The bill, signed by the Governor on April 13, is here; Colorado’s old criminal libel law had apparently been ““used seven times in Colorado in the last two years,” though “in some cases, the original charge [was] changed to something else, like harassment.” Thanks to Ross Kaminsky for the pointer.
Archive for the ‘Defamation’ Category
The AP reports:
A Greek court dismissed defamation charges Tuesday against a German magazine that had illustrated an article on Greece’s economic crisis with a doctored photo of the Venus de Milo statue [draped in a Greek flag and raising her middle finger].
The 2010 Focus magazine article, headlined “Cheats in the European family,” appeared after Greece admitted it had falsified data to hide its acute economic woes, problems that ignited the whole European debt crisis.
A Greek prosecutor had charged the magazine with defamation and insulting a national symbol ....
But the Athens court ruled that Focus had referred to acts by Greek politicians and not the country’s population in general....
There is apparently a separate case progressing against six other employees of the magazine.
The Deseret News reports:
Former Naples Police Chief Steven C. Guibord is charged with criminal defamation, a class B misdemeanor, in Uintah County. Prosecutors allege that he used the name of the city’s current police chief [Mark Watkins] to post derogatory comments on the online memorial pages for the two fallen Border Patrol agents....
Guibord — posing as Watkins — posted comments on memorial pages for two Border Patrol agents that are offensive to law enforcement officers, according to state investigators....
Clark’s page on the Officer Down Memorial Page website included a comment attributed to Watkins that said, “I realize that the Border Patrol is just a security organization, but we, in the police services recognize your sacrifice.”
Rojas’ page contained a similar comment, also attributed to Watkins, that referred to the Border Patrol as a “security business.”
For those in the law enforcement community, being identified as a security guard is considered a serious insult....
The theory is that Guibord’s use of Watkins’ name — which essentially states to readers that Watkins posted the comments — is a knowing falsehood that injures Watkins’ reputation. One could argue that the falsehood isn’t defamatory, because a reasonable reader wouldn’t perceive the statements as that derogatory, and therefore wouldn’t have a dimmer view of Watkins. But given the audience, and the fact that Watkins is a police chief, I suspect that the attribution of the statements to Watkins would indeed injure Watkins’ reputation.
And if this is so, then the criminal libel prosecution would likely be permissible: Though Garrison v. Louisiana (1964) held that criminal libel laws must require a showing that the speech is a knowing or reckless falsehood, Utah Code § 76-9-404 — which says, “[a] person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule” — embodies such a requirement. (For more on this, see I.M.L. v. State (Utah. App. 2002), which struck down a different Utah criminal libel statute.) Though most states have repealed their criminal libel statutes, the remaining statutes, if sufficiently narrow (as Utah’s seems to be), are likely constitutional.
Thanks to Dan Laidman for the pointer.
I’m pleased to say that the Electronic Frontier Foundation has asked the court for leave to file this amicus brief [UPDATE: link fixed] in our Obsidian Finance Group, LLC v. Cox case. To see links to the district court opinion in that case, and to our motion for new trial in that case, please go here.
My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:
“[T]he freedom ... of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.
Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.
But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom ... of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.
Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.
Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?
The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.
Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of “every freeman,” “every man,” or “every citizen.” This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.
Part IV turns to how the “freedom ... of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the “freedom ... of the press” secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.
Part VI then looks at how the Supreme Court has understood “freedom ... of the press” since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.
Part VII turns to how the “freedom ... of the press” has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)
None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the “freedom ... of the press.” The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.
Finally, the Conclusion briefly discusses what effect this analysis should have on the Court’s interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court’s sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.
If you’re interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer’s privilege, or other topics, have a look at the article.
From the Press-Register (Alabama):
A jury awarded $7.5 million in damages to the Iranian-born owner of Eastern Shore Toyota on Monday evening after his competitor called his business “Taliban Toyota” and accused him of being a terrorist.
Shawn Esfahani, owner of the mega-dealership on Interstate 10, sued Bob Tyler Toyota in Pensacola and its sales manager for slander.... Esfahani fled from Iran in 1980, when he was 16, after the Islamic revolution.... He became a U.S. citizen and opened Eastern Shore Toyota in December 2007 after years of working in car sales....
According to the lawsuit, ... [a Tyler Toyota manager told one pair of customers] that Esfahani was “from the Middle East, and he is helping fund the insurgents there and is also laundering money for them,” the lawsuit says.
Another salesman told customers that “I can’t believe you are buying from that terrorist. He is from Iraq, and he is funneling money back to his family and other terrorists. I have a brother over there and what you’re doing is helping kill my brother,” according to the lawsuit.
The story is in the news because of its particular fact pattern, but the legal issue is quite simple: Falsely accusing someone of being a terrorist, or a funder of terrorists, without any basis for believing this, is slander (or libel, depending on the medium use), and can lead to damages. It’s possible that the damages award will be reduced by the court, or by an appellate court, depending on how much strong plaintiff’s evidence was of actual and likely lost business. But the underlying finding of liability thus seems quite right to me, assuming the facts about what was said by Tyler salespeople are as the jury found them to be.
Thanks to Opher Banarie for the pointer.
UPDATE: A lawyer involved in the case, who turns out to be a Conspiracy reader, gives his perspective on the facts. (Naturally, I’d be glad to offer similar perspectives from other lawyers who were involved.)
And it today’s football-related legal news, the Washington Post reports that Washington Redskins owner Daniel Snyder has dropped his defamation suit against the Washington CityPaper over an unflattering story about him.
Snyder had sought $1 million in general damages as well as unspecified punitive damages from the weekly paper; its parent company, Creative Loafing; and journalist Dave McKenna. McKenna’s story in November, “The Cranky Redskins Fans’ Guide to Dan Snyder,” was an unflattering account of Snyder’s tenure as owner of Washington’s NFL team, with an encyclopedia-style listing of alleged missteps and public-relations controversies over the years. . . .
But people close to Snyder said the team’s owner felt vindicated when City Paper’s publisher, Amy Austin, acknowledged in a story published in April that one aspect of the story was not meant to be construed as literally true. . . .
In his original lawsuit, Snyder said he was defamed by several parts of the article, including the suggestion that he had been kicked out as chairman of the board of the Six Flags amusement park chain and had gone “all Agent Orange” by cutting down a stand of trees on federally protected land that blocked river views from his Potomac mansion in 2004. He also objected to the story’s assertion that he had been “caught forging names” on consumers’ long-distance phone contracts while he headed a marketing firm, Snyder Communications, before taking over the Redskins in 1999. He denied all of those allegations.
If you’re arguing that colleagues defamed you by calling you discourteous, disrespectful, and otherwise unpleasant (e.g., “rabid with bitterness”), and you insist on representing yourself, try to avoid litigation tactics that the judge sees as discourteous, disrespectful, and otherwise unpleasant.
Rashada v. New York Post (N.Y. trial court, Aug. 11, 2011), involved a libel claim brought by Melody Rashada against the New York Post and op-ed author Patrick Dunleavy based on what seems to be this article. The article focused on four Muslim terrorism suspects, and asked how they “were radicalized to the point where they’d even consider plotting to bomb synagogues in The Bronx and shoot down aircraft with missiles.” The article went on to say:
What stands out is the prison connection. All four defendants were former inmates. More important, all three imams at the mosque in Newburgh that the defendants attended after being released from prison had a connection with the prison system. Imams Salahuddin Muhammad, Hamin Rashada and Melody Rashada worked for the Department of Correctional Services. All had been hired by Warith Deen Umar — who for years headed ministerial services for the New York state prison system.
Rashada argued that this language, plus the title of the op-ed (“Converts to Terror: The Prison Chaplain Problem”), was defamatory. But the court disagreed, concluding that the suggestion of a possible connection between the chaplains and the terrorism suspects’ radicalization was nonactionable opinion and speculation, rather than a factual assertion (which could be libelous if false). “The article is painly intended to raise issues, rather than convey specific, objective facts about Rashada’s role in the radicalization of inmates.... [T]he article does not make any definitive accusations against Rashada, but rather the article suggests that the connection between the former inmates and the mosque should be investigated.”
I think this is probably right, because the op-ed was drawing an inference from accurately stated facts, rather than asserting that the author knows some undisclosed facts that support the implication he’s trying to draw. Here’s what the Restatement (Second) of Torts § 566 says about this general issue:
An interesting example of this fortunately rare occurrence comes in Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011). The case has an interesting discussion of the state-law “common interest privilege,” which is quite important in cases involving alleged defamation within an organization or in job references; but here is an excerpt describing the court’s conclusion that the statements were likely to be nondefamatory opinion:
Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the “republication” of a student’s complaint to the District about witnessing him commit a lewd act in his office....
[The court concludes that there was no error in the instructions that led to a jury verdict in favor of defendants, but goes on to say: -EV]
Moreover, “[a] judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.’” ... [Here,] there was no miscarriage of justice. Launier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a “forked tongue for spewing bile.” But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase “[t]ongue in cheek.”
Olguin views all of Launier’s negative statements about him to be actionable defamation. But Launier set forth the facts from which he drew conclusions. “‘[C]ourts have found statements to be nonactionable opinion when the facts supporting the opinion are disclosed.’” “Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves.” Here Launier sent the memo to colleagues who knew he had a dispute with Olguin. This was a highly educated audience. After reading the facts of the dispute, they would view the negative conclusions to be largely “rhetorical hyperbole.”
Launier said Olguin’s justifications for censoring his materials were intellectually dishonest and amounted to “deceptive rationalizations.” Olguin notes that Launier also accused him of being “autocratic,” ignoring “academic freedom,” engaging in “would-be book burning,” an “abuse of power,” acting illegally, ignoring district policy, being “overly-controlling,” “restrictive,” “censuring,” “punitive,” “prejudicial,” “ill-justified,” “discriminatory,” “unethical,” having a “misinformation agenda,” being angry, critical, engaging in “small minded attacks,” etc.
These were obvious opinions; readers would understand these words to be “a form of exaggerated expression” based on the author’s “subjective judgment.” Launier used these words as rhetorical barbs in an academic argument against censorship and Olguin’s management of the psychology department.
Launier’s memo touched upon sensitive constitutional interests by urging his academic colleagues to support his opposition to a public college’s censorship of his treatises and to protect the academic freedom of professors to plan their course materials. “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us.... That freedom is therefore a special concern of the First Amendment ....” (Keyishian v. Bd. of Regents (1967) 385 U.S. 589, 603.) Public colleges and universities are important forums for debate and the “robust exchange of ideas.” Consequently, they “are not enclaves immune from the sweep of the First Amendment.” (Healy v. James (1972) 408 U.S. 169, 180.) “[T]he First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation ‘that cast a pall of orthodoxy’ over the free exchange of ideas in the classroom.” Professors do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The case is Varrenti v. Gannett Co. (Aug. 3). The court held that the comments, in context, would be seen as expressions of opinion rather than statements of verifiable fact — largely because readers would seem them as “sarcastic, hyperbolic, and based on rumors” — and that the comments are therefore protected against a libel lawsuit. Because of this, the court held, the plaintiffs wouldn’t even be able to get discovery of the anonymous commenters’ identifying information.
Thanks to MLRC: Actions Against Online Speech for the pointer.
An interesting decision, stemming from the Wolk v. Olson litigation. Here’s the legal background: A publisher is generally not be liable once the statute of limitations (generally a year or longer) has run since the original publication. At that point, under the “single publication rule” — which is generally accepted in most states, and has generally been applied to the Internet in the cases that have considered the issue — no further lawsuits can be brought based on the original post, even if the publisher eventually learns that the post is false. The mere fact that a blog post is being copied to a reader’s computer each time it’s accessed doesn’t constitute a new publication that restarts the statute of limitations.
But do changes to the post constitute a republication, and restart the statute? Sufficiently substantive changes might, but for modest changes — such as most changes in a URL — the answer is likely no. A few cases have so held, see Canatella v. Van De Kamp (9th Cir. 2007) and In re Davis (W.D. Ky. 2006); the judge in this case suggested that she took a similar view, though she ultimately decided the case on other grounds:
The Taipei Times reports (thanks to Vadim Novik for the pointer):
After visiting a Taichung beef noodle restaurant in July 2008, [defendant Liu] had dried noodles and side dishes, Liu wrote [on the blog] that the restaurant served food that was too salty, the place was unsanitary because there were cockroaches and that the owner was a “bully” because he let customers park their cars haphazardly, leading to traffic jams....
The High Court found that Liu’s criticism about cockroaches in the restaurant to be a narration of facts, not intentional slander.
However, the judge also ruled that Liu should not have criticized all the restaurant’s food as too salty because she only had one dish on her single visit.
Health officials who inspected the restaurant did not find conditions to be as unsanitary as Liu had described, so the High Court also ruled that Liu must pay NT$200,000 to the owner for revenues lost as a result of her blog post.
The ruling is final.
The case is Shiamili v. The Real Estate Group of New York, Inc., decided today. Defendants, who are apparently real estate brokers, ran a blog. Several people posted pseudonymous comments critical of Shiamili, another real estate broker. Defendants left those comments up, and even reposted one of the comments as a separate post, with a heading and an illustration provided by defendants. Shiamili sued the defendants.
The court held that the defendants were protected by 47 U.S.C. § 230, which generally immunizes Internet content providers from being held liable for posts by other service providers. And the court held this even though the defendants deliberately reproduced one of the comments in a separate post (paragraph break added):
The defendants did not become “content providers” by virtue of moving one of the comments to its own post. Reposting content created and initially posted by a third party is well-within “a publisher’s traditional editorial functions” (Zeran, 129 F3d at 330). Indeed, this case is analogous to others in which service providers have been protected by section 230 after reposting or otherwise disseminating false information supplied by a third party. To cite only a few examples, in Ben Ezra, Weinstein, and Co., Inc. v Am. Online Inc. (206 F3d 980 [10th Cir 2000]) the defendant service provider would publish updated securities information supplied by third parties and derived from a variety of stock exchanges and markets. Plaintiff sued the provider for publishing inaccurate information concerning the price and share volume of plaintiff’s stock. The Tenth Circuit found that the inaccurate information was “created” by third parties, and the web provider was not “responsible, in whole or in part, for [its] creation and development” (id. at 986).
The Ninth Circuit reached the same result in Batzel (333 F3d at 1018), cited with approval in Roommates.com (521 F3d at 1170). There, the editor of an email newsletter received a tip and incorporated it into the newsletter, adding a headnote. The tip proved false, but the Ninth Circuit found that section 230 protected the editor from being sued for libel because he had been “merely editing portions of an e mail and selecting material for publication” (Batzel, 333 F3d at 1031). Similarly, in DiMeo (248 Fed Appx at 281) — a case quite like this one — the plaintiff sued for defamation based on comments left by anonymous users on defendant’s website, where defendant could “select which posts to publish and edit[ed] their content” (DiMeo v Max, 433 F Supp 2d 523, 530 [ED Pa 2006]). The Third Circuit found that “the website posts ... constitute information furnished by third party information content providers” (248 Fed Appx at 282).
The judges agreed that 47 U.S.C. § 230; didn’t immunize defendants for “the heading, sub-heading, and illustration that accompanied the reposting” — they themselves created that material. But the judges split 4-3 on whether those particular items were defamatory; the majority say they weren’t, and the dissenters said they were.
As I blogged a while back, modern defamation law generally applies only to false statements, but at some point a literally true statement may so strongly carry a false connotation that the speaker could be held liable for the implied falsehood despite the literal truth. A classic example, mentioned in an early 1960s case — though it’s been around outside the defamation context at least since 1916 — involves the first mate who, upset by his teetotaling captain, writes in the ship’s log,
Captain sober today.
Now Tomblin v. WCHS-TV8 (4th Cir. May 11) offers another interesting example, though likely more controversial — the panel split 2-1:
After WCHS-TV8 in Charleston, West Virginia, broadcast a news report that a four-year-old child was sexually abused ..., the owner of the daycare commenced this action for defamation and related torts. On WCHS-TV8′s motion, the district court entered summary judgment in favor of the television station ..., concluding that the station accurately reported the abuse allegations made by the mother of the child.
After review of the record, including a copy of the broadcast in question, we conclude that there are genuine issues of material fact as to [plaintiff's] claims. By reporting that the daycare was alleged to have abused a child, the television station may have published a false statement inasmuch as it knew and left out the fact that the incident involved one four-year-old boy touching the rectum and genitalia of another four-year-old boy. Accordingly, we vacate the summary judgment and remand to the district court for further proceedings.
The case also involves claims that the express wording of the statement was literally false (for instance, by labeling the touching as “sexual abuse”), and not just that it was defamatory by implication; still, the court also notes that the conclusion may be defamatory by implication:
[W]e have reviewed the broadcast as a whole and conclude, when taken as a whole, there could be a question of fact as to whether the broadcast produced a false “implication, innuendo or insinuation” about the daycare. The broadcast repeatedly referenced the sexual abuse of a child in the context of a daycare, potentially creating the impression that a daycare worker abused a child. The seriousness and drama with which the broadcast was made, also indicate, something far more serious than the failure to prevent the assault of one four-year-old boy by another.
If you’re interested in more, have a look at the opinions.