Articles Posted in Defamation, Libel and Slander

The Board of Forensic Document Examiners (“Board”), a non-profit organization that administers a certification program for forensic document examiners, filed a defamation lawsuit against the American Bar Association (“ABA”) alleging that it suffered reputational harm from an article published in an ABA law journal. A federal district court dismissed the claim finding that the statements in the journal article were non-actionable opinion protected from liability by the First Amendment. The non-profit appealed and the Seventh Circuit, agreeing with the district court, affirmed the dismissal.

The summer 2015 edition of The Judges’ Journal, a journal published by the ABA, contained an article written by Thomas Vastrick, a forensic document examiner who was certified by one of the plaintiff’s competitors, the American Board of Forensic Document Examiners. The article purported to offer judges guidance for evaluating the qualifications and credentials of forensic document examiners, which analyze and compare handwriting and provide expert testimony in judicial proceedings. In the four-page article, Vastrick urged judges to look for experts certified by the American Board of Forensic Document Examiners and to “be wary of other certifying bodies.”

The article did not mention the Board by name. Nonetheless, the Board believed that the article defamed its members by creating the impression that they were “lesser qualified” examiners than those certified by the American Board of Forensic Document Examiners. The Board responded to the article by filing suit alleging defamation per se and invasion of privacy on behalf of its members generally and one member specifically who was singled out in Vastrick’s article.

The Board’s complaint focused on four specific statements in the article. The first statement urged judges that to be “an appropriately trained forensic document examiner,” the examiner should have completed “a full-time, in-residence training program lasting a minimum of 24 months[.]” The next statement claimed that “The American Board of Forensic Document Examiners … is the only certification board recognized by the broader forensic science community, law enforcement, and courts for maintaining principles and training requirements concurrent with the published training standards” and warned judges to “be wary of other certifying bodies.” The remaining two statements generally warned judged to look out for and be wary of examiners certified by any certification board other than The American Board of Forensic Document Examiners. Continue reading ›

Earlier this month, a Florida daycare responded to a negative online review left by parents of a child that until recently attended the daycare by serving the parents who left the review with a defamation lawsuit. The parents, Marc LaRocco and Kimberly Moore, left the review after they claim the daycare, The Learning Experience, repeatedly fed their son Owen dairy despite being notified that the child had an allergy to milk.

The parents of the child who attended The Learning Experience daycare in Sunrise, Florida claim that they notified the daycare upon enrolling their son that he was allergic to milk. Despite this, the parents claim that the daycare sent them pictures on numerous occasions of their son eating foods containing dairy. The parents claim that their son suffered rashes and vomiting as a result.

After removing their son from the daycare, the parents took to social media to describe what they claim was their experience at The Learning Experience in Sunrise, Florida. In lengthy online reviews, the couple made statements, according to the complaint, such as: “The Learning Experience- Sunrise is ill-equipped to handle children with any type of special needs.” The complaint also alleges that the couple wrote that: “This school needs a complete overhaul in training and management” and “If you value your child’s life, do not allow them to attend this facility.” The daycare responded to the reviews by filing a lawsuit claiming that the statements were “false and injurious” false and made with “reckless disregard for the truth.” The daycare alleges that the “statements were communicated to at least 500,000 third parties” and “negatively impacted (The Learning Experience’s) trustworthiness and character.” A CBS affiliate in Miami ran a story about the lawsuit and interviewed the parents. That story and the interview can be found below:

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This year marks one hundred years since the birth of modern First Amendment jurisprudence. In 1919, as the United States was recovering from the effects of World War I, the U.S. Supreme Court grappled with a series of cases involving the speech of political dissidents charged with violating federal laws designed to quell criticism of the U.S. war effort, draft, or policy toward foreign nations.

The first of the free speech cases that came before the Supreme Court in 1919 was Schenck v. United States. The Schenck defendants were convicted for violating the Espionage Act of 1917 for distributing leaflets that criticized the draft and supported that position by reciting language from the 13th Amendment. Writing for a unanimous court, Justice Oliver Wendell Holmes affirmed the defendants’ convictions, reasoning that what can be said in times of peace may not be legal during times of war. In short, the First Amendment had limits.

Holmes reasoned that, “[t]he character of every act depends upon the circumstances in which it is done,” which he followed with the now-famous hypothetical of “a man in falsely shouting fire in a theatre and causing a panic.” Holmes’s opinion was also noteworthy in that it introduced the “clear and present danger” test which became the test applied by courts in First Amendment cases for the next five decades.

Perhaps the most impactful opinion to come from the 1919 free speech cases was Justice Holmes’s dissent in Abrams v. United States­—a dissent that has come to be known as the “great dissent.” Few could have known at the time Justice Holmes penned his dissent that his words would begin shaping the contours of our understanding of the First Amendment and the freedoms guaranteed by it—freedoms that are considered by many around the world to be quintessentially American.

The Abrams case was not particularly noteworthy. It was in many respects a repeat of Schenck. And like Schenck, the convictions of the defendants charged with violating the Sedition Act of 1918 were upheld. But despite coming only a few months apart, Justice Holmes voted to uphold the convictions in Schenck and to overturn the convictions in Abrams. What was the difference? Continue reading ›

A former judge of the Illinois circuit court sued a reporter and a newspaper, accusing them of defamation and false light for publishing an article in which a law professor was quoted as stating that the judge was “corrupt as the day is long” in relation to the judge’s practices when handling asbestos litigation. The Illinois Appellate Court found that the statement was protected speech as an ordinary reader would consider it to be hyperbole.

Heather Gvillo, a reporter for the Madison County Record wrote an article in September 2014 concerning asbestos litigation which recently concluded in the Madison County circuit courts. The article quoted Darren McKinney, Communications Director for the American Tort Reform Association, who stated that Madison County’s reputation as an unfriendly venue for defendants in asbestos-related litigation was due to the actions of Nicolas G. Byron, then a judge in the circuit court. The article went on to state that McKinney believed Byron to be shamelessly plaintiff-friendly, and that Byron allegedly designed a docket in order to beat defendants into submission prior to going to trial, by scheduling trial slots for a single defendant in multiple cases on a single day, resulting in the inability of defendants to prepare for trial. This allegedly led to defendants deciding to settle their cases. Continue reading ›

Smollett’s Alleged Attackers Sue His Attorneys for Defamation

The case of the alleged attack against Jussie Smollett continues to get even more strange. After an outpouring of love and support following an allegedly racist and homophobic attack on Jussie Smollett in Chicago, in which his face was scratched and a noose was tied around his neck, the media turned on Smollett after the Chicago police department found evidence that the attack had been staged and Smollett had been in on it the whole time.

Despite Smollett’s initial claim that his attackers had been white men wearing MAGA hats, the Chicago police department found video surveillance footage of the two alleged attackers purchasing the items used in the attack. That happened just hours before the attack happened, and instead of white men, the video showed two black men who turned out to be Olabinjo and Abimbola Osundairo, two brothers who both had connections to Smollett through the show Empire, on which Smollett stars. Further condemning Smollett and his alleged conspirators was the evidence the Chicago police department says they found showing that Smollett and the Osundairo brothers were in contact with each other shortly before and shortly after the alleged attack.

What sealed the deal for the investigation was getting the Osundairo brothers into custody, where they confessed to conspiring with Smollett to stage the attack.

Smollett was charged with filing a false report, but he and his attorneys maintain he was innocent and the attack was real. The prosecutors quickly dropped all charges against him, even as they insisted they could prove the attack had been staged. That’s common when the two parties agree to a settlement in which the defendant agrees to pay a certain amount without admitting to any fault, but that didn’t happen in this case, leaving many people scratching their heads as to what could have prompted the prosecutors to drop all charges.

Meanwhile, Smollett has been giving interviews to the press doubling down on his version of the story, in which the Osundairo brothers attacked him.

Well, the situation just got even more interesting following a defamation lawsuit filed by the Osundairo brothers against Smollett’s attorneys: Mark Geragos, Tina Glandian, and the Geragos & Geragos Law Firm. Continue reading ›

One of the reasons many sexual assault survivors don’t come forward is because doing so involves telling a traumatic story over and over again, so most of them figure they have a better chance of being able to move on with their lives if they just don’t say anything about it. However, sometimes the men are in fact falsely accused and this also has a traumatic and life-altering impact on them. These two factors are now causing more libel suits to be filed by male students who allege that they have falsely accused as a way to restore their reputations and good name.

The filing of such suits does have an impact on women coming forward to report sexual harassment and rape. Women who do come forward often have to endure threats, harassment, and people showing more compassion for their assailant than for them, since his life has allegedly been ruined by her accusations. Now men and women are finding that they have to face another layer in campus sexual assault claims — a libel suit.

Lately, experts and those working in education say they have seen a significant rise in the number of defamation lawsuits that have been filed over the past couple of years. Many of these lawsuits are filed by alleged assailants who claim they were the ones victimized by biased disciplinary panels that did not give them a fair hearing, and that their educations and careers were ruined as a result. While it used to be rare for students to sue their own school, experts say it is now becoming almost reflexive for those accused of sexual harassment or assault to sue their school as a result of those accusations. Continue reading ›

After a “professional sugar baby” went on a campaign of revenge targeting her ex-boyfriend, the district court awarded $7.5 million in damages to the ex-boyfriend. The woman’s actions spanned 17 months and included multiple defamatory postings on her social media accounts, as well as the creation of many fake social media profiles in the ex-boyfriend’s name, which she used to distribute false and harmful content to her ex-boyfriend’s personal and business contacts.

John Doe is a 45-year-old technology professional employed as a Senior Director at a consulting firm. Jessica Jiahui Lee is a 19-year-old part-time exotic dancer and “professional sugar baby” who enters into relationships with affluent men in exchange for gifts, travel, and a life of luxury. Doe met Lee in or around February 2017 while traveling to Las Vegas, Nevada for business. The two began a casual dating relationship in March 2017, which lasted for approximately seven months. Continue reading ›

What if you were a college student and you realized one of your professors kept a seating chart that included comments about each student’s race and judgments on their physical appearance? That’s the possibility that Elmhurst College students faced when an article was published in the student newspaper, The Leader, about Professor Timothy Hays, the music business director at Elmhurst College. A student allegedly took a photo of Hays’s seating chart when he was out of the room and sent it to the school newspaper.

The seating chart allegedly contained notes beneath each student’s name relating to their physical appearance, including “black,” “Hispanic,” and, for a female student, “cute.” While such notes might seem harmless to the professor, they could be in the view of some of the students and the college administration, ways of separating minority students out from the “normal” white, male students, and such notes some students and the administration could argue have a profound effect on the way the professor treats those students, even if he’s not consciously aware of it. Some will claim that such views simply reflect political correctedness and that private notes should not be a basis for taking action against a professor abesent proof that he has ever acted in such a discriminatory fashion. However, benign discrimination is always hard to detect.

Hays argued that the notes were intended to be private and were never meant to be publicly distributed and were simply a tool to help him identify and remember students and their classroom contributions. Hays then allegedly made the situation worse for himself after the initial article was published by allegedly lashing out at students in his class after the article was published. Some Students complained to college officials and got them to bring in a new professor for the class and The Leader published another article about Hays relating to the incident.

Another student alleged Hays cornered her in a stairwell and looked down her shirt. She said she told college officials about it, but nothing was done until the third article about Professor Hays was published, detailing the incident. Continue reading ›

In a lengthy opinion, a split New York appeals court rejected President Trump’s argument that he was immune from a defamation lawsuit by virtue of his position as President. The plaintiff in the libel suit is former Apprentice contestant, Summer Zervos. With this opinion, President Trump joins President Clinton as contributors to the jurisprudence clarifying the contours and extent of presidential immunity. The appellate court in Zervos v. Trump relied heavily upon Clinton v. Jones, the 1997 U.S. Supreme Court opinion which held that presidents aren’t immune from civil actions in federal court based on purely private conduct.

The underlying defamation lawsuit stems from statements made by Trump during his campaign. Following release of a video depicting Trump making crude comments about women, Zervos held a press conference in which she accused Trump of kissing her twice in 2007 and attacking her and making unwanted sexual advances in a Beverly Hills hotel room.

Trump responded to Zervos’s accusations with a flurry of statements saying “I never met her at a hotel” and that the “allegations are 100% false. . . . They are made up, they never happened.” In several tweets and at campaign rallies, Trump further responded to the accusations of Zervos and others claiming, “I didn’t know any of these women,” and “didn’t see these women” and their allegations were “100 percent fabricated and made-up charges, pushed strongly by the media and the Clinton campaign.”

Zervos followed these statements by filing a defamation suit alleging that Trump’s statements amounted to branding her a liar which damaged her reputation in the community. Zervos seeks actual and punitive damages from the President. Ms. Zervos’s attorney, Gloria Allred, announced the lawsuit days before President Trump took office. Continue reading ›

When a candidate for governor sued news organization alleging defamation and libel as a result of news organization’s statements concerning candidate’s domestic violence conviction and history as gang member, summary judgment was granted for news organization. The appellate court found that the statements about the candidate’s domestic violence conviction were substantially true, and that the statement’s about the candidate’s history as a gang member, while false, were not made with actual malice.

In August 2013, Tio Hardiman declared his intention to run for Governor of Illinois. In January 2014, it was announced that Hardiman’s name would appear first on the Democratic gubernatorial primary ballot. After the announcement, Hardiman was interviewed by Mike Flannery, the political editor for Fox Chicago WFLD for a segment slated to air during WFLD’s 9 p.m. news broadcast. Ahead of the broadcast, Katie Fraser, WFLD’s web producer, wrote an article for WFLD’s website titled, “Controversial candidate remains on primary ballot for governor.” The article detailed Hardiman’s explanation to Flannery of the dismissal of a 1999 guilty plea and conviction for misdemeanor domestic violence against Hardiman’s then wife.

Prior to the broadcast, a teaser was read on-air by news anchor Jeff Herndon, stating, “Also, a former gang member who was once accused of beating his wife wants to be your governor. Why he says voters shouldn’t be concerned about his domestic violence conviction.” At some point after Hardiman’s interview aired, Hardiman contacted the WFLD newsroom stating that he was not a former gang member. That same night, WFLD clarified on air that Hardiman stated that he had worked closely with gang members but was not, himself, a gang member. Later that evening, Hardiman saw the web article and contacted WFLD a second time, requesting that they retract the portion of the article concerning Hardiman’s domestic violence conviction. WFLD later updated the article to specify that Hardiman had received a sentence of probation after pleading guilty to the charge. Continue reading ›