Articles Posted in Defamation, Libel and Slander

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 ›

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 ›

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