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

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


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)

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

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

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news broadcast stating that Rubin had been terminated because of allegations of child sexual abuse, a report which was retracted the following day, with an apology noted.

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

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

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

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



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)