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Pro-Life Cries of “Murder” Are Core Political Speech, Texas Supreme Court Holds

The Lilith Fund for Reproductive Equity v. Dickson and Right to Life East Texas, No. 21-0978 and Dickson and Right to Life East Texas v. Afiya Center and East Texas Access Fund, No. 21-1039. 

Two Texas Courts of Appeals held divergent views of whether incendiary exchanges between pro-life and pro-choice groups could be actionable in defamation.  The Supreme Court of Texas has held that these advocates’ statements are not allegations of fact, but of opinion concerning matters of law and policy, making the rhetoric core political speech, protected by both the Texas and U.S. Constitutions.  As such, they are not actionable in defamation, as permitting such claims to go forward would chill protected speech.

The court noted that the term “murder” is freely employed in several social justice arenas, such as war, capital punishment, and animal rights.  

With this question resolved, post-Dobbs‘ ‘debates’ will no doubt rage on, in Texas and likely elsewhere, with no apparent end in sight.

Lilith Fund for Reproductive Equity v. Dickson, et al.

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Context Carries the Day:  Summary Judgment Reversed in Physician’s Defamation Case

Robinson v. Williams and East Carolina University, et al., No. 20-1636 (4th Cir.) February 1, 2023.

After a disastrous surgery, plaintiff, a cardiothoracic surgeon, sued defendant physician Williams because he said to others that plaintiff misread or failed to recognize the patient’s echocardiogram findings.  

The trial court found that because plaintiff admitted that she did not read the echocardiograms at all, that defendant’s statements could not be false, and that, accordingly, the statements could not be actionable. 

The U.S. Court of Appeals for the Fourth Circuit observed that the ‘misreading’ allegations would presuppose that there had been a reading in the first place. 

From this the context must be examined – the implication that the plaintiff lacked skill to interpret the echocardiogram or that she failed to observe the standard of care by failing to read the test results at all.    

As professionals could disagree about these matters which clearly implicate plaintiffs’ professional knowledge and conduct, the federal appellate court found the statements could be actionable, particularly as plaintiff was terminated from her employment and cannot find new employment.

Summary judgment has been vacated and the case remanded for further proceedings. 

Robinson v. Williams, et al., No. 20-1636 (4th Cir.) February 1, 2023

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The Times they are not a-changin’: awkward closing of Palin libel suit fails to provide path forward for standards governing publication of false statements about public figures

 

Palin v. The New York Times, No. 17-04853. 

Judgment for defendant entered February 15, 2022. 

Teleconference scheduled for February 23 at 4:00 p.m.  Public access at 888-363-4735 Access Code 1086415

In issue:  In 2017, Congressman Steve Scalise was shot while practicing with colleagues for an annual Congressional baseball game, causing news media to  echo concerns about gun violence that arose in 2011 when Arizona Senator Gabrielle Giffords sustained a gunshot wound to the head in a supermarket parking lot.

The New York Times opined that a perceived escalation of gun violence was traceable, in the Giffords case, of  incitement induced by a campaign document produced by Governor Palin which featured drawings of gun sight cross hairs on a map to indicate campaign targets.

The New York Times corrected itself but this did not, in Palin’s view, suffice to relieve the publication of liability for defamation.

While jurors were deliberating whether The New York Times ought to respond in damages to former Alaska Governor Sarah Palin for its publication of  an admittedly inaccurate, promptly removed,  statement in an opinion piece, the court granted judgment in favor of The New York Times.

Although jurors had been cautioned against accessing media while deliberating, jurors reported that they learned of the entry of judgment through telephone notifications received prior to the jurors’ verdict for the New York Times.

The court was of the mind that entry of judgment for The New York Times could provide efficiencies after appeal:  If the jurors found in favor of plaintiff Palin, and the Second Circuit reversed the trial court, judgment for Palin in accordance with the juror’s findings could be entered, obviating the need for another trial.

It seemed like a good idea at the time.  

Civil procedure thumbnail.  Judges may dismiss cases before trial, after trial, and after jury determinations in the court’s discretion if the court is of the view that a litigant cannot and, if after trial, has not, as a matter of law, established a case.  Rule 50, Fed.R.Civ.P.  Entry of judgment as a matter of law in accordance with Rule 50  modernizes the common law judgment non obstante verdicto (judgment notwithstanding the verdict), permitting courts the flexibility of entering judgment at almost any time.

The court has augmented the record to include statements to the jurors about avoiding media as well as cases relied on by the parties concerning the motion for judgment by the court, and has invited the parties to discuss any issues presented by the court’s and the jurors’ conclusions by telephone conference.

By entering judgment for the New York Times, the court indicated that the former governor had not produced evidence meeting the heightened standard for defamation of public figures announced more than a half-century ago in New York Times v. Sullivan, 376 U.S. 254 (1964).

Law thumbnail. To prevail in a  defamation claim, a public figure must prove that the publication of a defamatory statement was done with “actual malice”, defined as knowledge of its falsity or reckless disregard of whether the statement was false or not.  “Actual malice” does not mean subjective ill will but refers to publishing, as stated, with knowledge that a statement is false or with reckless disregard — more than negligence — with respect to truth or falsity.

This rarely met standard has provided insulation for publishers which some, including two justices of the U.S. Supreme Court, now sense merits revisiting.  Berisha v. Lawson, No. 20-1063, 594 U.S.  ____ (2021) (Justices Thomas and Gorsuch, writing separately, dissent from denial of certiorari).

At this writing there is no opinion concerning the final judgment on the docket for the U.S. District Court for the Southern District of New York, and it is not known whether the court will issue one.

Recent case materials:

Order February 16, 2022

Order to Supplement Record February 16, 2022

Final Judgment February 15, 2022

Earlier case materials:

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

Palin v. New York Times, Opinion S.D.N.Y. August 29, 2017

Supreme Court Opinions:

Berisha v. Lawson, No. 20-1063, 594 U.S.___ (2021)

New York Times Company v Sullivan 376 US 254 11 L Ed 2d 686 84 S Ct 710 95 ALR2d 1412 1964

The New York Times, March 10, 1964

 

 

 

 

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Still Standing, Yet at a Standstill. Federal Court Lauds Attorney’s Efforts to Call to Account the Kentucky State Supreme Court and Bar Administrative Committee But Decides Federal Relief is Precluded as Either Speculative or Barred by Sovereign Immunity

Doe v. Supreme Court of Kentucky, et al., No. 3:19-cv-236 (JRW).  Memorandum and Order granting dismissal entered August 28, 2020.

Doe sought admission to practice law in Kentucky after having done so successfully in Florida for nine years.  During that time, Doe was diagnosed with a mental health condition.  She agreed to practice with a monitor and complied with clinical recommendations.

Kentucky made multiple inquiries about Doe’s condition, demanding all medical records, convening hearings, requiring over-reaching contractual obligations but finally, after nearly two years, relenting in its insistence on conflating a mental condition with a deficit of character. Doe was admitted to practice.

Doe promptly commenced suit against the state court and bar authorities for violations of the Americans with Disabilities Act, defamation, and for other wrongs she asserted were inflicted upon her in the course of her pursuit of a license to practice law.

The federal court hearing her case praised her diligence in pursuing her licensure as doing so conferred a benefit not just to her but to the profession and society in general.  Where it is known that attorneys suffer a disproportionately higher incidence of stress, depression, addiction and suicide than others in society, hounding and threats of disqualification by the state and the bar serve only to invite harm, the court observed, as those fearing loss or denial of licensure or the oppression of the state will not seek help, and where help is not sought, some will lose not only their cases but their lives

Nonetheless, the court determined that it could not grant Doe relief.  Prospective relief could not be awarded as it would be speculative.  Other relief requested by Doe, even though she had standing, could not be awarded in federal court because immunity principles forbade doing so.  

Doe v. Supreme Court of Ky. (W.D. Ky. 2020)

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Cayuga Nation and Tribal Leader to Appeal Dismissal of Defamation Suit against “Billions” Creators and Showtime Network

Cayuga Nation and Clint Halftown v. Showtime Networks, Inc., Brian Koppelman, Andrew Ross Sorkin, and David Levien, No. 157902/2019 (N.Y. Sup. Ct.) Decision granting dismissal entered July 17, 2020.

The Cayuga Nation and tribal leader Clint Halftown sued the creators of Showtime Networks drama “Billions” in defamation, alleging that a female character sharing the same name as Halftown was shown to have engaged in illegal conduct.  The court noted that the Cayuga Nation, as sovereign, could not sue for defamation.  Rather than defamatory content, the fictional Jane Halftown was not shown to be engaged in criminal activity.  Moreover, the court concluded, there was no likelihood that the character in the show, which published a statement in the end credits noting its status as fiction, would be perceived to be the living Clint Halftown. 

To be defamatory, a statement must be “of and concerning” and individual and be recognized or reasonably be interpreted as such.  This is a question of law but where a work is fiction, a court must search for “similarities and dissimilarities” to see whether someone who know the plaintiff would know the plaintiff was being portrayed.  

Consideration might be given to similar name, physical characteristics, family, history, and activities, including recreational activities. 

As libel by fiction is counter-intuitive, requiring denial of defamatory material while asserting similarities with the fictional character, more than superficial similarities must be shown, such that one who knows the plaintiff would recognize the plaintiff in the fictional character.

This cannot be established where the real and fictional characters are, as here, of different genders, there is no history of the plaintiff’s involvement in land deals, and no engagement with novel voting methodologies.

That the real and fictional characters have the same last names and occupations is superficial. A viewer would not be misled, and the closing assertion that the show is fictional only underscored the show’s nature.  

Plaintiffs’ trade appropriation claim failed because the statute applies to persons, not sovereigns, and concerns advertising and trade, not fiction. 

Plaintiffs have appealed the order of dismissal in its entirety.  

157902_2019_Cayuga_Nation_et_al_v_Showtime et al Decision and Order

157902_2019 Cayuga Nation et al v. Showtime et al Notice of Appeal (2020)

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Viral Publication and Opinion in a Divided Nation: CNN Settles with High School Student Said to Have Been Defamed by Broadcast of Video of Confrontation with Native American Protester on the National Mall

Sandmann v. Cable News Network, et al., No. 2:19-cv-00031 (E.D. Ky.).  Related matter:  Sandmann v. Washington Post Company, No. 2:19-cv-00019 (E.D. Ky.)

Nicholas Sandmann visited the National Mall on January 18, 2019, joining with fellow Catholic High School students in a March for Life event.  There Sandmann was confronted, face to face, by Nathan Phillips, a Native American participating in a separate event, subsequent to what appears to have been a series of taunts exchanged among protest groups. 

The video confrontation, published nationally by mainstream media, including Cable News Network (CNN), precipitated officials, news commentators, church officials, and others to characterize Sandmann, shown in a “MAGA” (“Make America Great Again”) hat, a symbol of the current executive administration, as a racist. 

Sandmann filed complaints against several media entities separately, two of which, against the Washington Post Company and CNN, have been assigned to the same senior federal judge in the Eastern District of Kentucky.  

Following dismissal with prejudice of the complaint against the Washington Post, Sandmann was granted reconsideration which set aside the dismissal in part and granted Sandmann leave to amend his complaint against the Washington Post.  

In October, 2019, CNN’s motion was denied to dismiss and Sandmann’s motion to amend his complaint were granted. 

A proposed discovery and pretrial schedule was submitted to the court in the Eastern District of Kentucky in both cases on  January 3, 2020. The parties to the CNN case reported publicly on January 7, 2020 that settlement with CNN without trial, on undisclosed terms, had been reached. 

Whether the settlement signals a change of course among other media defendants will likely unfold in the not distant future. 

Notwithstanding — and perhaps particularly in light of — the rhetoric accompanying this case, the legal issues, while well grounded in history, seem to call for particular examination in the age of instant worldwide publication and the simultaneous formation of opinions.  Whether a matter is one of fact, and therefore actionable in defamation, or of opinion, and therefore not, is a longstanding principle. Whether this is changed or modified or subject to new refinement in the age of instant worldwide transmittal and simultaneous formation and publication of opinions remains to be seen.

CNN’s account of the settlement may be found at:

CNN Settles Lawsuit Stemming from Viral Video Controversy

The opinion dismissing Sandmann’s initial complaint against the Washington Post, of some historic note, may be found here:

2019 07 26 Sandmann v. WP Company__Memorandum and Order Granting Motion to Dismiss

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Fact v. Fiction Friction: Native American Tribe and Leader Sue “Billions” Showrunners in Defamation

Cayuga Nation and Clint Halftown v. Showtime Networks, et al., No. 157902/2019 (N.Y. Sup. Ct.).  Oral argument on motion to dismiss scheduled for December 23, 2019.

“Billions” is a CBS/Showtime drama series that explores the manners and mores of titans of the New York financial and legal realm.  A fatherless self-made billionaire hedge fund owner squares off against a politically powerful adult child of privilege who cannot escape the influence of his ruthless father.

The Cayuga Nation and its leader object to Billions’ portrayal of them, asserting that the show has intimated the nation and its leader engaged in improper business conduct.  Showtime and its creators demur, asserting that this fictional account bears only a nominal similarity to the plaintiffs, that no viewer would mistake the drama for fact, that the nation as sovereign cannot maintain an action in defamation, and that any claim of misappropriation of Halftown’s likeness must fail, as no likeness has been appropriated and no image has been used in trade or advertising.

Defendants argue that fiction must be accorded strong First Amendment protection, and that the high standard applicable to defamation in fiction cases requires that any representation be unmistakable, indistinguishable from a real person, and involve defamatory statements concerning the target of the defamation. 

None of these standards can be met, defendants submit, where the female tribal leader acting in the show could not be mistaken for the real leader.  Moreover, the portrayal of the tribe and its leaders was not defamatory but rather portrayed the nation and its leader as politically astute.  There was no depiction or suggestion that either the nation or the its leader engaged in any criminal activity, precluding success in claiming defamation per se.

Plaintiffs insist that conclusory arguments without factual support do not support dismissal.  The nation is not without capacity to defend its good name and the idea that oblique representations cannot be actionable distorts the law.

Case Documents:

Summons and Complaint

Memorandum of Law in Support of Dismissal

Case Law in Support of Dismissal

Brafman v. Houghton Mifflin

Milo v. CBS

Summerlin v. Washington Star

Air Zimbabwe v. Tribune

Memorandum of Law in Opposition to Dismissal

 

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Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.

To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)

 

 

 

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Graffiti Gravitas: U.S. District Court in Maine Enjoins Enforcement of Student’s Suspension Subsequent to Posting Message About Sexual Assault in School Bathroom

A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  

A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Portland Head Light

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.  

 

 

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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