Articles Posted in Rhetorical Hyperbole

The idea of having your genitals and masculinity mocked by your doctor while laying unconscious on an operating room table is unappealing to say the least. But is it worth half a million dollars? As first reported by Washington Post reporter Tom Jackman, a Fairfax County man identified in court papers as “D.B.” inadvertently recorded his entire colonoscopy, and was later shocked to discover he had been ridiculed and insulted shortly after drifting off to sleep. He won a $500,000 verdict in his lawsuit against the anesthesiologist, Tiffany Ingham, and her practice, including $100,000 for defamation (you know, that tort that’s supposed to be about preventing and redressing attacks on one’s reputation). In my view, no defamation damages should have been awarded in this case, but it’s hard to imagine the case coming out any other way with the current limitations of the Virginia Model Jury Instructions.

Because D.B. recorded the procedure on his smartphone, the case presents a rare opportunity to listen to the actual words claimed to be defamatory as they were spoken. An excerpt of the recording is embedded below. One interesting question is whether the recording was properly admitted into evidence, as the recording would be considered illegal unless D.B. was a “party to the communication” (see Va. Code § 19.2-62(B)(2)), and D.B., though present and the subject of the discussion, was unconscious. But I digress. Listen to the recording and ask yourself: when Dr. Ingham remarks to her colleagues in the operating room that D.B. may have “tuberculosis in the penis” or syphilis, is she joking around, or asserting literally that D.B. actually had these conditions?
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The case of AdvanFort Co. v. International Registries, Inc. involves a defamation claim brought by AdvanFort and its owners against their former attorney, maritime lawyer John Cartner, and The Maritime Executive, a maritime industry journal. According to the complaint, shortly after AdvanFort complained about getting billed over $28,000 for less than two weeks’ worth of legal services, Cartner wrote an article entitled “Self-Described AdvanFort ‘Billionaire’ May Not Be” in which he made numerous assertions allegedly calculated to lower AdvanFort in the estimation of the maritime community. Cartner responded that his article amounted to mere rhetorical hyperbole, which is not actionable, and that the article was not written with malice.

Defamation requires either a provably false factual assertion or a statement that can be reasonably interpreted as stating or implying actual facts about a person. Rhetorical hyperbole is protected under the First Amendment and cannot form the basis of a defamation claim. (See Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 21). The Fourth Circuit has described rhetorical hyperbole as a statement that “might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously.” (See Schnare v. Ziessow, 104 Fed. App’x 847, 851 (4th Cir. 2004)).

In analyzing whether a particular statement will be actionable as defamation in Virginia, it’s usually helpful to review recent cases to see how actual judges have ruled. It’s often not entirely clear whether a statement is an assertion of fact, an expression of opinion, or rhetorical hyperbole. Here’s how Judge O’Grady ruled with respect to the various statements at issue in this article:
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So you may have heard that environmental scientist Paul Brodeur is seeking $1 million in damages for libel, defamation, slander and false light against the movie studios behind 2013’s highly acclaimed film American Hustle. Why? Because according to him, the movie damaged his reputation by “attributing…a scientifically unsupportable statement” to him. Had this action been filed in Virginia rather than California, it would not likely go very far.

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

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

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.

Sometimes the context in which a statement is made provides the speaker with a qualified privilege against defamation claims. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. If such a privilege applies, the speaker will not be liable for slander unless the plaintiff can show by “clear and convincing” proof that the privilege has been lost or abused. In a published opinion released yesterday by the Supreme Court of Virginia, the court reversed its prior decisions mandating that the speaker have acted in good faith as a prerequisite to the privilege attaching, and clarified the situations in which the privilege can be lost or abused.

The case involved a dispute between Dr. Robert Smith, a trauma surgeon, and Dr. Bradley Cashion, an anesthesiologist. In November of 2009, the two were part of an emergency operating team providing care to a critically injured patient. The patient did not survive the procedure, and Dr. Smith blamed Dr. Cashion. In the presence of other members of the operating team, Dr. Smith claimed the patient “could have made it with better resuscitation” and directly accused Dr. Cashion of purposefully failing to resuscitate him. “You just euthanized my patient,” he allegedly told Dr. Cashion.

The trial court sustained Dr. Smith’s demurrer to the statements that the patient “could have made it with better resuscitation” and “[y]ou determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him,” finding them both to be non-actionable expressions of opinion. The Virginia Supreme Court disagreed, finding that both statements attributed the patient’s death to Dr. Cashion’s action or inaction, which it found to be an allegation of fact capable of being proven true or false. The latter statement was held to be the equivalent of the “you just euthanized my patient” statement, which the trial court correctly found to be a surgery.jpgstatement of fact. (Note: Justice McClanahan, however, found the euthanasia references to be mere rhetorical hyperbole, and wrote a detailed dissenting opinion explaining why she would find the statements not actionable).

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.

Makini R. Chaka is an owner of Remy Enterprise Group, LLC (“Remy”), an entity that arranges and coordinates logistics for celebrity appearances at public and private events. When Remy arranges a celebrity appearance, either the venue or the celebrity pays Remy a portion of the fee paid to the celebrity. Remy’s clients include professional athletes, music recording artists and other well-known entertainers.

According to a new lawsuit filed in District of Columbia federal court, Washington Redskin tight end Frederick Davis has described Chaka as a “madam” and “pimpette” who procures prostitutes for professional athletes. In her Complaint, Chaka contends that Davis also insinuated that she is violent, dishonest and an extortionist. Chaka claims that Davis said as much to Chaka’s clients and potential clients, and has sued him for defamation, invasion of privacy, tortious interference with contract and intentional infliction of emotional distress.

To falsely identify someone as a “madam” or “pimp” may be defamatory, but much will depend on the precise words used and the context in which the statement was made. Not long ago, motorcycle stuntman Evel Knievel sued ESPN when they published a picture of him with his arms around two women (one of whom was his wife) and the caption, “Evel Knievel proves that you’re never too old to be a pimp.” Evel claimed the caption was defamatory because he was not actually soliciting prostitution and his wife was not a prostitute. The Ninth Circuit held that the statement was not actionable, based primarily on the fact it was published on an extreme sports website full of lighthearted, jocular content targeted at a youthful audience. In other words, the court found that a reasonable reader would likely not interpret the “pimp” statement literally.

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.

Fairfax-based Direct Connect, LLC, a credit card processing company, has sued Inkthis, LLC, and its owner, Debra Sachs, for alleged defamation and tortious interference with contract. Direct Connect is upset about certain statements posted on Inkthis’ Facebook wall, including one that referred to Direct Connect as “a bunch of thieves.” The defendants recently removed the case from Fairfax Circuit Court to federal court in Alexandria.

The Facebook posts describe the author’s frustration with certain business practices of Direct Connect, including what the author believed to be excessive charges debited from Inkthis’ bank accounts. Direct Connect says the statements are false, that the defendants knew the statements were false when they made them and, by publishing descriptions of the company that included words like “inept,” “horrible,” and “thieves,” the statements harmed Direct Connect’s reputation.

Statements that are relative in nature and depend largely upon the speaker’s viewpoint are generally considered expressions of opinion. Opinions cannot form the basis of a defamation action as they are protected by the First Amendment and generally cannot be interpreted as stating a provably false fact, a prerequisite for any thief.jpgdefamation claim. Thus, referring to Direct Connect as “inept” and “horrible” will likely be deemed non-actionable opinion. Referring to the company as “a bunch of thieves” presents a closer question.

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

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

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

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