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Implication Not Defamatory if Not Reasonably Drawn

January 10, 2014,

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.

The Importance of Context

December 11, 2013,

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, WorldNetDaily.com, 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.

Yasser Abbas' Defamation Lawsuit Dismissed on Anti-SLAPP Grounds

October 7, 2013,

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.

It's Not About You: The "Of and Concerning" Element of Defamatory Meaning

September 30, 2013,

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.

Erasure Statutes Do Not Erase History

August 9, 2013,

So your criminal record has been erased. Congratulations! Now you're thinking about bringing a libel action against the news agencies who published stories documenting your arrest, because the local "deemer" statute states that you are deemed never to have been arrested and those embarrassing articles are still available online. Good idea? Have those articles, truthful at the time they were first published, become defamatory in light of recent events? Not according to a recent federal-court opinion out of Connecticut, which rejected Lorraine Martin's claims for libel, false light, negligent infliction of emotional distress, and invasion of privacy in a case she filed against Hearst Corporation and other media outlets.

Lorraine Martin and her two sons were arrested in August 2010 and charged with possession of narcotics, drug paraphernalia and a controlled substance. Several news outlets published brief accounts of the arrest and charges in print and online. The charges were dismissed in January 2012 and qualified for erasure under Connecticut's erasure statute which provides that thirteen months after a criminal charge is dismissed, the charge is erased and the person charged is deemed to have never been arrested. Ms. Martin asserted that because she qualified for erasure and had been deemed to have never been arrested, the defendants' statements became false and defamatory. Ms. Martin asked the publications to remove the online articles and, when they refused, sued them.

Precepts of statutory construction dictate that the meaning of a statute be ascertained from its text and its relationship to other statutes. If the text is plain and unambiguous, the court will not consider extra-textual evidence. The "Erasure of Criminal Records" statute requires that court records and police and prosecutor records be erased following final judgment in a case in which the defendant is acquitted or the charge is eraser.jpgdismissed or where a nolle prosequi is entered. Read as a whole, the statute concerns only the records of courts and law enforcement agencies and imposes requirements on them. For example, the statute prohibits the court clerk from disclosing information about erased charges. The court found that nothing in the statute suggests that the legislature intended to impose requirement on persons who work outside of courts or law enforcement.

The court also examined the statute in context of surrounding statutes which likewise focused on court and law enforcement records and the custodians of those records. Given the plain language of the statute when read in context, the court found that legislature intended to ensure that custodians of criminal records treat persons who qualify for erasure as if they have never been arrested in order to minimize the stigma associated with an arrest. The legislature did not intend to silence private persons who might have obtained arrest information nor did it intend "the sweeping, history-altering design" that Ms. Martin perceived.

Furthermore, the court noted that it must construe statutes in a manner that comports with the constitution. If the erasure statute exposed publishers to defamation claims for publishing true and newsworthy statements, it would be unconstitutional.

Continuing, the judge observed that the erasure statute operates "in the legal sphere, not the historical sphere" and does not "purport to wipe from the public record the fact that certain historical events have taken place. Only in a totalitarian system could law purport to have such a sweeping effect." Citing a New Jersey case, the court noted that erasure statutes "cannot banish memories." The bottom line is that Ms. Martin was, in fact, arrested in 2010. That was true at the time it was published and it will always be true.

The court's rejection of Ms. Martin's reading of the erasure statute rendered all of her claims insufficient as a matter of law. Her libel claim required publication of a false and defamatory statement. Because no genuine dispute existed as to the truth of the statements at the time they were first published, her claim failed. Likewise, to prove false light in Connecticut, a plaintiff must show that the published statements are not true and are a major misrepresentation. The First Amendment requires that a media defendant be liable for false light only where it publishes highly offensive material without regard to its falsity. Where the matter is true, a defendant is constitutionally protected. Because there was no genuine dispute that the statements were true, the false light claim failed. Ms. Martin's claim for negligent infliction of emotional distress failed as well because publishing a true article is not negligent. Finally, her invasion of privacy claim failed because the value of a person's name is not appropriated by mere mention of it in reference to legitimate public activities.

Mann's Defamation Suit Survives Anti-SLAPP Motion

July 29, 2013,

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann's global warming research. In response, the defendants filed a special motion to dismiss under D.C.'s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia's Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann's "nature trick" of adding in real temperatures for the last twenty years and from 1961 to "hide the decline." Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann's "nature trick" was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann's research might deviate Mann.jpgfrom accepted norms. The committee interviewed an MIT professor who was critical of Mann's work and later expressed dismay with the scope of the investigation and the committee's analysis of the CRU emails.

At the same time, in response to pressure from the National Review, Steyn and others, the EPA investigated Mann and found no evidence of scientific misconduct. The National Science Foundation also investigated Mann's work and found that Penn State had not adequately reviewed the allegations and failed to interview critics of Mann's work

Two years later, Penn State was in headlines due to the Jerry Sandusky scandal. FBI Director Louis Freeh concluded that the university had failed to properly investigate allegations of misconduct when they arose and suggested that it should undertake a thorough and honest review of its culture which seemed to value the avoidance of bad publicity and its consequences above all else.

The National Review seized on the Sandusky scandal and published Steyn's article "Football and Hockey" on its website in a section called "The Corner." The piece contained an excerpt from and a link to a post by Rand Simberg on OpenMarket.org entitled "The Other Scandal in Unhappy Valley" which compared the Sandusky scandal and the university's failure to handle the matter properly with its investigation into Mann's work. Steyn agreed that Simberg had a point but admitted he might not have "extended the metaphor all the way into the locker-room showers" with quite the zeal Simberg did. Steyn also stated that Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and he concluded by noting the similarities between Penn State's investigation of Sandusky and Mann and questioning its handling of both matters.

Mann demanded a retraction and apology for the accusations of academic fraud. In response, the National Review asserted that the term "fraudulent" was used to mean "intellectually bogus and wrong" rather than criminally fraudulent.

Mann sued in D.C. Superior Court, alleging libel and intentional infliction of emotional distress against the National Review, Steyn, Simberg and the owner of OpenMarket.com, Competitive Enterprise Institute. His complaint was based on the statements that (1) Mann had engaged in data manipulation and scientific misconduct and was the "poster-boy of the corrupt and disgraced climate science echo chamber," (2) Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and (3) Mann's work was intellectually bogus.

The National Review and Steyn moved to dismiss under both D.C.'s Anti-SLAPP Act and Federal Rule of Civil Procedure 12(b)(6). The defendants argued that their comments are protected by the First Amendment and that the Anti-SLAPP Act applies because Mann's claims stem from statements made in a public forum that discusses issues of public interest, i.e., climate change and global warming. Mann asserted that the Anti-SLAPP Act was enacted to deter large private interests from bringing meritless suits to deter common citizens from exercising their political or legal rights and was not intended to apply to cases such as this. The court found that because the defendants' comments were made with respect to climate issues which are environmental issues and issues of public interest, and were made in publications that were available to the public, the Anti-SLAPP Act applies.

The Anti-SLAPP Act provides that if a party filing a special motion to dismiss makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the court will grant the motion unless the responding party shows that the claim is "likely to succeed on the merits." The parties disagreed on the level of proof this standard requires. The defendants asserted that "likely" poses a higher burden than "probability," which is the term used in the corresponding California statue upon which the D.C. statute is based. Mann argued that there is no difference between "likely" and probability." The court turned to Black's Law Dictionary which defines the "likelihood of success on the merits test" in the context of a preliminary injunction as requiring the litigant to show "a reasonable probability of success in the litigation." The California statute requires the plaintiff to show a "probability of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor." The court held that the standard is similar to that used on a motion for judgment as a matter of law and that Mann must present a sufficient legal basis for his claims in order to survive the anti-SLAPP motion.

The defendants argued that Mann would be unable to make a prima facie case for libel because he could not prove the actual malice required where plaintiff is a public figure. They also argued that Mann would be unable to prove the falsity of the statements because the statements were ones of opinion. Mann countered that he could demonstrate actual malice by showing that the defendants entertained serious doubts as to the truth of the statements or acted with a high degree of awareness that the statements were probably false. He argued that the statements were false and defamatory per se and that the defendants made them with knowledge of their falsity or with reckless disregard of the truth. He contended that whether he engaged in fraud is verifiable by analyzing the elements of fraud or considering the investigations conducted regarding his research.

On the issue of malice, the court found that sufficient evidence existed to show at least reckless disregard of truth or falsity, as Mann had been investigated several times, at least once due to the defendants' accusations, and his research has been found to be accurate. The court held that where the defendants consistently claim that Mann's work is inaccurate despite being proven accurate, then there is a strong probability that the defendants disregarded the falsity of their statements and did so with reckless disregard. Although the evidence was not yet sufficient to show clear and convincing evidence of actual malice, the court found sufficient evidence to necessitate further discovery on the matter.

Regarding the fact vs. opinion question, the court noted that opinions may be actionable if they imply a provably false fact or rely upon stated facts that are provably false. To determine whether a statement is actionable opinion, a court must examine the context of the statement. The court found that the statements at issue here questioned facts rather than simply inviting readers to ask questions. The court held that, given the definition of fraud and the common readers' interpretation of the words "fraud" and "fraudulent," the statements were more than brutally honest commentary. The court held that the assertions of fraud rely upon facts that are provably false in light of the fact that Mann has been investigated and his research and conclusions determined to be sound. Evidence indicated that the defendants' statements were not pure opinion but rather were statements based on provably false facts.

The defendants also argued that the statements were rhetorical hyperbole - witty and obvious exaggeration-- which is protected under the First Amendment, and that the statements criticized Mann's work and ideas rather than Mann himself and thus cannot be defamatory. The court found that, when considered in the context of all of the comments and accusations made over the years and the "constant" requests for investigations of Mann's work, the statements appear more as factual assertions.

Finally, the defendants argued that their statements were protected by D.C.'s fair comment privilege, which protects opinions based on facts that are well known to readers. To take advantage of this privilege, a defendant must show that the publication was fair and accurate and that the publication properly attributed the statement to the official source. Here, the court found that the accusations of fraud were provably false as several reputable bodies had found his work sound. Thus, the court held that the fair comment privilege did not apply.

For these reasons, the court denied the motions to dismiss and lifted the discovery stay.

VitaminSpice CEO Files Libel Claim Against DealFlow Media

July 15, 2013,

Edward Bukstel, CEO and majority shareholder of VitaminSpice, Inc., a publicly traded company, has brought a libel action in the Eastern District of Pennsylvania against DealFlow Media and affiliated individuals, claiming that DealFlow knowingly published a false story about VitaminSpice. The complaint alleges the following facts.

DealFlow provides independent research services and analysis for finance professionals such as investment managers, law firms, banks, public and private corporations, hedge funds, and financial companies. It publishes The DealFlow Report for individuals and institutions in the field of business and finance. DealFlow's website asserts that over 6000 institutions rely on it for accurate, comprehensive and timely information about finance.

In early 2013, Bukstel negotiated a deal allegedly worth over $8 million involving the sale of VitaminSpice assets to a New York investor. An article appeared in a March issue of The DealFlow Report, entitled "VitaminSpice CEO Says He Requested Trading Halt Amid Dispute Over Stock Manipulation." The Article went on to report that Bukstel had accused his former attorney of stock manipulation. According to Bukstel, the Article, its title in bold, news.jpgappeared on page one of the issue and was the major headline. Bukstel asserts that the defendants intended the article to be conspicuous so that every reader would be drawn to it.

Bukstel claims he never requested a trading halt on VitaminSpice stock and that defendants deliberately falsified the Article to sensationalize a story for the benefit of its readership and with complete disregard for the harm the statements would cause him. When Bukstel learned about the Article, he contacted defendants and informed them that the Article's title and content were false and that the publication was jeopardizing an $8 million deal. Bukstel told the defendants that VitaminSpice investors were contacting him with concerns, and he asked DealFlow to issue a press release with a retraction and apology. Bukstel hoped such a release would restore investor confidence and salvage the sale.

The complaint alleges that DealFlow acknowledged the falsity of the title but did not issue the requested press release. Rather, the defendants simply changed the title to "VitaminSpice Halted Amid Dispute Between CEO, Attorney Over Stock Manipulation" and the opening line to "The chief executive of the microcap company VitaminSpice Inc. (VTMS) says that he provided a document to the Securities and Exchange Commission..." According to Bukstel, these changes were made only to the online versions of the Article after the print edition had been sent to thousands of subscribers.

Bukstel sued DealFlow, its CEO, Editor and a journalist working for DealFlow for defamation and intentional interference with contractual relations. According to the complaint, Bukstel has more than 18 years of experience in data integration, data security and communications. Bukstel asserts that he was nominated for a humanitarian award by the Department of Defense, has been a national speaker on electronic data interchange and a guest lecturer at The Wharton Business School and holds a B.S. and a PhD. As the CEO of VitaminSpice, Bukstel claims that his professional reputation is essential to maintaining the confidence and morale of his fellow officers, directors, employees and shareholders and is important to potential investors and future shareholders who rely on the reputation of corporate officers in their investment decisions.

Bukstel contends that defendants intentionally published defamatory and libelous statements about him. He argues that the defamatory meaning of the statements is self-evident because the statements are false. Bukstel asserts that the article created skepticism among VitaminSpice investors and potential investors by creating the impression that he was in dereliction of his fiduciary duty to VitaminSpice and that it harmed employee and shareholder confidence and morale. Bukstel claims to have suffered embarrassment, reputational damage and emotional distress as well as the opportunity to complete the $8 million sale of VitaminSpice assets. He contends that the individual defendants acted outside the scope of their duties as officers or employees of DealFlow. As of this writing, the defendants have not yet responded to the suit.

Lawyer Claims Huffington Post Defamed Him By Attributing Controversial Article to Him

December 21, 2012,

Panamanian lawyer Juan Carlos Noriega has brought a defamation suit in the District of Columbia against the Huffington Post for falsely attributing to him an "offensive" article he claims he had nothing to do with. The article, entitled "The Primacy of the Rule of Law," (which has since been removed from the site) concerned a "fake vaccination program" that the Central Intelligence Agency ran in order to gather information on Osama Bin Laden. The CIA relied on Dr. Shakeel Afridi to run the vaccination program, and when he was arrested, the United States government called for his release.

The article claimed that the United States' outrage over Dr. Afridi's arrest was inconsistent with every nation's basic commitment to the rule of law, and that the United States' demand that Afridi be released showed a disregard for Pakistan's democracy and jurisprudence. The article suggested that Afridi had violated the Hippocratic Oath and that, because of the fake campaign, Pakistani parents had become skeptical of vaccinations and were refusing to immunize their children. The article asserted that thousands of innocent Pakistani children may be crippled for life with polio or die from hepatitis because of the vaccination scheme. A link to the article revealed a short biography and picture of Noriega and listed him as one of "HuffPost's signature line up of contributors."

Noriega claims he has never written anything for the Huffington Post. He says he's never even submitted a comment on the site or created an account. According to the complaint, The Huffington Post did not contact Afridi.jpgNoriega before publishing the article, and when Noriega's counsel informed the Huffington Post that he had been a victim of identity theft and asked it to remove the article, the Huffington Post did not respond. Noriega asserts that the Huffington Post maliciously and negligently published the article and attributed to him "highly offensive and defamatory beliefs" concerning terrorism, Pakistan, bin Laden, the U.S. government and the CIA that he does not hold.

Noriega contends that the article has damaged his personal and business reputation, has caused him serious emotional distress, embarrassment and personal humiliation and has jeopardized his immigration status. The complaint asks for $3 million in damages, a retraction, and an investigation into the identity theft. The court is going to have to decide whether falsely attributing certain controversial beliefs to a person can be considered defamatory as a matter of law.

Does D.C.'s Anti-SLAPP Statute Apply in Federal Court?

October 28, 2012,

Former Georgia State Director for Rural Development, Shirley Sherrod, filed a defamation action in the United States District Court for the District of Columbia against bloggers Andrew Breitbart and Larry O'Connor based on a blog post allegedly portraying her as racist. The court denied defendants' special motion to dismiss under D.C.'s anti-SLAPP Act. Defendants appealed, and the case is now pending before the United States Court of Appeals for the District of Columbia Circuit

The district court cited three reasons for its dismissal. First, it found that entertaining defendants' motion would require retroactive application of the anti-SLAPP statute as Sherrod filed her complaint on February 11, 2011 and the D.C. anti-SLAPP Act did not become effective until March 31, 2011. Typically, only statutes that are purely procedural in nature can be applied retroactively, and the court held that the Act is substantive (or has substantive consequences). Defendants argue that whether the statute only applies to actions filed after its effective date is an issue of first impression, and summary disposition of a case of first impression involving a newly enacted statue that protects important First Amendment rights is not appropriate.

The district court found that even if the statute were purely procedural, the Erie doctrine, which requires federal courts sitting in diversity to apply state substantive law and federal procedural law, bars its application in federal court. Finally, the district court held that even if defendants could show that the statute is both retroactive and slap.pngapplicable in federal court, the plain language of the statute bars the motion to dismiss--the statute provides that a party may file a special motion to dismiss within 45 days after service of the claim, and here, the motion was filed more than two weeks after the 45 days had passed.

Another issue on appeal will be whether the court of appeals has jurisdiction to consider the appeal as a collateral order. In general, courts only have jurisdiction over final judgments, but the collateral order doctrine allows parties to appeal a narrow class of decisions that resolve important questions. Citing case law, defendants contend that the First, Fifth and Ninth Circuits have considered this issue and, of five substantive opinions, four hold that the denial of an anti-SLAPP motion to dismiss is immediately appealable. Further, defendants argue that the Supreme Court and the District of Columbia Circuit have applied the collateral order doctrine where a defendant seeks an appeal to vindicate rights of high value such as ones embodied in the Constitution. Defendants contend that because the case involves constitutionally protected free speech regarding public figures and issues of public importance, the court should exercise jurisdiction over the appeal.

Defamation Case Against Eliot Spitzer and Slate Dismissed

October 8, 2012,

Libel and slander claims depend to a large extent on whom the plaintiff targeted with the allegedly defamatory statement. Defamatory words may not support a cause of action unless they directly or inferentially refer to the plaintiff--this has come to be known as the "of and concerning" test. The defamation case filed against former Governor Eliot Spitzer and Slate Magazine Slate for a column Mr. Spitzer wrote in 2010 about an insurance bid-rigging scandal was recently dismissed by a New York court on the ground that the article did not sufficiently identify the plaintiff--a former insurance executive at Marsh & McLennan--as the subject of the statements.

William Gilman's work for Marsh included negotiating "contingent commissions"--fees paid by insurers to insurance brokers who place insurance business with the insurer. As attorney general, Spitzer took the position that Marsh's use of such commissions was illegal. A lawsuit ensued and Gilman was convicted of one count of restraint of trade and competition. While Gilman's appeal was pending, the trial judge vacated his conviction because exculpatory evidence had not been disclosed during trial. Spitzer wrote an article published on Slate.com in response to a Wall Street Journal article criticizing his handling of the Marsh case. Gilman brought a claim for defamation against Spitzer and Slate based on statements in Spitzer's article.

Gilman's defamation claim was based on (1) a reference to "the many employees of Marsh who have been convicted and sentenced to jail terms" and (2) the statement that Marsh's employees "pocketed ... increased fees and kickbacks." Defendants argued that neither of the challenged statements was "of and concerning" Gilman and therefore could not be defamatory.

Whether a statement is "of and concerning" the plaintiff is a question of law for the court to determine at the pleading stage, considering the challenged words in context and giving the language a natural reading. Because eliot_spitzer.jpgGilman was not mentioned by name in the article, in order to be defamatory, the language must be such that persons reading it would understand that it refers to Gilman. Gilman argued that a reasonable reader would understand the statement to be about him based on preceding sentences referring to the dismissal of two cases after conviction. The court disagreed and found that no reasonable reader of the entire passage would come away thinking both that Gilman's case was dismissed after conviction and that he was convicted and jailed on those charges.

Regarding the statement that Marsh's employees "pocketed ... increased fees and kickbacks," the court noted that statements which refer to an organization do not implicate its members. Gilman argued that the article's preceding references to the two dismissed cases sufficiently tied him to the statement, but the court found that if anything, the preceding sentences tended to weaken any inference to Gilman. The court also rejected Gilman's attempt to characterize the challenged statement as referring to only 20 individuals who were subject to prosecution. Courts have allowed defamation claims to proceed where a statement referred generally to a group numbering 25 people or fewer, but the court here found the argument unsupported by the language which referred broadly to "Marsh" and "its employees" rather than to a subset of employees who were subject to prosecution. Finding that the allegedly defamatory statements could not be reasonably interpreted to be "of and concerning" Gilman, the court dismissed the defamation claims.

"Dirtiest Hotels" List is Rhetorical Hyperbole and Not Grounds for Defamation Action

September 11, 2012,

Kenneth M. Seaton, sole proprietor of the Grant Resort Hotel and Convention Center in Pigeon Forge, Tennessee, brought a defamation action against TripAdvisor after the hotel was identified by the travel site as the dirtiest hotel in America. The United States District Court for the Eastern District of Tennessee, however, found that TripAdvisor's list of "2011 Dirtiest Hotels" could not support a defamation claim and dismissed the case on August 22, 2012.

TripAdvisor relies solely on customer reviews to compile its "Dirtiest Hotels" list - it does not conduct an independent investigation of each hotel. Seaton claimed that TripAdvisor attempted to assure the public that its list is factual, reliable and trustworthy by including the following statements along with its list: (1) "World's Most Trusted Travel Advice"; (2) "TripAdvisor lifts the lid on America's Dirtiest Hotels"; (3) "Top 10 U.S. Crime-Scenes Revealed, According to Traveler Cleanliness Ratings"; (4) "Now, in its sixth year, and true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels"; (5) "This year, the tarnished title of America's dirtiest hotel goes to Grand Resort Hotel and Convention Center, in Pigeon Forge, Tennessee." The list quoted a TripAdvisor user: "There was dirt at least ½ inch thick in the bathtub which was filled with lots of dark hair." The list also featured a photograph of a ripped bedspread.

Defamation claims require proof of false statements or false implications. Seaton contended that by publishing its "2011 Dirtiest Hotels" list, TripAdvisor was implying that the Grand Resort Hotel and Convention Center was, in fact, the dirtiest hotel in the United States and that a reasonable person reading the list would consider this supposed fact in making their travel plans. Seaton argued that the list was not mere hyperbole because it dirtyhotels.jpgcontained actual numerical rankings with comments suggesting that the rankings were based in actual fact.

The court agreed that a reasonable person might consider the list when making hotel plans, but found that "propensity to initiate negative mental contemplation on behalf of a potential patron" is not the test for defamation. In determining whether TripAdvisor's list is defamatory, the court would not consider whether the list is compelling but rather whether a reasonable person could understand the language in question as an assertion of fact or instead merely hyperbolic opinion or rhetorical exaggeration.

The court found that neither the fact that TripAdvisor numbered its opinions one through ten nor that it supported its opinions with data converts its opinions to objective statements of fact. A reasonable person would not confuse a ranking system based on consumer reviews for an objective assertion of fact. Rather, a reasonable person would know that the list reflected the opinions of TripAdvisor's online users. Seaton did not plead any facts that would lead the court to find that TripAdvisor made a statement of fact or of opinion that it intended readers to believe was based on facts. Finally, the court found that although unverified online user reviews are a poor evaluative method, the system is not sufficiently erroneous so as to be labeled defamatory. For these reasons, the court held that TripAdvisor's "Dirtiest Hotels" list is unverifiable rhetorical hyperbole and could not form the basis of a defamation action.

Fraud Accusations Prompt Michael Mann's Lawyers to Threaten Litigation

September 3, 2012,

Climate change scientist Dr. Michael Mann is threatening legal action against the National Review magazine for a blog post that appeared in "The Corner" section of its online publication. In the article, journalist Mark Steyn quoted writer Rand Simberg's observation that Dr. Mann "could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data..." Mr. Steyn went on to call Mann "the man behind the fraudulent climate-change 'hockey stick' graph, the very ringmaster of the tree-ring circus."

In a demand letter to the National Review, Dr. Mann's attorney, John Williams, contends that Mr. Steyn's statements amount to accusations of academic fraud and constitute defamation per se. He argues that the statements were false and were made with the knowledge that they were false. He cites several inquiries into his research which concluded that he has not engaged in academic fraud as proof that Mr. Steyn's statements are false. Dr. Mann demands that the National Review retract the article and apologize or face legal action.

Dr. Mann may have a valid complaint, but he is going to have his work cut out for him. Dr. Mann is a well-known, much published and often quoted figure in the climate change debate. In fact, Dr. Mann has written a book on the climate change controversy. Courts have held that scientists who inject themselves into public controversies over scientific and political debates are public figures. As a public figure, Dr. Mann would have to prove by clear and convincing evidence that the National Review published a provably false statement with knowledge that it was false or with reckless disregard of whether it was false or not.

His lawyers are also going to have to convince a judge that the use of the term "fraudulent," in the context of the article, should be treated as an assertion of fact rather than subjective opinion. The court could plausibly rule either way on this issue. Mr. Steyn's piece was commentary on a highly debatable topic - climate change - and a controversial graph - the "hockey stick" graph which depicts changes in the Earth's temperature from the year 1000 onward. In an effort to encourage the free exchange of ideas, courts have allowed the press much leeway when writing about public controversies, and the difference of opinion over the science behind climate change is the type of debate that the First Amendment protects. Great scientific minds can reasonably disagree where the climate change debate is concerned.

While the court might indeed find that the term was used to suggest Dr. Mann engaged in academic fraud, it might conceivably find instead that the statement would more reasonably be interpreted as a protected expression of opinion. Moreover, if the court considers the "fraudulent" characterization to be rhetorical hyperbole, rather than an assertion of literal fact, it will dismiss the claim.

It is rarely easy for a public figure to prevail in a defamation case, especially when the statements at issue relate to matters of public concern. At a minimum, if Dr. Mann decides to file suit, it will at least bring more attention to the climate-change debate.

Defamation By Implication Theory Prevents Dismissal of Art Analyst's Case

August 23, 2012,

In Virginia, defamation liability can be based on a statement that is literally true, if the true meaning of the statement arises from reasonable inferences attributable to it rather than the actual words used. Some jurisdictions refuse to recognize this "defamation by implication" or "implied defamation" theory, but on August 9, 2012, the Southern District of New York issued an opinion demonstrating that New York is among the states that recognize the doctrine.

Peter Paul Biro is in the business of art restoration and authentication and is well known in the art world for having developed scientific approaches to art authentication through fingerprint analysis. In July 2011, The New Yorker published an article titled "The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art." (Note: a full copy of the article is attached to the opinion). Biro sued the magazine, investigative journalist David Grann, and others for defamation, claiming that various passages in the article damaged his reputation to the tune of two million dollars.

In Biro v. Condé Nast, the court adopted the Fourth Circuit's approach to defamatory implication claims, holding that a plaintiff must make an "especially rigorous showing" that (1) the language may be reasonably read to impart the false innuendo, and (2) the author intended or endorses the inference. Where an implication arises fingerprint.jpgdue to the omission rather than the expression of facts, the court will examine whether the omission would materially change the alleged implication.

On the other side of the coin, the court noted that if a statement is substantially true according to the understanding of the average reader, it will generally not be deemed defamatory. For example, the article stated that Biro "pioneered a radical approach to authenticating pictures." Biro claimed this statement was defamatory because he says there is nothing "radical" about fingerprints. Biro characterized the use of fingerprint analysis in art authentication as an "emerging field." The court found that the truth according to Biro would not have a different effect on the mind of the reader than the idea that fingerprint authentication is "radical." The court therefore dismissed those claims based on substantially true statements.

On the topic of fact vs. opinion, the court wrote that while expressions of opinion are generally not actionable as defamation, a statement of opinion that is based on undisclosed facts might be actionable because a reader may reasonably infer that the writer knows certain facts which support the opinion. For example, statements alleging that Biro had been caught in lies and was a "phony" suggest facts undisclosed to the reader, the court found. The court declined to dismiss claims based on these statements.

In the final analysis, just four of the original 24 counts survived the motion to dismiss.

Lawyer Files Defamation Action Against Television Stations for Faulty Report

June 17, 2012,

Indiana lawyer Mark K. Phillips has filed a libel and slander action against two media outlets, Nexstar Broadcasting Group and Mission Broadcasting, for mistakenly identifying him as a child molester. In 2011, Mark S. Birge, Phillips' client, pleaded guilty to child molestation in an Indiana court. When the local news companies reported this story during the next two days, they mistakenly announced instead that Birge's attorney, Mark Phillips, had been convicted of child molestation and would be sentenced to up to 16 years in prison. The media companies published a correction to the story over a month later, but Phillips filed suit anyway for slander per se, libel per se, and defamation. He seeks more than $1 million in compensatory and punitive damages.

Likely issues will include whether the lawyer is a "public figure" required to prove malice, the extent to which the media outlets are at fault for the mistaken report, and the legal effect of the subsequent correction.

Phillips asserts that the defendants are liable for defamation because they falsely identified him as the child molester knowing the statements to be false. As a result, he claims he "has suffered ridicule, damage to his TV.jpgprofessional and personal reputation within the community and the tri-state area, emotional and physical pain, disgrace, and stress within his marriage and with his family, embarrassment, and loss of opportunity to achieve his potential as a professional." Phillips suggests that the severity of the impact of these stories on him is a result of the fact that he is an active member of the community. He has coached a Special Olympics basketball team for over 18 years, is a member of multiple legal professional groups and country clubs, and maintains an active legal practice in multiple states.

In addition, Phillips claims that the stories posted on the Internet amount to libel per se and the televised broadcasts to slander per se because the stories falsely (and with reckless disregard for the truth) claimed that he committed a crime of moral turpitude. He seeks both compensatory damages and punitive damages for the malice, fraud, and gross negligence committed in the course of this reporting.

The defendants removed the case to federal court and have yet to file an answer. Phillips is representing himself.

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.