Articles Posted in Defamation, Libel and Slander

An Illinois Appellate Court recently affirmed a ruling dismissing the defamation claims filed by a manager of a homeowners association stemming from comments made about him during a meeting of the HOA. The Court ruled that the manager could not maintain his claims because the allegedly defamatory comments were protected from liability by qualified privilege.

The plaintiff in the case, Philip Kiss, managed the HOA from 2010 to 2016 and also served as its attorney during this time. The board relieved Kiss of his duties in 2016. In November 2017, one of the board members, Ellen Sheldon, stated during a meeting of the HOA, “I don’t want a person who comes to a homeowners meeting drunk managing our … association and he came drunk in 2015.” In response to a question asking how she knew Kiss was drunk, Sheldon said, “because he stood right at my face and he breathed at my face which was unbelievable[.] I wanted to pass out. And he could not speak clearly. [T]he man did not belong managing us[.] [T]hank God he’s not anymore.”

Kiss sued both the HOA and Sheldon alleging defamation and false light invasion of privacy. The defendants moved to dismiss the complaint arguing, in part, that the statements were protected by qualified privilege because they were made during a board meeting of the HOA. After several amendments to Kiss’s complaint, defendants again sought to dismiss the claims based on qualified privilege. The trial court granted the defendants’ motion and dismissed the claims with prejudice. Kiss appealed arguing that the trial court improperly dismissed his claims and refused to allow him to re-plead his claims for a fifth time. Continue reading ›

For nearly six weeks, many have followed the defamation trial between Johnny Depp and his former wife Amber Heard. The trial has provided potent insight into the destructive effects of drugs, alcohol, and stardom. It has also highlighted the perhaps more relatable lesson that ending a marriage can be a messy process. Emotions run high, tempers flare, and deep wounds can lead former spouses to lash out. Sometimes these outbursts result in saying things that are hurtful or even defamatory. Such is the basis of the case of Depp and Heard.

The dispute between Depp and Heard stems from a December 2018 opinion column by Heard printed in The Washington Post. In the column, Heard described herself as a victim of domestic violence. While the column did not name Depp directly, Depp has argued that it included enough detail and time references to allow readers to deduce that she was talking about Depp, to whom she was married briefly from 2015-2016. For instance, the 2018 column stated “two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” Readers were quick to connect the dots recalling that she had first raised allegations of abuse during her and Depp’s 2016 divorce proceedings. These allegations were also reported in a London tabloid that Depp sued unsuccessfully in 2020 for labeling him a “wife-beater.”

Depp responded to the op-ed by suing Heard for $50 million. She responded by countersuing Depp for $100 million in damages. The seven-person jury in the case is considering Heard’s countersuit alongside Depp’s original claim.

One lesson about defamation law can be learned from considering where the suit was filed. Depp filed suit in the in Fairfax County Circuit Court in Virginia, though neither he nor Heard live or work in Virginia. Both reside, at least part time in California, but neither chose to file their claims in a California court. Why? There are at least two reasons. Continue reading ›

We previously wrote about Chicago Bears legend Richard Dent’s lawsuit seeking the identities of individuals who he alleges defamed him and cost him and his company to lose a lucrative contract. Dent initially lost at the trial court level but won in the appellate court. The Illinois Supreme Court then agreed to consider the case.  In its recent opinion, the Court ruled against Dent finding that he is not entitled to discovery to determine the names of people that he claims wrongly accused him of sexual harassment and drunken behavior in the course of an investigation, which ultimately cost him and his company a lucrative marketing contract with an energy supplier.

Justice Michael J. Burke wrote the majority opinion, which was joined by everyone but Justices Rita Garman, P. Scott Neville, and Anne Burke, who took no part in the decision. Justice Garman penned a dissenting opinion which was joined by Justice Neville.

As we previously wrote about, the case revolves around the March 2019 Rule 224 petition filed in the Cook County Circuit Court by Dent and his company, RLD Resources, seeking discovery related to the identity of certain individuals the petitioners claimed defamed Dent. In their petition, the petitioners asked the judge to order energy supplier Constellation to disclose the names and addresses of at least three individuals who allegedly defamed Dent. Continue reading ›

People who want to be entrepreneurs are often told to find a problem in the world that they can solve, then build their business (and their marketing efforts) around solving that problem for their customers. That’s exactly what Melissa Nelson and Jeremy O’Sullivan thought they were doing for McDonald’s and its customers before McDonald’s started telling its franchisees that the technology Nelson and O’Sullivan had created could lead to worker injuries.

The problem Nelson and O’Sullivan sought to solve is the prevalence of ice cream machines at McDonald’s constantly breaking down. It’s such a common occurrence that it has inspired memes (and even some conspiracy theories) that pop up all over the internet. You’d think McDonald’s would be eager for a solution to the problem, but Nelson and O’Sullivan were surprised to find that was not the case.

The two would-be problem solvers met as freshmen at Bucknell University in 2005 and started a business together, FroBot, in 2011. FroBot sold frozen desserts from automated soft-serve machines made by the same company that supplies McDonald’s ice cream machines, Taylor Company. The only problem was the machines kept breaking down and the only way to get them up and running again was to call one of the company’s technicians. But according to Nelson, the technicians were more likely to blame a lack of electrical power, if they found any problem at all. Continue reading ›

Earlier this month, former governor of Alaska and vice presidential candidate Sarah Palin lost her defamation suit against the New York Times when a federal jury found in favor of the newspaper. Palin’s lawsuit had alleged that the New York Times and its former editor, James Bennet, defamed the former governor when it published an opinion column that incorrectly linked Palin to the 2011 Tucson, Arizona mass shooting, in which a federal judge was killed and Democratic House of Representatives member Gabrielle Giffords was wounded.

As many legal commentators and defamation law practitioners had noted, Palin faced an uphill battle going into the trial given the protections afforded to media defendants under current First Amendment case law. Most, however, could not have predicted the chain of events that unfolded in the case. First, as we previously wrote about, the trial itself was delayed when Palin tested positive for COVID-19 on the eve of jury selection. Then following the trial itself, the trial judge announced that he would dismiss the case while the jury was still deliberating. In an unusual move, the judge stated that he would allow the jury to continue deliberations but would ultimately dismiss the case no matter how the jury ruled. In total, the jury deliberated for a little over two days.

The trial was also unique in that it is unusual for defamation lawsuits with public figure plaintiffs to reach trial. In the landmark 1964 decision in New York Times v. Sullivan, the Supreme Court established a heightened “actual malice” standard for public officials to prevail in defamation cases. Under the actual malice standard, public officials must establish that the defendant either knew that the statement was false or had “reckless disregard” of the falsity of the statement in order to prevail on a claim of libel or slander. Absent actual malice, media defendants are protected by the First Amendment from defamation liability.

As the trial judge explained when announcing his ruling, Palin is expected to appeal the loss. It has been speculated that Palin is ultimately hoping to bring her case to the Supreme Court where Justices Clarence Thomas and Neil Gorsuch have expressed a willingness to reexamine the more than half century-old New York Times standard. Continue reading ›

Melissa McGurren, former co-host of the popular radio show, “Eric in the Morning,” recently sued Hubbard Radio Chicago for allegedly defaming her in an internal email in which an executive of the radio station said they did not agree with McGurren’s statements about workplace harassment at the station. McGurren alleges the email defamed her to her former coworkers because it implied she was a liar, but according to a federal judge, defendants need to do more than imply in order to be found guilty of defamation.

McGurren spent more than two decades working at WTMX-101.9-FM, the radio station that hosts “Eric in the Morning,” but she left the station in 2020, saying her years of complaining about Eric Ferguson’s behavior, both on and off the air, were ignored by station executives. Among other things, McGurren described her fear of working in the same room as Ferguson during the COVID-19 pandemic. Initially, she said she worked in a space where she was separated from Ferguson by a window because her asthma and other medical issues put her at high risk for COVID-19. According to McGurren, Ferguson harassed her about the setup until she agreed to get back in the studio with him in June of 2020, even though she said she still felt very uncomfortable doing so.

According to her lawsuit, Jeff England, the vice president of the station, allegedly defamed her when he said in an email to the station’s staff that the station did not agree with the way she had characterized events with Ferguson. In her defamation lawsuit, McGurren alleged the email amounted to telling her former coworkers she was a liar, but a federal judge disagrees. Continue reading ›

Sarah Palin’s libel lawsuit against The New York Times was already unusual in that it made it all the way to trial, whereas most libel lawsuits settle outside of court. The lawsuit recently became even more noteworthy when the defense attorneys asked the court to rule in their favor, even if the jury ruled in Palin’s favor, and Judge Rakoff said he would. The decision effectively nullified the jury’s decision before the jury had a chance to reach a decision.

The jury did rule in favor of The New York Times, but there is no longer any way to tell whether their decision was influenced by the judge expressing his willingness to overrule their decision if they ruled in Palin’s favor. The judge’s announcement certainly put the jury in an awkward position, since they were instructed to stay away from news about the case to avoid swaying their decision, but they were most likely able to read reports of the judge’s decision prior to making their own.

Nevertheless, Judge Rakoff’s ruling is not surprising. He had dismissed the case back in 2017, but in 2019 an appellate court reversed his decision and sent the case back to his court.

Palin and her legal team viewed this lawsuit as an opportunity to weaken the protections the First Amendment extends to news outlets so they can report without fear of a lawsuit like this one making it to trial. The lawsuit is one of many filed by right-wing figureheads against various news outlets in an attempt to silence those outlets. Continue reading ›

Former Alaska Governor and vice-presidential candidate Sarah Palin’s much-anticipated defamation trial against the New York Times was set to begin in federal court, but was rescheduled at the last minute after she tested positive for Covid-19 a day before jury selection was slated to begin. Defamation and First Amendment attorneys and legal scholars around the country have been keenly following the litigation as it could test key First Amendment protections for media. The trial has been rescheduled for February 3.

After learning of Palin’s positive COVID-19 test, the judge presiding over the case prepared ready to move forward with the trial, with Palin’s consent, and offered to allow her to testify via videoconference. Palin’s lawyers objected, however, and argued that she wanted to be present for jury selection and to provide her testimony live during trial.

The former governor sued the Times in 2017 over an editorial that incorrectly linked the 2011 mass shooting in Tucson, Arizona that left six people dead, including a federal judge, and gravely wounded others including Arizona Representative Gabby Giffords to a map showing certain electoral districts in crosshairs that was circulated by Palin’s political action committee. The Times later corrected the op-ed to remove any suggestion that Palin incited the shooting and apologized for the error. After Palin filed the case in federal court, the judge initially dismissed the case, but it was revived on appeal. Continue reading ›

Palin’s lawsuit against The New York Times alleges the newspaper defamed her in an editorial it published that incorrectly linked Palin’s own political rhetoric with a mass shooting that took place near Tucson, AZ in 2011 in which six people were killed and 14 others were wounded. The casualties included Gabrielle Giffords, who was shot in the head and was a Democratic member of Congress at the time.

As it happened, the editorial about Palin was published on June 14th, 2017. That same day, a gunman opened fire on several Republican congressmen at a baseball field in Virginia. The editorial suggested the 2017 shooting in Virginia was evidence of how violent American politics had become.

The editorial also suggested Palin’s own violent language might have incited the 2011 shooting, pointing to a map that had been circulated by Palin’s own political action committee that showed crosshairs over congressional districts Republicans were hoping to pick up in the next election, including Giffords’s district.

The Times later corrected the error by saying it had made a mistake in linking the shooting with Palin’s rhetoric, but her libel lawsuit against the newspaper is still going forward in the courts. It is just one in a string of lawsuits against major news outlets that want media outlets to pay a higher price for making a mistake. Continue reading ›

In a decision dealing with prior restraints on speech, the First District Appellate Court recently held that the trial court overstepped federal and state constitutional bounds when it ordered a company and its president to refrain from making any future online statements about a vendor the company had hired. The First District vacated the order entered by Cook County Circuit Judge Diane M. Shelley and issued an opinion explaining why the trial court’s order violated longstanding constitutional principles of free speech.

The plaintiff, Same Condition, LLC is a company that sought to create a web-based, medical patient-centered software application. Same Condition’s president, Munish Kumar, was a counter-defendant in the suit. Same Condition hired the defendant, Codal, Inc., to develop its software application. Codal allegedly failed to deliver the software application on time and when it did, Same Condition found the software to be unacceptable.

In May 2019, Same Condition sued Codal for breach of contract, among other claims. Codal then countersued Same Condition and Kumar for defamation per se, defamation per quod, violation of the Uniform Deceptive Trade Practices Act and commercial disparagement based on critical comments and reviews that Same Condition and Kumar had posted online. Continue reading ›

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