Articles Posted in Defamation, Libel and Slander

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 ›

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 ›

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