US Supreme Court's first defamation case in nearly a decade has high points

Earlier today, the US Supreme Court issued its decision in Air Wisconsin Airlines Corp. v. Hoeper.  It is the first defamation case before the Court since 2005.

The Air Wisconsin case involved statements made by an airline regarding Hoeper, a pilot the airline was on the verge of firing.  The airline expressed its concern to TSA that Hoeper, who was about to board a flight as a passenger, was "unstable" and might possibly be armed because Hoeper was someone with clearance to carry weapons on planes (he was not carrying a weapon).  Hoeper sued for defamation and won a large judgment from a jury, which was later affirmed by the Colorado Supreme Court.  The airline said it was protected from the lawsuit by a relatively new federal law that gives extra protection for statements intended to aid in airline safety.

The US Supreme Court's decision is notable for a few reasons.

First, it reaffirmed that substantially true statements cannot support a claim for defamation.  According to some, there was an open question whether even true statements, spoken without sufficient knowledge of whether they are true or false, could support a claim for defamation.  In other words, there was some theorizing that even true statements could support a defamation claim if the speaker acted recklessly toward whether the statements were true (or even if the speaker incorrectly believed them to be false).  We've all heard the phrase "truth is a defense to defamation."  Setting aside my firm belief that it should be more than just a defense -- i.e., that defamation plaintiffs should always have to prove falsity -- a result that would have imposed liability on true statements in a case like Air Wisconsin would have been a terrible blow for the First Amendment ... not to mention airline safety.  Thankfully, the Court ruled the right way.

Second, a corollary to the first point is that the Court reaffirmed that it is not possible to establish actual malice (knowledge of falsity or reckless disregard for the truth) without showing that the allegedly defamatory statement was false.  [Disclosure:  I was counsel of record on the First Amendment Coalition's amicus curiae (friend of the Court) brief in this case, arguing that every context where the actual malice standard appears (including this one) requires a showing a falsity.  It is heartening to know that the Court agreed with that position!]

Third, the Court independently reviewed the jury's decision whether the statements were materially true or false.  That important decision should guide other, lower appellate courts that they ought to do the same thing under similar circumstances.

Fourth, the decision uses the phrase "materially" true and false repeatedly, emphasizing that only "materially false" statements -- i.e., statements that leave a different effect on the mind of the reader or listener than that which the truth would have produced -- can support a defamation claim such as Hoeper's.  That phrase originates from the second-to-last defamation case before the Supreme Court, decided in 1991, but the doctrine is more commonly referred to as "substantial truth" by practitioners.  In fact, that is how I referred to it above.  I think the principle being set forth is the same, but it remains to be seen whether there will be a shift in nomenclature as a result of this decision.  

Fifth, the biggest (pleasant) surprise was that the Court reviewed the jury's verdict on material falsity, and then reversed the jury's decision.  The airline and Hoeper asked the Court to decide whether the jury's decision on falsity should be reviewed by an appellate court.  The Court conspicuously excluded that issue when agreeing to hear the case.  But, a majority (6-3) went on to not only rule that the Court should evaluate that issue, but that the jury got it wrong.  The dissenters, Scalia, Thomas and Kagan -- interesting bedfellows! -- thought that a jury should take another look with proper instructions from the trial court.

New Decision About Blogger's Speech Rights Is Not As Exciting As Reports Suggest

Yesterday, the U.S. Court of Appeals for the Ninth Circuit (the federal appellate court covering most of the West) issued a decision at the crossroads of blogging and the First Amendment.  The case is called Obsidian Finance Group v. Cox.  The result was correct: the blogger won when she should have.  From some of the press coverage, it is tempting to believe the decision is monumentally amazing or at least unexpected.  It is neither. 

My favorite headlines about the decision announce that bloggers have First Amendment rights.  Of course they do.  That is not worth much more discussion.  Moving on ...

The decision held the plaintiffs had to show negligence in order to hold Cox (the blogger) liable for defamation.  For those unfamiliar with defamation law, that might sound like a big deal, but the reality is that all defamation claims involving speech on a matter of public concern (as the speech in this case did) require at least a showing of negligence, and many require much more, such as actual malice (which means knowledge of falsity or reckless disregard for the truth), in order to establish liability and recover damages.  That rule, laid down by the US Supreme Court in Gertz v. Robert Welch, Inc., is forty years old. The fact that the Ninth Circuit finally got around to applying the Gertz rule to the Internet is pretty unremarkable and really could not have come out any other way without directly contradicting US Supreme Court precedent.  The trial court's conclusion that the plaintiffs did not even need to show negligence was obviously wrong, and the Ninth Circuit really was compelled to reverse that decision. 

Some also seem very excited by the Court's contention that, up until this decision, neither the US Supreme Court nor the Ninth Circuit had previously held that the "institutional press" has the same basic rights in a defamation case as "individual speakers."  I think that is just plain wrong ... because the issue has come up before.  For example, in the grand-daddy defamation case of them all, New York Times v. Sullivan, the Supreme Court held that its First Amendment-based rulings applied to protect the "individual petitioners" in the companion case, Abernathy et al. v. Sullivan, as well as the New York Times.  Moreover, yesterday's Ninth Circuit decision acknowledges that US Supreme Court precedent requires treating the institutional press the same as individuals in defamation cases.  And, the Court notes, it helps that "sister circuits" come to the same conclusion.   (BTW - I recognize that this case was decided under Oregon law which claims that Gertz only protects media defendants, but Oregon's take on the First Amendment simply can't be squared with US Supreme Court precedent.)

There is another reason the decision is less than exciting.  The Court held that the plaintiffs were not public officials who would have had to prove the higher actual malice standard to establish liability.  I disagree with the Court's conclusion on this point because the plaintiffs were appointed by another court to serve as bankruptcy trustees, making their status as public "officials" at least a close call.  But, apparently the blogger (Cox) also argued in the trial court that the plaintiffs were public figures (in addition to being public officials), even though she seemed to abandon that argument in the appellate court.  That's too bad, because I don't think it is a close call to say that the plaintiffs -- who were appointed by the court and subject to the court's review and control -- were at least limited purpose public figures (meaning they would have to prove liability under the onerous actual malice standard). 

Also, some are concerned that the Ninth Circuit considered some of the defendant's blog postings to be constitutionally protected opinion, particularly in light of their hyperbolic context.  That is not cause for concern.  Context has long been a hallmark of determining whether a statement is constitutionally protected opinion in the Ninth Circuit and the US Supreme Court.  Since the advent of Internet cases, courts recognize that things move faster and looser on the Internet, lending statements toward constitutionally protected opinion. 

The holes in Ellen Kardashian's defamation lawsuit against the Kardashian clan

Last week, Ellen Kardashian, the widow of famed attorney Robert Kardashian and step-mother of celebutantes Kim, Khloe and Kourtney Kardashian, sued Bunim-Murray Productions, Ryan Seacrest Productions and various members of the Kardashian family, including the three Kardashian daughters and their mother, Kris Jenner, for defamation and other claims.  On its face, the Complaint is weak.

The bulk of the Complaint targets statements purportedly made during an episode of "Keeping Up With The Kardashians," which Ellen alleges, without supporting detail, was "orchestrated" and "carefully scripted" by the defendant production companies. 

The lawsuit mainly complains about the following allegedly false statements: 

• That Ellen bad-mouthed several members of the Kardashian family.  Ellen's response:  I didn't say those things ... my late husband did.  So Ellen may well believe those statements are true, but she wants it to be clear that she did not say them.  It is possible to bring a defamation claim for misattributing a quote, but it is not clear how Ellen was or could have been damaged by this alleged misattribution when she does not disavow the underlying statement. 
• That Ellen married Robert in his home as he was dying, and they were only married for a few weeks.  In the Complaint itself, Ellen alleges that they were married in Robert's home 10 days after Robert was diagnosed with esophageal cancer and just a few weeks before his death.  It seems that the Complaint alone would support a winning substantial truth argument -- i.e., that it is substantially true Ellen married Robert in his home as he was dying, and that he died shortly after their marriage.
• That Ellen married Robert when he was in his pajamas.  First, it is not remotely clear that such a statement is defamatory toward Ellen -- maybe toward Robert for not dressing up a little more -- but then Ellen goes on to insist that Robert was not in his pajamas, but was actually in a "'Tommy Bahama' style shirt." I see, so maybe this case should be called the "Pajama vs. Tommy Bahama" lawsuit. That has a nice, melodic ring!
• That Ellen was sued and attempted to evade service.  Ellen complains that Kris Jenner wanted to "press charges" against her.  A lay person might easily confuse a civil suit with the concept of "pressing charges" in the criminal sense, and the Kardashian/Jenner clan did, in fact, sue Ellen.  Ellen sought permission from the court to countersue, but withdrew that effort in favor of filing this new lawsuit two days later.  Also, calling Ellen a "slippery snake" for supposedly not wanting to be served is a matter of opinion.

The defamation claim is weak because -- although I don't know the underlying facts -- the Complaint itself suggests that all of the statements were either substantially true or protected opinion.   Moreover, Ellen, who is almost certainly at least a limited purpose public figure, will have to prove that the defendants acted with actual malice (i.e., knowledge of falsity or reckless disregard for the truth).  That will be especially difficult for Ellen to show against the producers because, among other things, they could most likely reasonably rely on the Kardashians as witnesses to the underlying events, many of which happened years ago.

The other claims in the Complaint are also weak.  Ellen alleges the public disclosure of private facts, but then asserts that the underlying "facts" are false.  Which is it?  Are they facts or are they false?  I've seen this before:  you can't base a defamation claim and publication of private facts claim on the same underlying allegations.  They are mutually exclusive.

The intentional infliction of emotional distress claim is a virtual throw-away.  A plaintiff cannot evade the strictures of a defamation claim by restyling it as a claim for intentional infliction of emotional distress.  Remember the movie The People vs. Larry Flynt?  That's what that whole Supreme Court scene was all about.  Here's the Supreme Court decision in case you want to check.

And, finally, a claim for "conspiracy to defame"?  No such thing.  Conspiracy is not an independent claim in California.

Congressman's office denies threatening blogger, but questions persist

According to the Daily Dot, the office of Congressman Mike Rogers (R-MI) denies threatening blogger Mike Masnick with a defamation claim.  See my last post for an explanation of why such a claim was not viable, even if it were threatened and the threat were carried out.

There are a few problems with the denial.  First, it identifies the reporter that Rogers' staff purportedly did not tell about the threat.  But, when Masnick went public with the threat, he didn't identify the reporter.  Basically, Rogers' office is saying "we didn't tell the guy you didn't name the thing you said we said."  That seems off.

Next, Rogers' office is basically saying that the reporter who told Masnick about the threat is a liar.  Maybe they will find themselves on the other side of a defamation claim now?

Finally, the reporter declined to comment to the Daily Dot, but pointed them in the direction of Rogers' chief of staff, who has not yet responded to the Daily Dot as of "late" this afternoon.  If the chief of staff confirms the threat was made then Rogers' office will have a carton of eggs on its proverbial face.

Prominent blogger is told Congressman's staff threatened him with a defamation lawsuit

Yesterday afternoon, Mike Masnick, editor of the Techdirt blog, stated that staffers for Rep. Mike Rogers (R-MI) told a Michigan-based reporter that Rogers, "could sue [Masnick] for defamation concerning things [he'd] said about Rogers."  On Twitter, Masnick stated that Rogers' office was "telling reporters that they want to sue me for defamation."

I asked Rogers via Twitter to confirm whether his office threatened Masnick, and, if so, what the basis for that threat was.  I got no response.  I also called Rogers' DC and Michigan offices after 9am local time this morning, but did not reach anyone who was able to answer my questions.  If the threat is genuine, it sure is tough to figure out what it could be based on.  Nevertheless, I tried to figure it out ...

Michigan has a one year statute of limitations for defamation claims.  So, I went through Masnick's Techdirt posts in the past year that concerned Rogers.  To me, they look like constitutionally protected opinion, or, to the extent they reflect any statements of fact, Rogers (as a public official) would have a very difficult time proving the requisite actual malice (knowledge of falsity or reckless disregard for the truth) even assuming any underlying factual assertions were false, which he would also have to prove. 

The most recent Masnick post about Rogers was an opinion piece from July 25 excoriating Rogers, who is Chair of the House Intelligence Committee, for his stance against the Amash Amendment that would have defunded sweeping portions of the NSA surveillance program, and for concluding a speech with what Masnick called the "obnoxious" suggestion that those in support of the Amash Amendment were only voting that way because of "Facebook likes."  I see no potential defamation claim there.  Instead, I see constitutionally protected opinion and some statements of fact tied back to a video of Rogers' speech embedded in the post.

Another story from a few months ago highlighted Rogers' purported conflict of interest in pushing for legislation that supposedly would benefit his wife's former company.  Saying a politician has a conflict of interest is, unless based on false information, protected opinion.  Saying it in the context of a heated debate about the merits of proposed legislation gets even further protection as the First Amendment's highest purpose is to protect political speech.  Furthermore, Rogers (a public official) and his wife (a public figure by virtue, at a minimum, of her marriage to Rogers) would have a hard time proving actual malice (as all public figures do) even if they could show that underlying statements were false. 

In another post, Masnick recounted the extraordinary backlash Rogers received from scores of people on Twitter when Rogers suggested that the only people opposed to the enormously unpopular CISPA cybersecurity legislation he championed were "14-year-olds in their basement."  Masnick also wrote an opinion piece deriding Rogers for that same comment.

Finally, Masnick shuddered at the thought that Rogers might be named the next director of the FBI.  Opinion.  Full stop.

I don't know whether Rogers endorsed any threats (veiled or otherwise) to sue Masnick for defamation, but the prospect that he did is disturbing.  Rogers is a powerful man.  He is in charge of the House Intelligence Committee in a time where more and more people are afraid of the power their Government holds over intelligence gathering methods. 

The threat of a defamation suit often stops speakers cold in their tracks.  It doesn't seem like Masnick has had that reaction, but it also looks like he has tougher skin than most (perhaps tougher than Rogers and/or his staff anyway).  In a tweet this morning, Masnick emphasized that the Rogers staff only said they "*could* [sue] likely knowing it would get back" to Masnick, but Masnick "doubts they're serious."

Let's hope: (a) there was some miscommunication about a threat to sue; or (b) any such threat was not serious.  It would be unbecoming for Rogers or his staff to threaten Masnick with a defamation suit.  To actually sue would be unseemly.

To Alpha, NJ: Cities cannot bring defamation suits. So cut it out.

Dear Borough of Alpha, New Jersey:

I've never visited you, but from your website, you look like a lovely Garden State enclave.  Now, please show some respect for the First Amendment.

Last week, you sued a few anonymous online commentators for defamation.  The suit claims that "Save Alpha" and others slandered the "good name, reputation and public standing" of the "Borough of Alpha."  Your suit wants to end future criticism and interference with borough business.

Here's the problem:  government bodies (like you) cannot sue for defamation. 

There used to be laws to prevent criticism of the King of England.  Then we had a Revolution.  Remember that?  Your State played an honorable role in challenging the royal prerogative to be free from critical examination.

Then, in 1798, Congress made the mistake of passing the Sedition Act, which made it a crime to publish "any false, scandalous and malicious writing ... against the government ... with intent to defame ... or to bring [it] ... into contempt or disrepute, or to excite against [it] ... the hatred of the good people of the United States."  That law, which expired hundreds of years ago, is deep in the dustbin of history.

Nearly fifty years ago, the US Supreme Court held that, "although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history," due to a "broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment."

Your suit claims that your Borough was defamed by citizens' comments concerning the way Alpha functions (or fails to function).  But, I don't care what you think defamed you.  It really doesn't matter because the rule is clear.  In this country, the King cannot sue for defamation.  Neither can the US Government.  Nor can you.  You simply don't have a "reputation" that can possibly outweigh the First Amendment.

I know some of your city council members also sued.  As public officials, they have a low probability of success because of the high burdens they must satisfy in a defamation case.  I highly doubt that their suit will work out for them, but there is no question your suit is garbage.

Yours truly,
Jean-Paul Jassy

Climate change on trial in a defamation case

A modern-day Scopes Monkey Trial is unfolding in a District of Columbia defamation case.

In 1925, two of the most famous lawyers of the time, Clarence Darrow and William Jennings Bryan, argued over whether John T. Scopes should have been prosecuted for teaching evolution in public school.  Scopes was convicted and fined $100, although the conviction was later overturned on a technicality.

Now, Pennsylvania State University climatology professor Michael Mann, a prominent researcher in the study of global warming, is in a legal fight with the Competitive Enterprise Institute (CEI) over his climate change research.  As today's article from Onward State explains, CEI accused Mann of manipulating data regarding the connection between human behavior and global warming.  Penn State investigated the allegations and exonerated Mann, as did British authorities and the EPA.

In an editorial published just after the release of the Freeh report on the Sandusky sexual abuse scandal at Penn State, CEI labeled Penn State's internal investigation of the Mann issue "hogwash," called for a new investigation, and stated that "Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he molested and tortured data."

Then, an online National Review piece by Mark Steyn, linked to the CEI editorial and wrote that he was "not sure" he would have "extended that metaphor all the way into the locker-room showers with quite the zeal" as the CEI editorial, but that the CEI piece "has a point" as Penn State's internal investigation was a "joke."  The National Review post also states that Mann "was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus."  (The "hockey stick" refers to the sharp rise in global temperatures, when represented on a graph, over the past 150 years.)

Mann sued CEI and National Review for defamation in the District of Columbia.

On Friday, July 19, the Court denied National Review's special motion to dismiss Mann's case under D.C.'s anti-SLAPP statute.  In its ruling, the Court rejected arguments that the National Review piece was constitutionally protected opinion, rhetorical hyperbole or fair comment because, according to the Court, it was "something more than brutally honest commentary." 

The Court held that "to call [Mann's] work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff's work has been investigated and substantiated on numerous occasions)."

The Court went on to hold that National Review's statements were "based on provably false facts," which means Mann's case must proceed, presumably so the truth or falsity of the facts can be "proven."

Setting aside that the text and tenor of the National Review article smells strongly of opinion (i.e., that the Court's decision was simply wrong), the ruling begs the question:  is the evidence supporting climate change going to get its day in court?  And, is this how it happens ... in a defamation case?  Yes, that's what we're looking at.

In 2009, the US Chamber of Commerce demanded that the EPA hold a "trial" on climate change,  conjuring up the ghost of Mr. Scopes by labeling it, "the Scopes monkey trial of the 21st century."  The EPA didn't bite; but, the Chamber may now get its wish.

The case could be narrowed to whether National Review and CEI falsely stated that Mann distorted data and their respective states of mind at the time of the purportedly defamatory publications, but both sides seem poised to tackle the broader issues of climate change in order to bolster their positions.

That's what happened in 1925:  it wasn't simply whether Scopes taught evolution, it was whether there was a real basis for doing so.

This could be a lot more than just a run-of-the-mill defamation case ...

Playwright Threatened With Bogus Suit Re "Killing Fields" Actor

An article today in the Los Angeles Times reports that playwright Henry Ong is being threatened with a lawsuit by the estate of Academy award winning actor Haing S. Ngor.  The threatened suit has no merit and Ngor's estate should give it up.

Ngor, a gynecologist, survived the dictatorship of Pol Pot in Cambodia and later won an Oscar for his role portraying a journalist in "The Killing Fields," a 1984 movie about the Khmer Rouge regime.  Ong wrote a play, "Sweet Karma," about a "Dr. Vichear Lam" that is based on Ngor's life.  Promotions for the play avoid using Ngor's photographic likeness.

In the play, "Dr. Lam" is depicted as, among other things, an adulterer who has sex with a patient.  Ong says the play is based on published accounts about Ngor and interviews with people close to Ngor.

Without providing details, a representative of Ngor's estate told the LA Times that "legal action" against Ong is "imminently pending."

Bad idea.

Dead people -- or, rather, the estates of dead people -- cannot sue for defamation.  That is well-established in the law, particularly in California.

A more likely scenario is a suit alleging a violation of Ngor's right of publicity.  Dead people -- I mean the heirs of dead people -- can sue for that in California, but the law permitting such suits expressly excludes plays. 

Plays are fully protected by the First Amendment, particularly when they recount facts.  Setting aside defamation concerns, the First Amendment also protects references to real persons in fictional stories.  For example, the California Supreme Court held that the use of Rudolph Valentino's name in a fictionalized film was protected.   The law also protects the use of real persons in works that blend fact and fiction for dramatic impact.

The show must go on for "Sweet Karma".

Asiana's absurd threat to sue TV station for defamation

Asiana Airlines announced this morning that it will sue KTVU, a San Francisco Bay Area television station, for incorrectly reporting the names of the pilots of Asiana Flight 214 that crashed July 6.  A lawsuit would be beyond ridiculous and has no basis in the law.

On Friday, July 12, an anchor on KTVU reported, while showing a graphic onscreen, that the names of the pilots on Asiana's Flight 214 were "Sum Ting Wong", "Wi Tu Lo," "Ho Lee Fuk," and "Bang Ding Ow."  It is not clear how KTVU got these fake and offensive names, but they were actually confirmed by an intern at the National Transportation Safety Board (NTSB).  The station and NTSB have already apologized for the error.

Asiana now threatens to sue for defamation, claiming that its reputation was harmed by the broadcast.  Twitter is bursting with comments that carry the same basic theme:  it was the plane crash that hurt your reputation, not KTVU's broadcast.

The names were offensive, and someone was playing a prank, but let me be very clear:  Asiana has no lawsuit here.

First, there is no harm, at least none Asiana would ever be able to show in court.  The broadcast was promptly corrected.  People are not going to stop flying Asiana because it supposedly employs a captain named "Sum Ting Wong," but they may well stop because of a crash landing.  Asiana would have to prove that they suffered harm because of KTVU's broadcast separate and apart from the crash.  No chance that will work.

Second, Asiana -- which is undoubtedly a public figure because, among other things, it advertises extensively and is heavily regulated by governments across the globe -- would have to prove actual malice (i.e., that KTVU knew or had reckless disregard for the truth or falsity of its broadcast).  Asiana will not satisfy that burden, which requires clear and convincing evidence.  KTVU confirmed the names with the NTSB and then promptly corrected the error.  Those two things alone gut any possible showing of actual malice.

Third, a prank is not a statement of fact and a defamation claim requires a statement of fact.

There is more that could be written, but let's wait and see if Asiana follows through on its threat before wasting more time on this nonsense.