Articles Posted in Defamation, Libel and Slander

Our founding fathers may not have guaranteed the right to free speech in the first draft of the U.S. Constitution, but it did make it into the very first amendment to the document. A series of Supreme Court rulings during the Civil Rights movement extended the right to free speech, but now at least two Supreme Court Justices want to reverse that decision.

At the height of the Civil Rights movement, The New York Times published an advertisement that criticized terrorism against protestors in the Civil Rights movement in the South. L.B. Sullivan, the police commissioner of Montgomery, Alabama at the time, sued the newspaper, claiming the ad falsely accused him of misconduct. Sullivan was not even named in the ad, but a jury in Alabama ruled in his favor and awarded him $500,000 in damages.

The case made its way up to the Supreme Court, which reversed the decision. The Court based its ruling on the fact that the First Amendment of the U.S. Constitution prohibits public officials from recovering damages for defamation regarding their official conduct. The only exception to that rule is if the plaintiff can prove the allegedly defamatory statement was made with “actual malice”, meaning the defendant knew the statement was false at the time they made it, and they made it anyway with the intention of inflicting some sort of harm (financial or otherwise) on the plaintiff.

The Court concluded by saying the ruling was in the spirit of the First Amendment, which was designed to encourage free and open debate on public issues, even when it means leaving public figures to get attacked in the press. While the First Amendment initially applied only to public officials (those holding elected government positions), later Supreme Court rulings extended the protection to any speech about any public figure, including entertainers and other celebrities. Continue reading ›

A federal appeals court has revived a portion of Representative Devin Nunes’s defamation lawsuit that was dismissed last year finding that the defendant’s tweeting a link to the allegedly defamatory article after the lawsuit was filed could satisfy the actual malice requirement.

In September 2018, Esquire magazine published an article about Representative Nunes and a dairy farm in Iowa owned by Nunes’s family. Political journalist, Ryan Lizza, authored the article titled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret” (online version) and “Milking the System” (print version). The print version included a caption with two questions about Nunes: “So why did his parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?”

Nunes took issue with a number of claims in the article. In his defamation complaint filed in 2019, Nunes identified 11 statements in the article that he alleged were defamatory. Additionally, Nunes alleged that the article falsely implied that he “conspired or colluded with his family and with others to hide or cover-up” that the farm “employs undocumented labor.”

In August 2020, a federal judge in northern Iowa dismissed the case finding that none of the statements identified by Nunes were defamatory as a matter of law and that Nunes, as a public figure, had not met the high bar of showing that the magazine or Lizza had published the article with actual malice.

Nunes appealed the dismissal to the 8th Circuit Court of Appeals. On appeal the Court ruled that the district court correctly sided with the defendants in deciding that the allegedly defamatory statements failed as a matter of law. However, the Court sided with Nunes on his argument that the district court improperly dismissed his claims for defamation by implication. Defamation by implication occurs when the defendant either juxtaposes a series of facts to imply a defamatory connection between them or omits certain facts to create a defamatory implication. Continue reading ›

A federal District Court recently dismissed the defamation claims filed by embattled attorney Michael Avenatti against Fox News and several of its anchors. In its decision, the District Court found that Avenatti’s claims failed to overcome the high hurdle to sustaining defamation claims against a media defendant. In the Court’s opinion, it ruled that the case fell squarely into the longstanding rule that “news outlets are not liable for minor mistakes, especially when reporting on public figures and matters of public concern.”

Avenatti garnered the national spotlight in early 2018 when he represented the adult film actress, Stormy Daniels, who sought to invalidate a non-disclosure agreement regarding her alleged sexual relationship with Trump. Following the filing of these suits, Avenatti became a vocal critic of former President Trump regularly appearing on cable news to criticize Trump and bring attention to Daniels’ suit against the former president. Avenatti’s public image rapidly eroded in late 2018, when news outlets widely reported that he had been arrested in Los Angeles for suspected domestic violence. Though Avenatti’s bail was set, prosecutors never formally charged him. Continue reading ›

When you’re a politician, your career is made or broken on your reputation. Donald Trump has been sued for defamation several times, with varying rates of success. Now his son, Donald Trump, Jr., is also being sued for defamation over allegations he made concerning another Republican candidate.

Don Blankenship was a Republican candidate for Senate in West Virginia in 2018, trying to unseat the incumbent, Joe Manchin III, who’s a Democrat. Trump and his allies opposed Blankenship in the primary, and their smear campaign included allegations that he’s a felon.

The allegations refer to an explosion at a mine run by Blankenship, and while felony charges were brought against him, he was only convicted of a misdemeanor. He was sentenced to 1 year in prison, which is the maximum penalty for a misdemeanor and could have caused some of the confusion leading to him being called a felon.

Blankenship also sued multiple media outlets for publishing the same misinformation, but those media outlets corrected their mistake as soon as it was brought to their attention. Trump Jr., on the other hand, doubled down and continued insisting Blankenship is a felon. The tweet he posted on May 3rd, 2018, calling Blankenship a felon was not deleted until late June of the same year, after Blankenship had already lost the primary, and long after Trump, Jr. had allegedly been made aware of the correction. Continue reading ›

In 1964 the case of New York Times v. Sullivan reached the Supreme Court, which interpreted the First Amendment of the U.S. Constitution to mean public figures have a higher bar to clear when suing for libel.

The intention of the First Amendment is to give citizens the freedom to voice their opinion and publicly discuss public figures. At first, this just meant political officials, since the founding fathers saw the value in people being able to publicly debate and gain access to information on the people they would be voting into office. But subsequent rulings have expanded the actual malice doctrine to apply to public figures as well, including entertainers.

Because public figures are subject to a certain amount of public scrutiny, it makes sense for them to bear a higher burden of proof when suing for defamation and/or libel. Not only do they have to be able to prove the claim was false, they also have to prove that the person making the statement knew it was false at the time they made it, and that they made the false statement with the intention of causing financial harm to the plaintiff, hence the term “actual malice doctrine”. Now two Supreme Court justices are saying it’s time to reevaluate that ruling.

The two justices calling for a reexamination of the actual malice doctrine are Justice Clarence Thomas and Justice Neil M. Gorsuch, both of whom cite the modern news media landscape as having influenced their views on the actual malice doctrine and whether it should apply to all public figures.

Although we have long been told not to believe everything we see online, not only do many people believe what they see on the internet, they often act on what they see without bothering to verify those claims. Justice Thomas pointed to a New York Times article that described how someone might need to set up a home security system after being called things like “thief” or “pedophile” online, even if those claims are false. The person making those claims might not realize they’re false and/or might have no intention of causing financial harm to their target, but nevertheless, the harm is done. Does that mean the target of the vitriol should be able to sue the person making the false statements? Continue reading ›

After a police officer pressured a woman for oral sex in a suburb of Chicago, including harassing her at her place of work, the woman filed a lawsuit against the police officer and Cook County. For obvious reasons, she asked the court to allow her to remain anonymous, filing the lawsuit under the name Jane Doe v. Cook County. Unfortunately, Doe only knows the first name of the officer who sexually harassed her: Kevin. The sheriff’s office is also named as a defendant.

While the federal courts used to require every plaintiff to provide their full name in order to file a lawsuit, they have since allowed certain exceptions, including whether the plaintiff identifying themselves would result in “retaliatory physical or mental harm”.

There are plenty of well-documented cases of women receiving death threats when accusing men (especially men in power) of sexual harassment or assault. For example, Dr. Christine Blasey Ford needed to hire a security detail after receiving an onslaught of threats to her personal safety leading up to her testimony before the Senate. However, the judge assigned to the case of Jane Doe v. Cook County, U.S. Judge Charles Norgle, denied Doe’s request for anonymity.

This is in spite of the fact that, not only is there a long history of retaliation against women accusing men in power, but police officers in particular are notorious for closing their ranks and protecting their own, making the recent conviction of Derek Chauvin so remarkable. No one who knows that history could be surprised by Doe’s request for anonymity or think it unreasonable. Continue reading ›

News conglomerate Fox News finds itself fighting against not one, but two multi-billion dollar defamation lawsuits over its post-2020 election reporting. The plaintiffs in these lawsuits are the companies that ran electronic voting machines used during the election. In their complaints, the plaintiffs accuse Fox News and its on-air hosts of engaging in a smear campaign against them which involved making numerous false statements accusing the companies of engaging in a criminal conspiracy to change votes and decide the outcome of the 2020 election in favor of now-President Joe Biden. Fox News has countered that all of its allegedly defamatory statements are protected under the First Amendment as statements about matters of public concern. One of the companies, Smartmatic, has responded, arguing that Fox News’ statements were calculated falsehoods and thus enjoy no First Amendment immunity.

According to Smartmatic, it was founded in 2000 “to bring secure technology to elections and build an election technology company that could ensure accuracy, transparency, and auditability.” Smartmatic claims that the 2020 election was intended to be the launching point for the company as it had been selected to run the electronic voting for Los Angeles County. Days after the election, Smartmatic alleges, Fox News embarked on a disinformation campaign against it. In the weeks following the 2020 election, Smartmatic claims that Fox News broadcast 12 shows, posted 9 videos and transcripts online, and posted 20 comments and videos on social media about Smartmatic. Many of these references to Smartmatic allegedly involve accusations that it rigged the election against then-President Trump.

Additionally, Smartmatic claims that Fox News repeatedly invited then-President Trump’s attorneys, Rudy Giuliani and Sidney Powell, onto its broadcasts where Guiliani and Powell allegedly stated that Smartmatic was founded to “fix elections” and “alter votes,” its technology is “extremely hackable,” it was “banned by the United States,” its technology was “corrupt” and “switched votes,” it has an “algorithm” used to “modify the votes,” and Smartmatic was part of “one huge criminal conspiracy” to manipulate the 2020 election. Smartmatic filed suit against Fox News, several of its on-air hosts, Guiliani, and Powell seeking $2.7 billion in damages, making it one of the largest defamation complaints ever filed. Continue reading ›

Not every renter loves his landlord. And many people express their feelings, for better or for worse, on social media. However, sometimes what is said on social media can land a person in hot water. Such was the case for one Iowa resident whose social media venting landed him in court as the defendant in a defamation lawsuit that wound its way all the way up to the Iowa Supreme Court. Luckily for the individual, the Iowa Supreme Court held that referring to a landlord as a “Slumlord” was not defamatory but constituted non-actionable opinion.

The plaintiff in the case was Richard Bauer, the manager of the Bauer Apartments located in the small town of Sloan, Iowa. The defendant was Bradley Brinkman, who lived across the street from the Bauer Apartments. The dispute that landed Brinkman in court started out having nothing to do with him at all.

A dog care facility, Pet Perfect, began construction next to the Bauer Apartments. Bauer was concerned that issues would arise from the dogs and their feces due to the outdoor area being constructed. Bauer tried to get the construction stopped. First, he contacted the Sloan City Council. He also contacted the owner of Pet Perfect about his concerns and offered to buy the parcel of land where the facility was being built. The owner refused to sell. Next, Bauer filed suit against the City of Sloan and the city council members claiming they failed to enforce a zoning ordinance in approving the construction of the facility.

During this ordeal, Pet Perfect posted on its own Facebook page about Bauer’s lawsuit and cameras he had installed on the exterior of the apartments. The daughter of Pet Perfect’s owner also posted about the ordeal on her own personal Facebook page. She included in her post a photo of a letter Bauer’s attorney sent to her mother. Several people commented on the post, including Brinkman, who it turned out was a friend of the owner of Pet Perfect. Brinkman’s Facebook comment stated:

It is because of shit like this that I need to run for mayor! [grinning emoji] Mr. Bauer…you sir are a PIECE OF SHIT!!! Let’s not sugar coat things here people. Kathy Lynch runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love to have you walk across the street to the east of your ooh so precious property and discuss this with me!

Continue reading ›

As we previously covered here, an Illinois appellate court revived a lawsuit filed by Chicago Bears legend Richard Dent which seeks to learn the identity and addresses of unidentified individuals who published allegedly defamatory statements about Dent which allegedly cost him several lucrative marketing contracts. Following the ruling in Dent’s favor, the respondents in the case sought to challenge the First District’s ruling and requested a review of the case by the Illinois Supreme Court. Recently, the Illinois Supreme Court granted the petition for leave to appeal and will hear arguments in the case later this year.

For background, the case dates back to 2018 when energy supplier Constellation NewEnergy terminated various energy supply and marketing contracts with Dent and his company RLD Resources, LLC. Dent met with the energy company’s attorneys during which the attorneys informed Dent that the company had received complaints about him from multiple individuals accusing him of inappropriate comments and conduct at several Constellation-sponsored events. The attorneys refused to identify the complaining individuals. Shortly after the meeting, Constellation terminated its contracts with Dent. Continue reading ›

On March 18, the Illinois Supreme Court issued a much awaited opinion finding that private investigator Paul Ciolino’s defamation lawsuit against Chicago attorney Terry Ekl among others was not filed too late. In their briefs before the Court, the parties framed the question in terms of whether or not the discovery rule delayed the beginning of the one-year statute of limitations. The Court held that Ciolino’s action was timely but based its decision not on the arguments proffered by the parties either side or on the reasoning of the appellate court.

The case centers on a book titled Justice Perverted: How the Innocence Project of Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison and a later documentary titled “Murder in the Park.” The subject of both the book and the documentary was the effort to convict Alstory Simon of a 1983 double homicide on Chicago’s southeast side, one of the most famous murder cases in Illinois’ recent history. Ekl, an attorney who represented Simon in his post-conviction proceedings, is among those whose comments are featured in the documentary.

The book and documentary posit the theory that Ciolino and others framed Simon in order to secure the exoneration of Anthony Porter, who was originally targeted for the murders, and to ultimately bring about an end to the death penalty in Illinois. They claimed that Ciolino and a Northwestern journalism professor coerced Simon into confessing to the crimes for which Porter had been earlier convicted. Simon’s conviction was later overturned and he was ultimately cleared of the murders in 2013, after Ciolino was accused of impropriety in obtaining the confession. Continue reading ›

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