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. 

Polar Vortex In Legal Hell Before Satanists Get Monument In Oklahoma

Satan worshipers want to put a 7-foot monument to Satan (technically a horned dude named Baphomet) on the Oklahoma capital grounds.  They say it will complement a privately-funded 10 Commandments monument that was possessed and installed by the Oklahoma Legislature a few years ago.  The ACLU sued to have that monument exorcised from the capital.  It was a bad omen for the Satanists that, pending the ACLU's suit, legislators collectively said "no damn way," putting a pitch fork in any plans to put up any other monuments.

"Like H-E-double-hockey-sticks," say the Satanists and the Church of the Flying Spaghetti Monster (no, I'm not making that up ... here is their website in case you want to join ... you can become an ordained Pastafarian minister for only $20!). 

So, do the Satanists have a legal shot in hell at getting their monument?  The devil is in the details, but -- basically -- no, they don't. 

The US Supreme Court recently held unanimously in City of Pleasant Grove v. Summum, that a local government may choose to put up a 10 Commandments monument, but decline to put up another religiously-oriented monument in a public space.  Although the Pleasant Grove case was technically decided on Free Speech Clause grounds, a majority of the Court stated that they saw no violation of the First Amendment's clause forbidding the establishment of religion.

There is a better chance that the ACLU will succeed in showing that there ought to be no new religiously-based monument on the Oklahoma state capital grounds ... not even one of the 10 Commandments.  Ah ... maybe that's the point!!! Maybe the Satanists are really just the devil's advocate.  They may lack soul, but they are fiendishly clever! 

PS - Please forgive me.  Am I going to burn for all the bad puns in this post?  You know who made me do it ...

I'm back!

I took a hiatus from this blog for a few months to start a new law firm.  A few of my handful of followers (mostly blood relatives) occasionally asked, "Whatever happened to that blog you were doing?  It was OK."  Once the administrative adventures of starting a new firm subsided, I decided to jump back in.  I am teaching First Amendment law at UC Irvine's law school this semester so I will not post as often while that is happening, but I am excited to wax on about the marvelous and (sometimes) mundane world of First Amendment issues ...

On the same day, one whistleblower gets to sue the government and another gets 35 years in prison

In separate decisions handed down last Wednesday, courts gave starkly different treatment to two whistleblowers, highlighting oddities in First Amendment law.  

In one case, Dahlia v. Rodriguez, whistleblower Angelo Dahlia (a police officer) alleged he was punished by his superiors for telling his union and outside law enforcement about misconduct within his department.  The Ninth Circuit ruled in a rare en banc opinion that Dahlia could proceed with a civil rights claim that he was unjustly retaliated against for disclosing the conduct of his fellow officers, ruling that “often ... unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.”

US Supreme Court cases craft a weird rule in First Amendment law:  if a government worker blows the whistle inside a government body's chain of command as part of his or her official duties, then the First Amendment generally will not protect the worker's speech, but if the worker blows the whistle to outside sources -- including the media -- the First Amendment generally will offer protection if the speech is of sufficient public concern.  Same speaker, same information, but different audience = different rules. That helps explain the result in the Dahlia case, but what about the other decision handed down on Wednesday?

In the other -- and far more famous -- case, soldier Bradley (now Chelsea) Manning, was demoted, dishonorably discharged and sentenced to 35 years in prison for telling the media (via Wikileaks) about government misconduct, including the killing of civilians in Iraq.

In both cases, the whistleblower went outside the chain of command.  Why is Dahlia looking forward to redemption for the retaliation he faced, while Manning is looking forward to the better part of his life in Fort Leavenworth?

An easy distinction is that Manning disclosed classified information.  That is too easy.  What if a police department simply called its actions and conduct "classified"?  Surely, that label alone cannot be the end of the analysis.

Manning says she revealed classified information, "out of a love for my country and my sense of duty to others," in an effort to make a positive difference in policies and awareness of government conduct.  Dahlia didn't like the way his fellow officers were treating suspects in custody.  The Ninth Circuit applied a fact-specific inquiry to protect Dahlia's speech.  There was no protecting Manning's speech.

Something is not right with these rules and the discrepancies in last week's decisions.  They simply cannot be reconciled from a constitutional perspective.  There ought to be greater First Amendment protections for reporting inside the chain of command and there ought to be at least some protections on a case-by-case basis even in the military context for whistleblowing outside the chain of command.

Or else, as the Ninth Circuit put it in the Dahlia case, "government corruption and abuse" will "often ... persist undetected and undeterred.”

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.

This is what self-censorship looks like

Two weeks ago, I explained how the NSA surveillance program threatens First Amendment rights, including the chilling of speech because of the fear of government surveillance. This week, two secure email providers shut down.  This morning, The Guardian revealed that, through a loophole in the law, the NSA can see your emails and listen to your phone calls without a warrant.  This afternoon, President Obama vowed to make changes to the NSA system. 

The part in the middle (about the secure email service providers shutting down) shows how this dramatic script evolves into a free speech snuff film.

Lavabit.com, a provider used by leaker Edward Snowden, shut down its secure email service yesterday.  The founder, Ladar Levison, explained his dilemma:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit ... I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests. ... I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

No more Lavabit means no more speech on Lavabit. 

So, why don't Lavabit's users just go somewhere else ... like Silent Circle, another secure email provider?  Oh, yeah, Silent Circle also announced its "preemptive" shut down this week:

Silent Circle has preemptively discontinued Silent Mail service to prevent spying.  ... the less of your information we have, the better it is for you and for us.  ... We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.

Another such provider, TorMail, is gone too.

I don't (I mean didn't) use any of these services, but I might like to.  I might like to think that maybe, just maybe, there is a way for me to communicate without warrantless spying by the NSA.  Sadly, I now have to catalog those wishes and hopes along with being a good basketball player and owning a Ferrari -- i.e., things that ain't too likely.