloute failed to allege a specific business relationship with which the defendants interfered.

The court also denied Couloute's request to add a count for defamation, reasoning that the defendants' statements amounted to opinions and nothing more. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable," the court wrote.