Devin Nunes Claims The Right To An ‘Unimpaired Reputation’ Is A ‘Sacred Right’; Oh And Also Needs To Cough Up Info On How He Got Hired

Defamation

from the thin-skinned-public-figure-says-what? dept

Former Congressman, now Trump lackey TruthSocial CEO, Devin Nunes hasn’t had very much success with his long list of lawsuits against critics and the media. In just the past few months he’s lost multiple such cases. Of course, that hasn’t stopped him from soldiering on. One of the bigger cases he filed was against reporter Ryan Lizza and Hearst Media over an Esquire piece that Lizza published. While a district court dismissed the lawsuit easily, a year ago, the 8th Circuit brought it back with a bizarrely confused ruling about the single publication rule. I’m not going to revisit all the problems with that ruling, you can go to the link and read it if you want. However, it did at least revive the case, if only on an exceptionally narrow basis around a single tweet by Lizza, and whether or not that tweet (and not the underlying article) were done with actual malice under the law (i.e., with Lizza knowing it was untrue).

Since then, the case has continued to plod along with Nunes attempting to file a second amended complaint. Lizza and Hearst protested that the second amended complaint sought to revive a bunch of the claims that were already dismissed and to talk about stuff way beyond that one single tweet now at issue in the lawsuit. In response, back in June, the court allowed Nunes to file a second amended complaint, but a narrowly focused one:

Plaintiffs’ motion is GRANTED to allow Plaintiff’s Defamation by Implication and Common Law Conspiracy claims. Plaintiff’s motion is DENIED as to leave to amend to add False Light Invasion of Privacy claims. Plaintiff shall have until June 15, 2022 to file an Amended Complaint removing his False Light Invasion of Privacy Claim and eliminating the prolixity and irrelevant material from his remaining claims.

On June 11th, the amended complaint was filed, and as is all too typical of Devin Nunes lawsuits represented by lawyer Steven Biss, it’s chock full of all sorts of nonsense. I’d argue that it certainly did not eliminate “the prolixity and irrelevant material” when it includes stuff like this:

Lizza is a high-profile, left-wing political journalist, well-known for his extreme bias towards Plaintiff and his long history of publishing libelous statements about Plaintiff. In April 2017, while employed by the New Yorker magazine, Lizza wrote a series of articles that falsely accused Plaintiff of colluding with the “Trump Administration” to “manufacture a fake scandal” and buttress a baseless claim of wiretapping Trump Tower. Lizza falsely stated that Plaintiff had leaked classified information, engaged in a “series of lies”, misled the American public, and misrepresented the contents of intelligence files that Plaintiff had reviewed. Lizza informed the New Yorker’s readers that the “fake scandal created by Trump and Nunes is not over yet.”

Anyway, Lizza and Hearst’s lawyers also took issue with this and asked the court to strike various parts of the complaint as “immaterial and impertinent.”

Despite the mandate of the Order, Plaintiff filed his Second Amended Complaint without removing the stricken prolix and irrelevant material from his proposed second amended complaint, including the specific examples of irrelevant material that the Court identified in the Order. Plaintiff also still has not specified the basis of his defamation claim, which is now confined to a November 20, 2019 Twitter posting by Ryan Lizza, as he was ordered to do. When invited to correct the issues short of motion practice, Plaintiff refused

In response, in early July, Nunes filed a “resistance and opposition” to Lizza’s motion to strike, which again I might argue is somewhat full of prolixity and irrelevant material. Biss/Nunes insist that, for example, even as the court directly highlighted six extraneous and irrelevant tweets as examples of what not to include, it chose to include them anyway… because a conspiracy is afoot. Oddly, they only make this argument in a footnote, even though the entire point of this filing should be to explain why this content is relevant.

In addition to being “background information for the republication claim”, Plaintiff included the six tweets in the second amended complaint for two (2) reasons. First, the six tweets are evidence of prior publications, which under the Cowman case, are relevant to Plaintiff’s claim that Defendants acted with actual malice in republishing the article on November 20, 2019. Second, Plaintiff included the six tweets because they are relevant to Plaintiff’s conspiracy claim.

Then, Biss and Nunes decide to stand on their moral high horse and proclaim that there’s some fundamental right to having a good reputation, after announcing “the evidence of fraud and fabrication by Defendants is shocking” (though I’ll note that I can find no evidence of either fraud or fabrication in the amended complaint — at best they seem to suggest the possibility of sloppy reporting and/or opinionated writing, which is not anything like fraud or fabrication, and at worst, they mostly just suggest that Nunes wasn’t happy with the reporting and decided to sue over it).

But, this argument here, is just… special:

The right to an unimpaired reputation is among the most sacred rights recognized by the common law

Imagine claiming that “the right to an unimpaired reputation is among the most sacred rights” in the very same case where Nunes repeatedly trashes the reputation of Lizza. There’s also some pandering to the judge:

The law of defamation guards the reputations of public figures like Devin Nunes, just as it protects the reputations of every Judge on every Court

The magistrate judge on the case ruled late last month basically telling Nunes/Biss to knock it off, but still allowing a new amended complaint to be filed. Basically, the magistrate judge reminded Nunes and Biss that when the 8th Circuit revived the case, it did so on narrow grounds about a single tweet and whether it constituted actual malice under the law, and all the high falutin’ stuff about a conspiracy was utter nonsense.

Despite that concession, Plaintiff makes brief assertions in footnotes that the six tweets are not only “background information for the republication claim” but evidence of prior republications and that they are relevant to his conspiracy claim. (Doc. 100 at 2 n.1.) However, the Eighth Circuit was aware of the other tweets and made it clear that further proceedings on Plaintiff’s claims alleging defamation by implication, and the related claim alleging a common law conspiracy, are for the November 20, 2019 tweet which published the article. Nunes, 12 F.4th at 899. Although the tweets are not identical in the two complaints, no tweets more recent than November 20, 2019 are included in the Second Amended Complaint. Compare (Doc. 23 at 11-16) with (Doc. 90 at 10-15.)

Plaintiff provides no explanation to show how the tweets are now relevant although he cites Cowman v. LaVine, 234 N.W.2d 114, 121 (Iowa 1975) as support for both the relevance and admissibility of the tweets. (Doc. 100 at 3 n.2.) Plaintiff’s reliance on Cowman is misplaced. Cowman dealt with the admissibility of evidence that would otherwise be privileged to address a defendant’s wrongful motive. Cowman, 234 N.W.2d at 121. There, the Iowa Supreme Court explained that “defamatory publications similar to the one charged are generally admissible on the issue of actual malice, provided they are not privileged” so that actual malice may be inferred because republication may be “probative of the declarant’s state of mind.” Id. That approach to actual malice is not relevant here because the Iowa Supreme Court discarded it. “We discard the old common law wrongful motive standard and adopt . . . the New York Times ‘knowing or reckless disregard’ definition of ‘actual malice.’” Barreca v. Nickolas, 683 N.W.2d 111, 120 (Iowa 2004) (citing Price v. Viking Penguin, Inc., 881 F.2d 1426, 1433 (8th Cir.1989)) (“[A]ctual malice focuses upon the attitudes of defendants vis-à-vis the truth of their statements, as opposed to their attitudes towards plaintiffs.”). Despite this, Plaintiff attempts to inject his subjective beliefs about Defendants’ attitudes at every turn. Plaintiff has only alleged actual malice as to the November 20, 2019 tweet because Defendant Lizza was on notice when he made it. Despite knowing this, Plaintiff has failed to allege actual malice as to the other six tweets. Thus, Cowman is inapplicable. Regardless, the Eighth Circuit already considered similar tweets and found that Plaintiff only adequately alleged actual malice as to the November 20, 2019 tweet. These six tweets also have nothing to do with the issue of actual malice or the rest of Plaintiff’s claims and are irrelevant.

The end result is that Biss is told to try, try again. And without the conspiracy stuff or irrelevant arguments about the Mueller report (yes, really).

And so, Biss has now submitted yet another amended complaint, which is only slightly less bombastic. But, finally, it doesn’t have the excess tweets or the conspiracy claims.

Meanwhile, over in another venue entirely, this same case is causing other problems for Nunes. You see, Nunes keeps claiming that Lizza’s article — and now just the tweet, since that’s all that’s left of the case — has caused him real damage. So, Lizza and Hearst’s legal team have subpoenaed Truth Social’s parent corporation, Trump Media and Technology Group (TMTG), Nunes’ employer, to seek evidence about the “damage” to Nunes’ reputation, and arguing that his hiring by Trump showed the opposite. TMTG has tried not to actually comply with the subpoena, so Lizza’s team had to go to court in Florida to try to enforce the subpoena.

Nunes’s hiring is inconsistent with his claimed reputational harm, a central issue in his Action. Petitioners therefore subpoenaed TMTG, seeking documents relating to its recruitment and hiring of Nunes. Petitioners anticipate that the subpoenaed documents will show that Nunes has not suffered reputational harm. They will instead show that Nunes, a recent recipient of the Presidential Medal of Freedom, maintains a sterling reputation among people who matter most to him: Those willing to pay him a lot of money to do an important job, in the limelight, as part of a project that advances political objectives.

Although the relevance of the requested documents is obvious, TMTG responded to the Subpoena with evasive and improper objections and responses. It refused to remedy the defects in its responses or meaningfully meet and confer with Petitioners. It refused to produce a single document. Its objections should be overruled, and it should be ordered to produce all documents responsive to the requests at issue

TMTG sought to convince the court not to enforce the subpoena, but on Monday, that failed. The court has told Truth Social to cough up the necessary documents.

The ruling rejects TMTG’s arguments systematically — including rejecting TMTG’s claim that the case was filed in the wrong court (in Palm Beach), because TMTG is actually based in Sarasota, which is at the other end of the state. But, as the magistrate judge notes, TMTG only recently changed its official location to Sarasota, and at the time that the subpoena was served, it was still officially in Palm Beach (oops).

But, more importantly, the court says that TMTG’s substantive arguments for why the subpoena is too broad and burdensome… are nonsense. The judge did remove one of the unanswered requests, but orders TMTG to respond to five other document requests:

Here, the Court finds that request #2 does not seek documents that are relevant or proportionate to the claims or defenses in the underlying action pursuant to Federal Rule of Civil Procedure 26(b)(1). Therefore, TMTG shall not be required to respond to request #2.

The Court does, however, find that requests #3, 4, 5, 6, and 7 do seek relevant and proportionate documents and also finds that TMTG and Nunes’ remaining objections to these requests are without merit and are overruled. Therefore, TMTG shall be required to respond to requests #3, 4, 5, 6, and 7 on or before August 22, 2022. TMTG shall produce all non-privileged, responsive documents by that date and also amend its written responses to the subpoena so that they clearly state what is being produced, whether any documents are being withheld, and, if so, why the documents are being withheld. Finally, as discussed at the discovery hearing, TMTG shall only be required to produce DWAC documents to the extent that they are in TMTG’s possession, custody, or control

So, yeah, that’s also probably not very good for Nunes’ big case back in Iowa, as Lizza and Hearst should soon have useful evidence debunking the idea that Nunes was actually harmed by Lizza’s tweet.

Filed Under: defamation, devin nunes, reputation, ryan lizza, steven biss
Companies: hearst

Project Veritas Not Only Loses Its Vexatious SLAPP Suit Against Stanford, It Has To Pay The University’s Legal Fees

Defamation

from the thank-you-anti-slapp-laws dept

Project Veritas, the faux conservative group of pranksters pretending to be journalists likes to pretend that they’re “free speech” supporters. But they’re not. They appear to really only support their own free speech, and have a much more flexible view of free speech when it includes speech critical of themselves. Over the past few years, Project Veritas (PV) has gotten fairly aggressive in suing organizations that are critical of PV. That’s… not very free speechy. PV has tried to silence the NY Times, has sued CNN, and last year it sued Stanford and the University of Washington over a blog post debunking some of the usual nonsense from PV.

A few months back, we reported that CNN won its case against PV. But, also, back in May we missed that a judge also dismissed PV’s case against Stanford. Basically, saying mean things about PV is not defamation, because opinions aren’t defamation tough guys:

Viewing the totality of the circumstances, the Court concludes that the phrases in the Blog Post that Project Veritas challenges as defamatory are nonactionable opinions. In considering the medium and context, “statements of opinion are expected to be found more often in certain contexts, such as editorial pages or political debates.” Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986). Here, the statements regard whether claims of election fraud were based on misleading or inaccurate information. Throughout the 2020 presidential election, statements regarding election fraud often resulted in heated and emotional discussions. See Camer, 45 Wn. App. at 41 (determining that an article about issues resulting in heated and often emotional discussions constituted nonactionable opinion). This context suggests that the Blog Post is providing opinions.

Additionally, “[t]he court should consider the entire communication and note whether the speaker qualified the defamatory statement with cautionary ‘terms of apparency.’” Life Designs Ranch, 191 Wn. App. at 331 (quoting Dunlap, 105 Wn.2d at 539). Project Veritas challenges only a couple phrases of the Blog Post as defamatory and agrees that the majority of the Blog Post “purported to be a technical study of whether and how prominent conservatives had worked to promote and ‘aggressively spread’ the [Video Report].” Compl. at ¶ 82. Indeed, the Blog Post focuses on describing when posts about the Video Report were made on social media, who made them, and how influencers strategically worked to gain visibility for the Video Report. See EIP Blog Post. Thus, not only were the allegedly defamatory portions of the Blog Post an exceedingly small piece of the Blog Post, they also did not relate to the main subject of the Blog Post. That Project Veritas fails to take issue with the Blog Post as a whole, and instead cherry picks just a couple phrases as defamatory, does not weigh in its favor. Furthermore, EIP qualified one of the challenged statements by saying that it had determined that the Video Report was part of a disinformation campaign. This language constituted a “term of apparency” and signaled to the reader that the statement was one of opinion rather than fact….

The specific words used in the Blog Post were also indicative of them being opinions because they are incapable of defamatory meaning. Words that have imprecise meaning are incapable of being defamatory because they are not provably false. Paterson, 502 F. Supp. 2d at 1134–35. Courts have found phrases like “rip-off,” “fraud,” and “unethical” are nonactionable because of their imprecise meaning and because they are susceptible to many interpretations. See id. at 1135 & n.2. In this case, one cannot determine the truth or falsity for the phrases that Project Veritas alleges to be defamatory. For example, the statement that the Video Report is “misleading” or constitutes “disinformation” is capable of many interpretations and thus cannot be proven true or false. See Phantom Touring, Inc v. Affiliated Publ’ns, 953 F.2d 724, 728 n.7 (1st Cir. 1992) (“Even the less figurative assertion that appellants are ‘blatantly misleading the public,” . . . is subjective and imprecise, and therefore not capable of verification or refutation by means of objective proof.”). The statement that the Video Report had been “debunked” is similarly incapable of being proven true or false.

Anyway, that ruling actually came down in May, but we get to revisit it now, because last week, the judge took the next step. Because it was determined that the original lawsuit by PV was a SLAPP under Washington’s anti-SLAPP law, that meant that PV could be on the hook for Stanford’s legal fees… and that portion of the case has concluded with… PV being told to pay up to the tune of $149,596.90.

For what it’s worth, PV tried to get around having to pay by arguing that Washington’s anti-SLAPP’s fee shifting provisions can’t be applied in federal court. The court dismisses this argument in a footnote, and says that the fees requested by Stanford are reasonable under the law, and makes no adjustment on Stanford’s requested about.

Anyway, it’s pretty incredible that an organization that holds itself out as supporting free speech would ever try to argue that an anti-SLAPP law can’t apply in federal court. That’s just an undeniably anti-free speech position to take. Again, this is just a reminder that PV, for all its lofty talk about free speech, seems to be the same kind of anti-speech, pro-censorial organization like so many others when the speech is about itself.

Of course, this story is yet another reminder that strong anti-SLAPP laws are one of this country’s best protections for free speech, and against censorial thuggery. This is also why we need better state anti-SLAPP laws in every state AND a strong federal anti-SLAPP laws. If PV were an actual free speech organization it would be supporting such laws — not trying to tear them down and filing SLAPP suits.

Filed Under: anti-slapp, attorneys fees, defamation, fee shifting, slapp
Companies: project veritas, stanford

Nick Sandmann, Who We Were Told Would Be Rich Beyond Belief From All The Media Companies He Sued, Loses Basically All Of His Cases

Defamation

from the well,-look-at-that dept

A while back, we noted that there was something of a Rorschach test in how you viewed basically everything about Nick Sandmann, the MAGA-hat wearing high school student who became front page news after a video of him standing in front of a Native American demonstrator, Nathan Phillips, went viral. Everyone had their own interpretations. Context was often lacking. People’s personal beliefs may have clouded their own interpretations — across the board. But, as we noted, people’s own interpretations of what they saw… just is not defamatory. But Nick Sandmann sued anyway. He sued a whole bunch of media companies. And his fans (generally those in the Trump world), insisted he was going to end up owning these companies.

It’s still not entirely clear why, but two of the companies, the Washington Post and CNN chose to settle the lawsuits. Considering a court had initially dismissed the WaPo suit, and only reinstated it on very narrow grounds (that still seemed unlikely to win), and the fact that the lawsuit against CNN was on shaky ground as well, basically anyone with any experience with defamation law assumed that the settlement was at what’s generally known as “nuisance fee” levels: a pittance — less than it would cost to pay the lawyers to win the suit, just to make the kid and his lawyers go away. Of course, his fans ridiculously assumed that the settlement meant he got the full hundreds of millions he sued over. And some very ignorant media folks implied something similar. But, almost everyone agrees that Sandmann probably got in the low to mid-five figures. Not bad for a student, but not exactly lifechanging either.

Indeed, Sandmann’s former lawyer (who he eventually fired) more or less gave away the fact that the settlements were nuisance fees when he threatened to sue CNN on air talent for merely speculating that the amounts were tiny nuisance fees (around $25k) — arguing that their speculation broke the confidentiality agreement in the settlement. If he’d actually made $250 million like some people thought, speculating that the amount was $25k… wouldn’t have broken any confidentiality agreement, because it wasn’t the confidential amount. The only way that speculation could possibly be tied to the agreement was… if the amount basically was $25k.

So, yeah, the WaPo and CNN caved in and settled. Probably because it was cheaper to do so. But, of course, that also highlights how both of them are willing to settle clearly bogus defamation lawsuits, which isn’t great.

And… it’s looking like an even more terrible decision to settle now that basically all of the other Sandmann lawsuits against media orgs got dismissed, fairly easily, in one fell swoop.

Now, there is an oddity in this case that is worth highlighting: even though the lawsuits are against media companies, they’re actually over a statement made by Phillips, claiming that Sandmann blocked his way. This was the only statement that the judge reinstated in the WaPo case, and which the court allowed to remain in all the other cases. This was because this was the only statement that might possibly be factual, if there were some evidence to back it up — so discovery was allowed on that point alone.

The court details the procedural history of the cases, including the WaPo and CNN settlements, how a bunch of other media orgs (NY Times, CBS, ABC, Gannett, and Rolling Stone) were sued as well, and how that very limited discovery was allowed. There was a deposition of Sandmann, which even the court notes “contains relatively little testimony pertinent to the issue at hand.” And then declarations from from Phillips and some other witnesses on the day of the confrontation.

It doesn’t sound like any of these actually mattered all that much. There were also twenty different videos of the events of the day that were submitted — a reminder of how that same event was viewed from so many different perspectives (literally and figuratively).

The court then more or less telegraphs what it is thinking regarding all of this:

In the Court’s view, six of the videos show the specific encounter between Sandmann and Phillips in helpful respects. What a viewer might conclude from these videos is a matter of perspective.

A matter of perspective is… not defamatory.

Then we get to the analysis and… as lots of us predicted on the very day Sandmann started suing, it does not go well for Sandmann. Sandmann’s lawyers tried to get around the kinda important question of whether or not the statements he was suing over were statements of fact (which could potentially be defamatory) or statements of opinion (which cannot). He argued that the “law of the case” doctrine prevented the court from considering that issue, which the court rightly pointed out is utter nonsense.

Sandmann first argues that the Court cannot now consider the fact-or-opinion issue because of the law of the case doctrine. This argument is without merit.

After explaining why it has no merit (which is not worth going into in this post, but suffice it to say that “law of the case” doctrine makes no sense here, because it’s about issues that are already settled and the court had explicitly said that these issues were not settled and would be revisited at this stage of the case), the court also notes that it’s particularly ridiculous for Sandmann to argue that this was a settled issue when…

Finally, Sandmann’s insistence that the Court cannot now revisit this legal issue is ironic considering that he vigorously, and successfully, moved the Court to reconsider its initial ruling in The Post case.

Then we move on to the main show: were the statements factual? Or were they opinion — and thus categorically not defamation. The key statement at issue were Phillips’ claim that Sandmann “just blocked my way and wouldn’t allow me to retreat.”

The court notes that this is, clearly, Phillips opinion of the situation at hand:

Instead, a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.

Generally, “blocking” is an imprecise term capable of different meanings that “lacks a plausible method of verification.” Croce, 843 F. App’x at 715 (citation omitted). In particular, because of the context in which this encounter occurred—the large, open area adjacent to the Lincoln Memorial— the blocking statement simply cannot be proven to be either true or false. Had such an encounter occurred in a small or confined area, a statement that one person was “blocked” by another might be objectively verifiable. But it is not here.

The judge then continues to kick an already dead Sandmann argument:

Interestingly, plaintiff’s responsive memorandum to the joint motion for summary judgment argues that “blocking” is factual because “it involves the oppositional position of two human bodies in a confined space.” (Case No. 20cv23, Doc. 61 at 42) (emphasis added). But, as the videos depict, the area where this encounter occurred was a huge, outdoor setting, not a confined space.

Ooops.

The court goes on to note that since Phillips is conveying his own view of Sandmann’s state of mind, it’s obvious that he’s not conveying facts, but rather his opinion of the situation. Sandmann’s own depositions more or less sinks his argument here. From a footnote in the ruling:

Sandmann’s own deposition testimony illustrates the unverifiability of someone’s state of mind. Sandmann was asked whether it was possible “that Phillips was trying to see if you guys [Sandmann and his friend, Cameron] would both move to create a path for him to go towards what would now be where you are standing?” (Sandmann Dep. at 238:1–6). This of course required Sandmann to speculate and prompted him to answer “It’s possible he was thinking that. Again, he never made that clear.” (Id. at 238:12–13). He was then asked if this was because “he [Phillips] didn’t articulate it?” (Id. at 238:15–16). To which he responded “Correct.” (Id. at 238:17). Phillips’s intent in that moment is not objectively verifiable, the same way Sandmann’s intent in that moment is not objectively verifiable. The Court must look at the meaning of the statements when they were made, without reference to post hoc explanations.

And, since speculation on someone else’s state of mind is incapable of being proven true or false, it cannot be a statement of fact… and therefore cannot be defamatory.

The fact that the media orgs being sued reported on Phillips’ statements doesn’t magically make it defamatory:

The media defendants were covering a matter of great public interest, and they reported Phillips’s first-person view of what he experienced. This would put the reader on notice that Phillips was simply giving his perspective on the incident.

And thus…

Therefore, in the factual context of this case, Phillips’s “blocking” statements are protected opinions. This holding moots all other motions before the Court.

Again, it seemed quite obvious that this was going to be the eventual outcome of the case to anyone with even a modest level of experience with defamation cases. The WaPo and CNN settlements were likely because the nuisance fees of paying him off were even less costly than going through with the minimal discovery that occurred. But if they had gone through with it, as this ruling makes clear, the case would have been dismissed. There was no defamation there.

And it doesn’t look like Nick Sandmann is going to be owning CNN any time soon.

Filed Under: defamation, nathan phillips, nick sandmann, opinion, slapp suit, state of mind
Companies: abc, cnn, gannett, ny times, rolling stone, washington post

Trump Says It’s Defamation To Call His Lying About The Results Of The 2020 Election ‘The Big Lie’

Defamation

from the oh-child dept

Donald Trump, whose supporters still pretend is a “free speech” champion, has regularly been known to sue news organizations that are mildly critical of him. You may recall that back in 2020 he hired notorious-lawyer-for-suing-media-companies (yes, he once was the lawyer in a case against us), Charles Harder, and sued both the NY Times and the Washington Post. The NY Times case was dismissed easily. The Washington Post case appears to somehow still be alive, though not much has happened in a while. It was, initially, assigned to Judge Ketanji Brown Jackson, who has since received two separate promotions, which took her off the case. Somewhere along the way, Harder left the case and was replaced by Harmeet Dhillon, who has been a favorite lawyer of perpetually aggrieved culture warriors.

Now Trump is again threatening to sue media orgs — but not via either Harder or Dhillon. Instead, he’s hired James Trusty of the formerly reputable Ifrah Law firm in DC to threaten CNN with a defamation lawsuit for… calling Trump a liar. The threat letter is all kinds of nonsense, but the underlying basic claim undermines the very argument of the lawsuit. It claims that you can’t call Trump a liar because he believes everything he says.

In this instance, President Trump’s comments are not lies: He subjectively believes that the results of the 2020 presidential election turned on fraudulent voting activity in several key states.

Yeah, so here’s the thing: by noting that it’s subjective as to whether or not he’s lying, that means it’s an opinion. And an opinion is not defamation. Only statements of fact are. So, we’re already kind of off to a bad start.

But, more importantly, for the most part, calling someone a liar is not defamatory. There are lots of cases where it’s been tried. And mostly failed. A few years back, there was an interesting law review article tracing the history of “the defamatory impact” of calling someone a “liar.” And it found cases going back centuries that say that calling someone a liar isn’t defamatory. Again, that’s not to say it’s universally the case, but in the rare cases where the word “liar” was found defamatory, there are usually some pretty distinguishing characteristics that imply something much more nefarious — or, more commonly, imply some level of specific knowledge, rather than just commenting on publicly available information.

This is… not that.

Perhaps the most well known case on this question is Milkovich, It more or less set the modern standards (though some have argued they’re a bit muddled) for separating fact from opinion in determining what counts as defamation and what does not. It requires that the claims be specific, rather than “loose, figurative, or hyperbolic.” But the references cited in this threat letter are pretty clearly opinion, figurative, or rhetorical speech.

And that’s not even getting to the question of truth.

Whether or not Trump “subjectively believes” something is really not the issue. CNN reporters may subjectively believe he’s lying. And saying so is their opinion — which is not defamatory.

And that’s not even touching on the question of actual malice.

Donald Trump is a public figure. A very public figure. To win a defamation case, he needs to prove actual malice. And as we’ve said many, many times before, that does not mean that “CNN hates Trump.” It means Trump will need to prove that CNN knew or at least greatly suspected that Trump was not lying. And, um, that’s not going to happen.

Perhaps there’s some statement in the 282 page (?!?!?) threat letter (with exhibits…) that might somehow meet the definition of defamation, but if there was, you’d think that super lawyer James Trusty would, you know, lead with that, and not lead with claiming it’s defamation to call Trump a liar because he actually believes the false things he says.

Either way, this is laughable. And embarrassing for both Trusty and Trump.

As mentioned above, CNN is estimated to have used the “Big Lie” phrase or to characterize President Trump as lying roughly 7,700 times during broadcasted television shows and repeats of those shows. These defamatory comments have continued even after the new CEO of CNN apparently urged production teams to stop.

Accordingly, I hereby demand on behalf of President Donald Trump that CNN (1) immediately take down the false and defamatory publications, (2) immediately issue a full and fair retraction of the statements identified herein in as conspicuous a manner as they were originally published, and (3) immediately cease and desist from its continued use of “Big Lie” and “lying” when describing President Trump’s subjective belief regarding the integrity of the 2020 election.

I mean, that’s just pathetic and weak. Have some self-respect.

Assuming this actually proceeds to a lawsuit, which seems decently likely, it’s unlikely to work out very well for Trump (or Trusty).

In the meantime, apropos of nothing at all, I’ll just mention again, that every state should have a strong anti-SLAPP law, and we need a federal anti-SLAPP law as well. You know, like the one in Texas, that Donald Trump used to get out of a lawsuit by Stormy Daniels, after she sued Trump for… calling her a liar.

Just for the hell of it, I’ll end this post by quoting Charles Harder’s argument on behalf of Donald Trump. Might be fun for CNN to hang onto this for a future filing:

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84 (Tex. 2013). Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable. See e.g., McCabe v. Rattiner, 814 F.2d 839, 843 (1st Cir. 1987) (“scam” not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (D.C. Cir. 1984) (en banc) (political columnist labeling a political figure a “Marxist” not defamatory); Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974) (use of term “scab” in labor dispute not defamatory); Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976) (labeling political writer a “fascist” not defamatory); Greene v. State, 21 So.3d 348, 352 (La. App. 2009) (labeling state employee “pathological liar” not actionable).

Any finding by the Court that the Comment has a defamatory meaning and is not protected opinion could have a chilling effect on political debate throughout the United States forever. Politicians frequently express their opinions about their political adversaries, often in strident and blunt terms. In 1964, for instance, Lyndon Johnson ran an advertisement that implied his opponent, Barry Goldwater, would start a nuclear war. John Kennedy campaigned against incumbent Vice President Richard Nixon in 1960 based on claims of a “missile gap” with the Soviet Union that turned out to be grossly misleading. Bill Clinton allegedly misstated the budget deficit in his 1992 campaign against George H.W. Bush. None of these statements were anything more than opinions, and none could or should form the basis of a defamation suit.

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

Emphasis in that final paragraph added by me.

Filed Under: actual malice, defamation, donald trump, james trusty, liar, opinion
Companies: cnn

Judge Tosses Defamation Suit Brought By ShotSpotter Against Vice Media For Reporting On Its Shady Tactics

Defamation

from the substantially-true,-mfers dept

If you like your dystopia, you can keep your dystopia.

That’s where we are right now: dealing with a gunshot AI company that felt compelled to sue journalists for (accurately) reporting on things the company has done as well as offering their opinions on the company’s actions.

The company is ShotSpotter. Utilizing microphones and AI no defendant has been able to examine in court, ShotSpotter tells cops there have been shots in the (recorded) area and law enforcement stuff flows from there.

The problem with ShotSpotter is that it’s often inaccurate. And, according to some law enforcement agencies, it’s completely useless. On top of that, it has been caught altering gunshot records at the request of law enforcement investigators who perhaps find the original, unaltered reports aren’t helping them close cases or make arrests.

This seemingly accurate reporting has made ShotSpotter very angry. It has issued statements vehemently denying what’s been uncovered by public records requests and defense lawyers. But it did even more to Vice Media, home of tech reporting wing, Motherboard. It sued the website for defamation, claiming Vice’s reporting was full of lies, some of them actually and legally malicious.

ShotSpotter’s presumably high-powered lawyers dumped a 413-page complaint [PDF] into a Delaware court, because that’s where you file lawsuits when you’re a corporation seeking to sue another corporation and don’t want federal precedent on defamation lawsuits to get your case dismissed post haste.

Four hundred and thirteen pages. I hope ShotSpotter wasn’t paying by the word. Taxpayers may be obligated to front money for local court action, but they’re going to be out much less than ShotSpotter. The loss [PDF], handed to ShotSpotter by the Delaware Superior Court, runs only 28 pages. (h/t Justia, an invaluable source of legal documents and the only site that actually included the ruling, despite several others reporting on it.)

It seems ShotSpotter and its lawyers hoped to intimidate the court into a win with a massive wall of text. For all the redundant and pointless agitating, ShotSpotter’s anger is limited to 15 separate statements/allegations made by Vice and its reporters.

ShotSpotter seems stung the most by Vice/Motherboard’s allegation that it will alter reports at the request of law enforcement customers — something that converts evidence into something far more questionable: convenient contributions to the official narrative.

ShotSpotter alleged all of this was defamatory. First, the title of the Motherboard article:

“Police Are Telling ShotSpotter to Alter Evidence from Gunshot-Detecting AI”

This section heading:

“A pattern of alterations”

And this section of the article:

“Motherboard’s review of court documents from the Williams case and other trials in Chicago and New York State, including testimony from ShotSpotter’s favored expert witness, suggests that the company’s analysts frequently modify alerts at the request of police departments – some of which appear to be grasping for evidence that supports their narrative of events.”

To which the court responds, “Where’s the lie?” It starts by quoting expert testimony offered in a criminal case by ShotSpotter’s Senior Forensic Engineer, Paul Green.

Forensic examination of an incident is always done at a customer’s request, only at a customer’s request. It’s not something we do on a regular basis. In this case, ShotSpotter only detected the final two shots that you heard in the audio clip. An hour or so after the incident occurred, we were contacted by Chicago PD and asked to search for — essentially, search for additional audio clips. And this does happen on a semi-regular basis with all of our customers

Here’s Greene again, being cross-examined in another criminal case:

Q. Mr. Greene, I want to stop you right there. This note here denotes some employee at [ShotSpotter] changed the classification per the instruction of the customer?
A. Per the customer’s instruction, yes.
Q. Is that something that occurs in the regular course of business at [ShotSpotter]?
A. Yes, it is. It happens all the time.
Q. What happens if a customer calls and asks you to change a classification that has no link to the audio that you’re listening to?
A. We have refused customers [sic] to change classifications on incidents in the past. Typically, you know, we trust our law enforcement customers to be really upfront and honest with us . . .

ShotSpotter claimed it was defamatory to suggest the company “modified alerts at the request of the company.” The court says this obviously happens all the time, according to ShotSpotter’s own expert witnesses.

It is apparent, from Greene’s testimony, that there is a pattern of alterations, and that these alterations sometimes come by request of police departments.

That’s the biggest, most obvious problem with ShotSpotter’s lawsuit. Adding to its problems is the fact that neither ShotSpotter or its presumably expensive legal representation can discern the difference between actionable assertions of fact and the hyperbole often present in social media posts.

It is clear to the Court that certain words used by Mr. Koebler are opinion. In Statement 12, Koebler tweets, “This is horrifying and nuts.” In Statement 14, Koebler tweets, “Blatant corruption.” These words are not actionable. They are no worse than a plaintiff being accused of being “shockingly racist” or accused of “blackmail.” “[A] published statement that is ‘pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage’ is not defamatory.”

And, if you believe (as ShotSpotter appears to) that being called “shockingly racist” or involved in “blackmail” is actionable, footnotes appended to both of those phrases cite precedent (from Delaware’s top court as well as the US Supreme Court) ruling otherwise.

As for any deliberate misleading by Vice reporter Jason Koebler, the court has this to say:

There is no misplacement or mistake of hyperlink. There is no chance that a trier of fact could understand a link to apply to one Statement and not another. Koebler links to the entire Article in the first tweet, and links to specific screenshots of the Article and relevant testimony in the next two. It would be clear to a reader that these three tweets should be read in conjunction with the Article, the Greene testimony, and the excerpt about the Simmons case.

As for the rest of the allegedly defamatory statements buried in ShotSpotter’s 413-page complaint, the court says there’s nothing actionable about those either.

The Court finds that the remainder of the proffered Statements are not defamatory.

More specifically: they’re substantially true, even if somewhat carelessly deployed:

There is substantial truth in the Williams and Simmons Statements. As demonstrated in the Complaint, the prosecutors’ case and ensuing ShotSpotter evidence was withdrawn in Williams. While the Statement oversimplifies the sequence of events, it is admitted in the Complaint that prosecutors learned of the limitations of ShotSpotter technology, then “dropped the case.” Also, the location was in fact changed for the gunshots. The Complaint acknowledges that the location change was due to ShotSpotter providing police with the geolocation of the park entrance, rather than the specific gunshot location. Further, these Statements are supported by and derived from a motion filed by William’s public defender. The Article specifically states: “That night, 19 ShotSpotter sensors detected a percussive sound at 11:46 p.m. and determined the location to be 5700 South Lake Shore Drive—a mile away from the site where prosecutors say Williams committed the murder, according to a motion filed by Williams’ public defender.”

In Simmons, the Article states that a fifth shot disappeared. It bases this Statement on a New York court decision which overturned the defendant’s conviction; the judge called it “troubling” that ShotSpotter evidence had disappeared. The full context provides that this happened after the evidence was already heard by a jury, then was later deleted per company protocol. While these Statements may lack the sufficient journalistic context, they are substantially true in their conveyance.

Vice wins. Unfortunately, it will be out its own costs for defending itself from this bogus lawsuit. Delaware’s anti-SLAPP law is extremely limited and doesn’t cover actions arising from one private entity’s complaints about another private entity’s statements. Once again, for the people in the back of a whole bunch of states: FEDERAL. ANTI. SLAPP. NOW.

The good news is ShotSpotter wasn’t able to sue Vice into silence. Reporting on the company’s questionable tactics will continue. And until the company is actually willing to force its law enforcement customers to accept what’s been detected by ShotSpotter devices (rather than run more searches and/or alter data), it’s just going to keep suffering similar losses in the court of public opinion, not to mention the literal courts where it presents its dubious evidence.

Filed Under: anti-slapp, defamation, intimidation, journalism, slapp
Companies: shotspotter, vice

Angry Crypto Firm Posts Weird Cease & Desist Letter To Its Own Blog; DMs It To Critics

Legal Issues

from the that's-not-how-any-of-this-works dept

You know things are going just great in crypto-land when a cryptocurrency company has to post a vague cease-and-desist letter to its own blog. Everything about this is bizarre, but it culminated in this very strange cease-and-desist blog post by Nexo.

There is a separate blog post that sort of, but not quite, tries to explain what’s going on, noting that a Twitter user has started to spread a false story about the company. And, indeed, Nexo makes a compelling case that the Twitter user “otteroooo” posted a blatantly false (and most likely defamatory — something I don’t say lightly) claim about Nexo’s co-founder, possibly confusing him (whether on purpose or not) with a very different individual who has a somewhat similar (but really not that close) name.

So, yes, sure, I can totally understand Nexo being mad. And I can totally understand and appreciate Nexo posting its compelling argument for why otterroooo’s claims are full of shit.

But… that still doesn’t explain posting a cease-and-desist to your blog. For that, you have to look elsewhere, and see that Nexo is apparently sending Direct Messages to people on social media when they retweet the otteroooo tweets, and (1) sharing with them the explanation blog post and (2) the cease-and-desist.

Except, even then, this doesn’t make much sense. The cease-and-desist is not specific (because, how can it be when it’s just out there for everyone) and completely overstates what is “unlawful.”

If they want to send a cease-and-desist letter to people spreading false information, there are ways to do that, but posting it to your blog seems like a way to call negative attention to yourself, and get you ridiculed, much more than it is likely to get anyone to cease or desist even if you have a decent argument for why people should cease and desist.

Filed Under: cease and desist, defamation
Companies: nexo

Canadian Serial Defamer Has Her Defamation Lawsuit Tossed By A US Federal Court

Defamation

from the I've-been-besmirched,-exclaimed-the-besmircher dept

This kind of hubris can only be explained by massive self-delusion. It’s not pretty but at least the denouement is wholly justified.

Last January, Kashmir Hill published an investigation that uncovered the source of serial, widespread online defamation. The perpetrator was Toronto resident Nadire Atas, who engaged in a one-woman war against everyone she felt had ever slighted her.

The inflection point appeared to be the firing of Atas from a realty agency owned by UK resident Guy Babcock’s family. She had been fired in 1993. This was followed by a wave of online defamation and harassment that targeted multiple members of Babcock’s immediate and extended family, accusing them of pedophilia, child molestation, fraud, and theft.

Atas had also waged on online smear campaign against a Canadian lawyer who worked for a bank that had foreclosed on two properties owned by Atas. For whatever reason, Atas also targeted a Nova Scotia historian, branding him as a pedophile and “pervert freak,” making it difficult for him to obtain a research position.

Atas also allegedly harassed Toronto residents who had the misfortune of sharing a building with her. This included a reported assault as well as reports of extremely erratic behavior. The New York Times investigation culminated in Atas’s arrest on charges of harassment, defamatory libel, and spreading false information with the intent to alarm. Most of the charges were ultimately dropped but Atas was ordered to cease her online harassment of her many victims.

Atas responded as only someone who has decided the internet is an instrument for (extremely misguided) retribution can: she sued the New York Times over both articles, focusing on the one that reported her arrest.

That lawsuit has been dismissed, as the Volokh Conspiracy reports. Unsurprisingly, the shotgun litigation (there are 72 other defendants beyond the New York Times) has been found meritless. And, as the opinion shows, Atas did very little to help her case survive both its jurisdictional challenges (her being Canadian and the entities she sued being from all over the world) and her own litigation history. A footnote appended to the third page of the opinion [PDF] shows how Atas’ Canadian litigation history works against her pretty much anywhere else she files a lawsuit.

Plaintiff attaches to the complaint a January 3, 2018, order issued by Justice David L. Corbett of the Ontario Supreme Court of Justice. The order declares that Plaintiff is a “vexatious litigant,” who has “persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the Courts of Ontario,” and prohibits Plaintiff from instituting or continuing any action or proceeding in Ontario without first obtaining leave. The order also directs Plaintiff to provide a copy of the order to any court, regulatory body, or tribunal where she seeks to commence any type of action or proceeding.

Definitely not helpful, especially when suing over the contents of a well-researched investigation and factual reporting about your arrest.

This also isn’t helpful.

She seeks to hold 73 named defendants and several Jane and John Does liable for the alleged defamation, including (1) the Times and entities and individuals associated with the Times − such as The Daily and its host; the Times’s executive and business editors; and [Kashmir] Hill and her husband; (2) the alleged victims mentioned in the two articles; (3) individuals, entities, lawyers, and law firms who were involved in the defamation cases and other litigation in the Canadian courts to which Plaintiff was a party; (4) the relatives, colleagues, employers, and other entities associated with those whom Plaintiff perceives as enemies.

The court says that, first of all, it does not have jurisdiction. Atas is Canadian. The 73 defendants hail from the US, UK, and Canada. Most importantly, there are no US plaintiffs, which makes it all but impossible for the court to consider the case.

That being said, the court says there’s no case to be considered. What’s alleged here is nowhere near actionable under US law.

Even if Plaintiff is able to establish that the Court has diversity jurisdiction to consider this action, however, her factual allegations do not suggest that she would have viable claims against any defendant named in the amended complaint.

That refers to the Times articles, which are factual and offer factual basis for allegations made in them. The second article, in particular, covers nothing but the indisputable facts surrounding Atas’s arrest.

The rest of the defendants, however, are shielded from this lawsuit because the court has difficulty believing they ever defamed Atas, especially some of those on the outer reaches of the exceedingly long list of alleged defamers.

Plaintiff seeks to bring libel claims against a large number of individuals, lawyers, law firms, and other entities that have no apparent connection to the Times’ articles from which her claims stemmed. She names these defendants and asserts where they are domiciled, but fails to allege any facts against them, much less sufficient facts, as required by Rule 8, to allow the Court to reasonably infer that each defendant is liable to her for libel. For example, she names as defendants the Myers-Briggs Company, which she describes as “the world’s largest business psychology providers” based in California, and IBM, which she identifies as a “multinational technology corporation” headquartered in New York. Plaintiff provides no facts in the complaint that would show how these two defendants − or most of the other defendants − are liable for the alleged libel stemming from the publication of the two articles by the Times.

Yikes. Well, the court has far more patience than anyone should have for someone who is attempting to play the victim after victimizing others for years. Atas has a chance to amend the lawsuit. Given what’s seen here, any amendment is likely to increase the number of baseless claims and completely unrelated defendants, rather than bring Atas any closer to the vindication she somehow believes she deserves.

Filed Under: defamation, jurisdiction, kashmir hill, lawfare, nadire atas
Companies: ny times

New Hampshire’s Top Court Says Section 230 Shields Retweeters From Defamation Lawsuit

Defamation

from the not-just-for-billionaires dept

Section 230 isn’t just some unearned privilege enjoyed by tech companies to shield them from angry, incoherent lawsuits filed by banned white nationalists. It’s also for the little people, as Eric Goldman points out while bringing us this recent decision by the New Hampshire Supreme Court.

This ruling is a fabulous reminder that Section 230 doesn’t just protect “Big Tech”; it protects all Americans who use the Internet. Perhaps the defendants would have ultimately defeated this case anyways, but having Section 230 on their sides gave them–and all of us–a little more freedom to engage each other on social media without fearing that every casual interaction might trigger a financial cataclysm. So the next time you hear politicians claiming that Section 230 benefits only Google and Facebook, cite this case as additional proof that they misunderstand what Section 230 actually does, or they are lying, or both.

And it is a solid decision [PDF] that wastes little time determining who’s shielded from this lawsuit and why. In just seven pages, the New Hampshire court covers a lot of ground quickly, ultimately finding in favor of these defendants.

Here’s the backstory: A student defaced a school website and added some additional information about one teacher (the plaintiff in this case). The added post “suggest[ed] that [the plaintiff] was sexually perverted and desirous of seeking sexual liaisons with […] students and their parents.” Another student took a screenshot of the altered site and tweeted it. The defendants being dismissed in this ruling did nothing more than retweet the original tweet.

The trial court found that Section 230 of the CDA immunized these retweeters from the teacher’s lawsuit. The teacher disagreed, appealing the decision to the state’s top court (which is also its only appeals court).

A second pass has changed nothing. The state Supreme Court says the word “user,” found in Section 230(c)(1) means exactly that: user. These defendants were Twitter users and the immunity applies to them. The state’s top court quotes a California Supreme Court case from 2006 — one of the first to apply Section 230 immunity to individual users.

Given that Congress declared that “‘[n]o provider or user of an interactive computer service shall be treated as [a] publisher or speaker,’” the court found no basis “for concluding that Congress intended to treat service providers and users differently,” and that “the statute confers immunity on both.” Thus, the court concluded, “Congress employed the term ‘user’ to refer simply to anyone using an interactive computer service,” and held that section 230(c)(1) immunizes such individual users.

Given this background, the top court finds the lower court’s reasoning persuasive. Simply retweeting someone else’s tweet is not actionable under Section 230.

Despite the plaintiff’s assertion to the contrary, we conclude that it is evident that section 230 of the CDA abrogates the common law of defamation as applied to individual users. The CDA provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). We agree with the trial court that the statute’s plain language confers immunity from suit upon users and that “Congress chose to immunize all users who repost[] the content of others.” That individual users are immunized from claims of defamation for retweeting content that they did not create is evident from the statutory language.

That leaves the plaintiff with one option: asking the nation’s Supreme Court to take a look at this case. It seems unlikely SCOTUS would be interested in delivering a final ruling on a state-level defamation case that offers multiple options for dismissal, even if it’s Section 230 taking center stage here. Certain justices may be acting weird about 230’s immunity, but this lawsuit was a loser when the plaintiff decided to start suing people who did not create the inflammatory post observed (and distributed) by others.

Filed Under: debbie banaian, defamation, new hampshire, retweets, section 230, students, users

Wisconsin Town Lawyer Lies To Journalist, Sues Activist Who Pointed Out His Lie

Defamation

from the when-bullying-backfires dept

Bogus lawsuits are a form of bullying. (Hence the need for a federal anti-SLAPP law.) Some lawsuits are merely frivolous, filed by people who have no idea how the law works. Others, like this one, are filed solely to silence critics and remind them who actually has the power in this relationship.

That’s what has happened in Mount Pleasant, Wisconsin. The town’s lawyer, Chris Smith, has sued a resident for pointing out the lie he told local journalist, Diana Panuncial. Panuncial covered the Mt. Pleasant Village Board’s decision to extend trustees’ terms from two years to three years. Her article for The Journal Times featured a quote from the town’s attorney, in which he stated the term extensions had been discussed multiple times in public meetings over the last four years.

“It’s very important that everyone understand, even though it was said very clearly, numerous times and at the open public meetings, this does not in any way, shape or form, affect the term of anyone who’s currently on the board,” Village Attorney Chris Smith said.

This change was first formerly brought to the board in April 2021, though discussion of it began back in 2018, according to Smith.

Smith’s claim didn’t sound accurate to Kelly Gallaher, an activist who heads A Better Mt. Pleasant, a local watchdog group. Gallaher routinely attends or watches public meetings and didn’t recall any previous discussions of the term extensions. She searched the town archives for previous discussions of term extensions by the board but couldn’t find anything. She directly emailed the man who had made the claim — town attorney Chris Smith — to see if he had any information about these years of open, public discussion.

Here’s how that went, according to Gallaher’s motion to dismiss [PDF]:

To clear things up, Kelly e-mailed Village Attorney Smith about his quote in the Journal Times on February 22 and asked him to provide her with “the agendas in which the Village Board (or the Committee of [the] Whole) discussed and/or debated extending the length of terms in office for public officials from January 2020 until the present.”

On February 23, Village Attorney Smith responded that during that time frame the term extension was “discussed at the Committee of the Whole on 4/19/21,” as well as at meetings on January 10 and 24 of 2022 and attached the agendas for all three meetings. Kelly wrote back the same day that the April 2021 meeting agenda “doesn’t really inform residents that longer terms for village officials was being considered—there is no agenda item which specifically refers to term lengths,” and expanded her request to ask for “all other agendas in which longer terms for village officials were specifically discussed and/or debated from January 2018 through April of 2021.”

All told, she had now requested meeting agendas discussing the term extension from 2018 through the present—the entire period in which Village Attorney Smith told the Journal Times that the change had been discussed. After Kelly followed up a week later, Village Attorney Smith admitted in a one-sentence email that: “This subject matter was not discussed at a public meeting within that timeframe, other than the 4/19/21 meeting previously discussed.”

Following this admission, Gallaher emailed the Journal Times and pointed out the statements made by Smith in the paper’s article weren’t true, providing the Journal Times with a copy of her correspondence with the town attorney. She posted the same information to her organization’s social media pages, pointing out that “the Village Attorney lied to The Journal Times” about term length discussions.

This made the town attorney angry. He sued [PDF] Gallaher for calling him a liar, claiming her posts to Facebook and Twitter referencing his lie to local journalists were defamatory. He also claimed Gallaher’s email to the Journal Times (making the same allegations about Smith’s statement to the paper) was defamatory. He proceeded with this lawsuit despite obtaining a retraction and an apology from Gallaher following his initial legal threat.

This may have seemed like an easy win for the attorney who didn’t like a local activist pointing out his lie to a local journalist. But the Institute for Justice has stepped in and it looks like the town attorney is completely in the wrong, if not completely overmatched.

The IJ points out there was nothing reckless about Gallaher’s assertions about the truthfulness (or lack thereof) of Smith’s statements to the Journal Times. In fact, there was nothing actionably false about her statements about Smith’s statements.

To be sure, [Smith’s lawsuit] alleges that Kelly did not like her current government and that she had “created hundreds of posts on social media” that “portray[] Mount Pleasant Village officials or employees negatively.” But it does not allege that Kelly knew her statements was false, or even that she should have known they were false.

Nor could it have. Indeed, the very email that the Complaint claims was defamatory makes clear that Kelly was anything but reckless. Kelly’s email to the Journal Times reporters included her correspondence with the village attorney where she asked for records that could substantiate his quote in the Journal Times article. That same email made clear that she had tried to find these records on her own by “search[ing] the village archives” with no luck. She followed up with Village Attorney Smith a week later. It was only after Village Attorney Smith admitted, without further explanation, that extending trustee term lengths had not been “discussed at a public meeting” in 2018 or at any time before April 2021 that Kelly contacted the Journal Times and made her social media posts. In other words, Kelly did research, gave Village Attorney Smith ample opportunities to substantiate his quote, and waited until he appeared to confirm that his quote was false to say anything. Far from showing that Kelly knew her statements to be false or that she acted recklessly, the very statements that the Complaint alleges were defamatory show that Kelly had every reason to believe that what she was saying was true.

Even if Smith meant that there had been discussions residents weren’t privy to, that wasn’t made clear in his comments to the press. His admission to Gallaher that nothing had been publicly discussed until April 2021 allowed her to draw her own conclusions. Because of that, Smith is suing over two opinions and one factual statement by Gallaher. And that doesn’t add up to defamation.

In other words, the allegedly defamatory statements make clear that (1) Kelly believed Village Attorney Smith’s quote should be interpreted as a claim that there were public discussions of the term limit change as early as 2018; (2) there were no public discussions of the term limit change as early as 2018; and (3) Village Attorney Smith was therefore a liar. Of these three points, only the second is factual—and that one, as far as the Complaint reveals, is perfectly true. The other two are pure statements of opinion based on disclosed facts: Kelly offered her interpretation of a public statement by Village Attorney Smith and her opinion that people who say false things in public are lying.

It doesn’t matter how Smith views these statements. It matters how the court will view these statements. And it’s extremely unlikely the court is going to side with Smith’s subjective beliefs.

Village Attorney Smith is, of course, entitled to have a different opinion. He may well believe that the best interpretation of his quote was that discussions of the term-limit change had been held in secret rather than in public and that it is therefore unfair to say he lied. But these differences of opinion do not give rise to a defamation claim under Wisconsin law.

As a town official, Smith had plenty of options that would have been less disastrous — and less thuggish — than suing a resident for arriving at a very logical conclusion. He could have issued a statement clarifying his comments to the Journal Times. He could have said he was mistaken about previous discussions. He could have been the adult in the room, so to speak. But he chose to sue. Even if he somehow manages to survive this motion to dismiss, it’s not going to rehabilitate his image. And it’s not going to convince a town that has been repeatedly abused by its representation that he’s trustworthy. All this lawsuit does is expose him as someone who can’t handle honest criticism about perceived dishonesty.

Filed Under: 1st amendment, chris smith, defamation, diana panuncial, free speech, kelly gallaher, mt. pleasant, wisconsin