Palin v. The New York Times Co.: Newspaper Mounts Robust Defense to Defamation Lawsuit

The New York Times is defending itself against a defamation lawsuit brought by former Alaska Governor and Republican vice presidential candidate Sarah Palin, as the newspaper asserted in a recent motion to dismiss that the statements alleged as defamatory in Palin’s complaint are not actionable as defamation and that Palin has not plausibly pled actual malice.

The dispute in Palin v. The New York Times Co., Case No. 1:17-cv-04853 (S.D.N.Y.), centers on an editorial published on June 14, 2017, following the mass shooting of Republican lawmakers at a baseball field in which Rep. Steve Scalise and several others were wounded.  In describing the shooting and making a connection to previous gun-related violence in Arizona that wounded former Rep. Gabrielle Giffords, the newspaper’s editorial board wrote that the “link to political incitement was clear.”  The editorial provided background on the 2011 Arizona shooting by stating that “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The New York Times published a correction and apology the following day, in which the newspaper clarified that the map published by the political action committee placed certain electoral districts under stylized crosshairs but did not place the actual Democratic politicians representing those districts under crosshairs themselves. The newspaper’s correction also stated that “no such link was established” between political rhetoric and the 2011 shootings.

Despite the correction and apology, Palin filed her lawsuit against the newspaper on June 27, 2017, contending that she was unlawfully defamed based on the editorial’s use of her name as a link to the shootings.  The complaint alleged that The Times “falsely stated as a matter of fact to millions of people that Mrs. Palin incited Jared Loughner’s January 8, 2011 shooting rampage.”  Moreover, according to the complaint, The Times had knowledge when it published the editorial that no connection existed between Palin’s political activities and the Arizona shooting, based on a series of articles previously published by the newspaper suggesting that the violent attack was not politically motivated.

In its motion to dismiss, The Times countered the allegations by asserting that (1) the complaint fails to state a viable defamation claim because challenged statements are neither “of and concerning” Palin nor actionable as defamation, and (2) Palin has not adequately pled “actual malice” – a required showing given that Palin clearly is a public figure.  U.S. District Judge Jed S. Rakoff set oral argument for July 31, 2017 and stayed discovery until then.

Failure to State a Viable Defamation Claim

First, The Times contends that, as a defamation plaintiff, Palin must plead and prove that the allegedly defamatory statements were “of and concerning” her.  According to its motion, the complaint wrongfully alleges that the editorial falsely accused Palin personally of inciting the Arizona shooting when, in fact, the editorial only mentions Palin’s name in stating that the crosshairs map at issue had been circulated by a political action organization affiliated with her.  Because the plain language of the editorial mentions “Sarah Palin’s political action committee” and not Palin herself, The Times argues that the editorial refers only to the conduct of an entity and not to the actions of the person in question.

As to the alleged defamation itself, The Times claims that Palin’s fundamental contention – that there is “no link” between the crosshairs map and Loughner’s shooting – is just as speculative as the editorial.  Because Loughner’s true motivations for the shooting remain unknown, The Times contends that whether he was influenced by the crosshairs map or by any other political discourse is not capable of being proven true or false – and therefore the meaning attributed to the editorial is not actionable in defamation.

Failure to Plead Actual Malice

As a public figure, Palin faces a heavy burden for proving defamation.  According to the motion to dismiss, the Second Circuit has specifically held that a public figure must plead “plausible grounds” to infer actual malice by alleging “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of” actual malice.”  See Biro v. Conde Nast, 807 F.3d 541, 546 (2d Cir. 2015).  Because the newspaper has published other articles reporting that there was no connection between the Arizona shooting and crosshairs map, and because it published a correction the following day, The Times argues that Palin’s argument contending that the newspaper deliberately sought to defame her is baseless.

Although Palin’s complaint contends that the newspaper failed to follow its own journalistic policies and such errors serve as proof of actual malice, The Times rebuts that assertion by arguing that even an “extreme departure from professional standards” is insufficient to demonstrate actual malice.  Relating to the correction published the next day and whether it was adequate to correct the challenged statements, The Times claims that because actual malice is measured at the time of publication, any subsequent correction is not probative of the defendant’s state of mind at the time of publication.  Moreover, the newspaper’s decision to publish any correction serves to undermine any claim of actual malice, according to the motion to dismiss.

Disgorgement Damages

Palin’s complaint requested disgorgement of the newspaper’s “ill-gotten gains” in the form of advertising revenue derived from the editorial. The Times contends that this request is improper, claiming that the only remedy for defamation is an action for damages – the “actual harm caused to the reputation of the person defamed.”  The newspaper argues that there is no precedent for seeking disgorgement of advertising revenue as an element of damages in a defamation action and that such an award would be precluded by the First Amendment as it would serve as “gratuitous” recovery.

Defamation Law Series: Texas Court Holds that “Rhetorical Flourishes” In Article Do Not Support Defamation Claim

The Texas Fifth Court of Appeals in Dallas recently dismissed defamation claims against a Dallas magazine, finding that although a headline and article could be interpreted as criticism of a former symphony orchestra volunteer, the statements functioned as non-actionable opinions.

In September 2013, D Magazine published an article titled: “The Talented Mr. Reyes: How a man of meager means and a mysterious past duped Dallas society.” The article chronicled the tale of Jose Reyes, who worked for Bank of America and volunteered at the Dallas Symphony Orchestra (DSO).  Reyes’ volunteer position ended after allegations that he “crashed” society parties without an invitation and overstepped his boundaries in communicating with the press.  Although Reyes denied these allegations, the DSO terminated his volunteer post in July 2013 and issued a press release stating that he was no longer affiliated with the organization.  The press release prompted D Magazine to follow up with an article.  Following the article’s publication, Reyes was fired from his job at Bank of America.

Reyes sued the magazine for defamation and the DSO on claims of conspiracy and tortious interference with this employment relationship.  Both defendants filed motions to dismiss the claims; the trial court partially granted but also partially denied the motions. On appeal, the Fifth Court examined identified fifteen statements from the article that Reyes contended were defamatory.  The statements included:

  • The article’s headline, which referenced Reyes’ “meager” means, “mysterious past and to his “duping” of Dallas society;
  • A statement addressing complaints that he “crashed parties, blustered his way into photos, and misrepresented his role with charities”;
  • Several statements characterizing his behavior with the DSO as exaggerating his importance to the organization; for example, the article stated that “Reyes bought the last-expensive ticket and then stood at the front door greeting guests, as if to ‘appear that he was a huge sponsor’”; and
  • A discussion of the DSO’s 2013 Gala Launch Party, in which the article stated that “No one claimed to have invited him, and one key [ ] sponsor was incensed by his presence.”

To be actionable for defamation, a statement must assert an “objectively verifiable” fact as opposed to a constitutionally-protected opinion.  See Main v. Royall, 348 S.W. 381, 389 (Tex. App. – Dallas 2011).  Subjective opinions are not capable of possessing a defamatory meaning because such descriptions amount to personal judgments that “rest[] solely in the eye of the beholder.”  Avila v. Larrea, 394 S.W. 3d 646, 659 (Tex. App. – Dallas 2012).

In D Magazine v. Reyes, the Fifth Court determined that none of the 15 statements identified by Reyes could support a defamation claim.  While Reyes contended that some of the article’s descriptions (such as “party-crasher”) suggested something objectionable or undesirable about him, the court concluded that the statements merely served as opinions that Reyes did not “fit” within Dallas society and therefore were not actionable.

Judge Michael O’Neill, who wrote the opinion, reasoned: “The language of ‘crashing’ parties and ‘blustering’ into photos certainly includes some rhetorical flourish.  But the significant underlying presence here, and through much of the article, is the Reyes was not welcome.  That is an opinion, not a verifiable fact.”

Additionally, Reyes pleaded that the article taken as a whole was defamatory, even if none of the 15 specific statements met the standard.  The court denied this supplemental claim, concluding that because it previously had addressed the allegations individually and determined that they were not defamatory, “stating them in concert does not change their meaning.”

Pertaining to the claims against DSO, the court ruled that it did not have jurisdiction and declined to hear them.

Defamation Law Series: Melania Trump Settles Her Libel Lawsuit Against Daily Mail

First Lady Melania Trump reportedly has settled her lawsuit against the British tabloid newspaper, Daily Mail, for about $2.9 million plus costs.

Mrs. Trump originally filed her lawsuit in September 2016 in Maryland based on allegations that Daily Mail, among others, had republished defamatory statements when it reported rumors that she had previously worked as a high-end escort.  The Maryland court ultimately dismissed the action against Daily Mail on jurisdictional grounds.  A discussion of that decision may be found here.

Mrs. Trump subsequently re-filed the lawsuit in February 2016 in New York, claiming damages of at least $150 million.

In addition to agreeing to pay the alleged settlement amount, Daily Mail has issued an apology in which it stated that:  “We accept that these allegations about Mrs [sic] Trump are not true and we retract and withdraw them.”  Daily Mail’s entire apology may be found here.

Defamation Law Series: California Court of Appeal SLAPPS Several Claims Asserted Against Boxer Floyd Mayweather

The California Court of Appeal recently dismissed several claims asserted against the famous professional boxer, Floyd Mayweather, Jr., by his ex-fiancé, Shantel Jackson.

Mayweather and Jackson had been involved in an on-again, off-again romantic relationship.  Jackson alleged that she had ended her relationship with Mayweather after he had become violent on several occasions.  Before the end of their relationship, however, Jackson was purportedly pregnant with twins, and at Mayweather’s request, provided him with a copy of a sonogram of the twins.

After Jackson allegedly refused Mayweather’s attempts to reconcile, Mayweather posted on his Facebook and Instagram accounts: “the real reason me and Shantel Christine Jackson @MissJackson broke up was because she got an abortion, and I’m totally against killing babies.  She killed our twin babies.  #ShantelJackson #Floyd Mayweather #TheMoneyTeam #TMT.”  Mayweather also posted a copy of the sonogram and a summary medical report regarding the pregnancy.

The next day, Mayweather discussed the purported abortion during a radio interview, claiming that Jackson terminated the pregnancy because she was concerned about the impact it would have on her appearance.  Mayweather also stated that she had undergone extensive cosmetic surgery procedures, including on her nose, chin, and cheeks.

Based in part on these allegations, Jackson filed a complaint against Mayweather asserting claims for, inter alia, invasion of privacy (public disclosure of private facts), invasion of privacy (false light portrayal), defamation, and intentional and negligent infliction of emotional distress.  Mayweather filed an anti-SLAPP motion to strike those five causes of action.

When ruling on an anti-SLAPP motion, courts engage in a two-part test.  First, the defendant must establish that the claim arises from activity protected by the anti-SLAPP statute.  Second, if the defendant makes the requisite showing, the plaintiff must demonstrate the merit of the challenged claim by establishing a probability of success on the merits.

The Court here found that the first prong had been satisfied because Mayweather and Jackson are high-profile individuals who are the subject of extensive media scrutiny.  The Court thus concluded that Mayweather’s postings and interview comments about the relationship, the pregnancy and its termination, and Jackson’s alleged cosmetic surgery, constituted celebrity gossip that concerned an issue of public interest.

With respect to the second prong, the Court found that Jackson had failed to establish a probability of success on the five causes of action to the extent that they were based on Mayweather’s alleged statements about Jackson.

Invasion of privacy (public disclosure of private facts).  To prevail on a claim for invasion of privacy based on public disclosure of private facts, the plaintiff must demonstrate (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) is not of legitimate public concern.

Focusing on the fourth element of legitimate public concern, that Court observed that “newsworthiness” is a complete bar to liability for the publication of truthful information.  The Court acknowledged that Mayweather’s statements about Jackson concerned private information and that disclosure would be offensive to the reasonable person.  The Court nonetheless concluded that “given Jackson’s high profile and voluntary disclosure on social media of many aspects of her personal life, the publication of those otherwise intimate facts must necessarily be considered newsworthy under the broad definition of that term developed and applied by the Supreme Court . . . .”

Jackson was, however, allowed to proceed with her claim to the extent it was based on Mayweather’s posting of the sonogram and medical report because posting those items constituted a “morbid and sensational” prying into Jackson’s private life that served no legitimate public purpose.

Defamation.  To prevail on a claim for defamation, a plaintiff must establish (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injury or causes special damage.  The parties did not dispute that Jackson was a public figure, which therefore required her to demonstrate “actual malice,” i.e., that Mayweather’s statements were made with knowledge of their falsity or with reckless disregard of whether they were false.

Jackson argued that Mayweather’s posts about who ended the relationship and the reason for the breakup contained false statements of fact.  The Court agreed that Mayweather’s statements were not opinion, but rather, assertions of fact capable of being proven true or false.  The Court found, however, that “more is required.”  Specifically, Jackson had failed to contest Mayweather’s declaration that she had an abortion, and as a result, Mayweather’s statement that he ended the relationship for that reason was not defamatory.  The Court concluded that “the allegedly false part of the posts (the cause of the breakup) did not expose Jackson to contempt, ridicule or other reputational injury.”  In reaching that decision, the Court noted that even Jackson’s own evidence of harm centered on the consequences of disclosing the abortion, not on Mayweather’s role in, or reason for, ending the relationship.

The Court also found that Mayweather was not liable for defamation based on his statements that Jackson had undergone extensive cosmetic surgery.  In reaching that conclusion, the Court highlighted that Jackson did not contest that she had cosmetic surgery.  While Jackson asserted that Mayweather had lied when he stated that she had surgery to change her nose, chin, and cheeks, the Court observed that Jackson failed to address how that alleged exaggeration created a different and negative effect from which the truth would have produced.  The Court thus found that falsity could not be proven because the challenged statement was substantially true.

The Court similarly refused to consider Jackson’s claim that she was defamed by Mayweather’s statement that she had an abortion due to her concern about her appearance.  Jackson had failed to include that allegation in the complaint, precluding the Court from reaching the merits of that argument.

Invasion of privacy (false light portrayal).  Jackson’s false light claim was based on the same statements as her claim for disclosure of private facts; namely, Mayweather’s assertion that he ended the relationship because Jackson had an abortion and his comments about her alleged cosmetic surgery procedures.  In dismissing this claim, the Court found that it suffered from the same “fatal defects” as her defamation claim:  “Mayweather’s allegedly false explanation for the couple’s breakup did not expose Jackson to ‘hatred, contempt, ridicule, or obloquy; his exaggerated description of the extent of Jackson’s cosmetic surgery was, in substance, truthful.”

Intentional and negligent infliction of emotional distress.  The Court found that none of Mayweather’s radio interview statements or postings, including the posting of the sonogram and medical record, could be characterized as “atrocious conduct” that was intolerable in civilized society.  As a result, Mayweather’s statements could not form the basis of an intentional infliction of emotional distress claim.

Jackson was allowed to proceed with her other causes of action to the extent they were not premised on Mayweather’s protected speech.

Stop The Press’s Anti-SLAPP: Federal Judge In Georgia Denies CNN’s Motion To Strike In Defamation Suit

A federal court in the Northern District of Georgia recently denied CNN’s motion to strike in a defamation lawsuit, ruling that Georgia’s anti-SLAPP statute has no application in federal court.  This places the court on the side of the D.C. Circuit and squarely against the First, Fifth, and Ninth Circuits, which have all applied state anti-SLAPP laws in federal court.  CNN has appealed and will ask the Eleventh Circuit to weigh in.

The Lawsuit

David Carbone is the former CEO of St. Mary’s Medical Center in West Palm Beach, Florida, and he is suing CNN for defamation in Georgia federal court.  According to the lawsuit, CNN published twenty-five reports relating to the infant mortality rate for open-heart surgery at St. Mary’s.  Carbone alleges that CNN’s reports identified that St. Mary’s mortality rate for such surgeries was three times the national average, but that CNN intentionally manipulated statistics to fabricate its claim.  He also alleges that CNN included his name and picture in connection with its reports, thus allegedly making the communications about him (a requirement under Georgia’s defamation law).  Carbone states that he was forced to resign because of CNN’s reports and that he has received “multiple vile and hateful telephone calls.”  The case is Carbone v. Cable News Network, Inc., Case No. 1:16-cv-01720-ODE in the Northern District of Georgia.

Like many states, Georgia has an anti-SLAPP statute (O.C.G.A. § 9-11-11.1), which applies to suits against “a person or entity arising from an act . . . which could reasonably be construed as an act in furtherance of the person’s or entity’s right of petition or free speech . . . in connection with an issue of public interest or concern.”  Under that law, the person or entity being sued can then strike the claim unless the court determines that the nonmoving party has established that there is a probability that it will prevail on the claim.

Carbone raised a number of arguments opposing CNN’s motion.  Most notably, however, he argued that the anti-SLAPP law is a procedural device that was inapplicable in federal court.  Given the importance of this issue – particularly in the communication, publication, media, and entertainment fields – a number of entities, including the MPAA, filed amicus briefs in favor of CNN’s position.


In considering Carbone’s argument, the court looked to Federal Rule of Civil Procedure 12(b), which governs motions to dismiss in federal court.  The court determined that the federal statute “answers the question in dispute, namely the necessary pleading standard for the Plaintiff to maintain his case at this stage.”   Citing the Supreme Court’s interpretations of Rule 12(b)(6)’s “failure to state a claim upon which relief can be granted” in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the court found that Rule 12(b) “directly conflicts with Georgia’s anti-SLAPP statute” by “essentially creat[ing] a Rule 12(b)(6) ‘plus’ standard for cases with a First Amendment nexus.”

The court reasoned that while Rule 12(b)(6) requires “plausibility” on the face of the complaint, the anti-SLAPP law requires a “probability of prevailing.”  “The Supreme Court has been clear that ‘[a]sking for plausib[ility] . . does not impose a probability requirement at the pleading stage’ ‘[a]nd, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that recovery is very remote and unlikely.”’” (Opinion, page 6 (quoting Twombly).)  The court thus reasoned that Georgia’s anti-SLAPP law created an additional hurdle for plaintiffs in federal court, and was in conflict and could not co-exist with Rule 12.

The court rejected CNN’s Motion to Strike, finding the anti-SLAPP law inapplicable.  It likewise rejected CNN’s Motion to Dismiss, finding that Carbone had met the pleading standard to maintain a claim for defamation.  On February 21, CNN appealed the court’s decision to the Eleventh Circuit.  As of March 9, the case is stayed pending the outcome of that appeal.

The Current Circuit Split And Newsham

There is circuit split on this issue.  The First, Fifth, and Ninth Circuits have all applied state anti-SLAPP laws in federal court, while the D.C. Circuit refused to do so.  The Carbone court sided with the latter.

In U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999), the Ninth Circuit found that California’s anti-SLAPP statute applied in federal court.  It reasoned that the statute did not “result in a ‘direct collision’ with the Federal Rules” and that the laws “‘could exist side by side … each controlling its own intended sphere of coverage without conflict.’”  Id. (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749-750 and 752 (1980)).  As the Ninth Circuit explained:

LMSC correctly points out that the Anti–SLAPP statute and the Federal Rules do, in some respects, serve similar purposes, namely the expeditious weeding out of meritless claims before trial. This commonality of purpose, however, does not constitute a “direct collision”—there is no indication that Rules 8, 12, and 56 were intended to “occupy the field” with respect to pretrial procedures aimed at weeding out meritless claims. . . .  The Anti–SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules: the protection of “the constitutional rights of freedom of speech and petition for redress of grievances.”

Id. at 972–73.  Given the absence of “direct collision” between the laws, the Newsham court made the “‘typical, relatively unguided Erie choice’” and found that the appellant “ha[d] not identified any federal interests that would be undermined by application of the anti-SLAPP provisions urged by the relators here.”  Id. at 973 (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)).  “On the other hand, . . . California has articulated the important, substantive state interests [of protecting the constitutional rights of freedom of speech and petition] furthered by the Anti-SLAPP statute.”  Id.  The Ninth Circuit thus found that the statute applied in federal court.

Which Way Will The Eleventh Circuit Go?

CNN has appealed the district court’s order, and the Eleventh Circuit will need to decide if it agrees with the D.C. Circuit or the First, Fifth, and Ninth Circuits.

Anti-SLAPP laws are powerful tools for defendants, especially those in the communication, publication, media, and entertainment realms.  Not only do they present a way for defendants to attack pleadings early in the case, they do so using the “probability of prevailing” standard and normally permit a successful defendant to recover its attorneys’ fees and costs.  See, e.g., Cal. Code Civ. Proc. § 425.16(c)(1); O.C.G.A. 9-11-11.1(b.1).  California, like Georgia and many other states, expressly affirms its interest in protecting the constitutional rights of free speech and petition in the text of the anti-SLAPP statute.  See Cal. Code Civ. Proc. § 425.16(a); O.C.G.A. 9-11-11.1(a).

The question of whether those laws apply in federal court is therefore a significant one.  If, for example, a plaintiff can avoid an anti-SLAPP law by suing in one federal court versus another, that could lead to forum shopping.

Stay tuned for updates.

The California Court Of Appeal Weighs In: The Development And Production Of An Entertainment Program Is Protected Under The Anti-SLAPP Statute

In a recent 50-page published opinion, the California Court of Appeal determined that offensive and derogatory language on a movie set was protected activity under the anti-Strategic Lawsuit Against Public Participation (or anti-SLAPP) statute because the conduct was part of the behind-the-scenes process for making a movie.

The case pitted Marlon Wayans – an actor who wrote and starred in the comedy A Haunted House 2 – against an extra on the film named Pierre Daniel.  Daniel brought a harassment suit against Wayans and others involved in the production, alleging that he was subjected to offensive and racially charged language on the set and in a tweet that compared Daniel to the cartoon character of Cleveland Brown (originally from the television program Family Guy).

A majority panel of the Court of Appeal of the State of California, Second Appellate District, affirmed the lower court’s dismissal of Daniel’s lawsuit and struck down claims of racial harassment, misappropriation of likeness, false light, and intentional infliction of emotional distress under California’s anti-SLAPP statute.

The California Appellate Court Concluded That The Anti-SLAPP Statute Applied To The Plaintiff’s Claims

Wayans brought the motion to strike under Section 425.16 of the California Code of Civil Procedure, arguing that the plaintiff’s claims were based on activity protected by the anti-SLAPP statute.  Section 425.16 delineates the categories of “protected activity” under the anti-SLAPP statute, including “conduct in furtherance of the exercise of the … constitutional right of free speech in connection with a public issue or an issue of public interest.”  Cal. Civ. Proc. Code § 425.16(e)(4).

Prior California precedent served as a guide for the Court’s reasoning.  In Tamkin v. CBS Broad. Inc., 193 Cal. App. 4th 133, 142-43 (2011), the Court held that the defendants’ acts, which allegedly included using the plaintiffs’ actual names in a draft of an episode of the television show CSI, and dissemination of synopses based on this draft to casting agencies, were acts in furtherance of the defendants’ right of free speech.  The Court reasoned that, because the acts “helped to advance” the creation of a television show – itself an exercise of free speech – defendants’ acts were “protected activity.”  Id.  Here, Wayans contended that the alleged comments and activity played a role in the movie’s creative process.  For example, he claimed that some of the alleged racially charged language assisted in adding to the film’s improvisational comedy and dialogue.  Thus, Wayans asserted that the acts helped to advance the movie’s development – and therefore implicated his constitutional free speech rights.

The Court found that all of the alleged misconduct was based “squarely” on Wayans’ exercise of free speech – the creation and promotion of a full-length film, including the off-camera development process.  This was true even for comments made off-camera that did not involve the plot of the movie itself, the Court reasoned.

In determining that the complaint was subject to an anti-SLAPP motion, the Court found that the public interest requirement was satisfied as well – i.e., that the speech-related conduct was “in connection with … an issue of public interest.”  An “issue of public interest” under the anti-SLAPP statute is simply “any issue in which the public is interested.”  Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008); Tamkin, 193 Cal. App. 4th at 143.  The issue does not need to be “significant” to be protected by the anti-SLAPP statute; it is enough that it is one in which the public takes interest.  Tamkin, 193 Cal. App. 4th at 143.  Citing the “longevity and breadth” of Wayans’ acting career and calling him a “popular and prolific entertainer,” the Court reasoned that the very making of A Haunted House 2 was “an issue of public interest.”

As such, the Court found that prong one of the anti-SLAPP statute was easily satisfied.

Plaintiff Failed to Meet Prong 2 of the Anti-SLAPP Statute

After determining that the alleged misconduct was a protected activity under the anti-SLAPP statute, the Court then reasoned that Daniel failed to satisfy prong 2 – he had failed to meet his burden to show a reasonable probability of success on his claims.  Specifically, the Court found that Daniel failed to demonstrate that the alleged acts of harassment created an abusive environment under the California Fair Employment and Housing Act.

As for the other claims, the Court affirmed the lower court’s decision on the misappropriation of Daniel’s name and likeliness, finding that he waived that claim by signing a broad release that permitted the use of his image in connection with promoting the movie.

The Court also found that Daniel could not prevail on his false light and intentional infliction of emotional distress causes of action.  The Court’s reasoning with respect to those claims can be found here.

Defamation Law Series: Court Affirms Dismissal Of Claims Against Actor Marlon Wayans

In Daniel v. Wayans, The California Court of Appeal recently affirmed a trial court’s decision to grant actor Marlon Wayans’ anti-SLAPP motion against Pierre Daniel.

Daniel worked as an extra on the movie A Haunted House 2, which starred Wayans.  Daniel filed suit against Wayans and others asserting a number of claims, based in part on allegations that he was the victim of racial harassment, including false light and intentional infliction of emotional distress (“IIED”).  Daniel alleged, among other things, that he was subjected to “offensive and derogatory language regarding his race/national origin” and was negatively referred to as “Cleveland Brown,” a cartoon character in the comedy series Family Guy.  Daniel claims that Wayans took Daniel’s photograph without his consent and posted it on the internet alongside a photograph of Cleveland Brown, with the caption:  “Tell me this [*****] don’t look like . . . THIS [*****]!!!  Ol Cleveland Brown ass looking @ahhmovie 2 @whatthefunny I’m hurting!”

Wayans filed an anti-SLAPP motion challenging all of the causes in which he was named as a defendant.  The trial court granted the motion, and the California Court of Appeal affirmed.

A claim for false light is a species of defamation and is subject to the same requirements as defamation.  The appellate court thus emphasized certain well-settled principles underlying defamation law.  Specifically, the Court observed that it must examine the totality of the circumstances in which the statement was made (including its context), and that “[o]pinions are constitutionally protected and cannot form the basis for a defamation-type claim.”  Further, “[p]hotographs are not actionable if they are fair and accurate depictions of the person and scene in question, even if they place the person in a less than flattering light, so long as the photographs . . . [are not] highly offensive to persons or ordinary sensibilities.”

Based on these principles, the Court concluded that Daniel had failed to demonstrate that he would prevail on his false light claim.  The internet posting referred only to a physical resemblance between Daniel and Cleveland Brown, and was an expression of Wayans’ non-actionable opinion that Daniel looked like the cartoon character.  There was no implication that the two shared personality characteristics.

Additionally, in finding that the trial court properly struck Daniel’s IIED claim, the Court concluded that the “boorish and/or juvenile” comments about Daniel’s appearance and the internet post were not so extreme as to exceed all bounds of decency.  Rather, such conduct fell within the category of insults, indignities, annoyances, and petty oppressions that are not actionable under a claim for IIED as a matter of law.

Defamation Law Series: Massachusetts District Court Tosses Katherine McKee’s Claims Against Bill Cosby

Last week, on February 16, 2017, the United States District Court for the District of Massachusetts dismissed Katherine McKee’s claims against Bill Cosby in McKee v. Cosby.

McKee was among the women who alleged that Cosby had sexually assaulted her.  In her lawsuit against Cosby, McKee claimed that after she shared her story in an interview with the New York Daily News newspaper (the “Daily News”), Cosby’s attorney wrote a retraction demand letter to the Daily News which contained a series of statements that questioned Ms. McKee’s credibility.  In turn, the Daily News published a description of the letter, as did the Hollywood Reporter, to which the letter had allegedly been leaked.  Based on the statements contained in Cosby’s counsel’s letter, McKee Hill asserted claims for defamation.

Analyzing each of the twenty-four (24) allegedly defamatory statements in great detail, the court found that none of the statements were actionable as a matter of law.

Underscoring the court’s dismissal were several legal First Amendment principles.

First, under the First Amendment, opinions typically cannot give rise to liability because they are not capable of being proved true or false.

Second, even if an opinion could somehow be subject to objective verification, a statement is not actionable as defamation where the speaker communicates the non-defamatory facts on which the opinion is based.  “[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader to draw his own conclusions, those statements are generally protected by the First Amendment.”  Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995) (describing other jurisdictions’ agreement on this principle).  Indeed, “[a]n expression of opinion based on disclosed … nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.”  Piccone v. Bartels, 785 F.3d 766, 774 (1st Cir. 2015) (quotation omitted).

For example, it would not be defamatory to call someone a “thief” where the speaker explained that the statement was based upon the unusually low price paid by the so-called thief for a house he recently purchased.  The statement would clearly constitute a non-actionable opinion.

By way of another example of a non-actionable statement, this one explained by Justice Brennan: “A writes to B about neighbor C.  ‘He moved in six months ago.  He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio … and with a drink in his hand.  I think he must be an alcoholic.’”  Milkovich v. Lorain Journal Co., 497 U.S. 1, 27 n.3 (1990) (Brennan, J., dissenting) (quoting Restatement (Second) of Torts § 566, cmt. c).

In light of these principles, the court held that Cosby’s attorney’s statements about Ms. McKee lacking credibility were non-actionable as a matter of law.  First, Cosby’s lawyer’s statements about McKee’s credibility were not capable of being objectively verified or disproven.  Second, in any event, the lawyer’s letter disclosed the non-defamatory facts underlying his conclusion, thus immunizing his statements from liability for defamation.

Finally, the court seemed concerned that a defendant has a First Amendment right to deny the allegations against him or her without fear of liability for defamation.  Here, the court said: “Individuals publicly accused of misconduct cannot be held completely incapable of issuing any statement in response to the allegation, other than ‘no comment.’ … [A]n accused person cannot be foreclosed … from … the issuance of a simple and unequivocal denial – free from overall defamatory triggers[.]  In the court’s view, such a situation would be inconsistent with basic First Amendment principles.”

Defamation Series: Texas Supreme Court Explains That Courts Should Not Make Editorial Decisions For The Media Re Information Related To Matters Of Public Concern

In Texas, Plaintiff Wade Brady brought claims for libel and libel per se against Carter Publications, Inc., publisher of the newspaper West Fort Bend Star, and one of its writers, LeaAnne Klentzman.  Wade alleged that the defendants published an article in a “malicious” attempt to portray him as a criminal who used his the connections of his father, the Chief Deputy for the Sheriff’s office, to avoid certain charges.

Specifically, the article at issue described certain actions allegedly taken by Chief Brady after Wade was ticketed and charged with being a minor in possession of alcohol.  The article claimed that the ticketing officers were intimidated by Chief Brady, and described several encounters between Wade and law enforcement.

In one encounter, deputies stopped Wade and his friend in their vehicle for littering.  The deputies reportedly smelled what they believed was alcohol, resulting in Wade receiving a ticket for being minor in possession of alcohol.  The article alleged that Chief Brady continually made contact with the ticketing officers, and that the officers were intimidated when Chief Brady demanded all audio tapes and notes from that incident in their possession.

In another encounter, officers allegedly followed Wade and his brother, Cullen, to Chief Brady’s driveway.  The article reported that a video of the incident revealed that Wade “so unruly and intoxicated” that he was handcuffed and placed into the backseat of the police car.  When a sheriff alerted Chief Brady over the county’s official radio system, the county’s dispatcher purportedly could be heard attempting not to broadcast Cullen’s name.

Based on these encounters, the article stated that it should be “glaringly apparent why the officers [who ticketed Wade] were intimidated” by Chief Brady’s actions.

At trial, the jury found that some of the statements in the article were defamatory.  The jury made this determination after it was (erroneously) instructed that the defendants bore the burden of proving that the challenged statements were substantially true.  Additionally, while the jury concluded that Klentzman had acted with malice, it did not make a finding that she acted with knowledge of falsity or reckless disregard for the truth.  Rather, the jury was (erroneously) instructed that “malice” was defined to require an intent to cause injury or conscious indifference of the risk.

The court of appeal held that the jury charge was erroneous by placing the burden of proving truth on the defendants, and by misstating the actual malice standard, which should have been knowledge of falsity or reckless disregard for the truth.

As such, the appellate court held that a new trial was warranted.

The Texas Supreme Court granted the parties’ petitions for review, and focused on the “threshold question” of whether the article embraced matters of public concern.  The Court explained that speech embraces matters of public concern if “it can be fairly considered as relating to any matter of political, social, or other concern to the community.”  Such matters encompass subjects of legitimate new interest, crimes and the resulting prosecutions and judicial proceedings, as well as the disclosure of misbehavior by public officials, especially when it concerns the operation of the police department.  Based on these principles, the Court concluded that the article’s claims of intimidation by the Chief Brady embraced a matter of public concern.

As such, the Court concluded that because the statements related to a matter of public concern, the First Amendment required Wade, as the plaintiff, to prove that the statements were false.  The Court further held that the First Amendment required a finding of actual malice on the part of the defendants.

In reaching its decision, the Court found that there was a “logical nexus” between the details of the reported encounters and Chief Brady’s purported use of authority on Wade’s behalf.  Equally important, the Court further observed that courts should not “get involved in deciding the newsworthiness of specific details in a newsworthy story where the details were ‘substantially related’ to the story” or “make editorial decisions for the media regarding information directly related to matters of public concern.”  Moreover, that portions of the article may have contained false information or omitted key information did not alter that the statements related to a matter of public concern.

The Court agreed that a new trial was appropriate.

Defamation Law Series: Trumping Defamation Claims

President Donald Trump and First Lady Melania Trump recently have found themselves embroiled in two separate defamation cases in state courts – but while the President defended himself against claims resulting from his late-night tweeting, the First Lady brought her case as a plaintiff seeking damages against an online blogger and media company.

Relying On The Protections Of The First Amendment, Trump Defeats Defamation Claim Against Him

In January 2017, a New York judge dismissed a defamation lawsuit filed against then-President Elect Trump in ruling that insults and offensive language hurled back-and-forth on Twitter are generally considered to be opinion.  New York County Supreme Court Judge Barbara Jaffe stated in her decision that Trump’s regular tweets against his critics “all deflect[] serious consideration.”

In the lawsuit, Cheri Jacobus v. Donald J. Trump, case number 153252/2106 (Supreme Court of the State of New York, New York County), veteran political strategist and consultant Cheryl Jacobus sought $4 million from Trump and his former campaign manager.  She alleged that the then-presidential candidate and his campaign defamed her by falsely claiming that she “begged” for a communications job with the campaign and sought payback when she wasn’t hired by criticizing Trump during subsequent media appearances.  Early in 2016, Jacobus appeared on television in a commenter role and panned Trump’s motives for his threat to skip a debate.  She also said that Trump was a “bad debater” who “comes off like a third grader faking his way through an oral report on current affairs.”

In response to that commentary, Trump fired off a series of tweets stating first that Jacobus “begged us for a job.  We said no and she went hostile.  A real dummy!” and later that Jacobus “begged my people for a job.  Turned her down twice and she went hostile.  Major loser, zero credibility!”

Jacobus’ lawsuit contended that these tweets were based on the untrue assertion that she had “begged” for a job and was rejected for the position.  While the court characterized Trump’s tweets as “intemperate,” the decision held that tweets stating Jacobus
“begged” for a job should be considered statements of Trump’s opinion protected by the First Amendment: “To the extent that the word ‘begged’ can be proved to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that the plaintiff and Trump were engaged in a petty quarrel.”

Essentially, the court determined that Trump’s tweets against Jacobus were mere opinions – and therefore not libelous.  In doing so, the court relied on the context of Trump’s Twitter reputation.  The court emphasized that Trump employs a “regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable” and attacks others via Tweets that are “rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ . . ..”  Because Trump has a recognized history of posting derogatory tweets against others, the court essentially determined that his tweets criticizing Jacobus needed to be examined within the same context – as part of his opinion and therefore not as defamatory.

Thus, even though the tweets belittled Jacobus, the court found that no reasonable reading of the comments would reflect adversely on the television commenter and dismissed the case.  According to the court, it was “impossible to conclude” that the tweets damaged Jacobus’ reputation as a political strategist and consultant.

Melania’s Contention: Defamation Claims Led to Loss of Economic Opportunity

In contrast to the defamation case against her husband, First Lady Melania Trump’s foray into the world of defamation law came as a plaintiff in bringing a suit claiming $150 million in damages.  In September 2016, Trump’s attorneys sued Maryland blogger Webster Tarpley and the online Daily Mail for publishing a blog and article that reported rumors that she once worked as a high-end escort instead of as a fashion model.  The suit was filed in Montgomery County, Maryland state court – the jurisdiction where Tarpley lives.

More specifically, in August 2016, Tarpley’s blog published allegations that the first lady worked for an escort service in the 1990s and suffered a nervous breakdown during the presidential campaign.  In recent weeks, Trump settled the lawsuit against the blogger. The Washington Post reported that he agreed to apologize to the Trump family and pay her a “substantial sum.”  According to the statement provided by Trump’s attorneys: “I posted an article on August 2, 2016 about Melania Trump that was replete with false and defamatory statements about her,” Tarpley said. “I had no legitimate factual basis to make these false statements and I fully retract them.”

However, the claims against the Daily Mail were dismissed on jurisdictional grounds by the Maryland judge – forcing Trump to re-file the case in New York, where the company that publishes the Daily Mail’s website has its corporate offices.  See Melania Trump v. Webster Griffin Tarpley, et al., Case No. 424492-V (Circuit Court of Montgomery County, Maryland).

According to the Maryland court, the alleged defamatory article in question was about the plaintiff – a New York resident – and the statements forming the basis of her claims concerned events that took place in New York or in foreign countries.  Thus, even though Trump’s attorneys asserted that the publication of defamatory statements by a national publication with significant circulation in Maryland should give rise to personal jurisdiction, the court determined that the Daily Mail did not intentionally enter the Maryland market specifically but rather targeted the United States market as a whole.  The court reasoned that no reporter or editor traveled to Maryland in the course of editing, reporting or publishing the article, the Daily Mail does not have an office in Maryland, the plaintiff herself does not live in Maryland, and the witnesses were not located in Maryland.  Thus, the court held that it would be “unreasonable as a matter of constitutional due process for this Court to exert jurisdiction over MMI or MailOnline in the State of Maryland.”

On February 6, 2017, Trump re-filed the libel suit against the Daily Mail’s publisher in New York state court. See Melania Trump v. Mail Media Inc., case no. 650661/2017 (Supreme Court of the State of New York, County of New York).  Trump’s complaint asserts claims for defamation and intentional infliction of emotional distress, as she contends that the article stating she worked as an “elite escort” rather than a fashion model and took part in a lesbian-themed nude photo shoot led to a loss in value of her brand of commercial products. The complaint estimated Trump’s economic damage in the “multiple millions of dollars” and refers to opportunities she had “to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multimillion dollar business relationships for a multiyear term during which plaintiff is one of the most photographed women in the world.”  Because of the Daily Mail’s defamatory article, the complaint alleges that Trump’s brand “has lost significant value” as her commercial opportunities have been reduced.