Archive | Defamation

New York Trial Court Rejects Imam’s Libel Claim

Rashada v. New York Post (N.Y. trial court, Aug. 11, 2011), involved a libel claim brought by Melody Rashada against the New York Post and op-ed author Patrick Dunleavy based on what seems to be this article. The article focused on four Muslim terrorism suspects, and asked how they “were radicalized to the point where they’d even consider plotting to bomb synagogues in The Bronx and shoot down aircraft with missiles.” The article went on to say:

What stands out is the prison connection. All four defendants were former inmates. More important, all three imams at the mosque in Newburgh that the defendants attended after being released from prison had a connection with the prison system. Imams Salahuddin Muhammad, Hamin Rashada and Melody Rashada worked for the Department of Correctional Services. All had been hired by Warith Deen Umar — who for years headed ministerial services for the New York state prison system.

Rashada argued that this language, plus the title of the op-ed (“Converts to Terror: The Prison Chaplain Problem”), was defamatory. But the court disagreed, concluding that the suggestion of a possible connection between the chaplains and the terrorism suspects’ radicalization was nonactionable opinion and speculation, rather than a factual assertion (which could be libelous if false). “The article is painly intended to raise issues, rather than convey specific, objective facts about Rashada’s role in the radicalization of inmates…. [T]he article does not make any definitive accusations against Rashada, but rather the article suggests that the connection between the former inmates and the mosque should be investigated.”

I think this is probably right, because the op-ed was drawing an inference from accurately stated facts, rather than asserting that the author knows some undisclosed facts that support the implication he’s trying to draw. Here’s what the Restatement [...]

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College Department Chair Sues Professor for Libel, Loses

An interesting example of this fortunately rare occurrence comes in Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011). The case has an interesting discussion of the state-law “common interest privilege,” which is quite important in cases involving alleged defamation within an organization or in job references; but here is an excerpt describing the court’s conclusion that the statements were likely to be nondefamatory opinion:

Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the “republication” of a student’s complaint to the District about witnessing him commit a lewd act in his office….

[The court concludes that there was no error in the instructions that led to a jury verdict in favor of defendants, but goes on to say: -EV]

Moreover, “[a] judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.'” … [Here,] there was no miscarriage of justice. Launier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a “forked tongue for spewing bile.” But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase “[t]ongue in cheek.”

Olguin views all of Launier’s

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New York Trial Court Throws Out Libel Lawsuit Filed by Village Police Chief and Three Officers Against Anonymous Internet Commenters

The case is Varrenti v. Gannett Co. (Aug. 3). The court held that the comments, in context, would be seen as expressions of opinion rather than statements of verifiable fact — largely because readers would seem them as “sarcastic, hyperbolic, and based on rumors” — and that the comments are therefore protected against a libel lawsuit. Because of this, the court held, the plaintiffs wouldn’t even be able to get discovery of the anonymous commenters’ identifying information.

Thanks to MLRC: Actions Against Online Speech for the pointer. [...]

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Do Changes to a Blog Post’s URL and the Site’s Metatags Restart the Statute of Limitations?

An interesting decision, stemming from the Wolk v. Olson litigation. Here’s the legal background: A publisher is generally not be liable once the statute of limitations (generally a year or longer) has run since the original publication. At that point, under the “single publication rule” — which is generally accepted in most states, and has generally been applied to the Internet in the cases that have considered the issue — no further lawsuits can be brought based on the original post, even if the publisher eventually learns that the post is false. The mere fact that a blog post is being copied to a reader’s computer each time it’s accessed doesn’t constitute a new publication that restarts the statute of limitations.

But do changes to the post constitute a republication, and restart the statute? Sufficiently substantive changes might, but for modest changes — such as most changes in a URL — the answer is likely no. A few cases have so held, see Canatella v. Van De Kamp (9th Cir. 2007) and In re Davis (W.D. Ky. 2006); the judge in this case suggested that she took a similar view, though she ultimately decided the case on other grounds: [...]

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Jail Time (And $7000 Fine) for Saying a Restaurant’s Dishes Were “Too Salty”

The Taipei Times reports (thanks to Vadim Novik for the pointer):

After visiting a Taichung beef noodle restaurant in July 2008, [defendant Liu] had dried noodles and side dishes, Liu wrote [on the blog] that the restaurant served food that was too salty, the place was unsanitary because there were cockroaches and that the owner was a “bully” because he let customers park their cars haphazardly, leading to traffic jams….

The High Court found that Liu’s criticism about cockroaches in the restaurant to be a narration of facts, not intentional slander.

However, the judge also ruled that Liu should not have criticized all the restaurant’s food as too salty because she only had one dish on her single visit.

Health officials who inspected the restaurant did not find conditions to be as unsanitary as Liu had described, so the High Court also ruled that Liu must pay NT$200,000 to the owner for revenues lost as a result of her blog post.

The ruling is final.

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New York’s Highest Court Interpets 47 U.S.C. § 230 Broadly

The case is Shiamili v. The Real Estate Group of New York, Inc., decided today. Defendants, who are apparently real estate brokers, ran a blog. Several people posted pseudonymous comments critical of Shiamili, another real estate broker. Defendants left those comments up, and even reposted one of the comments as a separate post, with a heading and an illustration provided by defendants. Shiamili sued the defendants.

The court held that the defendants were protected by 47 U.S.C. § 230, which generally immunizes Internet content providers from being held liable for posts by other service providers. And the court held this even though the defendants deliberately reproduced one of the comments in a separate post (paragraph break added):

The defendants did not become “content providers” by virtue of moving one of the comments to its own post. Reposting content created and initially posted by a third party is well-within “a publisher’s traditional editorial functions” (Zeran, 129 F3d at 330). Indeed, this case is analogous to others in which service providers have been protected by section 230 after reposting or otherwise disseminating false information supplied by a third party. To cite only a few examples, in Ben Ezra, Weinstein, and Co., Inc. v Am. Online Inc. (206 F3d 980 [10th Cir 2000]) the defendant service provider would publish updated securities information supplied by third parties and derived from a variety of stock exchanges and markets. Plaintiff sued the provider for publishing inaccurate information concerning the price and share volume of plaintiff’s stock. The Tenth Circuit found that the inaccurate information was “created” by third parties, and the web provider was not “responsible, in whole or in part, for [its] creation and development” (id. at 986).

The Ninth Circuit reached the same result in Batzel (333 F3d at 1018), cited with

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Defamation by Half-Truth?

As I blogged a while back, modern defamation law generally applies only to false statements, but at some point a literally true statement may so strongly carry a false connotation that the speaker could be held liable for the implied falsehood despite the literal truth. A classic example, mentioned in an early 1960s case — though it’s been around outside the defamation context at least since 1916 — involves the first mate who, upset by his teetotaling captain, writes in the ship’s log,

Captain sober today.

Now Tomblin v. WCHS-TV8 (4th Cir. May 11) offers another interesting example, though likely more controversial — the panel split 2-1:

After WCHS-TV8 in Charleston, West Virginia, broadcast a news report that a four-year-old child was sexually abused …, the owner of the daycare[] commenced this action for defamation and related torts. On WCHS-TV8’s motion, the district court entered summary judgment in favor of the television station …, concluding that the station accurately reported the abuse allegations made by the mother of the child.

After review of the record, including a copy of the broadcast in question, we conclude that there are genuine issues of material fact as to [plaintiff’s] claims. By reporting that the daycare was alleged to have abused a child, the television station may have published a false statement inasmuch as it knew and left out the fact that the incident involved one four-year-old boy touching the rectum and genitalia of another four-year-old boy. Accordingly, we vacate the summary judgment and remand to the district court for further proceedings.

The case also involves claims that the express wording of the statement was literally false (for instance, by labeling the touching as “sexual abuse”), and not just that it was defamatory by implication; still, the court also notes that the conclusion [...]

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First (?) Court Decision Applying Federal Anti-Libel-Tourism SPEECH Act

The case is Pontigon v. Lord (Mo. Ct. App. Apr. 19, 2011). The factual background:

The appellant, Ms. Lord, is an American citizen, resident of St. Charles County, Missouri, who was born in the Philippines. The respondent, Leodegaria Sanchez, is Ms. Lord’s cousin, and a resident of Ontario, Canada, who was likewise born in the Philippines. The basis of the complaint before the Canadian Court was Ms. Lord’s self-published life story told in From Fieldhand to Ph.D., Ms. Asia International (Fieldhand). One of the incidents set out in “Fieldhand” is an incident which is the subject of ongoing litigation to set aside a deed for fraud in the Philippines by Ms. Lord and her sister against Ms. Sanchez. Although unclear as to how it occurred, “Fieldhand” was put on the internet and downloaded in Ontario, Canada by Ms. Sanchez.

Ms. Sanchez filed a petition in Canada for defamation in regard to the fraud claim in the Philippines. The record reflects that Ms. Lord received service of process of the suit by email and a fax from Ms. Sanchez’s lawyer. Ms. Lord did not make a personal appearance in Canada, and a judgment for thirty-seven thousand five hundred dollars ($37,500) together with pre-judgment interest and costs of thirteen thousand seven hundred and sixteen dollars and forty six cents ($13,716.46) was entered. This “judgment” was filed in St. Charles County, Missouri — Ms. Lord was given notice — and after hearing the Circuit Court granted the registration, from which a garnishment issued. Our review of the record — a review of the First Amendment to the U.S. Constitution — a review of Title 28 §§ 4101-4105 — and a review of § 511.760 and § 511.770 — 511.785 RSMo, compel the cause to be reversed, the underlying registration set aside and

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Journalists Apparently Being Investigated for “Denigration of Greek National Symbols”

Another charge appears to be defamation — as best I can tell, of the country of Greece generally. From Spiegel Online:

It was supposed to be a provocative piece of journalism and a tongue-in-cheek comment on German concerns about a European Union bailout for debt-ridden Greece. But the Feb. 22, 2010 cover of the weekly German newsmagazine Focus — which showed the goddess Aphrodite making an obscene gesture [giving people the finger] — caused outrage in Greece….

Now six Greek citizens who felt particularly offended are taking legal action against the journalists involved, including Helmut Markwort, the magazine’s founder who was also editor in chief of Focus at the time of publication.
According to reports in the Wednesday editions of the German newspapers Handelsblatt and Tagesspiegel, Markwort and nine other Focus employees are due to appear in an Athens court on June 29. The newspapers reported that public prosecutor Ourania Stathea is looking into accusations of defamation, libel and the denigration of Greek national symbols….

The story, titled “Swindlers in the Euro Family,” included a detailed description of what the authors claimed was “2000 years of decline” in Greece, including reports of tax fraud and failed construction projects….

I can’t speak with any confidence about the likelihood that the case will go further, but it struck me as worth noting. If anyone has more information on how seriously the prosecutor is apparently considering the case, please post it in the comments. Thanks to Prof. Bill Poser for the pointer. [...]

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Free Exercise Clause Absolutely Bars Slander Claims Based on Statements in Confidential Church Proceedings

So held a Kansas state trial judge in Purdum v. Purdum, 2011 WL 1430279 (Kan. Dist. Ct. Apr. 11, 2011), which dealt with a slander claim based on statements made in a church annulment proceeding. I doubt that this is right; the First Amendment ban on religious decisions by secular courts should preclude slander or libel lawsuits that require evaluation of religious statements (e.g., “X is a sinner,” “X violated God’s law,” “X is not a true Christian,” etc.), but I don’t think the First Amendment should preclude such lawsuits based on ordinary secular assertions (“X had sex with Y,” “X lied to me about this secular subject,” etc.). But I thought it was worth noting. An excerpt:

[T]he Free Exercise Clause of the First Amendment … appl[ies] in this case to protect the defendant’s confidential communications with her church or its representatives ….

The Court finds that, in this case, the statement is absolutely privileged as made pursuant to the defendant’s First Amendment right to Free Exercise of her religion. This case is virtually identical to that of Cimijotti v. Paulsen, 230 F. Supp. 39 (N.D. Iowa 1964). In Cimijotti, the plaintiff filed a slander suit against his ex-wife and two other women serving as witnesses in the religious tribunal for separate maintenance and divorce, and the plaintiff did not allege any publication outside of the religious proceeding.

The Cimijotti court held that,

“[t]o allow slander actions to be based solely upon statements made to the Church before its recognized officials and under its disciplines and regulations would be a violation of the First Amendment. The law withdraws from the State any exertion of restraint on the free exercise of religion. The freedom of speech does not protect one against slander, yet a person must

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No First Amendment Violation When University Puts Web Sites on List of “Unreliable Websites” That Students Should Generally Avoid

Strikes me as exactly right. Interestingly, Bruce Fein, an oft-noted legal commentator, was lawyer for the plaintiffs. The case is Turkish Coalition of America v. Bruininks (D. Minn. Mar. 31):

Plaintiffs Turkish Coalition of America (“TCA”) and Sinan Cingilli brought this action against The University of Minnesota and two University officials, [University President] Robert Bruininks and Professor Bruno Chaouat [Director of the Center for Holocaust and Genocide Studies (“CHGS”) at the University], asserting that Defendants violated their constitutional rights to free speech, equal protection, and due process. Plaintiffs also assert state-law claims for defamation. The matter is before the Court on Defendants’ motion to dismiss Plaintiffs’ Complaint. For the reasons set forth below, the Court grants Defendants’ motion….

TCA is a not-for-profit corporation whose objective is, among other things, to educate the general public about Turkey and Turkish Americans; to foster friendship, understanding and cooperation between the United States and Turkey; to protect the character and ensure a realistic portrayal of Turkey and Turkish Americans in the media and the arts; and to serve as a “think tank of expertise and a clearinghouse of information on Turkey and Americans of Turkish descent.” TCA operates a website through which TCA maintains that the issue of whether the deaths of Ottoman Armenians during World War I constitute a crime of genocide under the Genocide Convention of 1948 and implementing domestic law in the United States is a genuine historical and legal controversy. TCA’s website further “argues that the facts and the law make it unlikely that a genocide charge could be sustained against the Ottoman government or its successor before a neutral arbiter.” This viewpoint is referred to as the “contra-genocide viewpoint.” …

The CHGS considers the killing of Ottoman Armenians during World War I a case of genocide. From

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Alleged Defamation of Estranged Wife Leads to Order Not to Talk About Her, Loss of Gun Rights; Court of Appeal Reverses

The case is In re Marriage of Mendlowitz. The alleged slanders were an e-mail and a letter to the estranged wife’s business associates that seemed likely to interfere with her business relationships. They might indeed have led to a successful defamation lawsuit, and a lawsuit for interference with business relations. But a trial court judge went so far as to issue a domestic restraining order against such comments:

[Y]ou are disturbing the peace of the petitioner…. You have, by your own testimony, admitted to the defaming comments that you have made in these emails. And so therefore, the court is going to grant a restraining order for the next five years. You are not to contact [the wife], [her] employers, [her] potential employers in regard to [her] … You are not to contact any third parties in regard to [the wife], her reputation, her past acts.

This meant that any prohibited speech about his wife would be a crime. And because the order included boilerplate language ordering the estranged husband not to “harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements,” the federal ban on gun possession by people who are the targets of restraining orders kicked in. (See PDF pp. 61-65 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.)

Fortunately, the California Court of Appeal reversed the trial court’s decision, concluding that this sort of alleged defamation isn’t sufficient to justify issuing such an order. Unfortunately, for the nearly two years between the trial court decision and the appellate decision, defendant had been entirely deprived of his Second Amendment rights, and been subjected to a prior restraint in violation of his First Amendment rights. [...]

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Is There a Duty To Take Down One’s Recent Defamatory Allegations, Once One Knows They Are False?

A question arose in connection with the Brandon Darby / New York Times controversy: Say that a newspaper (or some other entity) posts its own article on its site, believing it to be true, and not having serious doubts about its truth. At that point, even if some allegations in the article are actually false, the publisher has not libeled any public figure mentioned in the article, because the publisher was not acting with what the law calls “actual malice” — knowledge of falsity, or reckless disregard of a known serious risk of falsity. Likewise, the publisher has not libeled any private figure mentioned in the article, if the publisher reasonably believes the article to be true, because the publisher was not acting with negligence (the standard for private figures). (Note: This is an oversimplification, but sufficient for our purposes.)

But say that the publisher later learns that the statements are false. Is it liable for failing to remove the allegations, at that point, on the theory that it is now acting with “actual malice” (or negligently, if the plaintiff is a private figure)?

The answer appears to be yes. The Restatement (Second) of Torts — not a statute, but an influential summary of court decisions — announces this general principle in § 577(2):

One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.

Comment: … p…. The basis of the liability is his duty not to permit the use of his land or chattels for a purpose damaging to others outside of the land…. So far as the cases thus far decided indicate, the duty arises only when the defendant knows that the

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