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

Can You Overhear Me Now? U.S. District Court in Massachusetts Undertakes Review of State Wiretap Statute Precluding Non-Consensual Recording

Martin and Perez v. Police Commissioner and Suffolk County District Attorney, No. 16-11362-PBS (D. Mass.) March 13, 2017.   
Project Veritas Action Fund v. Suffolk County District Attorney, No. 16-10462-PBS (D. Mass.) March  23, 2017 and September 6, 2017.

Two unfolding Massachusetts cases test the limits of the state’s wiretap law, Mass. Gen. Laws ch. 272, § 99. That law criminalizes interception or recording conversations without consent.  Project Veritas, an “underground” media organization, contemplates recording investigations of “scofflaw” landlords and Boston officials involved in immigration and sanctuary city policies.  Two individual social justice activists seek to conduct more of the police recording they have  already undertaken.  

Pre-Enforcement Review. Neither Project Veritas nor the individual social justice activists have been arrested or charged with violation of the wiretap law, but each seeks pre-enforcement review, asserting that the fear of prosecution inhibits or “chills” their exercise of protected First Amendment activity.  The state does not deny the possibility of prosecution, nor do police deny that training materials instruct officers they may arrest individuals discovered to be engaged in covert recording.

Although federal courts generally cannot hear cases unless the party bringing presents a real redressable injury, a potential deprivation of First Amendment rights is considered to be so severe that prosecution is not necessary before review can be obtained.  The First Circuit has opinion that new or non-moribund legislation involving constitutional interests may be presumed to carry a credible threat of prosecution absent clear evidence to the contrary.

The district court found that the state’s admission that prosecution is possible precludes a determination that plaintiffs’ fears are attenuated or hypothetical.  The court dismissed the assertion that even if the court heard these cases, other enforcement entities might prosecute:  a court need not be able to cure all ills for redressability to be present.

Public Officers and Private Expectations. The court has refused to engraft a “reasonable expectation of privacy” limitation on the statute to permit Project Veritas to record public transactions without consent.  The central concern of the statute is to protect the privacy of citizens, which the legislature could have limited as Project Veritas has suggested, but did not.  

The court observed that conversation does not lose its private character simply because discussion is had in public, but the court has  found the statute constitutionally deficient as to any prohibition on recording police in public performance of their official duties, for  the state has no interest in protecting the privacy of police officers conducting public business in public settings.  This determination gives the individual social justice activists’ claim continued vitality.   

Standing and Ripeness.  Although each plaintiff has alleged an injury that may be redressed in court, Project Veritas has offered only non-specific contemplated activities. The court cannot offer an advisory opinion on hypothetical contingent matters.

Current Status of Cases.  Project Veritas has submitted an amended complaint including additional matters it plans to investigate. Defendants have responded to the social justice activists’ complaints.  Both cases await further review.  

Martin v. Evans (D. Mass., 2017)

Project Veritas Action Fund v. Conley (D. Mass., 2017) March 2017.1

Project Veritas Action Fund v. Conley (D. Mass., 2017)


Breaking Up Now Even Harder to Do: Constant Contacts and Surprise Appearances Justify Issuance of Harassment Prevention Order

A.S.R. v. A.K.A., No. 17-P-1109 (Mass. App.)        September 22, 2017.

A.K.A. appealed from a district court’s extension of a harassment protection order originally issue ex parte, arguing that the trial court failed to identify three acts supporting the order, failed to make findings concerning A.K.A.’s intent in contacting former beau A.S.R., and erred in entering the order where A.S.R. did not fear physical harm or property damage.

A.S.R. and A.K.A. had intermittent contacts following the end of their one year affair, but when A.S.R. determined not to have further contact, A.K.A. deluged him with email, text and telephone contacts from multiple sources, thereby defeating privacy controls, imploring re-establishment of contact and occasionally threatening self harm  A.K.A. appeared at public places where A.S.R. was performing or dining with a new love interest.

In pursuit of the harassment protection order, A.S.R. testified that the constant contacts made him afraid to access internet and phone communications, afraid to venture out publicly, and upset his family, particularly where A.K.A. threatened self-harm.

A.K.A. testified that she had no intent to harm A.S.R.:  she wanted to resolve the relationship.  Her appearances where A.S.R. was present were coincidental, although she did email A.S.R.’s new interest.

The trial court disbelieved A.K.A. and extended the harassment order because of the violence of here communications, notwithstanding that in the trial court’s view A.K.A.’s First Amendment interests were in play.

The Massachusetts Court of Appeals found that the standards of criminal harassment had been amply met, making the determination that civil harassment had occurred supportable.

While three acts are required by statute to establish harassment, the court as trier of fact had before it evidence of multiple acts and was not required to make specific findings selecting three acts before extending the order.  Neither was the judge required to issue specific findings that A.K.A.’s acts were willful and malicious.

Even if A.S.R. was uncertain about apprehension of physical harm, A.S.R. was clear that A.K.A. caused extreme fear.  The trial judge was warranted in finding that the volume and kind of contacts would cause a reasonable person to experience emotional distress or fear for safety.

A.K.A.’s speech and conduct enjoyed no First Amendment protections. The evidence supported a finding that A.K.A.’s behavior was a true threat, which does not require explicit statements of imminent harm. Massachusetts holds that “true threats” include intentional aggression which, in context, cause victims to fear current or future harm.

Not every former partner’s intrusions will justify issuance of protective orders, the Court of Appeals noted.  In this case, however, the order was amply supported because of evidence of the volume, nature and persistence of A.K.A.’s contacts.

A.S.R. v. A.K.A. (Mass. App., 2017)

You Can Fight City Hall! (It’s Just Not Easy)

Kovalev v. City of Philadelphia, No. 16-6380 (E.D. Pa.) September 22, 2017.

Sergei Kovalev sought a federal court’s determination that his First Amendment rights of access were violated during incidents at Philadelphia city office buildings, that he was retaliated against in connection with exercise of those rights, that city officials’ conduct shocked the conscience, that the city was deliberately indifferent to violations of constitutional rights, and that Kovalev was subjected to intentional infliction of emotional distress.

The federal court dismissed all but his retaliation claim.

Kovalev found himself caught in a web of bureaucratic hearings and appeals concerning trash assessments imposed on his property. Following one such hearing, Kovalev demanded that city administrative officials provided him with hearing board members’ names.  In response, administrators telephoned the Sheriff’s office.

Kovalev was accompanied to elevators by an officer.  He left the building only to return through another entrance.  On encounter with a Sheriff’s office official, he demanded and was provided with a copy of a report documenting the call from the city administrator’s concerning Kovalev.

Where the public or non-public nature of the city office fora was not clearly established, and while any disruptive nature of Kovalev’s conduct within that area was in dispute, Kovalev’s claim for violation of any First Amendment right of access could not proceed.

The same was not true of his claim for retaliation.   It is well established that filing a false report about unlawful activity can impair the exercise of First Amendment rights, and that filing such a report can be seen as unlawful retaliation for exercise of those rights.

The federal court found Kovalev’s other claims could not survive.  First, no claim for assault could be established where the Sheriff’s officer, without more, walked him to the elevator.  No conduct “shocking to the conscience” could be adduced, as his factual allegations do not evince the sort of grave harm, such as loss of employment or child custody, found in such cases.

Even if city officials lacked sufficient training to be aware of their obligations to avoid Section 1983 litigation, no pattern or practice of exclusion depriving individuals of constitutional rights could be shown, making it impossible to prove that the municipality had been deliberately indifferent to such issues.

Finally, no claim for intentional infliction of emotional distress could survive where no medical evidence supported Kovalev’s assertions.

Kovalev v. City of Phila. (E.D. Pa., 2017)

There’s No App for That: Title IX Does Not Compel Accession to Students’ Demand to Prohibit Independent Social Media

Feminist Majority Foundation, et al. v. University of Mary Washington, et al., No. 3:17-cv-00344 (JAG) (E.D. Va.) September 19, 2017.

Students at Virginia’s University of Mary Washington filed a Title IX complaint against the school and its officials subsequent to the school’s refusal to inhibit the use of the now-defunct social media application Yik Yak, through which unpleasant and sometimes threatening messages were direct at the students concerning their pro-feminist on-campus activities.

The federal district court for the Eastern District of Virginia has dismissed the students’ claims.  Title IX of the Education Amendments of 1972 prohibits discrimination which impedes access to education: the court held that the university is not responsible under Title IX for matters not within its control, such as the independently owned and operated application Yik Yak.  Title IX permits flexible remediation:  a university need not accede to students’ particularized demands for relief, especially where accession could generate First Amendment exposure.

The court could find no retaliation against the students, as a letter explaining the school’s position could not be seen as such.  Neither were the students successful in their Section 1983 claims against the school president individually, as no clearly established constitutional right could be shown.  Moreover, action against the university president in his official capacity for an ongoing violation of federal law could not be sustained.  There was no suggestion of ongoing violation and the suit was barred by the Eleventh Amendment.

Universities receiving federal funds and their administrators may yearn to breathe a sigh of relief at the outcome in this matter, yet it may be premature to assume that there exists insulation against liability for social media related claims.  The exact parameters of the “no control” finding are not known, and it is likewise clear that schools themselves do participate in social media or make such fora available to students.  Of equal importance is that not all speech and expression enjoys First Amendment protection, leaving those limits for testing at another time.  While it is a boon to schools that the court reiterated that Title IX requires discrimination that is extreme and pervasive and interferes with obtaining an education, and that schools need not accede to students’ demands in offering relief, this case will likely not deter future claims to the extent schools might wish.

At this time it is not known whether there will be an appeal.

Foundation v. Univ. of Mary Wash. (E.D. Va., 2017)





Matchmaker, Matchmaker! I’ll See You In Court

Lifschitz v. Rabbi Haim Yosef Sharabi, et al., No.  2016-11671, 2017 N.Y. Slip. Op. 06530 (N.Y. Sup. Ct. App. Div., 2nd Dist.) September 20, 2017.

Plaintiff charged defendants with fraud and breach of contract in failing to fulfill a promise to find her a husband according to Jewish custom.  Defendants denied the authority of civil courts to hear the case, pointing to its foundation in religious practices.

Defendants are in error, the New York Supreme Court Appellate Division has found. There is no First Amendment impediment to adjudicating civil matters using neutral principles of law without reference to religious principles.

Lifschitz v. Sharabi, 2017 NY Slip Op 6530 (N.Y. App. Div., 2017)

No Longer Wrong, No Further Rights: RLUIPA Complaint Moot Following Settlement Between Islamic Center and County Government

United States v. County of Culpeper, No. 3:16-cv-00083 (W.D. Va.) September 1, 2017.

The federal government and the Islamic Center of Culpeper, Virginia both initiated federal litigation against the Culpeper County government to vindicate violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The Islamic Center of Culpeper, seeking to construct a new facility, alleged that the county added bureaucratic hoops and subsequently denied a permit routinely granted to others.  This occurred in the context of objections to the project to which local officials expressed concern about bias.

Culpeper County and the Islamic Center settled:  the permit was awarded, a promise that further permitting would not be hindered was made, and  were awarded.  The county undertook remedial measures by posting non-discrimination notices, including non-discrimination provisions in contract documents, and training staff in fair practices. The parties agreed that redress in federal court could be sought in case of any violation of the agreement.

The federal district court for the Western District of Virginia dismissed the federal government’s’ case as moot, declining continued federal presence to assert undefined “broader’ relief than that already agreed upon or to permit the federal government to monitor any assumed but unproved bad faith on Culpeper County’s part.  Where the private and federal cases against the county made the same claims and complete and enforceable relief had been attained, and the policy changes instituted by the county met the safe harbor provisions of RLUIPA, precluding judgment against it.

Where only injunctive and declaratory relief could be sought by the federal government, the federal district court lacked continuing subject matter jurisdiction of the federal government’s claims.  Mootness, the court opined, exists where no order the court could fashion could afford relief:  any declaration that the law had been violated would be retrospective and impermissible as advisory.

The presence of an enforceable settlement agreement and the provision of remedial measures addressing religious discriminationn precludes as moot the continued involvement of the fedeeral government in the federal courts relating to the very same matter against the county.

While this result appears facially straightforward, and while it is not known whether appellate review will be sought, the court’s opinion does intimate a refusal to permit the federal government, by means of retained federal court jurisdiction, to assume the role of ongoing monitor of settled claims.  It may be that the mootness rationales advanced by the trial court will be employed in other cases to inhibit the federal government from lingering in court, hovering over local governments “just in case” review appears desirable.

u.s. v. culpeper county w.d. va. 20170901

A Big Oops, But No Case: New York Times Shielded from Public Figure’s Defamation Claim

Editorial suggesting relationship between gun violence against Republican Congressmen and noted Republican’s activities not actionable notwithstanding editorial’s inclusion of hyperlink to information contradicting conclusions.  Rapid correction and insufficiency of evidence concerning actual malice compel dismissal with prejudice.  Palin v. New York Times Co., No. 17-cv-4853 (S.D.N.Y.) August 29, 2017.

Hours after an individual opened fire on June 17 2017 on Republican Congressmen practicing baseball in Northern Virginia in anticipation of an annual bipartisan charitable game, the New York Times (“Times“) published an unsigned editorial suggesting a link between former presidential candidate and Alaska governor Sarah Palin’s rhetoric and the violence.   The editorial included a hyperlink to an article stating that no relationship had ever been established between a graphic overlaying target crosshairs on political adversaries’ geographic jurisdictions and the 2011 shooting of Congresswoman Gabrielle Giffords and eighteen others near Tucson, Arizona.

The Times backpedaled within a day, publishing two revised editorials and corrections stating that no link had been established between political incitement and the Giffords shooting.

Ms. Palin sued the New York Times Company.

The United States District Court for the Southern District of New York dismissed with prejudice plaintiff Palin’s complaint on August 29, 2017, opining that plaintiff ha failed to allege with sufficient particularity and plausibility facts sufficient to withstand the rigorous standards for liability for defamation of a public figure established by New York Times v. Sullivan, 376 U.S. 254 (1964).

The landmark New York Times v. Sullivan decision created — in order to ensure First Amendment speech and press freedoms — a higher standard of proof in defamation actions by public figures than in those brought by ordinary people.  A public figure who seeks redress must establish by clear and convincing evidence that a defamatory statement was made with actual malice. Actual malice is defined as actual knowledge or reckless disregard of the falsity of a published statement.

In Palin’s case, the court noted that her status as a public figure was conceded.  The Times’ attempted reliance on the “group libel” doctrine precluding relief, in which relief is precluded where an individual is only a member of a group, is misplaced where the editorial mentioned Ms. Palin by name in connection with her political action committee.

It was at the threshold of the actual malice standard that plaintiff’s complaint stumbled, the court opined.  As an initial matter, the court ruled that collective “corporate” actual malice does not merit legal recognition and in any case, cannot be established absent a showing that an individual’s actual malice was directed to a corporate publisher’s attention.

Individual actual malice could not be shown, the federal district court held.  Rather than evidencing liability, the rapid revisions and corrections of the editorial acknowledged an unintended mistake.

Neither the Times’ unabashed low regard for Ms. Palin nor its desire for readership concerned the court, nor did the (ultimately identified) responsible editor’s affiliation with liberal institutions and politicians add weight to any argument about the Times’ motivation in publishing the editorial.

The inclusion in the editorial of a hyperlink to published statements negating the Times’ position show not that the Times was unmindful of the truth, but rather that the Times had done some research before publication, the court found.

The editor’s failure to read research provided to him was of no moment, the court observed, as a failure of research cannot establish actual malice.  Whether the editor had knowledge of the evidence indicating the absence of connection between the plaintiff’s political action committee’s crosshairs map and mass violence was but a lawyer’s argument, the court found.

If the editor refused to read the contrary view — presumably because it contradicted the editorial’s position — the editor could have removed the link.  The editor’s failure to remove the link to contrary information supports an inference against actual malice, the court found.

When rewriting an editorial writer’s submission, the editor had no incentive to read what the editorial writer had reviewed.  Any failure to read proffered  research material cannot constitute reckless disregard.

Moreover, the federal district court found, the earlier Times editorials made available to the editor were not as contradictory as plaintiff would wish, as they opined that Republicans and Palin were responsible for creating a rancorous atmosphere capable of affecting the behavior of the mentally ill who commit mass gun violence.  Thus the Times’ self-corroboration would not necessarily have compelled the Times’ editor to conclude that its June, 2017 editorial was in error.

Dismissal with prejudice was in order, the court concluded, where, in addition to pleadings, matters adduced an evidentiary hearing were considered, where plaintiff’s other arguments were so insubstantial as to not merit consideration, and where a collective assessment of individually deficient assertions could not support an inference of actual malice.

No doubt the Palin decision was welcomed by the New York Times and other publishers. In many respects the case can be seen as testing the limits of liability in defamation at a time of near simultaneity between events and publication of related news and opinions. As such, the court’s refusal to police newsroom shortcomings may be heartily welcomed in those circles.

Yet there are those who may believe that the New York Times v. Sullivan now immunizes publishers to a degree paralleled only by sovereign immunity, where initially the Supreme Court’s holding was intended to offer protection first in service of the constitution, and only consequently in aid of the corporation.  In the absence of reliable information concerning whether Palin will appeal, it appears that further consideration of the issues raised in this case must await another day.

20170829 SDNY Palin Opinion

The Summer of Not So Much Love: Members of Rock Band Jefferson Starship Square Off for a Third Round of Litigation Over Contract and Trademark Rights

The federal district court in northern California is being called upon to explore the limits of Lanham Act protections in the context of First Amendment expressive freedoms. Chaquico v. Freiberg, et al., No. 17-cv-0423-MEJ (N.D. Cal.) August 11, 2017.

The United States District Court for the Northern District of California has refused to dismiss contract claims arising after the death of Jefferson Starship member Paul Kantner.   The court has dismissed, with leave to amend, plaintiff’s Lanham Act claims, finding the current presentation of the claims to be too conclusory to survive a motion to dismiss.

Back in the Day:  The Several Incarnations and Litigations of a Legendary Band

Chaquico and Paul Kantner founded rock band Jefferson Starship in 1970, enjoying great commercial success.  When Kantner left the band fourteen years later he sought to enjoin the remaining band members from using the Jefferson Starship name.

Kantner, plaintiff Chaquico, present defendants Freiberg and Baldwin agreed in 1985 that the name Jefferson Starship would no longer be used, but “Starship,” without Kantner, would be used by the other band members.

Starship enjoyed some success, but Freiberg was fired, Baldwin was dismissed, and Chaquico left.  

Thereafter Kantner joined with other musicians and, notwithstanding the 1985 agreement, resumed use of the name Jefferson Starship.  

Chaquico sued Katner for Kanter’s unauthorized us of the Jefferson Starship name.  In 1993, Chaquico granted Kantner use of the Jefferson Starship name for live performances and sale of merchandise.  Some parties to the 1985 agreement agreed to give Kantner those permissions:  no parties to the agreement objected.  

Defendants Freiberg and Baldwin joined Jefferson Starship in 2005 and 2008.

Kantner’s death in 2016 terminated the naming permissions granted in the 1993 agreement.  Freiberg and Baldwin continued to use the Jefferson Starship name. Chaquico demanded they cease and desist these violations of the 1985 agreement.

What Is Plaintiff’s Current Concern?

Chaquico objects to the the defendants’ continued use of the Jefferson Starship name as an affront to the band’s legacy.  Moreover, Chaquico argues that the use of images from the original band has caused him to become an “involuntary spokesperson” for the band.  Chaquico asserts that use of the original images will cause public confusion.  

Defendants refuse to stop using the Jefferson Starship name, and continue to use that name in advertising and promotions, citing permissions from other parties to the 1985 agreement.  

What Would Make Things Better?

Chaquico seeks damages for breach of contract, for violations of the Lanham Act, and requests injunctive relief.

The Contract Claims

The 1993 agreement released Chaquico’s rights against Kanter and band members. Although the defendants in the current litigation were not parties to the 1993 agreement, they obtained benefits from it, enjoying its protection when they joined Kantner’s band which lasted until the time of his death.  Claims arising before Kantner’s death are, the court concluded, time barred, but those arising after Kantner’s death may proceed.

The Lanham Act Claims:  Commerce and Art Collide

The Lanham Act prohibits the use of names, symbols, images or other representations likely to cause confusion, mislead, or deceive concerning any product, service or commercial activity.

Where the Lanham Act constrains representations likely to cause commercial confusion, the First Amendment guarantees extensive expressive latitude, yet the First Amendment will not serve as a shield against legitimate commercial confusion claims.

The use of a promotional  image must have some minimal relevance to protected artistic expression to claim the First Amendment protections of an underlying work, but those protections may be forfeited if an  image is explicitly misleading about the content of the underlying work.  

The Current Ruling in the Northern District of California

The trial court noted that First Amendment protections extend only to truthful claims.  If the use of Chaquico’s image in Freiberg and Baldwin’s advertising falsely conveys Chaquico’s sponsorship, no First Amendment protections attach.  

As the present complaint lacks sufficient factual foundation, Chaquico may proceed if an amendment cures this deficiency.

Significant Case Law

Brown v. Electronic Arts, 724 F.2d 1235 (9th Cir. 2013) (expressive use of image in video game may violate Lanham Act).

ESS Entertainment v. Rock Star Videos, 547 F.3d 1095 (9th Cir. 2008) (Rogers applies to use of trademark in body of work).

Mattel v. MCA Records, 296 F.3d 894 (9th Cir. 2002) (adopts Rogers).

Rogers v. Grimaldi, 875 F.2d 994 (2nd Cir. 1989) (Lanham Act applies to artistic works only where public interest in avoiding confusion outweighs public interest in freedom of expression).

Chaquico v. Freiberg (N.D. Cal., 2017)