Articles Posted in Media Defendants

Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, “will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.
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The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?

Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It’s not that she wasn’t arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an “erasure statute” which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed “erased” and the person’s arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.

On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information handcuffs.jpgthat a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested “after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house.” Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court’s analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)

The Second Circuit held that the erasure statute “creates legal fictions…it does not and cannot undo historical facts or convert once-true facts into falsehoods.” The news accounts were truthful when made and remain truthful to this day: Ms. Martin was arrested. That a statute deems her not to have been arrested does not change history and make an accurate statement suddenly become defamatory. Rather, the effect of the statute is to prohibit courts from relying on a defendant’s prior arrest record for such purposes as increasing a sentence for a later offense. In other words, the legislative intent was to treat as erased certain arrests in the context of the judicial and law enforcement systems, not to literally change history.

Martin realized there was a chance the court would find that the erasure statute was incapable of erasing historical truth, so she came with a backup theory: defamation by implication. Even if the articles were technically true, she argued, they only told part of the story and therefore gave readers an incomplete and inaccurate impression. The trouble with this argument, the court held, is that no reasonable reader could draw any untrue inference from the articles. While recognizing that a technically true statement can sometimes be so constructed as to carry a false and defamatory meaning by implication or innuendo, this was not such a case because the news reports at issue did not imply any fact about Martin that was not true.

So you may have heard that environmental scientist Paul Brodeur is seeking $1 million in damages for libel, defamation, slander and false light against the movie studios behind 2013’s highly acclaimed film American Hustle. Why? Because according to him, the movie damaged his reputation by “attributing…a scientifically unsupportable statement” to him. Had this action been filed in Virginia rather than California, it would not likely go very far.

Here’s the scene: it’s the late 1970s or early 1980s, and the two characters played by Christian Bale and Jennifer Lawrence are arguing about the new microwave oven that just exploded in their kitchen:

Irving Rosenfeld: I told you not to put metal in the science oven! What did you do that for?

Rosalyn Rosenfeld: Don’t make such a big deal! Just get another one.

Irving Rosenfeld: I don’t want another one, want the one that Carmine gave me.

Rosalyn Rosenfeld: [mocking] Oh, Carmine! I want the one that Carmine gave me! Carmine! Carmine! [serious] Why don’t you just marry Carmine? Get a little gold microwave and put it on a chain around your neck! You wanna be more like Carmine? Why don’t you build something, like he does? Instead of all your empty deals; they’re just like your fuckin’ science oven. You know, I read that it takes all of the nutrition out of our food! It’s empty, just like your deals. Empty! Empty!

Irving Rosenfeld: Listen to this bullshit.

Rosalyn Rosenfeld: It’s not bullshit! I read it in an article. Look: By Paul Brodeur.

[hands Irving the article]

Rosalyn Rosenfeld: Bring something into this house that’s gonna take all the nutrition out of our food and then light our house on fire? Thank God for me.

Funny, isn’t it? And therein lies the defense.

Paul Brodeur is an investigative science writer who actually did author a piece entitled The Zapping of America in which he wrote of the dangerous of microwave radiation. In a 1978 interview with People Magazine, he explained, “For 25 years the military-electronics industry complex has suppressed, ignored or failed to pursue evidence that people were being injured by microwave radiation.” When asked during that same interview about whether there was “any danger” in eating food cooked by microwaves, he replied “none that is known.” His lawsuit claims he never, ever said that microwaves drain the nutrition from food.

But does the movie actually attribute those words to him in a manner intended to convey to the viewing audience that Mr. Brodeur is an incompetent scientist? First of all–and this is important–the movie begins by displaying the message, “Some of this actually happened.” That’s a far more honest introduction than the more common “based on a true story,” and tells the viewers right off that bat that most of what they are about to see is pure fiction. Sure, Paul Brodeur is a real person and the movie refers to him by his real name, but he will have a difficult time convincing a judge or jury that an inaccurate reference to his scientific findings was among the “stuff” that “actually happened,” particularly when his supposed article was being used to comedic effect in an argument over a mysterious “science oven.”

Language will not carry defamatory meaning when used in a context that shows it is not intended to be interpreted literally. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17 (1990) (explaining constitutional prohibition against imposing defamation liability in cases where circumstances of speech indicate defendant’s statement not intended literally). This is as true in California as it is in Virginia. Therefore, if the court finds that the hypothetical reasonable viewer would not conclude from this particular bit of dialogue that Paul Brodeur actually wrote an article claiming that microwaves suck the nutrition out of food, the claim will likely fail for lack of defamatory meaning and/or lack of actual harm to reputation.



Suppose you’ve spoken your mind about someone you don’t like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you’re probably not going to want to apologize. But if you’ve either had a change of heart or a sudden realization that you’re about to get sued, there are some good reasons to say you’re sorry.

For one thing, apologizing–if done right–can mitigate the plaintiff’s damages. Plaintiffs who sue for libel or slander in Virginia aren’t just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff’s emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.
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According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was “convicted in Portsmouth General District Court of assault” in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that “in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case.” (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being “indicted for assault on a law enforcement officer and sexual battery of that officer.” The report was defamatory, the lawsuit claims, because “the 2006 charge of assault was dismissed.”

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:
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Insurance against defamation claims is often found in policies providing coverage for liability arising from “personal and advertising injury.” In State Farm Fire and Casualty Co. v. Franklin Center for Government and Public Integrity, for example, the United States District Court for the Eastern District of Virginia examined a business liability insurance policy to determine whether State Farm was required to defend the insured in a lawsuit alleging claims for defamation and tortious interference. The court considered the plain language of the policy and its exclusions and ultimately held that State Farm had an obligation to defend its insured.

Franklin Center for Government and Public Integrity (“FCGPI”) operates the website. GreenTech Automotive, Inc., filed a civil action against FCGPI alleging defamation and intentional interference with business and prospective business relations stemming from two articles posted on FCGPI was insured by a State Farm business liability policy, and State Farm brought a declaratory judgment action seeking a declaration of non-coverage based primarily on various policy exceptions.
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The Supreme Court of Virginia issued an opinion today in which it addressed the concept of defamation by implication. Building on its 1954 decision in Carwile v. Richmond Newspapers, the court reiterated that although defamatory meaning can sometimes be implied with literally true statements, the inferred meaning cannot be extended beyond the ordinary and common acceptation of the words used. Innuendo cannot be used to introduce new matter or extend the meaning of the words used by the speaker. In short, “the alleged implication must be reasonably drawn from the words actually used.”

In Webb v. Virginian-Pilot Media Companies, LLC, Phillip D. Webb, an assistant principal at Oscar Smith High School in Chesapeake, sued Virginian-Pilot and reporter Louis Hansen for its handling of a story about the school’s disciplinary process. Webb’s son, a student of a neighboring school where Webb previously coached pole vaulting, had been charged with a felony for assaulting another student’s father but received no punishment from the school. Webb’s lawsuit acknowledged that the reporting of the story was truthful, but claimed that the story implied that Webb abused his position of authority to obtain preferential treatment for his son. Webb argued that when the reporter wrote that the student “did not get preferential treatment because of his dad’s position,” the implied meaning was “exactly the opposite.” The court did not agree.

While acknowledging that the article insinuated that Webb’s son may have benefited from special treatment, the court held that there was nothing in the article to suggest that Webb solicited or otherwise procured such treatment. Therefore, the article was not reasonably capable of the defamatory meaning Webb ascribed to it and Jury.jpgthe jury should never have been permitted to even consider the claim.

Trial courts perform an essential threshold, gatekeeping function when it comes to defamation claims. Their job is to determine, as a matter of law, whether a statement alleged to be defamatory is reasonably capable of the defamatory meaning the plaintiff ascribes to the statement. This function, the court held, is to ensure that “defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages.” If the inference urged by the plaintiff cannot be reasonably drawn from the actual words used, the trial court should sustain any demurrer filed and dismiss the case. In this particular case, the trial court failed to do that, which decision the Virginia Supreme Court held to be in error.

To be actionable as libel, a statement must reasonably imply false and defamatory facts when read in context. Context is important because the setting of the speech makes its nature apparent and helps determine how its intended audience would have interpreted the statement. In some cases, a literally false statement will not be actionable because contextual factors demonstrate that the true meaning of the statement is something other than what the words alone might suggest. In other words, the statement that a plaintiff must prove false to prevail in a defamation case is not necessarily the literal phrase published but rather what a reasonable reader would have understood the author to have said. In Farah v. Esquire Magazine, the United States Court of Appeals for the District of Columbia Circuit discussed the importance of these principles in a case involving political satire.

Jerome Corsi is the popular author of several New York Times bestsellers and the book “Where’s the Birth Certificate? The Case that Barack Obama is Not Eligible to be President” published by WND Books. Joseph Farah is the Editor and CEO of WND’s parent company,, a competitor of Esquire Magazine. On the day after “Where’s the Birth Certificate” was released, Esquire published an online article on “The Politics Blog” entitled “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!” A copy of the Drudge Siren, a symbol of sensationalistic news, appeared above an image of the book’s cover. The article claimed that Farah had announced plans to recall and “pulp” the entire first run of the book and to refund purchaser’s money because three weeks earlier, Obama had produced his long form birth certificate indicating he was born in Hawaii. Later, Esquire published an update clarifying that the article was satirical, but the writer of the article referred to Corsi as an “execrable piece of shit” in an interview published on another online publication, The Daily Caller.

Farah and Corsi sued for defamation and other torts. According to the complaint, after the article was published, Farah received numerous requests for confirmation of the story and comment, and consumers began requesting refunds. The plaintiffs also claimed that they were attacked by book supporters and that book stores pulled the book from their shelves or refused to sell it. Farah and Corsi contended that Esquire only published the update after Farah indicated that he was exploring legal options and that the update was likewise false and defamatory. The district court granted Esquire’s motions to dismiss under both Federal Rule of Civil Procedure 12(b)(6) and D.C.’s Anti-SLAPP Act, D.C. Code § 16-5501 et seq.

On a de novo review, the Court of Appeals upheld the district court’s dismissal of the complaint for failure to state a claim, declining to address the Anti-SLAPP issue. The court held that the article was protected political satire and that the update and writer’s comments were non-actionable statements of opinion. The court noted that the United States Supreme Court has repeatedly extended First Amendment protection to statements that do not reasonably state or imply defamatory falsehoods when read in context. Satire is a broad and complex genre that is sometimes funny and other times cruel and mocking or even absurd. The court gave the example of Jonathan Swift’s famous jonathanswift.jpgsatire “A Modest Proposal” in which he suggested killing and eating Irish children to solve the problem of Irish poverty. Although satirical speech is literally false, it enjoys First Amendment protection.

To qualify as defamatory, a plaintiff must prove not that the literal published phrase is false but that what a reasonable reader would have understood the author to have said is untrue. Satire is not actionable if it cannot reasonably be interpreted as stating actual facts. Farah and Corsi did not disagree that satire is protected, but they asserted that this attempt at satire was actionable because reasonable readers would take the fictitious blog post literally.

The court held that to determine how a reasonable reader would have understood a particular satirical statement, courts should assess the hypothetical reader’s “well-considered view,” formed after time for reflection, rather than her “immediate yet transitory reaction.” Thus, even if some actual readers don’t “get” the satire and mistake it for actual news, satire that, taken in context, would be understood (upon reflection) as satire by a reasonable reader, enjoys First Amendment protection and will not support a defamation action.

The court also noted that an article’s “indicia of satire” can be subtle. In this case, for example, the body of the article “did not employ the sort of imitation and exaggerated mimicry that are typical of parody.” The court explained that satire can incorporate a wide variety of literary forms and devices to achieve its intended effect, such as “ridicule, derision, burlesque, irony, parody, or caricature.” The fact that an article’s satirical nature may not be immediately obvious does not remove it from First Amendment protection.

Considering this particular article in context, the court held that a reasonable reader could not understand it to convey real news about the plaintiffs. The intended audience consisted of readers of “The Politics Blog” who would have been familiar with Esquire’s history of publishing satire. They were also politically informed readers who would have been familiar with WorldNetDaily and its positions on the birther controversy.

Reasonable readers would have recognized the signs of satire in the article such as the substance of the story itself, i.e., that Farah, a leader of the movement to challenge Obama’s eligibility to serve, had suddenly and without warning decided to recall and “pulp” Corsi’s book. The humorous and outlandish elements in the article also suggest satire. For example, the article claims Corsi wrote a book entitled “Capricorn One: NASA, JFK, and the Great ‘Moon Landing’ Cover-Up.” Additionally, the article contained quotes using foul language which would not likely appear in a serious news story. Stylistic details such as the exclamatory headline and the use of the Drudge Siren symbol similarly alerted readers that the article was not to be taken seriously.

The court held that because a reasonable reader could not understand the blog post to convey actual facts about the plaintiffs, it was not actionable as defamation. Rather, almost everything about the article indicated that it was political speech aimed at criticizing the plaintiffs’ public position on Obama’s eligibility to hold office. The article was protected by the First Amendment and the district court properly dismissed the defamation claim.

The District of Columbia’s anti-SLAPP act applies to actions that arise from an act in furtherance of the right of advocacy on issues of public interest. It provides that if a party makes a prima facie showing that the case involves the type of claim to which the act applies, the court will dismiss the case–with prejudice–unless the responding party can demonstrate that the claim is likely to succeed on the merits. D.C. Code § 16-5502(a)-(b). Although there has been some uncertainty as to whether D.C.’s anti-SLAPP act applies in federal court, the emerging trend has been to find that it does. On September 27, 2013, Judge Emmet G. Sullivan of the District of Columbia District Court found the statute applicable to a defamation lawsuit brought by Yasser Abbas and granted the defendant’s special motion to dismiss made under its terms.

Yasser Abbas is a wealthy businessman and political emissary for his father’s regime, the Palestinian Authority (“PA”). He sued Foreign Policy Group, LLC, and journalist Jonathan Schanzer for certain statements Schanzer made in an article he had written about the sons of the Palestinian president. The article was published in the “Argument” section of Foreign Policy Magazine and questioned whether the sons of the Palestinian president were “growing rich off their father’s system” and whether they had “enriched themselves at the expense of regular Palestinians” and U.S. taxpayers.

When the defendants responded with a motion to dismiss under the anti-SLAPP act, the first question was whether D.C.’s statute even applied in federal court, a question not yet decided by D.C.’s highest court. The issue boils down to whether the anti-SLAPP statute should be viewed as substantive or procedural, as federal courts sitting in diversity apply federal procedural laws but state substantive laws. Judge Sullivan looked to other circuits and found that many interpret similar state statutes as substantive and do apply them in federal diversity cases. Notably, the D.C. Circuit has upheld a district court decision denying a special motion to dismiss under the anti-SLAPP statute because it was not timely filed. Although that decision did not specifically hold that the anti-SLAPP statute was substantive, it implied as much. With this background, Judge Sullivan was persuaded that the anti-SLAPP law applies in federal court.

To succeed on their special motion, the defendants were required to show that Mr. Abbas’ claim arose from “an act in furtherance of the right of advocacy on issues of public interest.” The court found that Mr. Abbas was a limited purpose public figure because he had voluntarily thrust himself into a role of prominence in Palestinian DCdistrictcourt.jpgpolitics and in the controversy surrounding his wealth. Further, the question of U.S. aid to the PA and the manner in which the PA used such aid are questions that have been debated at length for years. The court held that the “level of corruption in the PA,” whether Mr. Abbas has enriched himself by virtue of his political ties, and whether his wealth can be traced to U.S. tax dollars are issues of public (not private) interest. Accordingly, the court held that the defendants had made a prima facie showing that the defamation claim arose from an act in furtherance of the right of advocacy on issues of the public interest. The burden then shifted to Mr. Abbas to show that he was likely to succeed on the merits.

Mr. Abbas contended that the questions invited his colleagues and the world to wonder if he has enriched himself at the expense of others. He argued that, while posed as questions, the statements could be read as assertions of fact, falsely accusing him of using wrongful and possibly criminal means to accumulate wealth. The defendants responded that the article merely raised unanswered questions, and that even if they could be interpreted as assertions, the statements were pure opinion and therefore non-actionable.

The court agreed with the defendants, finding that the questions posed in the article could not reasonably be interpreted as statements of fact. The court found that the questions merely invite the reader to form an independent opinion as to the relationship between the Abbas family and its wealth, which invitation is “the paradigm of a properly functioning press.”

Even if the questions were capable of defamatory meaning, the court held that they were statements of opinion protected by the First Amendment. The factual basis for the article’s questions was outlined with statements and hyperlinked source material. This put the reader on notice that the piece was one of opinion. Also, the article appeared in the Argument section of the Foreign Policy Group website–a place where readers expect to find opinion pieces.

The court held that Mr. Abbas failed to meet his burden of proving that he was likely to prevail on the merits. Accordingly, the court granted the defendants’ special motion to dismiss.

Last year I commented on Gilman v. Spitzer, a defamation case out of the Southern District of New York, in which the court dismissed the plaintiff’s defamation claim on the ground that the statements at issue could not be reasonably interpreted as being “of and concerning” the plaintiff. On September 18, 2013, the Second Circuit affirmed that decision, holding that the statement at issue did not pass the “of and concerning” test.

Defamatory words are not actionable unless they refer to someone, and do so clearly enough that those who hear or read the statement will understand the reference. This has come to be known as the “of and concerning” test. If the words are not “of and concerning” the plaintiff, then the plaintiff has no cause of action. Courts have the authority to decide as a threshold matter whether an alleged statement can be reasonably understood as referring to the plaintiff, and to dismiss the case at the outset if the statement cannot be so interpreted.

To recap, William Gilman, an employee of Marsh & McLennan Companies, Inc. sued Eliot Spitzer, former New York State Attorney General, for defamation stemming from an article that Spitzer wrote in response to a Wall Street Journal editorial questioning his prosecution of the insurance industry. Spitzer’s article criticized the editorial for noting that two cases against Marsh employees had been dismissed after the defendants were convicted, yet who_me.jpgfailing to acknowledge “the many employees of Marsh who have been convicted and sentenced to jail terms.” Gilman’s case was one of the two that had been dismissed. The article also accused “Marsh and its employees” of pocketing increased fees and kickbacks. Gilman was not mentioned by name in the article. The district court found that no reasonable reader of the entire passage would come away thinking that the article referred to Gilman, so it dismissed the claim.

The Second Circuit affirmed the decision in all respects, noting that to state a claim for defamation, a plaintiff must establish that the challenged comments refer to him. Where a person is not mentioned by name, the language must be such that persons reading it and who know the plaintiff would, in light of all the surrounding circumstances, be able to understand that the statement is referring to the plaintiff.

In this case, Spitzer’s article acknowledged that Gilman’s conviction had been dismissed. Therefore, Gilman clearly was not included in the group of Marsh employees “who have been convicted and sentenced to jail terms.” Additionally, no reasonable reader would understand Spitzer to, in one instance, state that the Journal “noted” the dismissal of Gilman’s case and, in the next breath, accuse the Journal of “failing to note” Gilman’s case. Furthermore, the article refers to Marsh as a company, and such a broad reference to an organization cannot give rise to a defamation claim by one of its members. In other words, Spitzer’s generalized reference to “Marsh and its employees” cannot reasonably be read to refer to Gilman either directly or indirectly.

Gilman argued that given the allegations leveled against him during Spitzer’s investigation, knowledgeable readers would tie these statements to him, but the court found the opposite to be true: readers aware that Gilman’s conviction had been dismissed would be less likely to believe that he was one of the employees who had been convicted and sentenced to a jail term. The Second Circuit affirmed the district court’s decision, holding that the challenged statements could not reasonably be understood to be “of and concerning” Gilman.

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