Defamation, Libel and Slander

Exploring the New US Supreme Court Libel Opinions: Protecting Free Speech in the Digital Age

September 23, 2023 | Peter S. Lubin and Patrick Austermuehle

Introduction

In an era marked by rapid technological advancements and the omnipresence of the internet, the boundaries of free speech have become more ambiguous than ever before. In the United States, the First Amendment safeguards the freedom of expression, including the freedom of the press. However, this freedom is not absolute, and there are instances where speech can cross the line into libel, damaging reputations and causing harm. To address this evolving landscape, the United States Supreme Court has issued several groundbreaking opinions on libel in recent years. In this blog post, we will explore some of these significant rulings and their implications for free speech in the digital age.

New York Times v. Sullivan (1964) – Setting the Standard

Before delving into the recent opinions, it’s essential to understand the foundational case of New York Times v. Sullivan. This landmark decision established a higher standard for public figures to prove libel. To succeed in a libel lawsuit, public figures must demonstrate “actual malice,” which means that the defamatory statement was made with reckless disregard for the truth. This precedent has been pivotal in protecting freedom of speech, ensuring that robust public debate can take place without fear of crippling defamation suits.

Milkovich v. Lorain Journal Co. (1990) – Opinions or Factual Statements?

In the case of Milkovich v. Lorain Journal Co., the Supreme Court grappled with the distinction between opinions and factual statements. The ruling clarified that even statements of opinion can be considered libelous if they imply false facts. This decision underscored the importance of fact-checking and journalistic integrity in the world of media and journalism. Continue reading ›

The Resolution of the Kesha and Dr. Luke Libel Suit: Long Running “Me Too” Case Comes to an Inconclusive End

September 20, 2023 | Peter S. Lubin and Patrick Austermuehle

In the ever-evolving landscape of the entertainment industry, few legal battles have captured as much attention and controversy as the long-standing dispute between pop superstar Kesha and music producer Dr. Luke. For years, this high-profile libel suit cast a shadow over both artists’ careers and ignited passionate discussions about the complexities of the music industry, artistic freedom, and the pursuit of justice. In this blog post, we will explore the settlement of the Kesha and Dr. Luke libel suit and the implications it carries for the entertainment world.

Background

The conflict between Kesha (born Kesha Rose Sebert) and Dr. Luke (real name Lukasz Gottwald) dates back to 2014 when Kesha accused her former producer of sexual, physical, and emotional abuse, which Dr. Luke vehemently denied. In response, Dr. Luke filed a defamation lawsuit against Kesha, claiming that her allegations damaged his reputation and career. This legal battle became a focal point of the #MeToo movement, sparking a broader conversation about the treatment of women in the music industry.

The Settlement

After years of legal wrangling, in February 2021, Kesha and Dr. Luke reached a settlement that put an end to their protracted legal dispute. The terms of the settlement were kept confidential, leaving many unanswered questions about what led to this resolution. While the public may never know the details of the agreement, the mere fact that both parties chose to settle speaks volumes about the complexities of their case. Continue reading ›

Sandy Hook Families Argue Their Payments Should Be Exempt from InfoWars Bankruptcy

September 7, 2023 | Peter S. Lubin and Patrick Austermuehle

Bankruptcy allows people and businesses to “discharge” some of their debts. But representatives for the families of the children involved in the Sandy Hook massacre are asking Judge Christopher Lopez to make the settlement money Alex Jones owes them “non-dischargeable.”

The families sued Alex Jones, who repeatedly called the Sandy Hook massacre a hoax on his website and podcast, InfoWars. His rhetoric prompted many of his followers to harass the families and survivors of Sandy Hook, both in person and online. Some families were forced to move to a different neighborhood, and many still do not feel safe as a result of the harassment and death threats to which they have been subject by Jones’s followers.

In the fall of 2022, Jones was ordered to pay close to $1 billion to the families of Sandy Hook for defaming them for years on his website and his podcast. That was after defamation trials in Texas and Connecticut ordered Jones to pay $1.4 billion in damages to the families of 10 victims of the Sandy Hook shooting. Continue reading ›

A Defamation Lawsuit Against a Local Newspaper Was Dismissed – It Still Might Put the Newspaper Out of Business

August 30, 2023 | Peter S. Lubin and Patrick Austermuehle

People who already have wealth and power are increasingly using defamation lawsuits as a weapon against their enemies. Even when the lawsuits are found to be baseless, they’re still having the desired effect of silencing the plaintiff’s opponents.

Newspapers have increasingly been targeted by defamation lawsuits. While large, national newspapers, such as The New York Times and The Washington Post have the resources to fight these lawsuits, small, local newspapers do not.

The Wausau Pilot & Review is a local newspaper reporting on local events in Wausau County, located in north-central Wisconsin. When they got a tip from a reader that someone at the August 12^th meeting of the Wausau County board used an anti-gay slur, they acted on the tip and reported on it in their newspaper. Continue reading ›

Man Ordered to Pay $1.2 Billion for Sharing Explicit Photos and Videos of His Ex-Girlfriend

August 22, 2023 | Peter S. Lubin and Patrick Austermuehle

Destroying someone’s reputation is easier than ever. Rather than spreading rumors amongst their friends one at a time, all you need now is access to the internet and you can spread lies and unflattering photos of them all over the world. But just because it’s easy doesn’t mean it’s legal.

One method of online harassment affecting women more than men is former partners posting nude photos and videos of them online when the relationship ends. In one recent case, a woman’s ex-boyfriend created fake email and social media accounts so he could share nude photos and videos of her online.

The woman, who is only listed as D.L. in the lawsuit to protect her privacy, started dating Marques Jamal Jackson in 2016 and was living with him in Chicago in early 2020 when their relationship began to fall apart. According to the lawsuit, the process of ending the relationship was long and drawn out. Continue reading ›

Federal Judge Dismisses Trump’s $475 Million Defamation Lawsuit

August 1, 2023 | Peter S. Lubin and Patrick Austermuehle

You would think someone who has been a public figure for as long as Donald J. Trump has would know what a high bar public figures have to meet when it comes to suing for defamation, especially given the number of defamation lawsuits in which Mr. Trump has already been involved.

Nevertheless, Mr. Trump filed yet another defamation lawsuit against the Cable News Network (CNN) for allegedly comparing him to Adolf Hitler and Nazism.

The statements at the center of the lawsuit include repeated references to Mr. Trump’s “big lie,” meaning his insistence that he won the 2020 presidential election, and Biden and the Democrats cheated to steal the presidency from him. The lawsuit also claims that CNN’s alleged defamation has increased lately amid the network’s fears of Mr. Trump running for reelection in 2024.

Mr. Trump’s defamation lawsuit asked for $475 million in damages, but the case was dismissed by Judge Raag Singhal, who was nominated to the District Court by then-President Trump in 2019.

Singhal pointed out that CNN’s statements about Mr. Trump did not meet the defamation threshold of being false. Singhal denied the conclusion made by the lawsuit that CNN’s statements suggested Mr. Trump supported the persecution or genocide of Jews. Continue reading ›

First Amendment Protects the New York Times from Donald Trump’s Lawsuit

June 8, 2023 | Peter S. Lubin and Patrick Austermuehle

Among the many legal battles involving Donald Trump these days is a recent lawsuit in which Trump sued his niece, Mary Trump, along with the New York Times for reporting on his tax records in 2018. The series of articles accused Trump of engaging in tax schemes and cast doubt on his claims of being a self-made millionaire. The reporting earned a Pulitzer Prize, but Trump alleges it was all part of a plot to uncover confidential records. The lawsuit was filed in 2021 and is seeking $100 million in damages, but the judge dismissed the legal action against the newspaper.

The First Amendment to the U.S. Constitution protects the right to free and open discussion, especially when it comes to public figures. The founding fathers wanted to encourage the public release of information around public figures with the idea that it would give the public access to more information about the people they were electing to represent them.

It’s a critical ingredient to our democratic system, which is why it’s more difficult for a public person to successfully sue for defamation, especially when they’re going up against a news organization. That’s why New York Supreme Court Justice Robert Reed dismissed Trump’s claims against the newspaper, saying they had no basis in constitutional law. He added that the reporting in question was nothing more than routine newsgathering, and as such, is protected by the First Amendment. Continue reading ›

Substantial Truth is a Defense to a Libel or Defamation Claim in Illinois

May 11, 2023 | Peter S. Lubin and Patrick Austermuehle

A defamation claim should be dismissed under the “substantial truth” defense where the “gist” or “sting” of the allegedly defamatory material is true.” Harrison v. Chicago Sun-Times, Inc., 341 Ill.App.3d 555, 563 (1^st Dist. 2003) (reporter defendant’s use of the word “kidnapped” conveyed the gist or sting that would have been conveyed by the correct phrase “wrongful removal under federal and international child abduction law”). “Substantial truth” makes an allegedly defamatory statement non-actionable even when the statement is an inaccurate characterization of criminal behavior. That is so even when a statement is “not technically accurate in every detail.” Accord, Bertha v. Daily Herald Newspaper, 2022 IL App (2d) 210695, ¶ 20. See also Lemons v. Chronicle Pub. Co., 253 Ill.App.3d 888 (4^th Dist. 1993) (reporter’s words were substantially true because the reporter’s and plaintiff’s characterizations of the conduct were similar).

The substantial truth of a statement is normally a jury question, but where no reasonable jury could find that substantial truth had not been established, the question is one of law. Harrison, 341 Ill. App. 3d at 563.t Dist. 2003)

Harrison was a notable case in Illinois that involved a claim of defamation against a prominent newspaper, the Chicago Sun-Times. The case was decided by the Illinois Appellate Court in 2003 and had significant implications for media law in the state including reiterating the substantial truth defense.

The plaintiff in the case was Michael Harrison, a former employee of the Chicago Transit Authority (CTA) who had been fired from his job. The Sun-Times published a series of articles about Harrison’s termination, which included allegations of misconduct and corruption. Harrison sued the newspaper for defamation, arguing that the articles had damaged his reputation and caused him to suffer financial harm.

The trial court granted summary judgment in favor of the Sun-Times, finding that the newspaper’s statements about Harrison were either true or protected by the First Amendment’s guarantee of freedom of the press. Harrison appealed the decision to the Illinois Appellate Court, which affirmed the trial court’s ruling.

The Sun-Times argued that its articles about the plaintiff’s termination from the CTA were substantially true. The newspaper had conducted an extensive investigation into the circumstances of the termination, and had based its reporting on official documents and interviews with CTA officials. The articles accurately reported the substance of those documents and interviews, the newspaper argued, and any minor inaccuracies or omissions were not material to the overall story.

The Illinois Appellate Court agreed with the Sun-Times, finding that the articles were substantially true and therefore not defamatory. The court noted that the newspaper’s reporting was based on official documents and interviews with CTA officials, and that the articles accurately conveyed the substance of those sources. The court also found that the plaintiff had not shown that any inaccuracies or omissions in the reporting were material to the overall story or had altered its meaning.

The defense of substantial truth can be a powerful tool for defendants in defamation cases, particularly in cases involving public figures or matters of public interest. By demonstrating that a statement is substantially true, defendants can often avoid liability for allegedly defamatory statements even if they contain some minor inaccuracies or omissions.

Another one of the key issues in the case was whether the Sun-Times had acted with actual malice in publishing the allegedly defamatory statements about Harrison. Under U.S. defamation law, public figures like Harrison must prove that the defendant acted with actual malice – that is, with knowledge that the statements were false or with reckless disregard for their truth or falsity – in order to succeed in a defamation claim.

The Appellate Court in Harrison v. Chicago Sun-Times, Inc. found that there was no evidence that the newspaper had acted with actual malice. The court noted that the Sun-Times had conducted an extensive investigation into Harrison’s termination and had based its reporting on official documents and interviews with CTA officials. The court also found that the Sun-Times had accurately reported the content of those documents and interviews, and had not fabricated or distorted any facts.

The court’s decision in Harrison v. Chicago Sun-Times, Inc. reaffirmed the importance of the First Amendment’s protections for freedom of the press, particularly in cases involving public figures. It also highlighted the high standard of proof that public figures must meet in order to succeed in a defamation claim, emphasizing the need to prove actual malice on the part of the defendant and to defeat a substantial truth defense.

Harrison was a significant case in the evolution of media law in Illinois and the United States, underscoring the importance of a free and independent press in holding public officials accountable and informing the public.

Edelman Case Precludes Use of Litigation Privilege in Libel and Defamation Cases When Communications Have No Connection to the Lawsuit

May 10, 2023 | Peter S. Lubin and Patrick Austermuehle

The litigation privilege does not apply when a defamatory communication is made to people who have no legitimate “connection to the lawsuit.” Edelman, 338 Ill. App. 3d at 166. The Edelman rule applies whether or not a lawsuit has been filed, whether or not the complaint was shown to outsiders or its underlying allegations just discussed with them, and whether or not the complaint was a draft or filed version.

Nothing in Edelman supports holding that publication of a lawsuit in the court file immunizes the plaintiff in that case from libel claims if he publishes the lawsuit’s claims outside of the litigation.

The Edelman court made its findings based on facts about one attorney who had received a “draft or final” brief and another who had received a draft, all distributed after a bankruptcy trustee moved to reopen the bankruptcy estate. 338 Ill. App. 3d at 162. The court did consider an attorney’s receipt of a final, filed brief. But whether the briefs were in draft or final form was irrelevant to the holding that the allegedly defamatory communications made to two attorneys were not privileged. Id. at 166. Because neither attorney had a relationship to the litigation, the absolute privilege did not apply. Id. “Illinois has never extended the privilege to other persons without a connection to the lawsuit.” Id., citing, Kurzcaba v. Pollack, 318 Ill. App. 3d 686, 704 (1^st Dist. 2000), and Thompson v. Frank, 313 Ill. App. 3d 661, 664 (3^rd Dist. 2000).

Kurczaba did not reject he privilege only because the case involved an amended complaint not yet filed with leave of court. But, that court actually opined, “Assuming, arguendo, that defendant had a right to disseminate the Malus complaint with the ad, we nonetheless would find that the dissemination was also not protected by the attorney litigation privilege because the groups defendant disseminated the materials to extended beyond those covered by the privilege.” 318 Ill. App. 3d at 703. Continue reading ›

Reporter Says He Is Considering a Defamation Lawsuit Against Adam Schiff

February 20, 2023 | Peter S. Lubin and Patrick Austermuehle

While the internal documents Elon Musk dumped onto Twitter turned out not to have been the smoking gun on Hunter Biden that Republicans had been hoping for, it did contain some information on Representative Adam Schiff that might lead to legal action.

According to the documents, Schiff lobbied Twitter to get a journalist, Paul Sperry, banned from the social media site back in the fall of 2020 during the first impeachment of President Trump. Sperry is a senior reporter for RealClearInvestigations.com and a columnist for the New York Post. He told Fox News that he was targeted by Schiff for reporting on sources Democrats were relying on during the impeachment trial. Continue reading ›