Articles Posted in Media Defendants

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.

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.

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.

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.

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

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

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

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

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

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

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

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

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

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would “get it back,” and that Spooner went on to compensate for the incorrect call with a “make-up” call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski’s Twitter followers in effect that Spooner had engaged in a “form of game fixing.” Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn’t believe Spooner actually cheated either. According to a league spokesman, “We investigated the content of the tweet when it appeared, found it to be without substance, and informedBball.jpg Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner’s lawyer that we did not think suing a journalist over an incorrect tweet would be productive.”

It doesn’t take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, “The Cranky Redskins Fan’s Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner’s Many Failings,” which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed “an anti-Semitic caricature of himself” which “forced” him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan’s Guide to Dan Snyder? Personally, I’m not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won’t win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could DevilDoodle.jpgsuccessfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the “stain” he supposedly left on the Redskins are all constitutionally protected as free speech.

Worried about liability for statements made by others in an online forum hosted by your website? Provided you don’t take an active role in editing the content posted by others, you shouldn’t have to worry about defamation liability. The Communications Decency Act (“CDA”), found at 47 U.S.C. § 230, provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It further provides that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

In the still-pending case of Cornelius v. DeLuca, filed in the Eastern District of Missouri, the plaintiffs, sellers of a dietary supplement called “Syntrax,” sued various competitors for libel and tortious interference with business expectancies, and also sued the owners of bodybuilding.com–a website containing a forum for Internet discussion by the public–for supposedly assisting the other defendants post false and defamatory statements to the forum. In essence, the plaintiffs tried to get around the CDA by claiming the host of the forum wasn’t a mere “provider” but an active participant in a conspiracy to post libelous, defamatory statements concerning the plaintiff’s product. The court rejected the argument and dismissed the conspiracy count.

Under the CDA, while content providers cannot be held liable for the statements of others, they can be held liable for their own statements (which is why providers need to be careful not to edit others’ statements, thereby arguably adopting the statement as DigiGlobe.jpgtheir own). It is undoubtedly for this reason that the plaintiffs, realizing full well that the owners of bodybuilding.com did not make the statements at issue themselves, alleged that the owners conspired with the actual authors to allow the statements to be posted.

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