Articles Posted in Media Defendants

If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamation actions are not an appropriate means of addressing arguments over unsettled questions over which vaccines treat disease most effectively. It’s not so much a matter of whether matters of scientific inquiry should be regarded as facts or opinions but of the practical reality that academic questions on complex scientific topics just aren’t the sort of thing courts or juries are equipped to resolve as definitively true or false. Courts are interested in protecting First Amendment rights, not in picking sides in a scientific debate.

Case in point: Dr. Peter A. McCullough v. Gannett Company, filed earlier this year in the Eastern District of Virginia. Dr. Peter McCullough is a cardiologist and epidemiologist who has been a vocal critic of the medical response to the COVID-19 crisis. According to his complaint, he is “considered one of the world’s leading experts on COVID-19.” The Bartlesville Examiner-Enterprise, an Oklahoma newspaper owned by Gannett Company, ran a story in October 2021 about an upcoming appearance Dr. McCullough was to make at a local community center. The article contains several quotes from a Dr. Anuj Malik, an infectious disease physician who strongly disagreed with Dr. McCullough’s views on the effectiveness of the COVID vaccine. Dr. McCullough claimed the following statements attributed to Dr. Malik were defamatory: Continue reading

In a defamation case, like any other form of civil litigation, each side has a right of “discovery” to obtain information from each other and from third parties that may be relevant to the dispute. When the rules work as intended, there are no unexpected surpise witnesses or documents at trial–each side should be well aware of the information the other side intends to present at trial so they can plan accordingly. Federal Rule of Civil Procedure 26 allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). This rule allows parties to obtain just about any form of evidence provided it’s relevant and not protected by the attorney-client privilege, work-product doctrine, or other privilege. And for purposes of discovery, most courts apply a lower standard for relevance than they would apply at trial. Information may be discoverable even if only slightly relevant to the case, provided the burden of obtaining and producing the information is justified by the needs of the case. Generally speaking, the less money there is at stake in the litigation, the more relevant the information will have to be before a court will order a party to produce it in discovery. The rules dictate the courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit” in assessing whether to compel a party to incur expense or burden in producing information not easily accessible. (See Fed. R. Civ. P. 26(b)(1)).

You can also obtain information from third parties who aren’t involved in the litigation if they are in possession of relevant information. This is accomplished through the issuance of subpoenas. (See Fed. R. Civ. P. 45(1)(A)(iii)). Courts typically won’t require third parties to incur substantial burden or expense unless the information is highly relevant and not obtainable from other sources, as third parties aren’t involved in the case and have no stake in the outcome. When a subpoena is directed to a third party, “courts must give the recipient’s nonparty status ‘special weight,’ leading to an even more ‘demanding and sensitive’ inquiry than the one governing discovery generally.” (See Va. Dep’t of Corrs. v. Jordan, 921 F.3d 180, 189 (4th Cir. 2019)). In particular, courts will consider (1) the extent to which the requesting party actually needs the information, measured by whether the information is likely to offer value over and above what the requesting party already has; (2) whether the requesting party can obtain the same or comparable information from other sources; and (3) the extent to which the request will impose a substantial burden on the recipient or others who might be affected (such as cost, overbreadth, privacy, and confidentiality interests).

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Public officials have an uphill battle when seeking to sue media outlets for defamation. The public has a legitimate interest in the workings of government and reporters have the right and privilege to communicate information about the actions of public officials so that the government can be held accountable. Consequently, the law has evolved to make it difficult for public officials to sue media organizations for libel, even if a news story about them contains inaccuracies. Specifically, public officials can’t prevail in a defamation action based on their official conduct unless they can prove, with clear and convincing evidence, that the false story was published about them with actual malice, generally defined as knowledge of falsity (or, at a minimum, reckless disregard of the truth). Private individuals, by contrast, generally are not required to meet this standard. The high bar for public figures is designed to strike a balance between the private right against unfair attacks on one’s reputation and the First Amendment right of writers and publishers to share information on matters of public interest and concern. A recent decision of the Eastern District of Virginia shows how difficult it can be for public officials to meet their burden of proof.

The case of Joseph E. Preston v. City Council of the City of Petersburg involved a dispute between the City of Petersburg and its former City Attorney, Joseph Preston. The basic facts, according to the summary-judgment opinion, are as follows. Preston was the City Attorney from October 2016 to September 2018. On September 4, 2018, while Preston was on vacation, the City Council held a special meeting in his absence and passed two motions. One motion terminated Preston’s employment, effective immediately. The second motion stated that Preston would be allowed back into City Hall to retrieve his personal belongings “only by appointment and only if accompanied by a police officer.” The reasons for the firing and the restrictions on Preston’s ability to enter City Hall are not clear.

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Under the single-publication rule, a defamatory statement posted online will be treated as a single publication, made at the time of posting, regardless of when and how many people actually view the content. Without such a rule, Virginia’s one-year statute of limitations would be rendered meaningless, because a new cause of action would arise each time a new person clicked a link leading to defamatory content, even if that were to occur 10 or 20 years from the date the material was originally uploaded. At the same time, however, Virginia law imposes liability against those who “republish” a defamatory statement, even if republication occurs after the statute of limitations has run on the original statement. When pursuing libel remedies for a statement uploaded to the internet over a year ago, consider whether the statement has been republished by anyone within the past 12 months.

This approach was tried, albeit without success, by the plaintiff in Svetlana Lokhova v. Stefan A. Halper. Ms. Lokhova is a Russian-born British historian and author whose work has focused on the Soviet intelligence service. She had some contact with former National Security Adviser Michael Flynn back in 2014–minimal contact, according to the complaint. She says she met him briefly at a dinner in England and exchanged only a few emails afterwards. Various press accounts in 2017 noted that certain individuals had expressed concern upon learning that the head of the Defense Intelligence Agency appeared to have a friendly relationship with a Russian woman with alleged ties to Russian intelligence–surmising among other things that such a connection could make Flynn susceptible to extortion. One example cited in the complaint is this passage from a New York Times article:

The informant also had contacts with Mr. Flynn, the retired Army general who was Mr. Trump’s first national security adviser. The two met in February 2014, when Mr. Flynn was running the Defense Intelligence Agency and attended the Cambridge Intelligence Seminar, an academic forum for former spies and researchers that meets a few times a year. According to people familiar with Mr. Flynn’s visit to the intelligence seminar, the source was alarmed by the general’s apparent closeness with a Russian woman who was also in attendance. The concern was strong enough that it prompted another person to pass on a warning to the American authorities that Mr. Flynn could be compromised by Russian intelligence, according to two people familiar with the matter.

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Hey, all you politicians from around the country who would bring your defamation lawsuits here in Virginia because you’ve been told it’s a plaintiff-friendly jurisdiction: just because our anti-SLAPP laws may not be as robust as they are in some other states (and that may be about to change: see House Bill 759) doesn’t mean that the First Amendment doesn’t afford protection to political commentary and opinion. Even in Virginia, a person’s personal opinions regarding a politician or celebrity are immune from defamation claims, no matter how insulting or derogatory those opinions may be. You knew when you ran for office that there would be a lot of public discussion about your behavior; the occasional inadvertent factual error comes with the territory. Politicians are expected to have skin thick enough to withstand public criticism.

Not all of them do. Much has been written about the Virginia lawsuits filed by California Congressman Devin Nunes, but today I want to discuss Joseph D. Morrissey v. WTVR, LLC. Joe Morrissey previously served as the leading prosecutor for the City of Richmond, Virginia, and is a former member of the Virginia General Assembly. As such, he is a public figure. He filed a defamation lawsuit against WTVR, LLC d/b/a CBS 6 and its reporter, Mark Holmberg, based on this video segment it ran back in 2016. Morrissey claimed the video made him appear unfit to serve as mayor and portrayed him as a “stupid liar, who was a sex crazed maniac.” In the video, Holmberg refers to Morrissey as a “fool” and a “clown” and stated that the Virginia State Bar was “coming after him.” Morrissey demanded $1,350,000 in damages.

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When the Virginia Citizens Defense League, a gun-rights organization, sued Katie Couric for defamation back in 2016, the two big issues from a legal perspective were (1) whether the edited video of the VCDL members conveyed a false statement of fact, and (2) if so, whether that false message carried a defamatory meaning sufficient to support a cause of action for defamation. When I first wrote about the case the day after it was filed, I devoted most of my blog post to the issue of whether video and still images can support the falsity element of a defamation claim (they can). Now that the case has completed its journey through the legal system, I thought I would revisit this case, this time focusing more on the second issue: that of defamatory meaning.

At the trial level, the court answered both questions in the negative, finding that the video was “not false” and that, even if it were false, it lacked sufficient defamatory meaning to survive a motion to dismiss. On appeal to the Fourth Circuit, the Court of Appeals held as I predicted it might: it overruled the trial court’s determination that the video was not false, but nevertheless affirmed the dismissal of the case because that falsity did not carry defamatory meaning sufficient to state a claim for defamation under Virginia law. What surprised me about the ruling was not the result but how little was written in the opinion about whether the law should recognize a defamation claim based on a false statement deemed despicable by a large segment of society, but not by the majority of Americans. This seemed to be a good case for the court to grapple with that issue, as the degree to which VCDL members’ reputations suffered among viewers of the documentary likely varied according to viewers’ opinions on gun ownership. Instead, the court held (in a footnote, no less) that defamatory meaning should be measured according to “the common estimation of mankind” without consideration of variations that may exist among smaller segments of the populace.

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The Internet is full of morons. If an Internet troll who clearly has no idea what he or she is talking about posts false statements on social media about another person, the effect on the reader is different than if the same statement had been written by an authoritative figure and circulated to the public in a formal news release. Readers would tend to believe the assertions made in the authority figure’s formal statement, and tend to dismiss the troll’s statement as nothing more than meaningless Internet noise. In actions for libel and slander, the perceived knowledgeability and credibility of the speaker plays an important role in the determination of whether defamatory meaning has been conveyed by a particular statement.

The Alex Jones lawsuit comes to mind. Alex Jones is the host of InfoWars and an extremely popular online conspiracy theorist. He has claimed that the 2012 shooting at Sandy Hook Elementary School was an elaborate hoax, complete with adult and child actors, invented by government-backed “gun grabbers.” Many of his followers apparently believed his claims and have been harassing the victims’ families. Recently, several of the families have filed defamation lawsuits against Jones, arguing that he “persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.”

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Hypersensitivity is not a desirable personality trait if you are a plaintiff in a defamation case. If you’re the type of person who tends to jump to conclusions about an author’s intent when reading certain statements made about you on social media, you should think twice (and consult with a defamation attorney) before rushing off to sue the writer for libel. This is because when a judge is faced with the task of deciding whether to allow a defamation claim to go forward, one of the preliminary rulings he or she must make is about how a reasonable reader would interpret the words claimed to be defamatory. If most people reading the article or social-media post would not draw the same defamatory conclusions that you are drawing when they read the statement, your case will likely be dismissed at the outset.

When a statement is clear, straightforward and unambiguous, interpretation usually won’t be an issue. But sometimes even the most well-intentioned writer can express thoughts in a manner that implies hidden meaning to at least some readers. Defamation liability can arise out of a statement that is literally true if a defamatory meaning can be reasonably inferred. Key to this principle, however, is that the inferred meaning must be reasonable; it cannot extend beyond the “ordinary and common acceptation of the words used.” A hypersensitive plaintiff who resorts to twisted logic or an overly-technical interpretation to reach a defamatory understanding from non-defamatory words will not be successful in court. Before allowing a case to go to a jury, the judge will examine the circumstances surrounding the making and publication of the statement and decide whether innuendo arising from the statement could cause a reasonable reader to infer a defamatory message.

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With all the hand-wringing over fake news these days, many are wondering whether it isn’t actionable libel to publish false news accounts. Take “Pizzagate,” for example. Shortly before the election, rumors began circulating on the Internet that Hillary Clinton and her former campaign manager, John Podesta, were running a child sex-slave operation in the back of family-friendly Washington pizzeria Comet Ping Pong. As ridiculous as that sounds, the message reached a massive audience on social media and before long, the restaurant was receiving death threats and other threatening messages on Instagram, Facebook, and Twitter. People started trashing the business on Google and Yelp. Eventually, a young man from North Carolina traveled to the restaurant to personally investigate the story and rescue any sex slaves in need of his assistance. He brought an assault rifle with him. It’s probably safe to assume that Comet’s business has suffered.

If Hillary Clinton is running a child sex-slave ring, she isn’t doing it at Comet Ping Pong: the story was pure fiction. So what’s a business like Comet to do? Defamation claims are usually about the protection of individuals’ personal reputations. In this situation, false news articles were being published about Comet’s business itself rather than about any particular individual associated with the business. In short, it doesn’t matter. Corporations are treated like people in most contexts, and this one is no different. Comet could conceivably sue for trade libel, common-law defamation, tortious interference, or business conspiracy, among other claims. Let’s focus on the commercial defamation angle.

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Since the Supreme Court decided the seminal Curtis Publishing case back in 1967, public figures have played an important role in U.S. defamation jurisprudence. That case held that it should be more difficult for public figures to sue for libel and slander than ordinary private citizens, because if public figures have voluntarily thrust themselves “into the vortex” of a public debate, they should assume that they may become the subject of public discussion and should be willing to accept the risk that on occasion, less-careful fact-checkers may say certain things about them that aren’t true. Therefore, although private citizens will only need to demonstrate negligence to recover damages caused by defamation, public figures need to prove the defendant either knew he or she was spreading false information, or acted with reckless disregard for whether the information was true or false. This heightened level of wrongful intent is known as malice.

Some erroneously equate public figures with celebrities. In reality, the level of fame a plaintiff needs to achieve before being categorized as a “public figure” by a Virginia court is much lower than that of household-name celebrities. Moreover, courts recognize “limited purpose” public figures and subject them to the same obstacles regular all-purpose public figures face when the alleged defamation is based on the subject matter of their public participation and involvement.

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