[UPDATE: Welcome, Boing Boing readers! The below post was written before the South Korean edition of W Magazine was spotted out in the wild with Demi Moore’s hip re-attached. As you can imagine, one of the most important parts of a retraction demand is that you get your facts straight.]
Lawyers are men and women of letters. Litigators, in particular, pride themselves on their correspondence; ask a litigator to show you their best work, and they will skip over dozens of briefs and transcripts to reveal a letter — maybe a settlement demand, a cease and desist for infringement, a spoliation warning, or a bad faith notice to an insurance carrier — that takes arms against a sea of troubles.
Among defamation lawyers, few letters are important as the first letter they send in a case, the demand for a retraction.
Under New York Times v. Sullivan, in order for the plaintiff in a defamation case to recover punitive damages, they must show “actual malice,” i.e. the defendant’s actual knowledge of falsity or reckless disregard for the truth. One way to show “actual malice” is to show that the defendant continued to publish the defamatory allegations even after the true facts were made known to them and a retraction was demanded. In some states, like California, a plaintiff must demand a retraction if they want to recover more than the specific monetary damage caused by the defamation.
All of which is to say: retraction demand letters are extraordinarily important in defamation cases. Each retraction demand letter, despite being only a few pages, is the product of hours of painstaking editing.
He’s written a few retraction demand letters in his time.
On behalf of Ms. Moore, we demand publication of an appropriate retraction and apology. We further request that you promptly remove from your website, twitter posts, and other site, all of the false and defamatory statements about my client and the cover photo, as well as any accompanying pictures of the W Magazine cover. We trust that now that the unequivocal facts have been established, that you will comply with these demands in order to set the record straight so that your readers/followers are not misled. If you fail to agree to the foregoing, then you will be exposed to substantial liability, and acting at your own peril.
Please govern yourself accordingly.
This does not constitute a complete οτ exhaustive statement of all of my client’s rights or claims. Nothing stated herein is intended as, nor should it be deemed to constitute a waiver or relinquishment, of any of my client’s rights or remedies, whether legal οr equitable, all of which are hereby expressly reserved. This letter is a confidential legal communication and is not for publication.
A threatening letter is not “a confidential legal communication” — whatever that means — just because some lawyer says so. Absent a confidentiality order, confidentiality agreement, or some other legal obligation to keep a confidence (e.g., trade secrets shown to an employee), a person has no duty to keep an unsolicited communication from a third party “confidential.”
Unless, of course, Marty Singer is reading this post, in which case he should ignore the prior paragraph and consider this post a confidential legal blog post, not for publication.
Bluster — like a bogus “confidentiality” designation — is disturbingly common when powerful lawyers representing clients with essentially unlimited resources threaten unrepresented individuals. Singer’s letter, however, is so full of bluster it might fail its essential purpose of establishing liability for punitive damages.
Ordinarily, the demand for a retraction is just that: a demand for an apology and retraction. There’s nothing to which the defendant will “agree.” Either the potential defendant retracts the publication or they don’t.
The text of Singer’s letter, however, does not demand a retraction, but instead apparently offers a settlement: “If you fail to agree to the foregoing, then you will be exposed to substantial liability …” Presumably, then, if the blogger does “agree to the foregoing,” then he will not be exposed to substantial liability. Indeed, the possibility of settlement is the only way that the letter could arguably be “confidential,” since settlement offers are inadmissible (not the same thing as “confidential,” but analogous) in court under Cal. Evid. Code § 1152.
But is that what Singer intended? Is a confidential settlement demand the functional equivalent of a retraction demand? How, exactly, does Singer intend to introduce at trial his own “confidential” letter requesting the defendant “agree” to terms to avoid “substantial liability” as evidence that a retraction was demanded? In other words, how can Singer try to admit the letter as evidence in court when the letter on its face proposes a settlement?
The target of the letter, photographer Anthony Citrano has responded with a retraction demand of his own:
Mr. Singer: your demand that I retract my statements is a demand that I do further unwarranted and costly damage to a reputation you have already deliberately tarnished. Demanding an apology adds insult to this injury. Obviously, neither of these will be forthcoming.
On the contrary, I demand a complete retraction of all statements made or solicited by you, your client(s), and W that denied this retouching, and served to deliberately impugn my credibility and that of countless others who made similarly fair and accurate observations. I further demand a sincere and prominent public apology.
Admissible in court, too.