Palin Defamation Suit Falls Short of Legal Standard

Former GOP Vice presidential candidate Sarah Palin's defamation lawsuit against the NY Times was dismissed from US District Court in Manhattan as defective on its face. If. as alleged, the NY Times printed minor falsehoods in an editorial that were quickly corrected, the Palin cannot prove the necessary actual malice. As a public figure, Palin cannot make-out her defamation claim unless she can prove that the NY Times knew the statements were false or acted with reckless disregard for their truth. Referring toe the alleged actions of the Times, the times, the federal judge stated, "negligence this may be; but defamation of a public figure, it plainly is not."

Read the story here. 

The Times referred to Palin's PAC distribution of images showing people in rifle site crosshairs as inciting violence against public officials. The statement was corrected to state that the crosshairs were placed over Congressional Districts on a map, and not on images of people.  See the image below for an example:

American Hustle Goes Libelous

In the movie American Hustle, Jennifer Lawrence's character claims that the source of her belief that microwave ovens take all the nutrition out of food is an article written by Paul Brodeur. The real Brodeur is a science journalist who wrote for The New Yorker. But he never wrote such a scientifically erroneous proposition as was ascribed to him in the movie.  He claims the false attribution damages his reputation and has filed suit for libel in California state court.

The "Science Oven" allegedly libelous scene:

The Joke is On . . . ?

There are a multitude of lessons growing out of this story.  A female software developer attending a  conference was offended by sexist jokes told by the men sitting behind her.  She took a cell phone photo of the men, although she could not identify exactly who was speaking and who was listening.  Then she posted the photo with the allegation of the sexist joke-making on social media.

She was fired by her employer.
[The employer] said [the employee] put the company's business in danger, divided the developer community and could no longer be effective at the company.

One of the men in the picture was also fired by his employer.
"PlayHaven had an employee who was identified as making inappropriate comments at PyCon, and as a company that is dedicated to gender equality and values honourable behavior, we conducted a thorough investigation. The result of this investigation led to the unfortunate outcome of having to let this employee go," PlayHaven CEO Andy Yang said in a blog posting.

Take your pick among the lessons to develop from this scenario.  Were the employee dismissals legal under employment-at-will principles?. Was the posting of the photo and "shaming" of the men defamatory?  What if one of the men pictured was merely a bystander? Did her employer do the right thing (ethically and/or strategically) in dismissing her?  Did PlayHaven act ethically/properly in dismissing their employee?  Does the ease of access to a worldwide audience impose different legal/ethical considerations on those publicly reporting on the acts of other? Was the public reporting an invasion of privacy (was there a privacy interest)? Etc...

Here's a video about the incident that is WAY more hip than any of my posts could ever hope to be:

A Challenge For an Open Internet

Keeping internet speech open and free is certainly a desirable goal.  But how do we, as a society, deal with those who act irresponsibly and cause significant harm to others.  School systems are struggling mightily with the issues of cyber bullying. Teachers and school administrators have been targets of fake Facebook listings.  Thus far, legitimate websites such as Facebook have been cooperative in removing content that is obviously false and harmful, thereby attempting to reduce the magnitude of harm suffered by victims.  But how should the system deal with website hosters who not only allow false and harmful postings, but actually encourage the practice?

Consider the case of Sarah Jones.

"Do You Like to Insult People?"

If so, Australian lawyer Paul Brennan has some good advice. As a result, I use the video to introduce the "publication" requirement for a defamation claim.

Featured Case: Cherry v. Des Moines Leader

The Cherry sisters, farm girls from Iowa, became famous in the late 1890's with their travelling early vaudeville act.  Their sad fate was to have earned their fame as a result of their suspect talent and the hideous nature of their performance. (Your students will understand a reference to Rebecca Black and her "Friday" video.)  Billy Hamilton, the editor of the Odebolt Iowa Chronicle attended the Cherry Sisters' performance in Odebolt and published a review, quoted in part as follows:

The audience saw three creatures surpassing the witches in Macbeth in general hideousness. Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35.  Their long skinny arms equipped with talons at the extremities, swung mechanically, and [soon] waved frantically at the suffering audience.  Their mouths opened like caverns, and sounds like the wailing of damned souls issued therefrom.  They pranced around the stage with a motion that suggested a cross between the “danse du ventre” and a fox trot – strange creatures with painted faces and hideous [demeanor].  

Effie is spavined, Addie is knock-kneed and stringhalt and Jessie, the only one who showed her stocking, has legs with calves as classic in their outlines as the curves of a broom handle.... Not even in the woods around Sac City, nor in the wilds of Monona county, could three such raw and rank specimens of womanhood be found.

The review was reprinted in the Des Moines Leader prompting a defamation lawsuit by Addie Cherry against both newspapers.  In upholding the trial court's directed verdict the Iowa Supreme Court preserved the right of fair comment.  Public performance invites comment - even if the performer disagrees with the reviewer's characterization. 

One who goes upon the stage to exhibit himself to the public, or who gives any kind of a performance to which the public is invited, may be freely criticised. He may be held up to ridicule, and entire freedom of expression is guarantied dramatic critics, provided they are not actuated by malice or evil purpose in what they write. . . . Unless this be true, liberty of speech and of the press guarantied by the constitution is nothing more than a name. If there ever was a case justifying ridicule and sarcasm,--aye, even gross exaggeration,--it is the one now before us.

However, given the facts of the case, and the nature of other reviews from around the country, maybe Billy Hamilton could have avoided liability even if he had to rely on truth as a defense.

The Cherry Sisters, Revisited is a modern theatrical production based on the tribulations of the hapless siblings.  

The Cherry sisters:

 

Billy Hamilton:

Reporter Tweets That Ref Cheats

Yesterday's post was a Law Lessong about a public figure's burden of proving actual malice in a defamation claim. "Actual Malice" has been defined as "publication of defamatory material 'with knowledge that it was false or reckless disregard of whether it was false or not.'" (See also an earlier post on NY Times v. Sullivan). To protect themselves from claims of "reckless disregard," reporters should check sources and verify facts before publishing them.  However, today reporting often happens simultaneously with the event occurrence through use of Twitter. What happens when a reporter tweets a fact that he or she has observed or heard without determining if there is corroboration from another source for what was observed or heard? In this case, a sports reporter at an NBA game tweeted that a referee told a coach that he would make a "make-up" call to atone for a bad call that was made earlier in the game. This allegation implies that a referee would make a false call to affect the outcome of the game. (Interesting ethical conundrum: A referee is bound to call the game fairly based on the play.  If a referee makes a call that he later realizes was wrong, is it ethical or unethical to make a call against the benefitted team to "even things out?"). The referee has sued for defamation. He denies making the remark.  Ostensibly, the coach denies hearing the remark. With no corroboration, has the reporter acted with actual malice in tweeting a fact that he personally experienced but cannot prove? This kind of reporting is distinguishable from expressing an opinion about a referee's call - which would not be actionable.

The Tweet in question:


Bill Spooner: NBA Referee/Plaintiff:


John Krawczinski: AP reporter:

Law Lessong - "Public Figures Need Malice"

This simple video and song from a Power Point presentation can help students consider the "actual malice" requirement for public figures to prove a defamation claim. Learn more about Law Lessongs from the post found here.  More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Featured Website: NY Times v. Sullivan - The Full Page Ad

Thanks to English Professor Jean Goodwin the New York Times full page ad that was the subject of this famous case is readily available in both facsimile and in text formats.  Professor Goodwin has also summarized the allegedly false statements giving rise to the defamation claim. The link to her main site for the case is here.

Here are some images of Montgomery Alabama Commissioner L.B. Sullivan: