Archive | Defamation

Mann v. Steyn Mulligan

On December 19, the District of Columbia Court of Appeals effectively erased Michael Mann’s initial court victory in his defamation lawsuit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute.  Here’s how Mark Steyn pithily summarizes the developments:

1. Dr Michael Mann’s lawyer, John Williams, filed a fraudulent complaint falsely representing his client as a Nobel Laureate, and accusing us of the hitherto unknown crime of defaming a Nobel Laureate.
2. After Charles C W Cooke and others exposed Dr Mann’s serial misrepresentation of himself as a Nobel Prize winner, Mann’s counsel decided to file an amended complaint with the Nobel falsehood removed.
3. Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene then denied NR’s motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.
4. The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.
5. So everyone is starting afresh with a new judge, a new complaint from the plaintiff, and new motions to dismiss from the defendants. That’s the good news.
6. The bad news is that Mann’s misrepresentation of himself as a Nobel Laureate and Combs-Greene’s inept management of her case means that all parties have racked up significant six-figure sums just to get back to square one. In a real courthouse – in London, Toronto, Dublin, Singapore, Sydney – Dr Mann would be on the hook for what he has cost all the parties through his fraudulent complaint. But, this being quite the

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Who Qualifies as “Media” for Purposes of Texas Law Governing Appeals?

I wanted to pass along another brief the UCLA First Amendment Amicus Brief Clinic submitted last week. This one is on behalf of the bloggers at SCOTUSblog, the Supreme Court of Texas Blog, How Appealing, InstaPundit, and Power Line (3/4 of the bloggers there), in SEIU v. Professional Janitorial Service, Inc. (Tex. Sup. Ct.) (the link is to the decision that is being appealed), and my students Nate Barrett, Garry Padrta, and Scott Sia worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.

Here’s the issue: Defendants often move for summary judgment before trial; they argue that, even assuming the evidence that the plaintiff has identified before trial is correct, defendant is entitled to win as a matter of law, without the need for a trial. This is a way of avoiding the extra expense and risk of trial, in those situations where the law is on defendant’s side. But if the judge rules against defendant, the trial goes on, and the defendant isn’t entitled to immediately appeal; the defendant has to wait for the appeal until after trial, when the losing party can indeed appeal.

But Texas Civil Practice & Remedies Code § 51.014(a)(6) provides various exceptions, including when the lawsuit “is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution [or the similar Texas constitutional provisions]” (emphasis added). Texas courts of appeals disagree on how to define [...]

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Son of Palestinian Authority President Loses Libel Lawsuit

The decision is Abbas v. Foreign Policy Group, LLC (D.D.C. Sept. 27, 2013); the defendants were the company that publishes Foreign Policy magazine and Jonathan Schanzer, the VP for Research at the Foundation for Defense of Democracies. An excerpt:

Mr. Abbas contends that the Commentary poses two “libelous questions:” (1) “Are the sons of the Palestinian president growing rich off their father’s system?; and (2) “Have they enriched themselves at the expense of regular Palestinians — and even U.S. taxpayers?” Mr. Abbas alleges that these questions “may be read as assertions of false fact that [he] is wrongfully and possibly criminally getting rich off his ‘father’s system.’” Purportedly, these questions ask “those he works with and all the world to wonder if plaintiff has ‘enriched’ himself ‘at the expense of regular Palestinians — and even U.S. taxpayers.’” Defendants argue that “the Commentary merely posed questions, without stating or implying as factual matter that Plaintiff was guilty of criminal or corrupt conduct, and Plaintiff has wholly mischaracterized the Commentary in an effort to suggest otherwise.”

A statement challenged as defamatory, regardless of whether it is posed as a question, cannot be libelous unless it can reasonably be read as a false assertion of fact. “[I]nquiry itself, however embarrassing or unpleasant to the subject, is not accusation.” …

[T]he two questions posed in the Commentary cannot reasonably be read to imply the meaning that Mr. Abbas alleges — that he “is wrongfully and possibly criminally getting rich off of his ‘father’s system’ ” or that he is enriching himself “at the expense of regular Palestinians and even U.S. taxpayers” — or can they be read to imply the assertion of objective facts. Though the conclusions Mr. Abbas draws are possible answers to the questions posed by Mr. Schanzer, the questions invite

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Libel Insurance and Online Commenters

Say you posted a comment online — on a site such as Yelp, on a blog, or elsewhere — and now someone is threatening to sue you for libel. What do you do?

Well, if you have homeowner’s insurance (or renter’s insurance), look at your policy — such policies, to the surprise of many people, generally cover libel lawsuits. One policy that I read, for instance, says that

If a claim is made or a suit is brought against any insured for damages because of bodily injury … caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent….


“Bodily injury” means; … personal injury … arising out of … libel, slander or defamation of character; or … invasion of privacy.

If you have an umbrella liability policy, it may provide extra monetary coverage. Of course, you’re only covered if your insurance contract does indeed specify this, explicitly or implicitly. You ought to read your policy, and pay close attention both to the body of the policy and any separate definitions section. The policies are often quite readable, but tend to have surprising definitions — for instance, if you had read the policy above and assumed “bodily injury” means physical injury to the body, you would have missed that bodily injury is actually defined to include libel.

These policies generally don’t cover punitive damages, but they do cover both compensatory damages and litigation defense costs. Fortunately, that’s what you most want to have covered. Libel cases are hard for plaintiffs to win, and punitive damages are especially [...]

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Fifth Circuit Rejects Canadian Libel Judgment Against Blogger

The case is Trout Point Lodge, Ltd. v. Handshoe (5th Cir. Sept. 5, 2013), and it applies the SPEECH Act, a federal statute that, among other things, provides:

Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that:

(A) the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located; or

(B) even if the defamation law applied in the foreign court’s adjudication did not provide as much protection for freedom of speech and press as the first amendment to the Constitution of the United States and the constitution and law of the State, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of the State in which the domestic court is located.

Here’s an excerpt from the facts:

Handshoe, a Mississippi citizen, owns and operates, a public-affairs blog with the tagline “Alternative New Media for the Gulf South.” He describes as a “forum for local residents and other interested parties to gather and share information regarding various political and legal issues that impact the Gulf Coast.”

One of the blog’s focal points over the last few years has been Aaron Broussard, the former Parish President of Jefferson Parish, Louisiana. Broussard was indicted in the United States District Court for the Eastern District of Louisiana and

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Mann v. Steyn — Mann Wins Round One

Last year, the noted (and controversial) climate scientist Michael Mann sued National Review and the Competitive Enterprise Institute for defamation and intentional infliction of emotional distress for blog posts written by Mark Steyn and Rand Simberg and posted on National Review Online and CEI’s OpenMarket blog, respectively.  I blogged about the case in these four posts: 1, 2, 3, 4.  Because the suit was filed in D.C. Superior Court, it was subject to D.C.’s anti-SLAPP statute, which is designed to discourage nuisance defamation suits.  Accordingly, the defendants filed motions to dismiss the complaint.  On July 19, Judge Natalia Combs-Greene of the D.C. Superior Court denied these motions.  Barring a reconsideration or interlocutory review, this case could head to trial.

In her two orders (NRO/Steyn, CEI/Simberg), Judge Combs-Greene characterizes the this as a “close case.”  She recognizes Mann qualifies as a “public figure,” at least in the context of climate policy debates.  This requires that Mann show that the allegedly defamatory comments were made with actual malice — i.e. actual knowledge that the allegdly defamatory claims were false or reckless disregard for the truth or falsity of the claims made.  Despite this high burden, Judge Combs-Greene ruled against the defendants on their motion to dismiss. In her view, both sets of defendants made statements that alleged or implied facts that could be defamatory or otherwise actionable, e.g. that Mann engaged in fraud or other disreputable conduct. She further concluded that, despite the “slight” evidence of actual malice “at this stage” of the litigation, “[t]here is however sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false.”  As discovery could produce sufficient evidence to support a claim of [...]

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Court Orders Father to Stop Publicizing Complaints About the Guardian Ad Litem in His Child Custody Case

Fortunately, the New Mexico Court of Appeals has reversed this order — at least unless and until the trial court finds that the material was libelous, something the trial court had not so far done — in Kimbrell v. Kimbrell (N.M. Ct. App. Mar. 13, 2013, though just put on Westlaw in the last day or two) (some paragraph breaks added):

At the time divorce proceedings commenced, Mother and Father had four children (the Children), including Daughter. A year into the divorce case, at Father’s request, the district court appointed the GAL to represent the interests of the Children. Shortly thereafter, the GAL [Guardian Ad Litem] issued her report and recommendations in which she advised reinstating contact between Mother and the Children, as well as placing one of the Children with Mother. With some modifications, the court largely adopted the GAL’s recommendations.

Thereafter, Father became displeased with the GAL and the court’s order. During the following three years of highly contentious custody proceedings, Father made five attempts to have the GAL removed. Each request was denied by the district court. Father also filed two lawsuits against the GAL, one in federal court in June 2009, and another shortly thereafter in state district court. In addition, Father filed complaints against the GAL with the Disciplinary Board of the New Mexico Supreme Court. Father’s lawsuits were subsequently dismissed. …

In May 2010, the district court denied Father’s fifth motion to remove the GAL. In its written order of denial, the court found that (1) Father’s motion to remove the GAL raised issues previously addressed by the court; (2) the motion was an attack on the GAL’s ability to represent the Children; (3) Father inappropriately viewed the GAL as an opponent; (4) Father’s continuing attacks on the GAL were becoming problematic for the

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Defamation, Exaggeration, and “the Worst Little Boy I’ve Ever Seen”

Here’s a newspaper article containing an allegedly defamatory statement by Gov. Sundquist:

[Some death row inmates] accuse the governor of being “mean spirited” because he took away their satellite dish.

Three inmates and four citizens have filed a federal lawsuit against the governor and correction officials, claiming the satellite dish was paid for by donors and that the governor had no right to remove it.

“That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” Sundquist said. “If they think I’m mean-spirited, I would question the origin of the statement. How can someone who’s committed the most grievous crimes imaginable — who is slated to be executed — expect to have television access that most people in Tennessee don’t have.”

“A satellite dish with all the Playboy channels may be dangerous to their health.”

The dish carried HBO and Cinemax to the prisons at Nashville’s Riverbend Maximum Security Institution. The suit was filed by convicted murders Terry King, Rocky Lee Coker and Michael Sample….

Here’s what the Tennessee Commission said in rejecting Coker’s defamation lawsuit, see Coker v. Sundquist (Tenn. Ct. App. 1998) (nonprecedential) (patragraph breaks added):

The main reason why this Commission finds this to be a claim on which relief cannot be granted is that the newspaper article in question is not libelous or injurious at all. Any body who reads that newspaper article gets the message: men who have been sentenced to death in a Tennessee Court deserve to be deprived of entertainment, and when such men use language like “mean spirited” and go to Court to get their entertainment back then they are being ridiculous. Anybody who reads that newspaper article recognizes that the quotation, “That was the guy who committed 14 murders and two rapes on

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The Med Express / James Amodio Affair — What Not to Do If You’re an Online Seller (or Its Lawyer)

Paul Alan Levy has two good posts on this incident (which involves the company that sells on eBay as “med_express_sales,” not the other companies that have unfortunately similar names). From the first, which describes how Med Express filed suit against a woman based on that woman’s true statement about a problem with the firm’s deliveries (“Order arrived with postage due with no communication from seller beforehand”):

Med Express, an Ohio company that sells over eBay, is trying to maintain a perfect seller rating by suing a South Carolina woman who had the audacity to describe a problem she had with one of their deliveries — a photographic accessory that arrived with $1.40 postage due. The customer found this inconvenient, and notified the company of her concern, stressing that her issue was not the money (she said she would have gladly paid the extra money for shipping up front) but the inconvenience. Med Express responded by admitting the error, and indeed said that this had been a problem with other postal shipments. The customer then posted negative feedback on eBay.

About a month later, Med Express asked the customer to revise the negative feedback, offering to reimburse the postage due — effectively ignoring the customer’s reason for complaining. When the customer failed to retract the feedback, Med Express escalated by filing a defamation complaint in state court in Medina, Ohio, and, indeed, by moving for a temporary restraining order against eBay. The trial judge denied a TRO on the ground that damages would be an adequate remedy but, interestingly, set an oral hearing on a preliminary injunction even though the same reason would be sufficient ground to deny that relief as well.

The defendant is a relative of a former Litigation Group colleague, so she came to me for help.

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Unconstitutional Prior Restraint Against Lifetime Movie About Murderer Christopher Porco

Tuesday, a New York trial judge temporarily restrained the Saturday Lifetime broadcast of a movie about murderer Christopher Porco; the judge accepted the plaintiff’s allegation that the movie was likely “fictionalized” and therefore likely constitutionally unprotected. But preliminary injunctions against alleged libel violate the First Amendment, because they are “prior restraints” — restraints on speech entered before a full adjudication on the merits that the speech is constitutionally unprotected. Likewise, the restraining order in this case, formally under a New York misappropriation-of-name-and-likeness statute but in essence based on a claim that the speech is false, is also unconstitutional.

Lifetime has appealed, and the appellate judge has said that she will rule by noon Friday; I expect that she will vacate the restraining order.

UPDATE: Commenter broman notes that the appellate judge has now stayed the restraining order. There is still to be a hearing on Apr. 10 to decide whether the restraining order should be entirely vacated (as I expect it will be), but for now the broadcast can go on with no legal impediment. [...]

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State v. Brewington and Figurative Speech

Here’s the last portion of our State v. Brewington amicus brief:

II. The Court of Appeals Erred in Concluding that Brewington’s Speech Was Knowingly False, an Error That Will Work Mischief in Future Defamation Cases

To the extent that the Court of Appeals defended its decision by casting Brewington’s speech as a knowingly false statement of fact, the court’s holding was inconsistent with United States Supreme Court decisions, and set a dangerous precedent about what it means for speech to be knowingly false. The Court of Appeals concluded that § 35-45-2-1 equally covers true and false speech. 2013 WL 177923, *8. But the court also concluded that, “Even if the State was required to prove that Brewington knew his internet postings and other communications about Judge Humphrey were false, there is ample evidence of Brewington’s knowledge,” id. at *9:

[Brewington’s] public comments went well beyond hyperbole and were capable of being proven true or false. Over the course of at least a year, Brewington repeatedly called Judge Humphrey a “child abuser.” State’s Ex. 170; see also State’s Ex. 162 (“Judge Humphrey’s actions constitute child abuse”), State’s Ex. 168 (“abuser of children”), State’s Ex. 173 (Judge Humphrey “abuse[s] children who are part of the family court system”). Brewington also called Judge Humphrey “corrupt,” State’s Ex. 160, and accused him of engaging in “unethical/illegal behavior.” State’s Ex. 170.

… Judge Humphrey, in the exercise of lawful judicial discretion and out of concern over Brewington’s history of “irrational behavior,” State’s Ex. 140, p. 8, imposed reasonable visitation restrictions upon Brewington out of a desire to protect the children’s well-being. Only by willfully misinterpreting the terms of the divorce decree in bad faith could one argue that Judge Humphrey’s conduct constituted an intentional act to harm Brewington’s children.

Id. at *9.

But Brewington’s statements

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10 Years in Prison for Publishing Articles That Insulted the King of Thailand

So reports the Bangkok Post:

The 10-year prison sentence handed down to Voice of Taksin editor Somyot Prueksakasemsuk for lese majeste crimes has prompted criticism from human rights groups worldwide….

[Somyot] was [convicted] of … publishing two articles in 2010 that were deemed insulting to the royal family….

The articles were written by former PM’s Office Minister Jakrapob Penkair under the pseudonym of Jit Polachan and were published in the February and March 2010 editions of the Voice of Taksin magazine.

The four-judge panel said readers would easily understand the articles referred to the King.

The information contained in the article, however, was incorrect and libellous and it was Mr Somyot’s duty to vet it, the court said.

I can’t tell from the story (or from a Reuters story I read on the subject) just what the alleged errors were, and in particular whether they were serious factual errors — the sort of thing that might be treated as criminal libel in some U.S. states even today — or just opinions that the court found incorrect. In any case, it appears from both the Bangkok Post story and the Thai story that the essence of the crime was the insult to the king, not just the alleged errors. [...]

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Virginia Supreme Court Reverses Preliminary Injunction Against Alleged Libel

Public Citizen has details on the case, including the court documents. Here’s Public Citizen’s summary (paragraph break added):

A contractor sued a woman who posted an unfavorable review of his services on Yelp and Angie’s List, alleging defamation in a number of respects, and sought a preliminary injunction. The trial judge held a preliminary injunction hearing and took testimony from the plaintiff and the defendant; he denied the preliminary injunctions in all respects save two, but ordered the defendant to revise one of the statements in her post using words crafted by the judge, and to refrain from addressing a specific subject in any published review on the subject.

We drafted a motion for reconsideration for defendant’s trial counsel to file, reminding the court of the rule against prior restraints and of the fact that this rule flatly forbids any preliminary injunctions against repetition of allegedly libelous statements, then filed a petition for review in the Supreme Court of Virginia. Without waiting for a response from the winning plaintiff, the Virginia Supreme Court reversed with a terse unpublished ruling, finding that the preliminary injunction was not justified and that, in any event, the plaintiff had an adequate remedy at law.

For analysis of the decision — which doesn’t cite the First Amendment, but which reaches what I think is the correct result under the First Amendment — see Steve Emmert’s Virginia Appellate News & Analysis blog. For my thoughts on why preliminary injunctions against alleged libel are generally unconstitutional even though permanent injunctions (following a full hearing on the merits) are often constitutional, see here. [...]

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Mann v. Steyn — CEI SLAPPs Back

Earlier this week, Rand Simberg and the Competitive Enterprise Institute replied to Michael Mann’s libel suit. Specifically, they filed a motion to dismiss for failure to state a claim and, more interestingly, a special motion to dismiss under the District of Columbia’s Anti-SLAPP Act. As I noted here, Mann exposed himself to this motion by choosing to file his case in D.C. Superior Court.

Under D.C. Code Section 16-5502(b), a defendant in a libel action who is being sued for a written or oral statement made “in connection with an issue of public interest” is entitled to have the suit dismissed unless the plaintiff can show that “the claim is likely to succeed on the merits.” Further, the statute provides that filing the special motion stays discovery proceedings unless particular showings can be made. Given that global warming and climate policy are unquestionably issues of public interest (defined by the statute to include environmental issues), the relevant statements are clearly covered. So in order to prevail Mann will not only have to show that Simberg and CEI made provably false statements of fact concerning him that were defamatory, he will also have to show that Simberg and CEI made knowingly false statements or make their statements in “reckless disregard” of the truth — and that is notoriously difficult to do, particularly in the context of heated political debate. Further, Mann is unlikely to have the benefit of discovery to assist in his claims. Should Simberg and CEI prevail with this motion, they will be able to seek recovery of their legal costs. All of this makes me wonder why Mann chose D.C. as the venue for his suit.

My prior posts on this case are here, here, and here. [...]

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Mann v. Steyn — The Defendants Respond

On Monday, famed climate scientist Michael Mann filed suit against National Review and the Competitive Enterprise Institute over some allegedly defamatory blog posts. Now some of the defendants have responded.

Here is CEI’s official response, and a legal analysis from their lawyer. Of note, while CEI refused to apologize for the initial blog post (which was edited long before Mann threatened to file suit), it has offered to publish Mann’s response on their climate blog, an offer Mann has refused. Perhaps this is because, as Mann has commented on his Facebook page, ” There is a larger context for this latest development, namely the onslaught of dishonest and libelous attacks that climate scientists have endured for years by dishonest front groups seeking to discredit the case for concern over climate change.” Of course is Mann is suing others for defamation, he may wish to be more careful about repeatedly attacking them as “front groups” for industry.

Mark Steyn has a few posts on NRO’s the Corner — here, here, and here — suggesting he’s not too worried about the suit. Watt’s Up With That rounds up more reactions here.

As I noted here, I’m skeptical of the suit. Here’s additional analysis from Ken at Popehat and Public Citizen’s Paul Alan Levy.

An interesting twist in this case is the fact that Mann filed his suit in D.C. Superior Court, which means it is subject to the District’s anti-SLAPP suit law which makes it particularly difficult to maintain libel and defamation suits. Alison Frankel explains:

The law, in effect, shifts the way courts decide motions to dismiss, doing away with the assumption that the plaintiffs’ allegations are true. It also restricts discovery, so plaintiffs usually have to show they’re likely to prevail without

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