Judge Dismisses Sheriff Joe Arpaio's Defamation Lawsuit Against The New York Times

from the next-time,-bring-facts,-rather-than-a-stunt-lawyer dept

Attorney Larry Klayman is building himself quite the portfolio of high-profile losses. He’s well on his way to seeing his lawsuit on behalf of Judge Roy Moore tossed by an irritated court. His lawsuit against social media companies for their banning of noted tire slash expert Laura Loomer has already been dismissed.

Well on his way to having his law license suspended, Klayman has just seen another one of his ridiculous lawsuits tossed by a federal court. [h/t Adam Steinbaugh]

This one claimed three publications — including the New York Times — besmirched the previously-unsullied reputation of (ex) Sheriff Joe Arpaio, preventing him from successfully running for Senator.

Reciting the litany of terrible things Arpaio had done over his career, the New York Times pointed out Arpaio is pretty much defamation-proof. Even though the Times screwed up by calling him a convicted felon rather than a convicted misdemeanant, everything else written about him was true or protected opinion.

The court points out Arpaio’s Klayman-authored complaint is a skeleton partially garbed in useless invective. The decision [PDF] is concise, running only 11 pages, but it still provides enough space to completely dismantle the former sheriff’s arguments.

Even with the court siding with the plaintiff at this stage of the pleadings, there’s not enough in Arpaio’s complaint to push this past the NYT’s motion to dismiss. When you come to court, you need to bring facts. That’s not exactly Klayman’s strong suit.

Plaintiff’s Complaint comes nowhere close to pleading sufficient facts that plausibly establish “actual malice.” Indeed, Plaintiff pleads no facts at all. Instead, throughout his Complaint, he does no more than recite the applicable legal standard.

The court points out that copy-pasting legal definitions into a lawsuit and appending the plaintiff’s name to them does not actually create actionable torts out of thin air. Nor does claiming the court cannot dismiss a lawsuit until the plaintiff thinks it’s OK for the lawsuit to be dismissed.

[P]laintiff argues that the issue of malice “is a question of fact that cannot properly be resolved on a motion to dismiss.” See Pl.’s Opp’n at 10. Not so. The Supreme Court in Iqbal expressly held that the pleading of malice is subject to the “strictures of Rule 8.” 556 U.S. at 686–87. Thus, a plaintiff that “plead[s] the bare elements of his cause of action . . . [cannot] expect his complaint to survive a motion to dismiss.” Id. Courts in this District have dismissed defamation claims for failing to plead sufficient facts supporting the element of actual malice

It also points out that material better suited for heated blog posts shouldn’t be used in place of actual arguments.

Plaintiff argues that actual malice can be inferred because “The New York Times’ political partisanship and liberal bias know no reasonable bounds . . .” Pl.’s Opp’n at 12. But Plaintiff offers no facts in his Complaint to support this proposition. The three news articles that he cites in his opposition brief do not demonstrate the type of animus that Plaintiff claims. See id. at 15 n.3. In any event, even if The New York Times takes positions that could be perceived as unfavorably disposed towards Plaintiff, the D.C. Circuit has observed that “[i]t would be sadly ironic for judges in our adversarial system to conclude . . . that the mere taking of an adversarial stance is antithetical to the truthful presentation of facts.” Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987). Plaintiff’s unadorned claim of animus and bias cannot save his deficient pleading.

Also: saying mean things about people is not defamation, nor is it evidence of actual malice.

Plaintiff’s objection to certain words that he considers incendiary—such as “sadist,” “medieval,” “bare-knuckled,” “disgrace,” and “true American villain”—is misplaced. They are too imprecise or subjective to be verifiably false facts.

Yep, still protected opinion — something Arpaio might have figured out by reading the article before suing about it.

That these words appeared in a column in the Opinions section of The New York Times only underscores that point.

Because Arpaio can’t show actual malice, his claims of false light fail as well. So do his claims of tortious interference for much the same reason: the plaintiff needs to show, not tell. Nothing in the lawsuit provides a basis for the interference claims, which appear to be mostly boilerplate recitation of legal standards.

This will certainly be appealed if Klayman can do it before he’s disbarred. But it won’t change the outcome. What it will do, however, is cost the defendants more money. The NYT filed an anti-SLAPP motion but the court rejects it, stating its earlier opinion in another defamation case, where it decided the federal court in DC cannot apply the district’s anti-SLAPP law. Add this one to the pile of reasons why Congress needs to enact a federal anti-SLAPP law.

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Comments on “Judge Dismisses Sheriff Joe Arpaio's Defamation Lawsuit Against The New York Times”

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Thad (profile) says:

Re: Re: Re: Is it Defamation?

And paying off wrongful-death suits with tax dollars. And ignoring court orders to stop racially profiling Latinos.

His other current lawsuit is to have his contempt conviction overturned, even though he’s been pardoned. Again, it’s not about winning; it’s a grift to get publicity and donations. His supporters are, fortunately, fewer in number than they used to be, but they’re still out there.

Thad (profile) says:

Re: Re: Re:3 Is it Defamation?

It’s disgusting but, in the scheme of things, doesn’t make much difference. Arpaio lost reelection by double digits; he’s out of office and that’s what matters. Obviously I would have preferred he not be pardoned, but even if he hadn’t been, he was looking at a few months of house arrest, tops.

I also think it’s pretty clear at this point that he’s not interested in being elected again. He knew he wasn’t going to win that Senate race; if he were really interested in holding another office, he would have picked one where he had a chance (he could have easily won the special election for Arizona’s 8th District if he’d chosen to run there). So that’s kind of a good news/bad news situation: the good news is, he’ll never have any real power again; the bad news is, he’s running a series of cons and getting away with it.

K`Tetch (profile) says:

Re: Is it Defamation?

"Maybe he should have sued in the UK instead of NY, since truth is no defense against defamation there?"

Say what?


I had to undergo a crash course in UK defamation law back in 2012 when the UK Intellectual Property Office made claims of defamation against consulation submissions from me back in 2012 (which is BEFORE the easing of the law)

under the pre-2013 standard (the 1952 law) the section on justification read "In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges."

and the next section, about ‘fair comment’ said:
"In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved"

So, two sections, both saying that the exceptions do not get discarded if not everything can be proven to be factual, but are based on the facts that can be proven.
So, amazingly, facts actually did exempt things from defamation.
It just made things kinda complex in defending it.

Ok, that was the BAD law, what about the post 2013 law?

Well, amazingly enough, it lists defenses, and the first defense listed, is ‘truth‘.
(1)It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2)Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3)If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
(4)The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed."
(justification is the bit I quoted earlier)

then there’s more defenses, including ‘its an opinion‘ or that it’s in the public interest, or that it’s privileged.
Hell, there’s even a variant of CDA230 there,

"Operators of websites
(1)This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2)It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3)The defence is defeated if the claimant shows that—
(a)it was not possible for the claimant to identify the person who posted the statement,
(b)the claimant gave the operator a notice of complaint in relation to the statement, and
(c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
(4)For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person."

So, er, yeah, you’ve always had ‘truth as a defense’ in defamation cases, even in the UK. The problem was that pre 2013 it was awkward, legally, to put that in a response under the justification system.

oh, and it removed the libel-tourism aspect too, with section 9 "Action against a person not domiciled in the UK or a Member State etc"
"(1)This section applies to an action for defamation against a person who is not domiciled—
(a)in the United Kingdom;
(b)in another Member State; or
(c)in a state which is for the time being a contracting party to the Lugano Convention.
(2)A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement."

And that would be a fail there.

So, er, you’ve made a statement of purported fact, that was false and maliciously attacks the uk legal system, libelling it. Oh dear, it seems you’re in the brown and sticky stuff now! 🙂

Gary (profile) says:

Re: Re: Is it Defamation?

So, er, you’ve made a statement of purported fact, that was false and maliciously attacks the uk legal system, libelling it. Oh dear, it seems you’re in the brown and sticky stuff now! 🙂

Just repeating Jhon "Definitely a Scam Artist" Smith’s oft-repeated fictitious claim for amusement value.
Thank you for the actual legal rundown!

TFG says:

Re: Re: Re:2 Is it Defamation?

The troll who consistently goes on rants about his belief that section 230 allows defamation scams to proceed, brings in weird scenarios involving calling women hookers, and keeps bringing up his e-mail distribution lists and self-help books and some method by which the value of this stuff was devalued by … I don’t know anymore.

He used to go by John Smith, a couple of times by Jhon Smith, and now just goes by Anonymous Coward.

He’s also been called by various commenters as Sanford or Baghdad Bob.

Don’t worry, you haven’t missed anything valuable.

JoeCool (profile) says:

Re: Re: Is it Defamation?

The problem with UK defamation/libel/slander law is right here:

"(1)It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true."

You have to prove yourself innocent. It’s completely the reverse of the US where they have to prove you guilty. Or at least, that’s the way it’s supposed to be in the US… damn civil forfeitures have reversed that.

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