The Volokh Conspiracy

Here’s a newspaper article containing an allegedly defamatory statement by Gov. Sundquist:

[Some death row inmates] accuse the governor of being “mean spirited” because he took away their satellite dish.

Three inmates and four citizens have filed a federal lawsuit against the governor and correction officials, claiming the satellite dish was paid for by donors and that the governor had no right to remove it.

“That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” Sundquist said. “If they think I’m mean-spirited, I would question the origin of the statement. How can someone who’s committed the most grievous crimes imaginable — who is slated to be executed — expect to have television access that most people in Tennessee don’t have.”

“A satellite dish with all the Playboy channels may be dangerous to their health.”

The dish carried HBO and Cinemax to the prisons at Nashville’s Riverbend Maximum Security Institution. The suit was filed by convicted murders Terry King, Rocky Lee Coker and Michael Sample....

Here’s what the Tennessee Commission said in rejecting Coker’s defamation lawsuit, see Coker v. Sundquist (Tenn. Ct. App. 1998) (nonprecedential) (patragraph breaks added):

The main reason why this Commission finds this to be a claim on which relief cannot be granted is that the newspaper article in question is not libelous or injurious at all. Any body who reads that newspaper article gets the message: men who have been sentenced to death in a Tennessee Court deserve to be deprived of entertainment, and when such men use language like “mean spirited” and go to Court to get their entertainment back then they are being ridiculous. Anybody who reads that newspaper article recognizes that the quotation, “That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” was an exaggeration, just a piece of mockery; anybody who reads that newspaper sees that this statement is not statistically precise.

All human-beings — not just holders of high offices and newspaperwomen — use exaggeration sometimes. People may say that men sentenced to death by Tennessee juries have “committed the most grievous crimes imaginable,” while they know that only people like Mao Tse-Tung and Pol Pot really have “committed the most grievous crimes imaginable.” We all talk like that sometimes, and talking like that is not slander or libel. And there is a very good reason why it is not slander or libel: because nobody who hears it takes it with nit-picking precision.

Take the case of the mother who says to her child, “You’re just the worst little boy I’ve ever seen!” Nobody would say to her seriously, “You’re a liar! You’ve seen two little boys this morning who are worse than he is!” This claimant is arguing that mockery is libel, and it is not....

Paul Alan Levy has two good posts on this incident (which involves the company that sells on eBay as “med_express_sales,” not the other companies that have unfortunately similar names). From the first, which describes how Med Express filed suit against a woman based on that woman’s true statement about a problem with the firm’s deliveries (“Order arrived with postage due with no communication from seller beforehand”):

Med Express, an Ohio company that sells over eBay, is trying to maintain a perfect seller rating by suing a South Carolina woman who had the audacity to describe a problem she had with one of their deliveries — a photographic accessory that arrived with $1.40 postage due. The customer found this inconvenient, and notified the company of her concern, stressing that her issue was not the money (she said she would have gladly paid the extra money for shipping up front) but the inconvenience. Med Express responded by admitting the error, and indeed said that this had been a problem with other postal shipments. The customer then posted negative feedback on eBay.

About a month later, Med Express asked the customer to revise the negative feedback, offering to reimburse the postage due — effectively ignoring the customer’s reason for complaining. When the customer failed to retract the feedback, Med Express escalated by filing a defamation complaint in state court in Medina, Ohio, and, indeed, by moving for a temporary restraining order against eBay. The trial judge denied a TRO on the ground that damages would be an adequate remedy but, interestingly, set an oral hearing on a preliminary injunction even though the same reason would be sufficient ground to deny that relief as well.

The defendant is a relative of a former Litigation Group colleague, so she came to me for help. I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers....

Fortunately, and thanks to the help of Ken White (Popehat), Ohio lawyers Jeffrey M. Nye and Thomas G. Haren agreed to help the defendant, and indeed filed a counterclaim seeking sanctions. (Techdirt has the relevant documents.) Med Express also lost its motion for a TRO, and faced lots of bad online publicity (here’s a partial list). Levy now has a follow-up; read the whole thing, but here’s an excerpt:

Richard Radey, the President of Med Express, has published a comment on my previous article about his company, apologizing for the lawsuit filed against Amy Nicholls, claiming that the wording of the lawsuit violated his express instructions to his lawyer, James Amodio, and promising that he had instructed his lawyer to dismiss the lawsuit. He has sent the same apology to several others. [I can vouch for that, since I got the same or similar response from a query I sent to the company. -EV] ...

Problem is, I don’t believe a word of what he says, with one exception — I do believe that he is now sorry that he and his company have been engulfed by a wave of public criticism (for example, here, here, and here).... Everything about this bullying lawsuit that could go wrong, did go wrong....

The main reason why I find Radey’s apology and explanation incredible is that the lawsuit against Nicholls is just one of several cases that Med Express has filed in Medina, Ohio, against its eBay critics.... Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback....

Another reason to doubt Radey’s apology is that, contrary to his statement in his comment that he never read what the lawsuits said until he heard about the actual contents in blog reports, he signed a verification of each and every lawsuit, averring he had read the complaint. Moreover, in each case he signed an affidavit that complained about the content of the feedback. So it is hard to see how he can complain that his lawyer pulled the wool over his eyes....

Indeed, it more than a little sleazy for Radey to try to throw his lawyer under the bus in trying to save his own reputation, and his company’s reputation, by suggesting that the flaws in his lawsuit represented the lawyer acting contrary to instruction. At the same time, I don’t consider lawyer James Amodio to be in any way blameless in this situation — he filed a frivolous lawsuit and an even more frivolous TRO motion; he maintained it hoping that the expense and inconvenience of defending far from home would bludgeon Nicholls into submission; his brief withheld relevant authority from the court in an ex parte proceeding; and, quite possibly, he failed to give his client sound advice about the law or about the practical consequences of bringing such a proceeding....

Might be a good case study for a business school class, or a law school class.

Tuesday, a New York trial judge temporarily restrained the Saturday Lifetime broadcast of a movie about murderer Christopher Porco; the judge accepted the plaintiff’s allegation that the movie was likely “fictionalized” and therefore likely constitutionally unprotected. But preliminary injunctions against alleged libel violate the First Amendment, because they are “prior restraints” — restraints on speech entered before a full adjudication on the merits that the speech is constitutionally unprotected. Likewise, the restraining order in this case, formally under a New York misappropriation-of-name-and-likeness statute but in essence based on a claim that the speech is false, is also unconstitutional.

Lifetime has appealed, and the appellate judge has said that she will rule by noon Friday; I expect that she will vacate the restraining order.

UPDATE: Commenter broman notes that the appellate judge has now stayed the restraining order. There is still to be a hearing on Apr. 10 to decide whether the restraining order should be entirely vacated (as I expect it will be), but for now the broadcast can go on with no legal impediment.

Here’s the last portion of our State v. Brewington amicus brief:

II. The Court of Appeals Erred in Concluding that Brewington’s Speech Was Knowingly False, an Error That Will Work Mischief in Future Defamation Cases

To the extent that the Court of Appeals defended its decision by casting Brewington’s speech as a knowingly false statement of fact, the court’s holding was inconsistent with United States Supreme Court decisions, and set a dangerous precedent about what it means for speech to be knowingly false. The Court of Appeals concluded that § 35-45-2-1 equally covers true and false speech. 2013 WL 177923, *8. But the court also concluded that, “Even if the State was required to prove that Brewington knew his internet postings and other communications about Judge Humphrey were false, there is ample evidence of Brewington’s knowledge,” id. at *9:

[Brewington’s] public comments went well beyond hyperbole and were capable of being proven true or false. Over the course of at least a year, Brewington repeatedly called Judge Humphrey a “child abuser.” State’s Ex. 170; see also State’s Ex. 162 (“Judge Humphrey’s actions constitute child abuse”), State’s Ex. 168 (“abuser of children”), State’s Ex. 173 (Judge Humphrey “abuse[s] children who are part of the family court system”). Brewington also called Judge Humphrey “corrupt,” State’s Ex. 160, and accused him of engaging in “unethical/illegal behavior.” State’s Ex. 170.

... Judge Humphrey, in the exercise of lawful judicial discretion and out of concern over Brewington’s history of “irrational behavior,” State’s Ex. 140, p. 8, imposed reasonable visitation restrictions upon Brewington out of a desire to protect the children’s well-being. Only by willfully misinterpreting the terms of the divorce decree in bad faith could one argue that Judge Humphrey’s conduct constituted an intentional act to harm Brewington’s children.

Id. at *9.

But Brewington’s statements were indeed hyperbolic and constitutionally protected expressions of opinion. No reasonable reader would understand the posts as accusing Judge Humphrey of literally “abus[ing] children” in the sense of beating them or of having an “intent[]” to physically harm children. In context, Brewington was clearly just arguing that Judge Humphrey’s actions were unjustified and harmful to Brewington’s children — both matters of Brewington’s opinion.

Continue reading ‘State v. Brewington and Figurative Speech’ »

So reports the Bangkok Post:

The 10-year prison sentence handed down to Voice of Taksin editor Somyot Prueksakasemsuk for lese majeste crimes has prompted criticism from human rights groups worldwide....

[Somyot] was [convicted] of ... publishing two articles in 2010 that were deemed insulting to the royal family....

The articles were written by former PM’s Office Minister Jakrapob Penkair under the pseudonym of Jit Polachan and were published in the February and March 2010 editions of the Voice of Taksin magazine.

The four-judge panel said readers would easily understand the articles referred to the King.

The information contained in the article, however, was incorrect and libellous and it was Mr Somyot’s duty to vet it, the court said.

I can’t tell from the story (or from a Reuters story I read on the subject) just what the alleged errors were, and in particular whether they were serious factual errors — the sort of thing that might be treated as criminal libel in some U.S. states even today — or just opinions that the court found incorrect. In any case, it appears from both the Bangkok Post story and the Thai story that the essence of the crime was the insult to the king, not just the alleged errors.

Public Citizen has details on the case, including the court documents. Here’s Public Citizen’s summary (paragraph break added):

A contractor sued a woman who posted an unfavorable review of his services on Yelp and Angie’s List, alleging defamation in a number of respects, and sought a preliminary injunction. The trial judge held a preliminary injunction hearing and took testimony from the plaintiff and the defendant; he denied the preliminary injunctions in all respects save two, but ordered the defendant to revise one of the statements in her post using words crafted by the judge, and to refrain from addressing a specific subject in any published review on the subject.

We drafted a motion for reconsideration for defendant’s trial counsel to file, reminding the court of the rule against prior restraints and of the fact that this rule flatly forbids any preliminary injunctions against repetition of allegedly libelous statements, then filed a petition for review in the Supreme Court of Virginia. Without waiting for a response from the winning plaintiff, the Virginia Supreme Court reversed with a terse unpublished ruling, finding that the preliminary injunction was not justified and that, in any event, the plaintiff had an adequate remedy at law.

For analysis of the decision — which doesn’t cite the First Amendment, but which reaches what I think is the correct result under the First Amendment — see Steve Emmert’s Virginia Appellate News & Analysis blog. For my thoughts on why preliminary injunctions against alleged libel are generally unconstitutional even though permanent injunctions (following a full hearing on the merits) are often constitutional, see here.

Earlier this week, Rand Simberg and the Competitive Enterprise Institute replied to Michael Mann’s libel suit. Specifically, they filed a motion to dismiss for failure to state a claim and, more interestingly, a special motion to dismiss under the District of Columbia’s Anti-SLAPP Act. As I noted here, Mann exposed himself to this motion by choosing to file his case in D.C. Superior Court.

Under D.C. Code Section 16-5502(b), a defendant in a libel action who is being sued for a written or oral statement made “in connection with an issue of public interest” is entitled to have the suit dismissed unless the plaintiff can show that “the claim is likely to succeed on the merits.” Further, the statute provides that filing the special motion stays discovery proceedings unless particular showings can be made. Given that global warming and climate policy are unquestionably issues of public interest (defined by the statute to include environmental issues), the relevant statements are clearly covered. So in order to prevail Mann will not only have to show that Simberg and CEI made provably false statements of fact concerning him that were defamatory, he will also have to show that Simberg and CEI made knowingly false statements or make their statements in “reckless disregard” of the truth — and that is notoriously difficult to do, particularly in the context of heated political debate. Further, Mann is unlikely to have the benefit of discovery to assist in his claims. Should Simberg and CEI prevail with this motion, they will be able to seek recovery of their legal costs. All of this makes me wonder why Mann chose D.C. as the venue for his suit.

My prior posts on this case are here, here, and here.

On Monday, famed climate scientist Michael Mann filed suit against National Review and the Competitive Enterprise Institute over some allegedly defamatory blog posts. Now some of the defendants have responded.

Here is CEI’s official response, and a legal analysis from their lawyer. Of note, while CEI refused to apologize for the initial blog post (which was edited long before Mann threatened to file suit), it has offered to publish Mann’s response on their climate blog, an offer Mann has refused. Perhaps this is because, as Mann has commented on his Facebook page, ” There is a larger context for this latest development, namely the onslaught of dishonest and libelous attacks that climate scientists have endured for years by dishonest front groups seeking to discredit the case for concern over climate change.” Of course is Mann is suing others for defamation, he may wish to be more careful about repeatedly attacking them as “front groups” for industry.

Mark Steyn has a few posts on NRO’s the Corner — here, here, and here — suggesting he’s not too worried about the suit. Watt’s Up With That rounds up more reactions here.

As I noted here, I’m skeptical of the suit. Here’s additional analysis from Ken at Popehat and Public Citizen’s Paul Alan Levy.

An interesting twist in this case is the fact that Mann filed his suit in D.C. Superior Court, which means it is subject to the District’s anti-SLAPP suit law which makes it particularly difficult to maintain libel and defamation suits. Alison Frankel explains:

The law, in effect, shifts the way courts decide motions to dismiss, doing away with the assumption that the plaintiffs’ allegations are true. It also restricts discovery, so plaintiffs usually have to show they’re likely to prevail without the benefit of depositions and documents from the other side. . . .

Mann’s lawyers at Cozen filed his complaint against CEI, Simberg, the National Review and Steyn in Superior Court of the District of Columbia, not in federal court. Had they brought the suit in federal court, citing Mann’s Pennsylvania citizenship and the National Review’s New York headquarters, Mann might have been able to avoid Washington’s anti-SLAPP law, . . . But it’s hard to see how, otherwise, Mann’s case won’t be subject to dismissal under the anti-SLAPP statute, since the scientific backing for climate change evidence is certainly speech of public concern.

More popcorn please.

Climatologist Michael Mann, creator of the infamous “hockey stick” graph, has filed suit against National Review and the Competitive Enterprise Institute for allegedly defamatory blog posts attacking Mann and his work. Dr. Mann has posted a release about the suit on his Facebook page. I’ll post links to the complaint once it’s on-line. In the meantime, here’s my prior post on the controversy.

Given that Dr. Mann is a public figure and a prominent participant in climate policy debates, and that debate over the soundness of the “hockey stick” graph continues, I am skeptical of this suit — and I say this as someone who believes human activity is contributing to climate change and supports appropriate policy responses. All sorts of outrageous charges are made all the time in the rough and tumble of the current climate debate, and many people forthrightly believe that Mann and others have cut corners in their scientific research. I think this will make it difficult for Mann to show that those involved acted with “reckless disregard” of the truth. I also doubt the courts will be too eager to police the word choices of polemical blog posts made by political commentators in the course of heated policy debates. Then again, I’m not being paid to offer a professional opinion on this matter, and Dr. Mann has retained prominent counsel. Stay tuned.

[Disclosure: I am a contributing editor at National Review Online, for which I write occasional articles and blog posts, and I worked for CEI in the 1990s. I have not discussed the merits of this suit with anyone in either organization.]

UPDATE: Here is Michael Mann’s complaint. BLT covers the story here.

UPDATE: Mark Steyn responds here. Ken at Popehat comments here.

Penn State climatologist Michael Mann, he of the infamous “Hockey stick” graph, is threatening to sue Mark Steyn and National Review for a blog post on NRO in which Steyn (quoting Rand Simberg) compared Penn State’s investigation of scientific misconduct allegations against Mann with the same university’s initial investigation of Jerry Sandusky and the Penn State football program. Steyn called Mann’s hockey-stick graph “fraudulent” and Penn State’s investigation of Mann’s conduct in the wake of the “ClimateGate” e-mail scandal, “a joke.”

Steyn’s comments may have been over the top, but are they worth a lawsuit? Mann thinks so, and has threatened to sue if NRO does not remove the offending blog post.

A month later, the blog post is still there, and National Review is not backing down. Here’s the response from their lawyer, which notes (correctly in my view) that Mann is a public figure who would have to prove, by clear and convincing evidence, that NR published “a provably false statement” with actual knowledge the statement was false or “reckless disregard” for the truth or falsity of the statement. Further, the letter notes, in order to defend itself NR would be entitled to seek discovery, and in the process obtain access to e-mails and other records that Mann has, thus far, resisted disclosing in various freedom-of-information suits prompted by ClimateGate. Writes NR editor Rich Lowry:

Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.

If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.

And this is where you come in. If Mann goes through with it, we’re probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.

“I don’t bluff,” Mann’s lawyer told the Columbia Journalism Review in July. I think the folks at NR just called it.

[Disclosure: I am a contributing editor to National Review Online, for which I write occasional articles and blog posts.]

UPDATE: More from Steve Hayward and Mark Steyn.

FURTHER UPDATE: Mann and his attorney’s respond. Says Mann, “We intend to file a lawsuit.” Grab the popcorn.

As I noted last year, the New Jersey Supreme Court rejected a similar claim as to convictions (paragraph break added):

G.D. [argues] that the record of his conviction [for possession with intent to distribute cocaine] was expunged [some years later] and, therefore, his conviction — as a matter of law — is deemed not to have occurred. G.D. submits that, after the expungement of his record, the pronouncement that he was convicted of a crime was simply false and the dissemination of the expunged information violated his privacy rights....

It is true that under the expungement statute, as a matter of law, an expunged conviction is “deemed not to have occurred,” N.J.S.A. 2C:52-27. But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories.

It is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.

But in Connecticut, a new lawsuit (Martin v. Hearst Corp. (Conn. Super. Ct. filed June 11, 2012)) is making much the same claim as was made in New Jersey, except as to arrest records. According to the Complaint, a Hearst publication stated, on Aug. 26, 2010, that plaintiff Lorraine Martin had been “arrested and charged with numerous drug violations Aug. 20 after police received information that a pair of brothers were selling marijuana in town,” and other defendant publishers made similar statements. But, Martin argues, “[s]ince January 11, 2012, DEFENDANTS’ respective online publications of the [statements] were, and continue to be, false and defamatory.” Why false? Apparently on the grounds that state law provides for arrest records to be erased under certain conditions, such that “Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

Moreover, Martin argues, the case should be certified as a class action on behalf of people whose names defendants have published “in the police blotters and/or news sections of their respective online versions of their print newspapers as having been arrested, when in fact they are not deemed to have been arrested.” The plaintiff’s theory appears to be that, whenever anyone has an arrest record erased, the newspapers have to remove the statement about the arrest from their online archives. And this theory would cover anyone covered by the erasure statute, which applies not only to people who were found not guilty but also to people who participated in a court-administered diversionary program in which successful completion meant the charges would be dropped, and potentially to other dismissals as well.

But I think this theory is mistaken, for the same reason given by the New Jersey Supreme Court. A government may choose to ignore certain past arrests for its own purposes. It may choose not to disclose such arrests to others. It may even authorize people to lie under oath about those arrests (I set aside in this post the question whether that is a sound idea). But the First Amendment protects other people’s rights to talk about arrests that had — as a matter of historical fact — actually happened. A statute can’t rewrite history, and force others to pretend that something didn’t happen when in fact it did happen.

Now, as I mentioned in a different post, it’s possible that a publisher must correct any factual inaccuracies in its online archives, if those inaccuracies come to light after an article is posted. But there is nothing inaccurate about an article’s continuing to report on an arrest that had in fact happened. At most the article would have to be updated to note that the charges have been dropped, in order to prevent “libel by omission,” on the theory that the facts given produced a “clear inference” that was incorrect, and that extra facts would have cleared up. (See also this case, which was cited by the Connecticut libel by omission case that I linked to above.)

But at least one of the complained-about articles has been updated to so note (though I’m not sure exactly when). Moreover, the class allegations aren’t limited to people as to whom the story never noted the dropping of the charges — the class would include even those for whom the story quite completely reports that the person was arrested and the charges were later dropped.

Even if the charges were later dropped and no update was added to the story, I’m not certain that the story would constitute libel by omission; the law on that question is fuzzy. And if the charges were dropped because of a plea bargain or a diversionary program, rather than because of a conclusion that the arrestee wasn’t guilty (again, the class allegations are broad enough to cover these situations), I think the newspapers’ case would be especially strong even in the absence of an update about the dropping of the charges: The implication from the report of the arrest, which is that there’s good reason to think the arrestee may be guilty, would remain accurate. (I asked Ms. Martin’s lawyer exactly why the charges against her specifically were dropped, but he said he couldn’t comment on the case; in any case, many class members would have had the charges against them dropped for reasons other than their innocence.)

But in any event, it seems to me that publishing an update is the most that the newspaper could be legally obligated to do, even when it learns that the charges were dropped because the police concluded the arrestee was innocent. To the extent that this lawsuit argues the contrary, and demands a deletion of the accurate report of the arrest, I think the First Amendment firmly bars any such claim.

So reports the L.A. Times, and notes a problem with the lawsuit: Government agencies aren’t allowed to sue for libel (even if they are alleging that the speaker was knowingly libeling them). From New York Times Co. v. Sullivan (1964):

For good reason, “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.” The [lower court decision] would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, “reflects not only on me but on the other Commissioners and the community.” Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression. We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.

Indeed, in this case the lawsuit isn’t even brought by an individual water district official who’s claiming his own reputation has been wrongly injured by false statements about the district — rather, it’s being brought by the district itself. I just hope that the defendants quickly move to have this legally unfounded lawsuit dismissed (using an anti-SLAPP motion, for which the defendants can recover their attorney fees), before the district uses the baseless lawsuit to subpoena the defendants’ identities.

For two similar stories from the last several years, see this here and here.

I just ran across an interesting case, Memphis Pub. Co. v. Nichols (Tenn. 1978). The Memphis Press-Scimitar published the following article that mentioned Mrs. Ruth Ann Nichols:

WOMAN HURT BY GUNSHOT

Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.

A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.

Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.

Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.

No charges had been placed.

Please think briefly about the story, and then click on the link before to learn what the court decided.

Continue reading ‘An Interesting Defamation Case’ »

The trouble is that it appears that he does indeed have a criminal record. The complaint, in Richey v. Walker (Ga. Super. Ct. May 3, 2012) is based on these statements on the Georgia Politics Unfiltered blog:

1. “Rashad Richey, the person in charge of making political decisions for Georgia Democratic Party, has a history of making poor personal decisions.”
2. “The money raised from this event will help keep Rashad Richey the Recidivist on the Democratic payroll for a long time.”
3. “We now know what Ali Rashad Richie used all that cash for ... Bail money.”
4. “So, a criminal is in charge of directing Democratic politics across Georgia.”
5. “Ali Rashad Richie, political director for Georgia’s Democratic Party is a jail bird. Rashad Richie is a recidivist.”

The complaint seems to be arguing that this is false because “recidivist” means someone who has committed more than one felony, and “Plaintiff is not a convicted Felon.”

But WSB-TV reports that, “Richey had a series of misdemeanor convictions for criminal trespass and simple battery. Channel 2 Action News has now learned Richey also had a felony conviction for aggravated assault in 1998 but was sentenced as a first-time offender. When he completed his sentence, the felony was wiped from his record.” GPB News reports that Richey’s “attorneys confirm that Richey has been arrested for a variety of misdemeanor charges, including driving with a revoked license, battery, obstructing an officer and family violence.” (Note that this is confirmation of the arrest record, and not of a conviction record, but the WSB-TV story states there was a conviction record, and nothing in the GPB News story denies that.) A quick criminal history search of my own revealed Richey’s aggravated assault conviction, and another site posts a 2007 arrest report based on a separate incident. Nor have I seen any indication that WSB-TV is mistaken about the series of misdemeanor convictions.

So Richey’s only argument seems to be that calling someone with several misdemeanor conviction and one felony conviction that was expunged (just because it was a first offense, and not on the grounds that Richey had been exonerated) a “recidivist” is recklessly or knowingly false because “recidivist” is reserved for people with multiple felony convictions. But I don’t think that the term is limited to felonies in ordinary language, and I don’t think reasonable readers of the blog would have so understood the word; rather, a typical lay reader would likely see it as simply accusation of multiple criminal offenses — an accusation that appears to be true.

I should note that if the statement “[w]e now know what Ali Rashad Richie used all that cash for ... Bail money” would have reasonably been seen as a charge of embezzlement of funds, that might be libelous. But I didn’t see any reference to that in the Complaint, which suggests that in context it was likely seen just as a dig at his criminal record, rather than a serious accusation of misappropriation of funds.

Oh, and according to WSB-TV, “Richey’s attorneys believe the series of blogs are borderline harassment and constitute a form of cyberbullying.”

So holds today’s Lewis v. Rapp (N.C. Ct. App. May 1, 2012). An excerpt:

In April 2010, plaintiff was the serving Senior Resident Judge of Judicial District 13B in North Carolina and was engaged in a campaign to retain her seat in the November 2010 election. She was also a vocal supporter of William Rabon who was running for the North Carolina State Senate. Defendant, a citizen of North Carolina, was a known supporter of Rabon’s opponent, Bettie Fennell. Defendant also volunteered to serve as Fennell’s “Media Strategist” without receiving compensation.

On 9 April 2010, defendant posted a blog entry on Facebook titled “Dirty Politics by the good ol boys.” The blog entry was also posted on Carolina Talk Network. In this post, defendant criticized Rabon and further stated: “When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics” (hereinafter referred to as “the 9 April publication”). That same day, plaintiff’s attorney emailed defendant and informed him that plaintiff was a candidate for office and that Canon 7B(2) of the Code of Judicial Conduct allows a candidate to endorse any other candidate seeking election to any office. Plaintiff’s attorney also cited a memorandum issued by Chief Judge John Martin on 26 February 2010 in which he reiterated to members of the judiciary what conduct was permissible and what conduct was prohibited by the Code of Judicial Conduct during the 2010 election cycle. The memorandum specifically cited to Canon 7B(2) and stated that a judge was permitted to endorse any candidate seeking office so long as the judge is also a judicial candidate.

On 12 April 2010, defendant posted another blog entry on Facebook and Carolina Talk Network titled: “Apologies, Corrections, Explanations and Amplifications on my Blogs.” Defendant stated in pertinent part:

I have spent this past weekend in prayer, mediation [sic], and contemplation.... First, let me apologize for my comment about the sitting judge being in violation [of] The North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind.... It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.

Defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry; however, he did not include Canon 7B(2).

The court concluded that there was no evidence that defendant’s April 9 statement was said with so-called “actual malice,” which is to say that defendant knew it was false or consciously entertained serious doubts about its truth; plaintiff’s case was therefore thrown out as to the statement. But the court concluded that there was sufficient evidence of such “actual malice” as to the April 12 statement:

Although defendant expressly stated that it was his opinion that plaintiff had violated the Code of Judicial Conduct, an individual “cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim immunity from liability[.]” Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590. Defendant claimed in the 12 April publication that he had read the Code of Judicial Conduct from “top to bottom” and it was his “opinion” that “probable cause” existed for the “proper authorities” to take “action.” Defendant was aware at that point that plaintiff was a candidate for judicial office. Having read the Code of Judicial Conduct from “top to bottom,” he was also aware that as a candidate for office, plaintiff was permitted to campaign on behalf of another candidate pursuant to Canon 7B(2). Defendant had been told by plaintiff’s attorney that Chief Judge Martin had issued a memorandum in which he stated that a sitting judge seeking reelection was permitted to campaign for any other candidate. Whether plaintiff was, in fact, in violation of the Code of Judicial Conduct could be easily investigated and proven false. Defendant ignored the proof that plaintiff was not in violation of the Code of Judicial Conduct and chose to assert a provable false accusation against plaintiff.

Moreover, defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry so that his readers could “make up [their] own mind[s]”; however, he did not include Canon 7B(2), which exonerates plaintiff of any wrongdoing. Defendant did, however, include Canon 7B(1), which, if read in isolation, would indicate that a judge may not endorse a political candidate. The inclusion of Canon 7B(1), coupled with the exclusion of Canon 7B(2), can only be perceived as a deliberate attempt by defendant to substantiate the false accusation contained in the publication....

[Footnote:] We note that defendant did express an opinion when he stated: “It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.” This statement, unlike the accusation that plaintiff was in violation of the Code of Judicial Conduct, cannot be proven true or false. Defendant is entitled to his opinion that it is “wrong,” or even unethical, for an office holder to campaign for a candidate. An opinion that a judge has acted unethically is quite different from an accusation that a judge has committed an act that could potentially lead to official disciplinary action.