Not Without Merit: Federal Court in New York Allows Student Accused of Sexual Assault to Proceed with Defamation Case

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.)  Motion to Dismiss denied September 27, 2019.


Alex Goldman and Katherine Reddington were students at Syracuse University whose overnight encounter following a party ended with Reddington sensing that something had gone awry, although she had no recollection of assault until after psychotherapy months later.  Reddington obtained a physical examination which produced no evidence of assault. The district attorney declined prosecution for lack of evidence.  

However, Syracuse University took note of Reddington’s Title IX allegations and expelled Goldman, who subsequently enrolled in another university and sought employment with an engineering firm.

Goldman’s complaint states that Reddington boasted of succeeding in her case against Goldman on campus at Syracuse and online, and that she either posted or republished online comments calling him a ‘monster.’  Those comments, which attracted attention and public commentary, were tagged to Goldman’s new school and employer.

Goldman was summarily fired from his job.

The United States District Court for the Eastern District of New York has rejected Reddington’s argument that Goldman failed to plead facts sufficient to establish defamation or tortious interference with business relations and declined to address Reddington’s argument that an injunction against further commentary would violate her First Amendment rights, as a motion to dismiss addresses the complaint and not the remedies sought.  

The court did not agree with Reddington’s defense that she had offered non-actionable opinion about Goldman where that opinion was premised upon defamatory accusations of criminal conduct.  

Reddington’s tagging or republication of online posts she claims did not originate with her are not insulated from liability, the court held, for republication of defamatory material is itself actionable. 

Moreover, Goldman could go forward on his claim of tortious interference with business relationships as the claim can be premised on defamation.

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.) September 27, 2019

 

“Fake” News, Real Consequences: Circus of Suits Against Media Concerning Seth Rich Murder March Along

Joel Rich and Mary Rich v. Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky, No. 18-2321-cv (2nd Cir.).  District Court reversed and case remanded September 13, 2019; Ed Butowsky v. Folkenflik, NPR, Inc., NPR.ORG, et al, No. 4:18-cv-0442 (E.D.Tex.).  Magistrate’s Recommendation to Deny Motion to Dismiss adopted August 7, 2019; Wheeler v. Twenty-First Century Fox, et al., No. 17-cv-5807, 322 F. Supp. 3d 445 (S.D.N.Y. 2018).


News, and News and Speculation About the News. The murder of Democratic National Committee (DNC) staff member Seth Rich in 2016 precipitated an explosion of rumors about Rich’s death, including speculation that he had divulged DNC emails and strategies to non-mainstream media entity WikiLeaks.  

Mainstream media joined in the fray, exploring and elaborating in ways that Rich’s parents assert caused them emotional damage.  Fox News and its reporter and commentator approached Rich’s grieving and aggrieved parents, who were disturbed that their son’s death would sully his name, and induced  the Riches to hire private investigator Ed Wheeler, recommended and paid for by Butowsky.  

As a condition of his engagement, Wheeler promised not to disclose any information about his investigation absent the Riches’ consent.

Nonetheless it is alleged that Butowsky and Wheeler worked together, meeting with high level Washington communications staff and promising to keep the White House informed of their investigation.  

In anticipation of publication, Fox messaged Wheeler about intelligence sources and pressures to publish, urging Wheeler to become the public source of the WikiLeaks story.  Fox not only published a story using Wheeler as a source, but Fox also recounted Wheeler’s breach of his agreement with the distraught parents. Wheeler next said that his sources were Fox reporter Malia Zimmerman and Ed Butowsky.  

Butowsky is said to have continued to contact the Riches, allegedly to inform them that Zimmerman had located their son’s killer.  Butowsky appeared in the media with commentary about the WikiLeaks allegations.

The New York Litigation. The Riches sued Fox, its reporters and its commentator in the Southern District of New York.  The Second Circuit Court of Appeals recently reinstated the Riches’ claims, holding that it is of no consequence that the parents’ action for intentional infliction of emotional distress can be seen as a proxy for the defamation action that died with their son.  

Seriatim As Serious as Single Incident Harm. The federal appellate court rejected the notion that the intentional infliction of emotional distress must be established by a single incident:  harms that unfold serially, perhaps not sufficient individually to reach the high bar of harm required to establish intentional infliction of emotional distress, may cumulatively be so damaging as to be legally cognizable. 

As the known existence of a valid contract between Wheeler and the Riches was not contested, interference occurring before and continuing after formation of the agreement does not preclude establishing but-for causation.  

Privilege Preclusion Inapt. The court declined to opine on whether newsgathering and its exigencies could excuse interference with contractual relations, observing that what the court perceived as a malicious act — providing an investigator ostensibly for the bereaved but in reality for the media — would not be susceptible to establishing a justification for interference in the Rich – Wheeler contract. 

More to Come. Media fascination with the death of Seth Rich and its sequelae did not end with the circular accounts issued by Fox, its reporter and commentator, and its investigator.  

Wheeler, threatened with suit by the Riches, sued multiple media defendants and associates for defamation, including Butowsky, and in particular alleged that Fox’s reporter published fabricated quotations attributed to Wheeler.  Wheeler did not meet with success:  his case in the Southern District of New York was dismissed at the pleading stage.

The Texas Litigation. Butowsky sued National Public Radio (NPR) and its reporter.   Butowsky did not pursue the media law firm and Wheeler’s counsel, who Butowsky avers is engaged in a legal campaign against Fox. 

Butowsky’s complaint elaborates upon allegations in the Rich complaint that interest and involvement in the investigation of Rich’s death reached the highest levels of the executive branch. 

Butowsky points to NPR’s reporter’s participation in an interview that offered the reporter’s views on the stories, including noting Fox’s retraction and offering journalistic lessons from the story.

Dismissal Not Warranted Where Privilege May Not Be Present. A magistrate, and later a judge in the U.S.D.C. for the Eastern District of Texas denied the media defendants’ motion to dismiss, observing that the fair report and/or fair comment privileges that y serve as a defense to defamation would not permit dismissal as a matter of law, particularly where the privilege cannot be conferred by the media of its own accord by commenting on its own reporting.  Not only is this form of self-insulation not permissible, where there is malice, the protections of these reporting privileges may be lost.

The Heart of the Matter Is What is at Stake. The magistrate observed that while the burden remains on the plaintiff to establish that any report was false, this may be done by establishing not that each statement published was false but that in the aggregate or in the manner of presentation, the “gist” of the publication was not substantially true.

Opinion Not a “Get Out of Jail Free” Card. Defamation may be intrinsic or extrinsic, explicit or implicit, and the assertion that opinion is not defamatory will not prevail if the underlying statements said to support the opinion are false or recklessly published. 

The Magistrate underscored the limitations on the opinion exemption from defamation, observing that implications from false assertions of fact are not insulated simply because an opinion is wrapped around them.

Impressions Count. Although a publisher cannot be liable for every inference that might be drawn from a story, that principle does not hold where a publication in its entirely creates a particular communicative impression.  The arrangement and presentation of information factors into the analysis.

No Doubt About Who They Had in Mind. It does not matter that the subject of a defamatory statement is not explicitly mentioned if it is inescapable that the defamed person is the subject of the report.

Public Figure or Limited Public Figure Status Not Yet Established. The Magistrate was not persuaded that on motion to dismiss that the defendants could establish that Butowsky, a well known financial expert and media commentator in his own right, is a limited public figure for purposes of application of the higher standards of proof that apply to such a person.  Nonetheless, the complaint provides allegations sufficient to plead malice.

Investigation, Failure to Investigate, and Bias. Plaintiff’s assertion that NPR adopted and published a media lawyers’ narrative without verification and with information that would cast that narrative in doubt, could establish malice. 

The Magistrate stressed that a failure to investigate alone would not establish malcie, but turning a blind eye to pertinent information could.  This might be shown by preselecting information conforming to a particular story, having preconceived, ideas, repetition of known false ideas, or other conduct proceeding from doubtful material in purposive avoidance of the truth.

Failure to Demand Retraction Will Not Defeat Claim.The Magistrate rejected the assertion that the state’s Defamation Mitigation Act precludes recovery.  The act’s requirement that plaintiff demand retraction before suing for defamation is a limitation on punitive damages, not a bar suit, particularly if the sense is that damage is so extensive that retraction would be unavailing. 

The Story Continues in Courts.  Seth Rich’s surviving parents and Butowsky’s cases proceed in New York and Texas at this writing.  Wheeler’s case against Twenty First Century Fox was dismissed in August, 2018, and there is no record of appeal having been taken.  The Southern District of New York found that Wheeler had no claim for defamation, as none of the statements in issue could be shown to be demonstrably false. 

Rich v. Fox News Network, LLC, et al. (2nd Cir.)

Butowsky v. Folkenflik, NPR, at al. (E.D. Tex.)

Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018)

Calamitous Course Correction: Defamation Plaintiff Avers that Huffington Post’s Clarification Only Made Matters Worse

Evans v. The Huffington Post and Ashley Feinberg, No. 1:19-cv-00536 (S.D. Miss.).  Complaint filed August 21, 2019. Defendants’ answer due October 16, 2019.


In September, 2018, the Huffington Post and its reporter, Ashley Feinberg, clamoring for background on the appointment and confirmation of Brett Kavanaugh to the United States Supreme Court, published an article describing a raucous, drug-fueled atmosphere at the elite Georgetown Preparatory School that Kavanaugh had attended. 

The Huffington Post article intimated that the students’ lives were so degenerate as to implicate two of them, including the plaintiff, then a Georgetown Preparatory School student, in the 1984 overdose death of David Kennedy, son of Robert Kennedy, in Palm Beach, Florida.

The Huffington Post asserted that Derrick Evans, today a teacher and social and environmental justice advocate, was involved in procuring the drugs that killed Kennedy. 

When Douglas Kennedy, David Kennedy’s brother, who was said to have been with Evans in Florida, insisted on retraction, the Huffington Post agreed and complied, sanitizing the statements about Kennedy, but leaving — and allegedly underscoring — the statements about Evans.

The published “correction” was compounded by indicating that support for its statements could be found in an affidavit said to be in the possession of the New York Times.  Evans asserts that no such affidavit exists and that in fact he participated in the identification and arrest of the individuals who actually provided drugs to David Kennedy.

Further corrections referenced “mischaracterization” of individuals’ involvement.  Evans claims this correction is not sufficient because, in the absence of any involvement in David Kennedy’s death, there can be no mischaracterization.

The story was further refined and references removed.

Evans maintains that the publication accused him of criminal activity, making it libel per se.  Evans alleges that Huffington Post’s failure to sufficiently confirm or disconfirm the statements published made the publication malicious and with willful disregard of the truth or falsity of the statements.

Defendants are to answer on October 16.  Until then, and perhaps always, editors may do well not to place reliance on any purported curative powers of corrections.

Evans v. Huffington Post and Feinberg_Complaint August 21, 2019 (S.D. Miss.)

 

Perhaps That Editorial Wasn’t Fit to Print: Vacating Federal Trial Court’s Dismissal, Second Circuit Permits Sarah Palin to Proceed with Defamation Action Against the New York Times

Palin v. The New York Times Company, No. 17-3801-cv (August 6, 2019).


Former vice-presidential candidate and Alaska governor Sarah Palin sued the New York Times for defamation subsequent to the newspaper’s publication of an editorial on the occasion of the 2017 shooting of Congressman Steve Scalise.  The New York Times revived the discredited allegation that Palin’s Political Action Committee’s (PAC’s) use of cross-hairs on a campaign map was an incitement to political violence, precipitating the 2011 shooting of Arizona Congresswoman Gabriel Giffords.

The United States Court of Appeals for the Second Circuit has vacated dismissal of Palin’s complaint, which may, as amended, now proceed to resolution in the federal court in the Southern District of New York.

The basis for the appellate panel’s determination was largely procedural but not to be taken lightly on that account.  The court of appeals observed that the trial court adduced evidence in a hearing intended to clarify whether Palin had pleaded “actual malice” with sufficiency to withstand dismissal.  In ruling on the defendant newspaper’s motion to dismiss, the judge went beyond matters in the pleadings and, usurping what would ordinarily be a jury function, found facts in favor of the New York Times.  Even had the trial court wished to convert the motion to dismiss into one for summary judgment, this was not done and could not with integrity be done, the court of appeals found, where Palin had not had a fair opportunity to present material supporting her claim.

The bounds of procedural fairness that the Second Circuit has outlined will keep courts and counsel on their toes, but the significance of permitting further proceedings touches on two significant points of the law of defamation that routinely form impenetrable barriers to plaintiff’s success.

Palin is a public figure, and as such she cannot prevail without showing that the allegedly defamatory publication was made with “actual malice,” defined as knowing or reckless disregard of the truth of the statement in issue.  The Second Circuit was unwilling to permit dismissal to stand without exploration of Palin’s support for the position that the New York Times had knowledge that the assertions about her PAC had been discredited.  The sufficiency of review of material on hand that dispelled the ‘incitement’ allegation before publication and any influence on Times’ editorial writer’s arising from family ties to a gun control advocate are matters of credibility for a jury’s determination.

Taken as a whole, the appeals court found that to the extent that these circumstances could give rise to an inference of recklessness, a plausible claim had been stated, and the trial court’s inclination toward the plausibility of the other party is not a consideration in evaluating the sufficiency of the claim.

Of equal significance is that the publication in question is an editorial.  Definitionally, an editorial proffers opinion, and definitionally, an action for defamation cannot be brought to challenge opinions.  Such actions may succeed only where opinion is grounded in or interwoven with falsehoods.  The Second Circuit’s willingness to entertain the notion that linking Palin to the 2011 shooting involved more than opinion permits some latitude in assessing what is necessary to demonstrate “provable fact” that would separate actionable factual defamation from mere opinion.

It is of course unknown whether Palin will prevail in her renewed proceedings.  Even if she does not, however, the claim itself, concerning an opinion published about a public figure, serves notice to publishers that the impenetrability of press protections is not as inviolable as it has heretofore been believed to be.

Palin v. New York Times 2nd Cir. August 6, 2019

 

 

 

 

A Matter of Opinion: Federal Court in Kentucky Dismisses High School Student’s Defamation Case Against the Washington Post Stemming from Reporting of Charged Encounter on the National Mall

Nicholas Sandmann v. WP Company, LLC, d/b/a The Washington Post, No. 2-019-00019 (WOB-CJS).  Opinion and Order of Dismissal with Prejudice, July 26, 2019 (E.D. Ky.)


An encounter between a high school student and a Native American activist on the National Mall in January, 2019, was videotaped and widely distributed on the internet.

The day having been one of several groups’ gathering to exercise First Amendment freedoms, the appearance of conflict between an adolescent wearing a MAGA (“Make America Great Again”) hat and a drumming Native American was undoubtedly newsworthy and of public interest.

Interaction among students from a Catholic High School who had traveled to Washington to engage in pro-life activity and a Native American participating in an Indigenous Peoples’ March could only be catnip to those inclined to perceive any encounter between persons of differing demographic groups as a manifestation of one form of social ill or another.

Upon posting of the video, the internet blew up, and the commentariat raged apace, in general denouncing the adolescent Sandmann and applauding the Native American Nathan Phillips.

Some days hence, questions arose as to the bona fides of the initial accounts of the exchange, which questions were buttressed by disclosure of additional video.

Religious superiors affiliated with Sandmann’s high school condemned the incident, a position from which retrenchment was necessitated upon disclosure of additional information.

Interviews and talk show appearances ensued.  Sandmann was interviewed, as was Phillips.  Pundits weighed in and editorialists opined. The public shared its views and the Twitterverse was alive with chatter about this alleged confrontation between individuals presumed to be from different worlds.

Counsel volunteered to help Sandmann, who had been thrust into the public spotlight at an early age, to address the consequences of perceptions of his activity.  As a result, multiple lawsuits have been filed against major media.

On July 26, 2019, the United States District Court for the Eastern District of Kentucky dismissed Nicholas Sandmann’s complaint against the Washington Post with prejudice.

The federal district court has concluded that, as a matter of law, Sandmann had not stated a claim of defamation under Kentucky law.

The court enumerated the elements of defamation under state law and referred to Supreme Court precedent establishing that opinions on matters of public concern are not actionable without provably false factual statements.  Opinion is fully constitutionally protected,  and there can be no legal remedy for statements  that cannot reasonably be seen to be stating facts.  Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990).

The court found that some statements in the seven articles published by the Washington Post were not specific to Sandmann, and were not identifiable to Sandmann, and thus were not actionable.

The court also found that statements made by Phillips that Sandmann “blocked” him from moving and that Phillips felt fear were statements of opinion which, n the absence of demonstrable underlying factual falsity, were not actionable.

Additionally, the court found the statements challenged were not defamatory.  It is not enough,the court observed, that an allegedly defamatory statement is “annoying, offensive, or embarrassing.”  (Op. at 11).  The statements must expose the claimant to “public hatred, ridicule, contempt or disgrace,” or induce in others a bad opinion (Id.)

The court turned to the defamatory nature of the statements published, which Sanamann alleged indicated that he assaulted or intimidated Phillips, uttered taunts, or engaged in racist conduct.   The court concluded that the published articles said no such things.

The court offered that, it analyzing the case as one of libel per se, the court was precluded from venturing beyond the plain meaning of what was actually published or to engage in explanation, enlargement or innuendo to add to the words allegedly libelous effect (Op. at 20-21).

Any consequences allegedly suffered by Sandmann– such as social media scorn — were without significance to the court, as extrinsic evidence would make the case one of libel per quod, which was not, in the court’s view, the claim before the court, which was one of libel per se.

A published account indicating that  a public encounter was heated or tense would not be sufficient to meet the elements of defamation, nor would rhetorical headline hyperbole be found defamatory.

Phillips’ subjective account of his experience of fear was not defamatory nor could assigning political affiliation to Sandmann subject Sandmann to the sort of social contempt required for statements to be libelous per se.  Neither Sandmann’s statement of his subjective intent nor Phillips’ description of his subjective emotional state are  susceptible to objective verification.  As such, these accounts cannot be actionable in defamation.

The court observed that shielding opinion from civil liability serves to protect First Amendment speech and press interests.

Prognostication: Impossible.  As noted above, Sandmann’s case against the Washington Post is but one of several cases in which he seeks to recover for alleged harm suffered as a result of the media firestorm that ensued from his encounter with Phillips.  If the decision here is any indication, subsequent cases may be intensively fact driven.  Whether the breadth of construction of statements of perception such as “blocked,” which is arguably a verifiable and measurable matter, will be accorded in other cases remains to be seen.  Of equal significance is whether other cases will be limited to consideration of libel per se.

Sandmann v. Washington Post, Opinion and Order of Dismissal July 26, 2019

 

 

 

 

 

Not Who, But What: Supreme Court of Minnesota Shifts Qualified Privilege in Defamation from Speaker to Spoken, Concluding that Commentary on Matters of Public Interest May Enjoy a Qualified Privilege No Matter Who the Speaker Is

Maethner v. Someplace Safe, Inc., No. A17-0998 (Minn. Sup. Ct.)  June 26, 2019.


Plaintiff’s ex-wife and a local domestic violence non-profit included plaintiff’s name, which the ex-wife retained, in online news of her award for involvement in domestic violence advocacy.  Plaintiff was not referenced directly, but lived in an area of close social connections and a relatively small population.

Plaintiff sued both the non-profit and his ex-wife for defamation.  The Supreme Court of Minnesota concluded that damages for emotional harm, standing alone, are not recoverable in defamation because proof of injury to reputation is required.

Recovery for defamation per se cannot be had where First Amendment protections are involved.

The law of defamation provides a qualified privilege to media defendants who may publish without fear unless plaintiff demonstrates actual malice.

Private parties traditionally enjoy no such privilege.

In this case, though, the Minnesota Supreme Court determined that  a distinction between media and private parties ought not remain the core focus of defamation analysis.  The key issue in cases of presumed damages is not the status of the parties but whether the challenged speech concerns matters of public concern.

The court outlined the method of analysis.  Presumed damages may be available if the speech challenged as defamatory per se is not about matters of public concern.  Unless a plaintiff can show actual harm to reputation or actual malice, there can be no recovery for defamation per se for matters not of public concern.

The decision is significant in that it places media and non-media defendants on the same footing for purposes of defamation per se, and offers both some protection where non-malicious statements about matters of public concern are in issue.

The Minnesota Supreme Court declined to impose on the non-profit any duty to investigate plaintiff’s ex-wife’s assertions of domestic violence.  The court rejected the notion that no duty in negligence could ever attach.  Rather, conduct must be evaluated in accordance with what a reasonable person would do in similar circumstances.

The court concluded that the non-profit did not breach any duty to investigate.  The non-profit was not unreasonable in basing its views on its interactions with plaintiff’s ex-wife in the absence of evidence indicating that there was any reason to question her credibility or honesty.

Although custom within the publishing profession may be relevant, custom does not control, because plaintiff offered no proof that a reasonable person would investigate or that non-profit advocates customarily investigate claims of their service recipients.

One justice disagreed with the court’s conclusion that no duty to investigate attached on these facts.  While a qualified privilege may attach to professional discussions such as employee references, credit assessments, or medical evaluations, publication about plaintiff’s ex-wife’s status as a survivor of domestic violence enjoys no such privilege.

Adherence or not to custom or practice is not to be conclusively presumed to constitute “due care,” the dissent noted.

While the dissent acknowledged the concerns  — such as the absence of corroboration in many domestic violence cases — that prompted the non-profit to credit plaintiff’s ex-wife’s assertions, the dissent found equally compelling the principle that plaintiff be afforded a fair hearing.  The court here would impose on plaintiff a duty to show that the party whose statement was believed was not credible, a position which the dissent felt deflects from the core issue of whether investigation needed to be conducted.  Where questions about the non-profit’s conduct exist, judgment as a matter of law was not proper.

While many will be pleased by the leveling of status between media and non-media defendants, much more will likely be in issue in the future concerning whether any duty to investigate exists before a non-media defendant publishes information.

Maethner v. Someplace Safe, Inc. (Minn., 2019)

 

 

 

 

 

 

 

Florida Panhandler Gets By with a Little Help from the Court, While the Rest of Early May’s Plaintiffs Face a Mixed Bag of Results on First Amendment Claims

For those who have little time to read, what follows are snapshots of cases considering First Amendment claims from courts around the U.S. up until mid-May.

AdTrader, Inc., et al. v. Google LLC.  No.17-cv-07082-BLF (VKD) (N.D. Cal.).May 8, 2019. Google’s proposed email and telephonic communications to class members offering credits without mentioning that acceptance would diminish or moot class action claims or requesting release of class action claims cannot be enjoined.

AdTrader, Inc. v. Google LLC (N.D. Cal., 2019)

Maleeha Ahmad, et al. v. City of St. Louis, Missouri.Case No. 4:17 Cv 2455 CDP (E.D. Mo) May 7, 2019.  Class certification granted in action alleging violations of First, Fourth, and Fourteenth amendment rights relating to police use of force and mace without warning on protesters exercising expressive speech and recording police activity.

Ahmad v. City of St. Louis (E.D. Mo., 2019)

AirBnB v. City Of Boston. Civil No. 18-12358-LTS (D. Mass.) May 3, 2019. AirBnB’s challenge to a Boston Municipal ordinance imposing penalties on booking agents for short term leasing of unqualified properties fails. The challenge, brought pursuant to Section 230 of the Communications Decency Act of 1996, cannot succeed where collection of fees is an activity separable from the Section 230 protected activity of publishing third party rental listings.

AirBnB, Inc. v. City of Boston (D. Mass., 2019)

Benner v. St. Paul Public Schools, et al. (D. Minn.) May 3, 2019. Benner brought claims under 42 U.S.C. Section 1983 in connection with alleged adverse employment actions relating to his participation in activity debating and challenging school disciplinary policies and practices. The court recognized that the cumulative impact of investigations and transfer may be argued to be adverse employment action but denied Benner’s claims for retaliation for exercise of First Amendment rights. No municipal liability exists where no evidence shows delegation of authority was made to the schools.  Individual qualified immunity cannot be forfeited where the issue of freedom from reprimands and unsupported adverse action, including threats of termination, causing an employee to feel forced to resign, allegedly because of exercise of constitutionally protected First Amendment rights is recognized under established First Amendment law.

Benner v. St. Paul Pub. Sch. (D. Minn., 2019)

Champion  v. Take Two Interactive Software, Inc. No.  158429/2018, 2019 NY Slip Op. 29136 (Sup. Ct. N.Y. County) May 10, 2019. While video games may be seen as fiction subject to First Amendment protections, this does not automatically remove a game from the applicability of the state civil rights law, particularly where the video game players themselves provide elements of plot.  Petitioner was unable to establish misappropriation of his image and name where the game figure in issue bore no resemblance to him at all (only racial and gender status were the same) and where alleged identical nickname was not shown to be in such widespread public use as to establish identification with plaintiff.

Champion v. Take Two Interactive Software, Inc., 2019 NY Slip Op 29136 (N.Y. Sup. Ct., 2019)

Clark  v. The City Of Williamsburg, Kansas. No. 2:17-cv-02002-hlt  (D. Kan.) May 9, 2019. Ordinance classifying political signs as more appropriate for removal than others because their temporary nature presents structural and safety hazards is a content based regulation of speech that fails strict scrutiny review.  The unconstitutional ordinance may be severed to permit political signs to be regulated on a par with all other signage.

Clark v. City of Williamsburg (D. Kan., 2019)

Colorado v. Jose Luis Galvan, Sr. No. 16CA1988, 2019 COA 68 (Colo. App.) May 9, 2019. Epithets regarding girth and dispositions of sisters uttered during a drunken rumble on a party bus are not sufficient to constitute “fighting words”  — words which would provoke an ordinary person to outrage and invite immediate response — but provocateur’s invitation to “come and get it” invites violence. Use of words not protected by the constitution warranted giving provocation instruction.  Jury determination of criminal assault affirmed.

People v. Galvan, 2019 COA 68 (Colo. App., 2019)

Commonwealth v. David Melo. No. 18-P-77 (Mass. App.) May 8, 2019 (slip opinion).“Expressive” nature of dancing does not confer First Amendment protection shielding defendant from prosecution for lewd and lascivious conduct.

Commonwealth v. Melo (Mass. App., 2019)

Dallas Morning News, Inc. and Kevin Krause v. Lewis Hall and Richard Hall, Individually and on behalf of RXpress Pharmacies and XPress Compounding. No. 17-0637 (Tex.) May 10, 2019.  Warrant directed to individuals but encompassing corporate matters is not evidence supporting a claim of falsity in Dallas Morning News‘ publication of a statement concerning investigation of compounding pharmacy activity. Although it is recognized that objectively true statements may be strung together to suggest criminality, and therefore be defamatory, that is not true where the reporting does not suggest criminality. Where statements in a published account of judicial and official proceedings are substantially true, news reporters enjoy a privilege protecting against claims of defamation.  

Dallas Morning News, Inc. v. Hall (Tex., 2019)

Ex Parte Rodolfo Ortega Nunez. No. 11-18-00156-CR (Tex.App.) May 9, 2019.  Petition for habeas corpus denied because privacy is a compelling state interest supporting laws against surreptitious video recording.  Prohibition on recording is content, not behaviorally, based and therefore is not outside First Amendment protections. Statutes criminalizing recording in bathrooms or changing areas is succinctly narrowly tailored to support the compelling state interest in privacy.  

Ex parte Nunez (Tex. App., 2019)

FilmOn.com Inc. v. DoubleVerify Inc. S244157 (Cal.) May 6, 2019.  Court of Appeals determination that context is irrelevant is reversed.  Context may be considered in determining whether a statement has been made in service of free speech in connection with a public issue.  Utilization reports are too attenuated from the public interest to warrant anti-SLAPP protection. To be protected, a statement must not only concern a matter of public interest but it must contribute to public debate.  As it is possible for commercial speech to contribute to the public interest, that status is not dispositive. Here, two for-profit entities argue about a private report which discusses others’ business practices This context permits the conclusion that the statements in issue were not made in connection free speech as a matter of public interest.  

FilmOn.com Inc. v. DoubleVerify Inc. (Cal., 2019)

In Re Alize R. v. The People, No. G055682 (Cal. App. 4th Dist.) May 2, 2019.  Juvenile adjudication. Student’s remark “Ima shank you” to teacher sufficient to support conviction where words might be seen as reasonably constituting a true threat even if not all individuals would perceive a threat.

People v. Alize R. (In re Alize R.) (Cal. App., 2019)

J.A.C. v M.J.C. No. J-s13027-19, No. 1652 WDA 2018 (Sup. Ct. Pa.) May 8, 2019. Non-precedential. Earlier order invalidated because limiting mother’s discussion of father’s inappropriate communications with half- sister unduly limits mother’s ability to protect child. Gag order limitation is not in the best interest of the child where the child is naive, does not recognize inappropriate sexual conduct, and father engaged in such conduct in front of child. As court perceived it was able to resolve issue without reaching constitutional question, court declined to address mother’s argument that speech restrictions violated her First Amendment rights.

J.A.C. v. M.J.C. (Pa. Super. Ct., 2019)

Kardasz, et al. v. Spranger, et al.  No. 17-cv-10937 (E.D. Mich.) May 6, 2019. Claim asserting ethics violation need not be on record before First Amendment retaliation claim may be found to exist.  Proximity in time between protected activity and termination may suffice to establish causation. Employees’ submission of ethics claims not within official duties precluding action.

Kardasz v. Spranger (E.D. Mich., 2019)

Nelson, et al. Individually and as Members of The Prayer Tabernacle Church of Faith, Inc. v. Brewer, et al. and The New Prayer Tabernacle Church.  2019 Ill. App. (1st) 173143. May 10, 2019. First Amendment precludes civil court jurisdiction of ecclesial matters.  No error occurred here, however, where court applied neutral principles to determine whether church complied with its own state law governing documents.

Nelson v. Brewer, 2019 IL App (1st) 173143 (Ill. App., 2019)

Omicron Chapter of Kappa Alpha Theta Sorority, et al. v. University Of Southern California.  No. B292907; B294574. (Cal. App. 5th Div.) May 1, 2019.  Associational standing is proper where association aptly represents interests of members but association may not assert interests of unidentified non-members or prospective members said to be inhibited by university’s deferred recruitment program.  The university policy would prohibit recruitment until students had a chance to acclimate to university life. The fraternal association must be offered an opportunity to show: 1) whether the university’s deferred recruitment policy violates law prohibiting punishment of students because of speech, or 2) whether under a limited public forum analysis the university policy unduly burdens fraternities’ speech interests.

Omicron Chapter of Kappa Alpha Theta Sorority v. Univ. of S. Cal. (Cal. App., 2019)

P&L Development LLC v. .Bionpharma Inc.and Bionpharma Healthcare LLC. No. 1:17cv1154 (M.D. N.C.) May 10, 2019.  Type of court submission is not outcome determinative in addressing right of access questions, but exceptions to access must be justified with particularity.  

P & L Dev. LLC v. Bionpharma Inc. (M.D. N.C., 2019)

Robert W. Mauthe, M.D., P.C. Individually and as Class Representative v. MCMC LLC. No. 18-1901 (E.D. Pa.) May 13, 2019.  Scope of consent reflected in a consumer agreement to receive fax communications and applicability of opt outs as relating to privacy issue in class action under the Telephone Consumer Protection Act, as amended by the Junk Fax Act (TCPA), is a  question of fact precluding summary judgement.

Robert W. Mauthe, M.D., P.C. v. MCMC LLC (E.D. Pa., 2019)

Roman Catholic Archdiocese of Kansas City In Kansas and St. Rose Philippine Duchesne Catholic Church v. City Of Mission Woods. No. 17-2186-DDC (D. Kan.) May 10, 2019.  No principle requires that a party must succeed on each of its claims to be a prevailing party on the merits for injunctive purposes.  Court anticipates further elucidation of the meaning of equal treatment in RLUIPA cases, but for present purposes evidence showing church and other entities’ presented similar land use requests was sufficient to support determination. Judgment and permanent injunction affirmed.

Roman Catholic Archdiocese of Kan. City v. City of Mission Woods (D. Kan., 2019)

Touchstream Technologies, Inc. v. Vizbee, Inc. No. 17-cv-6247 (PGG) (KNF) (S.D.N.Y.) May 10, 2019. Conclusory assertions are not sufficiently proprietary to warrant exception to presumption of access to courts and pleadings.

Touchstream Techs., Inc. v. Vizbee, Inc. (S.D. N.Y., 2019)

United States of America, v. Carlos Bayon. No. 18-cr-163-fpg-jjm (W.D.N.Y.) May 9, 2019. The district court affirms a magistrate’s determination that the question of whether defendant’s telephone calls to public officials were unprotected “true threats” is one of fact for trial, not one of law for adjudication by ruling on a motion to dismiss.

United States v. Bayon (W.D. N.Y., 2019)

Vigue v. David B. Shoar, Sheriff of St. Johns County And Gene Spaulding, Director of the Florida Highway Patrol. Case No. 3:19-cv-186-j-32jbt (M.D. Fla.) May 6, 2019. Florida district court has granted injunctive relief forbidding enforcement of public charitable solicitation law to individual soliciting funds while bearing a sign offering blessings. Where no interference with the public is known, public safety may be adequately addressed by other means. Deprivations of First Amendment rights are presumably irrevocable, warranting injunctive relief pending a full hearing.  The court notes that the 11th Circuit has found similar statutes defective.

Vigue v. Shoar (M.D. Fla., 2019)

 

 

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)