Articles Posted in Defamation, Libel and Slander

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The First Amendment to the U.S. Constitution grants all citizens the right to free and open speech. This is especially true of people in the media talking about public figures. The news couldn’t be the news (and it couldn’t be as effective as it is) without the ability to speak freely about public figures.

John Oliver, who isn’t even an American citizen, appeared to understand this fact better than Robert Murray, CEO of Murray Energy.

Last summer, Oliver made fun of Murray on a segment of his show, Last Week Tonight, in which Oliver, among other things, compared Murray to a villain in a series of comedy movies. Not only did the allusion depict Murray as evil, but the comparison to a character people laugh at implied that he is weak and ineffective. Oliver acknowledged on the show that Murray would probably try to sue them over the segment, but that he would not take back anything he had said.

Murray has, in fact, had a long history of filing allegedly frivolous lawsuits against people and companies that criticize him. Most of those lawsuits have been dismissed or settled outside of court, and while such intimidation tactics might work with some people, HBO (which made a point of saying it stood by Oliver and his show) is hardly a David to Murray’s Goliath. HBO is a successful company in its own right, and like any other media company, it is well aware of its own rights under the American Constitution. Continue reading

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Although the #MeToo movement gained significant ground with prominent actresses in Hollywood, they’ve made it clear that Tinsel Town is hardly the only place where this kind of alleged abuse and misogyny take place. On the other side of the country, a recent investigation into James Levine, the former music director of the Met Opera in New York City, found that he had been guilty of sexual misconduct throughout his career, particularly towards young singers and artists over whose careers he had significant control. Levine is disputing these findings and had sued the Met for libel.

Levine worked at the Met for more than 40 years and had been hailed as one of the most beloved conductors of all time, but shortly after celebrating the milestone anniversary, Levine began to suffer from health problems that interfered with his abilities to fulfill all his duties as music director. He had to step down as music director of the Boston Symphony Orchestra and suffered an injury that prevented him from conducting at the Met for two years, although he was kept on as music director. After his return to the podium, singers and musicians had reported that Levine had recently become erratic and hard to follow in his conducting.

Peter Gelb, the Met’s general manager, has allegedly been trying to get Levine to step down as music director of the Met for the past few years. Levine was just recently fired after a company investigation found significant evidence that Levine was guilty of sexual misconduct, both before and during his time at the Met. The investigation came after reports of such misconduct were published in prominent newspapers. Continue reading

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The recent decision by a New York appeals court to affirm the dismissal of a defamation lawsuit filed against President Donald Trump highlights two important defenses to charges of defamation or libel.

In Jacobus v. Trump, public relations consultant Cheryl Jacobus alleged that President Trump defamed her in a series of tweets made during his presidential campaign. In these tweets, Trump repeatedly claimed that Jacobus had “begged” him for a job and “went hostile” after he turned her down. He also interspersed several other insults in the tweets calling Jacobus “A real dummy” and a “Major loser” with “zero credibility.” Jacobus alleged that these tweets harmed her career and disparaged her in the way of her profession, trade, or business.

Days before President Trump took office, the trial court dismissed the lawsuit. The trial court held that the term “begged” was merely an example “loose, figurative, and hyperbolic” language that is generally nonactionable. While acknowledging that the insults were “clearly intended to belittle and demean” Jacobus, the court found that the context of the tweets made it clear to any reader that they were statements of opinion and not fact. Consequently, they were too vague and subjective to be “susceptible to objective verification.” The appeals court affirmed the dismissal in a short order. Continue reading

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Summer Zervos, who was a contestant on The Apprentice back in 2007 is attempting to sue President Trump for defamation claims which he denies yet claims her suit cannot proceed until his Presidency ends. Zervos alleges that, while she was in meetings with Trump that were supposed to be about business, Trump allegedly kissed her on the mouth multiple times and touched her breasts without her consent.

Trump denied the accusations, publicly calling them “lies” and “nonsense,” but Zervos is not letting this go. She and 18 other women have accused Trump of sexual misconduct and Zervos is currently suing Trump for defamation. The lawsuit asks Trump to take back the statements he made about her, apologize to her, and provide financial compensation.

Trump’s attorneys have filed a motion to have the case dismissed, but if Justice Jennifer Schecter refuses, Trump’s presidential campaign might be required to release any and all documents they have relating to all the women who have accused him of sexual misconduct – not just Zervos.

Trump’s attorneys argued that a state court does not have jurisdiction over a sitting president. They have also asked to delay the case with a stay if the judge does decide to allow the case to proceed. That would put off the trial until after Trump is no longer president.

Zervos’s attorney cited the U.S. Supreme Court’s 1997 decision in Clinton v. Jones to allow a sexual harassment case against President Clinton to continue in the federal courts while Clinton was still president. Trump’s attorneys argued that decision does not apply to the current case because that lawsuit was filed in federal court, rather than state court. Continue reading

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Hours after excerpts from a book that were published and prior to the book being released, lawyers on behalf of the President had threatened the author by using cease and desist letters.  These letters threatened legal action for defamation due to alleged falsehoods.  In a letter sent to former Presidential advisor Steven Bannon, the letter stated that “legal action is imminent.,”  Another letter to the publisher demanded the book’s author and publisher halt the book’s release and “issue a full and complete retraction and apology” or else face legal action.  Organizations such as the American Booksellers Association, the Authors Guild, and the National Coalition Against Censorships have come forward to condemn the attempt to halt the book from getting into the hands of the public.  The cease and desist letter also meant that the author moves the date up to an earlier release date in order to garner greater media attention.  Nor did the letter clearly point to any specific facts as untrue.  As such, a media frenzy ensued.

It is common knowledge that the First Amendment protects such forms of writing in the right to exercise Freedom of Speech provisions.  Despite such warnings and the violation of an employment contract that was in place, experts agree that it is likely that such a contract would be considered unenforceable due to the nature of public interest in the matter.  This is even though the agreement included terms which specified that included nonusage of disparaging remarks and non-disclosure terms against the Trump Family or Organization.  First Amendment lawyers have chimed in and claim that agreements cannot be enforceable or remain “confidential.” This is the first time that a President has ever sought or obtained such a kind of agreement.  The reason for that being, that these forms of agreements are against public policy.  Unless there were certain governmental secrets which could threaten national security, there must be a policy justification.  Preventing criticism is not justifiable under the circumstances. It must be noted, however, had this been a corporate situation, a finding may have been different. Continue reading

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Marie Antionette’s, “Qu’ils mangent de la brioche” has been woven into the fabric of an American case in today’s age concerning gay rights and freedom of speech.  The cost of regulating free speech is quantified by the emotional, political and economic costs overall.  These aspects are weighed against the cost of allowing the speech to flourish.   Freedom of speech is a value, not a principle and it is getting harder and harder for the courts to assess it in a political climate in which America remains divided.

In Colorado, a gay couple was denied the right to have a wedding cake made by a baker who seemed to have questioned their religious beliefs by having signed up in the store saying: “We do not bake cakes for gay weddings.”

Many would agree that the idea of freedom of speech is not permitted to say anything anybody thinks outright. It means balancing values of a given view to ensure that other members of a given community can participate in discourse on an equal footing. It includes someone’s humanity and their right to participate in political speech as long as it is not attacked, demeaned or questioned. People should not be shut down due to individual expression.  In this instance, many would believe that a right to have equal access to a baker includes freedom of speech or practice.

Colorado civil rights commission found the refusal to bake a cake for the gay couple in violation of its state anti-discrimination law.   In the high court, the bakery argued that the lower courts’ findings violate its rights to both religious freedom and free speech. That ruling had the ability to divide people further as some view it as not being an act of free speech but rather one of service and giving rise to an ability to boycott.  For such a reason the matter is now going before the Supreme Court and a decision to be made next year in June. Continue reading

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Our previous blog post, we discussed the ramifications of posting online reviews anonymously. In that case, a state appeals court ruled that in order to enforce a subpoena for the identities of former employees who had commented anonymously on the workplace review site, the plaintiff must prove the falsity of the comments and suffer a financial loss. A similar issue was revisited by the courts in a situation where alleged defamatory remarks were made and photos in support of remarks were also retrieved by trespass onto the property by an incident of various online reviews and the defendant happened to be a landlord.

More specifically, the decision pertaining to this incident happened to be a real estate entrepreneur with properties in three different states  and claimed that Facebook pages and Twitter accounts, as well as, flyers distributed near his home, accused him of being a “greedy slumlord,” who subjected his tenants and neighborhoods to bad conditions. The defendants were sued because it hosted the web sites and possessed real estate interests which could potentially damage his business. The complaint alleged diversity jurisdiction.

Accordingly, plaintiff proceeded to file an ex parte motion for early discovery seeking to identify his critics. In these motions, any relevant section of law which could apply or the basis for his assertion of diversity jurisdiction was never mentioned. The other party wanted to move to dismiss and seek sanctions for frivolous litigation. It had to then be pointed out to the trial judge that the lawsuit pending before him lacked any jurisdiction, and was not a proper basis for the issuance of federal court subpoenas for that reason. Continue reading

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Posting online has become a norm in this tech savvy world that we live in.  For greater transparency in a review, some may choose to post anonymously in fear of ramifications if their name disclosure came about.  Just recently, the ability of an employer being able to find out which employee employer-rated an employer unfairly or inaccurately was assessed by the Courts. This is since some would argue that surely the law protects against outrageous false statements that harm an employer’s ability to recruit talent.  That is why a California appeals court recently ruled that businesses have to prove online comments are false and financially harmful before they can unmask anonymous critics via subpoenas.  It can thus be seen that the decision has First Amendment implications which safeguard people’s right to free speech and this was valued as being the greater consideration.

A suit under the anonymous posting was brought forwards for libel and for violating California law regarding online impersonation.  A request was placed for assistance from the courts in an ability to be able to retrieve the identity of the postings. Initially, the trial court turned the employer down and this was again examined by a California Court of Appeal.Subsequently, the lengthy opinion was issued and a conclusion was drawn indicating that to force a disclosure of the names, a plaintiff must state a legally sufficient cause of action comprising of the following elements of that cause of action:  (1) the courts determining these issues must ensure that reasonable efforts are made to notify the unknown defendants so they can respond and (2) the plaintiff’s pleading must specifically note the exact statements alleged to constitute defamation. Continue reading

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Because freedom of speech is one of our most cherished rights in this country, it’s not easy to file claims for defamation.

Our founding fathers saw the value of being able to speak freely and openly to and about each other, especially when it comes to public figures. It is an essential ingredient for a democracy, which is why it’s the very first amendment ever made to our constitution, and one that is constantly invoked by all parties in just about every political discussion.

Because such a high value has been placed on free and open discussion of public figures, those public figures have a higher burden of proof to bear when filing claims of defamation. Not only do they have to prove that the statement(s) in question was false, but that the person/entity who made the statement knew it was false at the time they published it, and that they did so with the intention of inflicting harm (financial or otherwise) on the person in question. Continue reading

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The First Amendment of the U.S. Constitution does not protect defamation, but the requirements that speech must meet in order to qualify as defamation are very specific, and even more so for public figures. The primary objective of the First Amendment is to allow citizens (and especially the press) to speak freely about public figures in order to keep the public informed on what their elected officials and candidates are doing.

In June of this year, a gunman opened fire at a baseball stadium where Republican Congressmen were practicing for a charity baseball game. In an effort to write an editorial on the event and get it published quickly enough so as to still be relevant, the New York Times made some factual errors, but it quickly corrected them and apologized afterwards.

In trying to make a point about the level of hostility between the two political parties, James Bennet, the author of the editorial, mentioned the 2011 mass shooting conducted by Jared Loughner, which left Representative Gabrielle Giffords severely wounded. Bennet also mentioned a map of targeted electoral districts that Sarah Palin’s political action committee had previously circulated.

Palin promptly sued Bennet and the New York Times in New York federal court for defamation, claiming the editorial incorrectly connected her with the mass shooting, even though the publication she had no connection to the gunman, as the newspaper had previously said so in other articles it had published. Continue reading