Defamation, Libel and Slander

Should the Supreme Court Reconsider the Standards for Libel?

August 25, 2021 | Peter S. Lubin and Patrick Austermuehle

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 ›

Do You Need to Know Someone’s Full Name Before You Can Sue Them?

July 28, 2021 | Peter S. Lubin and Patrick Austermuehle

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 ›

Smartmatic Challenges Fox News’ First Amendment Defense in $1.2 Defamation Lawsuit

July 12, 2021 | Peter S. Lubin and Patrick Austermuehle

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 ›

Iowa Supreme Court Rule that Calling Landlord a “Slumlord” is not Defamatory

June 27, 2021 | Peter S. Lubin and Patrick Austermuehle

Not every renter loves his landlord. And many people express their feelings, for better or for worse, on social media. However, sometimes what is said on social media can land a person in hot water. Such was the case for one Iowa resident whose social media venting landed him in court as the defendant in a defamation lawsuit that wound its way all the way up to the Iowa Supreme Court. Luckily for the individual, the Iowa Supreme Court held that referring to a landlord as a “Slumlord” was not defamatory but constituted non-actionable opinion.

The plaintiff in the case was Richard Bauer, the manager of the Bauer Apartments located in the small town of Sloan, Iowa. The defendant was Bradley Brinkman, who lived across the street from the Bauer Apartments. The dispute that landed Brinkman in court started out having nothing to do with him at all.

A dog care facility, Pet Perfect, began construction next to the Bauer Apartments. Bauer was concerned that issues would arise from the dogs and their feces due to the outdoor area being constructed. Bauer tried to get the construction stopped. First, he contacted the Sloan City Council. He also contacted the owner of Pet Perfect about his concerns and offered to buy the parcel of land where the facility was being built. The owner refused to sell. Next, Bauer filed suit against the City of Sloan and the city council members claiming they failed to enforce a zoning ordinance in approving the construction of the facility.

During this ordeal, Pet Perfect posted on its own Facebook page about Bauer’s lawsuit and cameras he had installed on the exterior of the apartments. The daughter of Pet Perfect’s owner also posted about the ordeal on her own personal Facebook page. She included in her post a photo of a letter Bauer’s attorney sent to her mother. Several people commented on the post, including Brinkman, who it turned out was a friend of the owner of Pet Perfect. Brinkman’s Facebook comment stated:

It is because of shit like this that I need to run for mayor! [grinning emoji] Mr. Bauer…you sir are a PIECE OF SHIT!!! Let’s not sugar coat things here people. Kathy Lynch runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love to have you walk across the street to the east of your ooh so precious property and discuss this with me!

Illinois Supreme Court Grants Petition for Leave to Appeal in Lawsuit Filed by Hall of Fame Chicago Bear Richard Dent

June 3, 2021 | Peter S. Lubin and Patrick Austermuehle

As we previously covered here, an Illinois appellate court revived a lawsuit filed by Chicago Bears legend Richard Dent which seeks to learn the identity and addresses of unidentified individuals who published allegedly defamatory statements about Dent which allegedly cost him several lucrative marketing contracts. Following the ruling in Dent’s favor, the respondents in the case sought to challenge the First District’s ruling and requested a review of the case by the Illinois Supreme Court. Recently, the Illinois Supreme Court granted the petition for leave to appeal and will hear arguments in the case later this year.

For background, the case dates back to 2018 when energy supplier Constellation NewEnergy terminated various energy supply and marketing contracts with Dent and his company RLD Resources, LLC. Dent met with the energy company’s attorneys during which the attorneys informed Dent that the company had received complaints about him from multiple individuals accusing him of inappropriate comments and conduct at several Constellation-sponsored events. The attorneys refused to identify the complaining individuals. Shortly after the meeting, Constellation terminated its contracts with Dent. Continue reading ›

Illinois Supreme Court Clarifies Statute of Limitations in Defamation Actions

May 17, 2021 | Peter S. Lubin and Patrick Austermuehle

On March 18, the Illinois Supreme Court issued a much awaited opinion finding that private investigator Paul Ciolino’s defamation lawsuit against Chicago attorney Terry Ekl among others was not filed too late. In their briefs before the Court, the parties framed the question in terms of whether or not the discovery rule delayed the beginning of the one-year statute of limitations. The Court held that Ciolino’s action was timely but based its decision not on the arguments proffered by the parties either side or on the reasoning of the appellate court.

The case centers on a book titled Justice Perverted: How the Innocence Project of Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison and a later documentary titled “Murder in the Park.” The subject of both the book and the documentary was the effort to convict Alstory Simon of a 1983 double homicide on Chicago’s southeast side, one of the most famous murder cases in Illinois’ recent history. Ekl, an attorney who represented Simon in his post-conviction proceedings, is among those whose comments are featured in the documentary.

The book and documentary posit the theory that Ciolino and others framed Simon in order to secure the exoneration of Anthony Porter, who was originally targeted for the murders, and to ultimately bring about an end to the death penalty in Illinois. They claimed that Ciolino and a Northwestern journalism professor coerced Simon into confessing to the crimes for which Porter had been earlier convicted. Simon’s conviction was later overturned and he was ultimately cleared of the murders in 2013, after Ciolino was accused of impropriety in obtaining the confession. Continue reading ›

School Did Not Breach Settlement Agreement by Failing to Remove Press Release from Website

May 5, 2021 | Peter S. Lubin and Patrick Austermuehle

A former teacher at a high school who was fired later sued the school, alleging he was fired because he was an atheist. After the teacher was dismissed, the school published a press release on its website stating that the teacher had been terminated. The teacher and the school entered into a settlement agreement that included a nondisparagement clause. The teacher later sued the school a second time, arguing that it violated the nondisparagement clause by keeping the press release active on its website. The district court granted summary judgment for the school, and the teacher appealed. The appellate panel affirmed the decision of the district court, finding that the settlement agreement clause was only forward-looking and that the teacher could have negotiated for the removal of the existing press release but failed to do so. The panel rejected the teacher’s argument that each time a person accessed the press release online a new breach occurred.

In August 2013, Middlebury Community Schools hired Kevin Pack to teach high school German. Pack’s employment was terminated less than a year later, in April 2014. Soon after the termination, the school published a press release about Pack on its website criticizing Pack. The press release remains publicly available on the school’s website. In January 2015, Pack sued the school, claiming that it fired him because he was an atheist. Continue reading ›

Defamation Lawsuit Against Trump Proceeds After Removal from Office

April 10, 2021 | Peter S. Lubin and Patrick Austermuehle

Donald J. Trump is no stranger to lawsuits. He has been sued for everything from alleged shady business practices to alleged sexual assault and harassment, but while he was president, he claimed, as have other Presidents, he was protected from legal action as long as he was in office. Two courts had ruled against that argument, and he had appealed their decision to the New York State Court of Appeals, but before that court could decide on the case, Mr. Trump was voted out of office.

While Mr. Trump is currently facing multiple lawsuits across the country, the case in question is a defamation lawsuit filed in New York by Summer Zevos. Ms. Zevos was a contestant on Mr. Trump’s reality show, “The Apprentice”, and she alleges Mr. Trump groped and forcibly kissed her against her will during what she had been led to believe would be a business meeting.

Ms. Zevos came forward with her accusations of sexual assault in 2016 when Mr. Trump was running for president. He denied the accusations and called her a liar, at which point she sued him for defamation in 2017. At that point, he was already in office, and that’s when he claimed the office protected him from legal action. The two sides argued over whether holding the office actually protected the defendant from legal action, with the courts taking Ms. Zevos’s side in the debate and Mr. Trump’s legal team appealing those decisions. Continue reading ›

Supreme Court Clarifies Standing Requirements in First Amendment Cases

April 9, 2021 | Peter S. Lubin and Patrick Austermuehle

The Supreme Court recently issued a major ruling in a dispute over free speech on the grounds of a public college. By a vote of 8-1, with Chief Justice Roberts as the lone dissenter, the Court held that a Georgia student’s claims of violations of his First Amendment rights against college officials were not mooted by the school’s decision to abandon the speech restrictions at issue. Specifically, the Court found that the student had standing to proceed with his First Amendment lawsuit even though the student was only seeking nominal damages in the suit. The case had long been on the radar of First Amendment advocates and resulted in a unique confluence of support for the plaintiffs from both ends of the ideological spectrum (and many in between) with numerous liberal and conservative groups submitting a raft of amicus curiae urging the Court to rule in favor of the plaintiffs.

The case, Uzuegbunam v. Preczewski, was brought by two students at Georgia Gwinnett College, a public college in Georgia located in the Atlanta suburb of Lawrenceville. The college had a campus policy that restricted public speaking and distribution of written materials to only two designated “free speech expression areas” and required a permit to do so. According to the lawsuit, these speech zones occupied less than 0.0015% of the campus, and are open only 18 hours a week.

One of the plaintiffs, Chike Uzuegbunam, is an evangelical Christian who was handing out religious literature on the campus when a campus police officer told him that he could only distribute literature by reserving one of the two designated free speech areas. The complaint alleges that Uzuegbunam followed the officer’s instructions and obtained a permit, but, within a few minutes of starting to hand out literature and discuss his religious beliefs, another officer told Uzuegbunam that he must stop as his speech was disturbing others and therefore violated the college’s “disorderly conduct” policy which prohibited any speech, even in the free speech zones, that “disturbed the peace and/or comfort of person(s).” Continue reading ›

Private Investigator Allowed to Sue Documentary Filmmakers for Defamation

March 24, 2021 | Peter S. Lubin and Patrick Austermuehle

A scandal at a university’s innocence project led to a defamation suit by one of the project’s former employees against a writer of a book and documentary filmmakers who accused the employee of engaging in criminal behavior in pursuit of a false murder confession. The employee’s defamation claims were initially found to be untimely by the trial court, but the Illinois appellate court reversed the decision. The Illinois Supreme Court took up the appeal of the filmmaker’s and affirmed the decision of the appellate court, finding that each new showing of the documentary film to a limited audience retriggered the statute of limitations, making the claims timely.

Northwestern University’s Medill School of Journalism (Innocence Project) sought to exonerate Anthony Porter for the 1982 murders of Jerry Hillard and Marilyn Green. Those working at the project suspected that a different individual, Alstory Simon, had committed the murders. Paul Ciolino, a private investigator, worked at the Innocence Project. Ciolino obtained a videotaped confession from Simon after allegedly promising Simon that he would be represented by an attorney whom Ciolino knew.

Porter’s conviction was vacated and, after being pressured by his attorney, Simon pled guilty to the murders and was sentenced to 37 years in prison. Some people remained unconvinced that Simon had actually committed the murders. Simon unsuccessfully filed a pro se petition for postconviction relief. After obtaining representation, a second petition was filed on Simon’s behalf asserting actual innocence. That petition contained new evidence that two witnesses who had implicated Simon had recanted their statements. The witnesses stated that their earlier statements implicating Simon were induced by promises to them made by David Protess of the Innocence Project. Continue reading ›