When Fifteen Minutes of Fame Hurts: Justice Thomas Invites Review of Media Insulation from Defamation Claims

McKee v. Cosby, No.  17-1542, 586 U.S.     . Petition for certiorari denied February 19, 2019.

Katherine McKee has publicly alleged that comedian Bill Cosby sexually assaulted her decades ago.  McKee has also alleged that in response to her allegations, Cosby’s attorney drafted and leaked a letter disparaging her character.  Her defamation claim against Cosby was dismissed, however, because by virtue of her public allegation she became a “limited public figure” and, as a result, she became subject to a higher standard of proof than applies to ordinary citizens.  Following New York Times v. Sullivan,  376 U.S. 254 (1964), public figures cannot succeed in libel against news media unless publication was made with “actual malice,” defined as actual knowledge of the falsity of any published statement or reckless disregard for its truth or falsity.

While the insulation proffered to the media may have been judicially fashioned with the best of intentions — to promote a press free from needless fear of liability — the impossibility of meeting the “actual malice” standard, while a boon to the media, can be crippling to ordinary citizens who are, sometimes unwittingly, and sometimes not, catapulted to public figure status.  

There is no government or private Office of Reputation Restoration. Traditionally the courts, in administering the law of defamation, served as the next best thing.  

Yet the courts no longer provide redress, opines Justice Clarence Thomas, and they do not because of the judicially created “constitutionalization” of the law of defamation in New York Times v. Sullivan.  

Justice Thomas observes that the New York Times v. Sullivan Court concluded that the heightened standard of proof it announced was compelled by the First and Fourteenth Amendments, but the Court did not say how its conclusion was grounded in the conceptualization of the Free Speech and Equal Protection Clauses as they were originally envisioned.

Nothing in history or in the Founders’ expressions indicates that public figures ought to lose remedial rights in order to promote speech rights.  Distaste for the criminalization of criticism of public figures, as found in public disdain for the Sedition Act of 1789, does not support the inference that civil standards must be heightened. Further, Justice Thomas offers, nothing indicates that the admittedly judicially created federal rule of New York Times v. Sullivan was intended to supplant state law of defamation, yet that has been the result.  

While Justice Thomas has joined the Court in declining review in light of the factually intense McKee claim, he has invited review of what he characterizes as judicial policy making in a proper case.

McKee v. Cosby, 17-1452 Certiorari denied February 19, 2019

(Anti)-SLAPPed Around: Online Reviews Are Both Constitutionally Protected and Susceptible of Statutory Resolution, Oregon Appellate Court Observes

Neumann v. Liles, No. 601 A149982, 295 Or. App. 340 (December 12, 2018).

Neumann sued Liles for defamation following a critical online review of Neumann’s wedding venue. Several rounds of litigation up and down the trial and appellate court ladders resulted in the conclusion that the online posting of a review is constitutionally protected speech rather than actionable defamation, as a reasonable reader would not form the impression that the review poster was presenting objective facts. In the most recent decision, the appellate court concluded that online reviews do involve matters of public concern, and thus may be addressed through the summary procedures permitted under the state’s anti-SLAPP law.

Neumann v. Liles, 295 Or App 340 (Or. App., 2018)

The Online Public Square: Website’s Publication of Allegations of Cult Activities Falls Within Anti-SLAPP Statute Protections, California Appellate Court Holds

Guen v. Pereira, et al., No. A151569 (Cal. App.) Unpublished opinion of the First California Appellate District, Division Five, November 16, 2018.

Defendant Pereira and others created an online website which accused acupuncturist Guen of inappropriate sexual behavior and of operating a cult. Commentary and rebuttal were not permitted on the website. Defendants succeeded in obtaining dismissal of Guen’s claims under the anti-SLAPP law, as their online statements provided consumer information in a public forum notwithstanding the absence of opportunity for rebuttal.

Guen v. Pereira (Cal. App., 2018)

Online Offensive Speech Not Presenting Actual Imminent Threat Cannot be Restrained, New York Court of Appeals Concludes

Brummer v. Wey, No. 153583/15 (N.Y. App.) November 15, 2018.

Plaintiff participated in an adjudication before the Financial Industry Regulatory Association (FINRA) in which defendants were forever prohibited from practice as broker-dealers. Defendants posted online derogatory statements and images, including allusions to lynching, about plaintiff, an African American.

Plaintiff obtained a temporary restraining order and preliminary injunction of the postings, including orders to remove postings, which the present order dissolves.

As distasteful as the material may be, and without regard to whether the plaintiff will prevail on a libel claims, the court could not perceive an actual threat to plaintiff, nor could it find grounds to support the prior restraint of speech that the injunction presented.

Brummer v. Wey , 2018 NY Slip Op 7843 (N.Y. App. Div., 2018)

Losing Rights While Righting Wrongs: Cosby Accuser Challenges Insulation from Liability in Defamation Based on “Limited Public Figure” Doctrine.

Katherine McKee v. William H. Cosby, No. 17-1542 (S. Ct.). Petition for Certiorari referred to conference scheduled for October 26, 2018.

The law of defamation sometimes prefers to encourage lively public debate over the right of one participating in such debate to recover in defamation. Thus the person who steps into the public square may find himself or herself considered to be a “limited purpose public figure” who must show actual malice to recover for any statement alleged to be defamatory.  

This is all very reasonable if one is of the mind that inviting controversy, perhaps simply by joining in, means accepting the accompanying consequences, which may occasion as many brickbats as it does bouquets.

But wait!  Is that really so reasonable?  The limelight may find a plaintiff rather than it being sought.  An individual may wish only to speak in rebuttal to a statement.

Perhaps matters are not at all as simple as the “limited purpose public figure” classification suggests.  And with the internet being a “forever” forum, being insusceptible of being scraped clean no matter one’s diligence, having it uphill in cleaning up reputational injuries may seem doubly burdensome if it is more difficult than might be expected to demonstrate actionable defamation.

Tomorrow the Supreme Court will consider the petition for certiorari of Katherine McKee, who joined in public discussion of the sexual exploits of comedian and actor Bill Cosby.

Following statements about Cosby, Cosby’s counsel wrote to a publisher questioning McKee’s veracity and chastity.  Although the correspondence was labelled ‘confidential,’ McKee avers that Cosby counsel leaked its own letter to the media.  

Neither the federal trial court in Massachusetts nor the United States Court of Appeals for the First Circuit found any statements made by Cosby’s counsel to be actionable. Simply by acknowledging her status as a Cosby victim, McKee avers, she became a “limited purpose public figure” whose ability to counter statements about her was diminished by the enhanced standard of proof required of such persons.  McKee argues that the federal courts of appeals are in conflict concerning the “limited purpose public figure” rationale and urges the Supreme Court to review its boundaries.

Cosby counters that McKee already was a public figure at the time she entered the arena to add to allegations against Cosby, as she had been a figure in the entertainment industry for decades, and used her status as such to gain access to the media.  McKee’s longstanding involvement in entertainment only underscores the analysis of her status by the lower courts. She was involved in much more than identifying herself as a victim, in Cosby’s view. Moreover, the courts were correct in concluding that by accompanying allegedly defamatory statements with non-defamatory facts, defendant insulated himself from liability.  Finally, no conflict exists among the federal circuit courts of appeals that demands the Supreme Court’s attention at this time.

Whether McKee succeeds in obtaining review will depend on the law, of course, but the grant or denial of certiorari may also be colored by the intensity of public controversy concerning sexual misconduct.  While the Court need not concern itself with the vicissitudes of public opinion, neither does it need to turn a blind eye to the likelihood that sexual assault victims will complain of further victimization because of speaking out, claiming that the forfeiture of rights to seek redress in defamation is too high a price to pay for speaking out on a  matter of public interest.  

It is worth noting that recently Cosby was denied Supreme Court review where a California court concluded that counsel’s duty of zealous advocacy does not include defaming an accuser.

Tomorrow will tell.

McKee Documents Filed with Supreme Court

20180501102009877_Petition for Writ of Certiorari

20180501102033549_Appendix to Petition for Writ of Certiorari

20180730132824698_2018.07.30 Brief in Opposition

20180806165750352_Reply Brief for Petitioner

Dickinson Document and Order Denying Certiorari

20180712161848083_18-__PetitionForAWritOfCertiorari Dickinson

2018 10 01 Order Denying Certioriari Dickinson

Withering the Stormy: Daniels Appeals to Ninth Circuit from Conclusion that Dismissive Trump Tweet Was Constitutionally Protected “Rhetorical Hyperbole”

Stephanie Clifford v. Donald J. Trump, No. 2:18-cv-06893-SJO-FFM (C.D. Cal. October 15, 2018); Notice of Appeal to Ninth Circuit filed October 15, 2018; Appellate Scheduling Order, Case No. 18-56351 issued October 16, 2018.

Entertainer Stormy Daniels (Stephanie Clifford) stirred scandal through allegations about an encounter with now President Trump nearly fifteen years ago.  When a Trump Twitter retort accused the entertainer of a “con,” Daniels sued for defamation.

A federal district court in Los Angeles reviewed defendant Trump’s motion to dismiss under the Texas anti-SLAPP statute, a procedural and substantive mechanism for short-cutting the time to disposition for cases grounded in defamation allegedly arising from participating in speech related to matters of public interest.  

Trump prevailed, as the court found that the Tweet was “rhetorical hyperbole,” a form of opinion which is protected speech under the First Amendment.  To hold otherwise, the court observed, would be to silence the President in the face of any manner of allegation.

If dismissal were not enough, the court ordered Daniels to pay Trump’s attorneys’ fees.

Daniels has noted her appeal in the United States Court of Appeals for the Ninth Circuit. Appellate briefing will conclude in late winter of 2019.

Daniels v. Trump: Order on Special Motion to Dismiss (C.D. Cal. October 15, 2018)

Daniels v. Trump: Notice of Appeal

Daniels v. Trump: Ninth Circuit Briefing Schedule

Yelp! Would Like to Think That it’s Immune to This (Court Ordered Take-Down) Stuff. A Divided California Supreme Court (Mostly) Agrees

Hassell v. Bird, No. S235968 (Cal) July 2, 2018.

In the infancy of mass online culture, Congress thought the expansion of online communications and its economy would be fostered by insulating internet service providers from liability when those providers do not act as content providers. The Communications Decency Act of 1996, Section 230, offered that assurance. There is a certain amount of intuitive sense in offering such immunity, particularly if internet service providers are seen as forms of utilities, like telephone companies, which are not ordinarily responsible for things said over their lines or airwaves.

No matter whether this corporate immunity is seen as salutary or not, what is clear is that not all situations could be foreseen or addressed by Section 230 more than twenty years ago.  Hassell v. Bird highlights the struggles between private online users and the corporations which control access to online postings.

Ava Bird was not pleased with the representation of the Hassell Law Group, and let the world know by publishing a review on Yelp!!, on online site on which businesses advertises and readers post their views of the business’s success (or failures).  Hassell successfully pursued an action for defamation against Bird, who could not be found at the time judgment was entered against her. Hassell sought and obtained a mandatory injunction directing Yelp to take down Bird’s defamatory review.

Yelp! refused, citing immunity under Section 230.  The Supreme Court of California today agreed with Yelp!’s position, finding that through the take-down orders, the lower courts had erred in casting Yelp! as speaker and publisher of the content, a result neither supported by the facts nor consistent with Section 230.  The lower courts found it unobjectionable to ask Yelp! to aid in executing an order of take-down to aid in effectuating Hassell’s judgment, and observed that the principles of immunity would not be abrogated by doing so, for no liability had been imposed on Yelp!.

The majority of  the Supreme Court of California was not pleased with Hassell’s determination not to join Yelp! as a party defendant, because, in the majority’s view, ultimately the order that was sought treated Yelp! as the publisher or speaker of the information to be removed.  The Supreme Court of California perceived the refusal to join Yelp! as strategic, but tactically fatally flawed, for Hassell was attempting to do indirectly what Section 230 would directly forbid.

The majority of the court disagreed with the notion that Yelp! would not be burdened by compliance with the order in issue and, presumably, with similar orders to follow in the future.

The majority noted that Hassell retains remedies against the judgment defendant, who could be required to try to secure removal of her posts.  

In concurrence, Judge Kruger would narrow the determination to find the order invalid where Yelp! had not been a party to the litigation and had not had its day in court. Section 230 need not be considered, but if it were, it would likely immunize Yelp!. Whether immunity would continue on other facts remains for examination on another day.

Dissenting Justice Lui sees the court as ensuring that Hassell will continue to suffer the harm that her defamation action sought to ameliorate.  No circumstances that immunity was intended to avoid are present where Yelp! has not been exposed to any liability or required to defend against an action for defamation.  The general principle that non-parties are not subject to orders and judgments does not apply where Yelp! was asked only to aid in effectuating a judgment that had already entered. Without suggesting that all online services that publish reviews ought to be open to compliance with removal orders, Judge Lui could not construe Yelp!’s relationship with Bird as entirely passive, as it was only through Yelp! that Bird could act.

Judge Cuellar has dissented separately, with Judge Stewart’s agreement, and in so doing drew no small amount of counterargument from the majority.  Judge Cuellar disagreed with the notion that Section 230 provides an absolute bar to any liability. Due process principles are involved with the notion of compliance with a lawfully issued order, but the court’s determination in this case has gone too far and will serve to defeat those who seek redress for defamation.  Section 230 can be seen as immunizing against liability for damages, not as a shield against compliance with court orders, which can run against third parties. There would be no unfairness to Yelp! concerning the take-down injunction, for notice to Yelp! would be required before any such order could be entered.

It is highly unlikely that this case will be seen as resolving the issues presented when liability arises in the course of  life online, although for present purposes the decision is likely of great comfort to internet service providers and great consternation to those who assert they have been defamed online. The California Supreme Court judges have been nothing if not  thorough in describing and discussing all relevant precedent. In that regard, the Hassell v. Bird decision may serve as a teaching case as well as a significant decision in its own right.

Hassell v. Bird, No. S235968 (Cal.) July 2, 2018

The Sinful and the Secular Collide in Iowa Clergy Scandal: Iowa Supreme Court Sets Parameters of Church’s Exposure to Liability

Bandstra, et al. v. Covenant Reformed Church, No. 16-1078.  Supreme Court of Iowa, June 1, 2018.

Covenant Reformed Church of Pella, Iowa, is governed by a professed religious pastor and lay elders who serve in both administrative and pastoral capacities.  The pastor is subject to the supervision of the board of elders, who monitor the doctrinal quality of preaching, who meet with the pastor to discuss matters needing attention, and who consult with members of the congregation concerning satisfaction with the pastor.

More than a decade ago, Covenant Reformed Church installed talented homilist Patrick Edouard as pastor.  Edouard resigned immediately after the elders received reports that he had engaged in sexual relations with two congregants during the course of counseling.  

The church leadership responded to the resignation by a letter to congregants noting that Edouard’s sin had compelled the acceptance of his resignation.  The letter provided no details about his conduct.

The elders then summoned the women involved with Edouard, urging and receiving confessions, and offering forgiveness.  

The elders then wrote to the congregation to stress that Christian prudence would caution against naming or discussing the persons involved in the departure of the pastor, and emphasizing the congregation’s wish that these persons remain among them.  

Following intervention by a parishioner concerned that the elders had not used current social theory nomenclature in discussing the women by referring to sin and adultery rather than victim hood.  The elders conferred and determined that in the absence of other evidence, Biblical terminology was apt. The elders were of the view that both the minister and the congregants bore responsibility, that repentance was desirable, and that the matter was neither one of “clergy sexual abuse” or “grooming.”  The elders sought but did not received endorsement from an expert on clergy sexual abuse.

The women involved with the minister — who was convicted by a jury of sexual exploitation — sued the minister and the church, alleging negligence in failing to provide clergy sexual abuse experts to work with the congregation, infliction of harm in blaming the women for their involvement, negligent supervision of the pastor, and defamation.

The Supreme Court of Iowa has opined that the elders’ characterization of the pastor’s and the women’s conduct as adulterous lies squarely within the church’s religious province:  interference by a secular civil court would offend the Religion Clauses of the First Amendment.

The First Amendment  limit on civil judicial intervention does not attach, however, to the supervision of the pastor, an administrative task not involving theological concerns. Similarly, the court observed that clergy communications of secular purpose — supervision, governance, and administration — are not privileged.

It is notable that the court adopted an expansive view of the qualified immunity attaching to clergy and congregational communications, extending its protections to the lay church elders.  

The court reviewed several official communications, concluding many were not actionable as defamation in the absence of evidence of abuse, malice, or conduct beyond the group’s purpose.  Other communications were non-actionable opinion.

Documents not before the court or contested documents ought to be examined in view of these principles on remand.  

Some may be comforted and others vexed by the state supreme court’s recognition of its constitutional constraints.  The court was clear that while the First Amendment forbids judicial interference in ecclesial matters, that is not the case with judicial examination of a church’s secular functions or where clerical privileges may be lost through misuse.  What is notable is that in this case, the very wrong alleged is the use of Biblical language with arguably injurious secular connotations. In an increasingly secular society, in which reputation is easily lost and seldom fully redeemed, it is not likely that the Iowa court’s view, however sound it may be, will end exploration of the legal admixture of the sacred and the profane.

2018 06 01 Bandstra v. Covenant Reformed Church. Iowa Supreme Court




Immunity or Impunity? Yelp Resists Take-Down Order in California Defamation Case

Hassell v. Bird, No. S235968, Supreme Court of California.  Oral argument April 4, 2018.

Immunity from liability is a legal status to be cherished, enjoyed by the government as an artifact of the notion that the king can do not wrong, and more currently vitally enjoyed by internet sites such as Yelp, which provides information about commercial entities and reviews of products and performance.  Section 230 of the Communications Decency Act of 1996 insulates web hosts from liability for third party content. The legislative notion was that this shield would allow the robust development of the internet unhampered.

More than twenty years later, it is clear that Section 230 does not address in full online reality.  In this case, California attorney Dawn L. Hassell obtained a judgment finding that former client Ava Bird had posted a defamatory review on Yelp.  Hassell obtained an order directing Yelp to remove the defamatory material.

Yelp refused.  

Yelp argues that the take-down order abrogates the immunity granted by Section 230, that the order is an injunctive prior restraint in violation of Yelp’s First Amendment rights, and that Yelp, a stranger with awareness of but non-party status in the defamation litigation, was denied due process in that proceeding.  Yelp alleges error in the entry of the take-down order, requiring vacation, where Yelp was not afforded notice and an opportunity to appear to assert its immunity and any other interests it might have asserted.

Hassell submits that the Supreme Court of California will search in vain for a First Amendment violation, for no constitutional protection attaches to defamation.  Hassell perceives the injury asserted to result from the take-down order to be without foundation in law, as precedent exists to find that those who have furthered others’ wrongdoing may be required to participate in its redress.

This case stimulated tremendous stir when appellate proceedings commenced more than a year ago.  It is not known why the Supreme Court of California permitted the case to languish until last week, when oral argument was held.  There have been rumors of and some legislative action in fact concerning amendment to Section 230 limiting its immunizing sweep, most recently with respect to human trafficking, which in itself has engendered further controversy.  

Whatever the reason for the court’s seeming reluctance to enter the fray, at oral argument the court wrestled with the issues while giving little inclination of its inclinations, although media and others have offered their views.  While not hostile to either party, the court, as chief adjudicative body for the state, cannot be other than concerned about the consequences of an insurgence of defiance of the authority of the courts, as shown by refusal to comply with the take-down order in issue in Hassell v. Bird.

Hassell v. Bird confirms, were there any doubt, that Yelp and others will not lightly relinquish the sweeping immunity extended to private parties, paralleled only by that reserved to the government and limited others, that it enjoys by virtue of Section 230. Nonetheless, the legislative boost to technological advancement that Section 230 provides cannot be said to have eviscerated the common law, yet that will be the perceived result if Hassell is unsuccessful in defending issuance of the take-down order.

Intermediary redress does not seem to have been seriously suggested. Remand to provide Yelp with the due process it states it was denied appears less savory than outright victory (or defeat), yet remand would permit the Supreme Court of California to avoid fashioning precedent that might prove more confounding than curative.  

Neither have somewhat homespun, yet arguably effective, mechanisms been entertained with enthusiasm.  There is no known impediment to Hassell or her firm posting, at the location of Bird’s offending commentary, notice and a copy of the judgment of defamation.  While not offering relief as complete as the erasure promised by removal, in some instances self-help may prove superior to enforcement litigation.

A chorus of technology and First Amendment advocacy, predominantly in support of recognition of Section 230 immunity in Yelp,  has accompanied this litigation on its way to its presentation to the Supreme Court of California. Nightmarish scenarios of judgments and take-down orders obtained through collusion and fraud have been offered for the court’s consideration.  

The April 4th oral argument has not yet been added to the Supreme Court of California archive, but those interested may check for developments here: https://newsroom.courts.ca.gov/news/supreme-court-oral-argument-webcast-archive.

The parties’ submissions, both on the merits and in petition for review, and amicus curiae materials may be reviewed through these links:

Petition for Review:

Petition for Review by Nonparty Yelp

Answer to Petition for Review by Respondent Hassell and Hassell Law Group

Reply to Answer to Petition for Review by Nonparty Yelp

Merits Briefs:

Yelp Opening Merits Brief

Yelp Request for Judicial Notice

Hassell Answering Merits Brief

Yelp Reply Merits Brief

Yelp Motion for Judicial Notice

Amicus Briefs:

In Support of Yelp:

ACLU of Northern California et al. Amicus Brief

AirBnB et al. Amicus Brief

Ava Bird Amicus Brief

Change.org et al. Amicus Brief

Eugene Volokh et al. Amicus Brief

Eugene Volokh et al. Revised Amicus Brief

Eugene Volokh et al. Revised Amicus Brief

First Amendment and Internet Law Scholars Amicus Brief

Glassdoor and Trip Advisor Amicus Brief

Internet Association et al. Amicus Brief

Public Citizen and Floor64 Amicus Brief

Reporters Committee for Freedom of the Press et al. Amicus Brief

Xcentric Amicus Brief

In Support of  Hassell:

Chemerinsky et al. Amicus Brief

In Reply to Amici by Yelp:

Yelp Reply to Amicus Brief

In Reply to Amici by Hassell:

Hassell Brief in Reply to Amici

Entry of Judgment on the Pleadings for Media Defendant in Error as Facts May Be Established in Support of Claims

Rubin v. CBS Broadcasting, 2017 Pa. Super. 292 (September 8, 2017).

Former school police officer sued CBS for defamation and false light invasion of privacy following an evening news broadcast stating that Rubin had been terminated because of allegations of child sexual abuse, a report which was retracted the following day, with an apology noted.

CBS responded by producing a termination letter which indicated that serious allegations had been raised against Rubin.

The Philadelphia Court of Common Pleas entered judgment for CBS, opining that Rubin could neither establish the falsity of the report or that CBS acted with negligence or actual malice, proof of both of which were necessary for proceedings against a media defendant.

Not so fast, the reviewing court concluded.  It had not been established what CBS knew at the time of publication or CBS’s sources; the termination letter itself was not entirely supportive of the CBS report.  Without factual development, it could not be concluded as a matter of law that CBS could not be found to have acted with negligence or actual malice.  The order in favor of CBS has been vacated and the case remanded for further proceedings.

Rubin v. CBS Broad. Inc., 2017 PA Super 292 (Pa. Super. Ct., 2017)