Published By: Maxwell S. Kennerly, Esquire

Defamation

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UPDATE 1, November 10, 2015: The fraternity sued Rolling Stone. The complaint alleges at paragraph 85:

Rolling Stone published the defamatory Article even though there was “no substantive basis” to support Jackie’s story. Rolling Stone destroyed Phi Kappa Psi’s reputation through false statements, explicit and implied, published with actual malice— knowledge of falsity or reckless disregard for truth or falsity—and negligence. The allegations in this Complaint dealing with fault demonstrate that Rolling Stone published its Article, and the post-publication statements that are also alleged by this Complaint to have defamed Phi Kappa Psi, with actual malice. All of these allegations are also pleaded to establish negligence, in effect a “lesser included offense” for fault purposes. Because Phi Kappa Psi is a private figure, it need only establish basic negligence—the failure by Rolling Stone to act as an ordinary reasonable publisher under the circumstances—to establish liability. In order to qualify for presumed and punitive damages, however, Phi Kappa Psi in this Complaint goes above and beyond the negligence standard required to establish liability, to additionally allege actual malice. All of the allegations of fault alleged below that meet the actual malice standard of knowledge of falsity or reckless disregard for truth or falsity thus also allege the lesser included fault level of negligence.

As explained below, I don’t think Phi Kappa Psi will be able to convince the court “it need only establish basic negligence,” and I don’t think they will be able to prove, as a factual matter, “actual malice.”

UPDATE 2, June 29, 2016: A defamation suit filed by Phi Kappa Psi members was dismissed. The suit filed by Phi Kappa Psi remains pending, but still faces multiple case-dispositive motions. 

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Rolling Stone’s recent article, “A Rape on Campus,” needs no introduction. (If you really need one, check the extensive Wikipedia article.) On April 5, Rolling Stone formally retracted the article and published an extensive outside critique of its fact-checking and reporting methodology by Steve Coll, dean of the Columbia School of Journalism. The next day, the Phi Kappa Psi chapter at UVA issued a press release announcing “plans to pursue all available legal action against the magazine.”

As the press release begins:

“The report by Columbia University’s School of Journalism demonstrates the reckless nature in which Rolling Stone researched and failed to verify facts in its article that erroneously accused Phi Kappa Psi of crimes its members did not commit,” said Stephen Scipione, President of the Virginia Alpha Chapter of Phi Kappa Psi.

Scipione’s use of the word “reckless” is undoubtedly a reference to part of the standard for proving defamation, i.e. showing “the statements were made with knowledge that they were false or with reckless disregard for their truth.” Cashion v. Smith, 749 SE 2d 526, 533 (Va. 2013). But that magic word, “reckless,” is just one small part of the analysis. As explained below, whatever that critique by Steve Coll says about Rolling Stone’s journalistic practices, that critique also includes a lot of information and conclusions that will make it difficult for the fraternity to prevail in a defamation lawsuit.

Defamation has a special place in our firm’s history (see some of our cases here, here, and here — they all settled confidentially), and the truth is: defamation cases are tough. By and large, the vast majority of people whose reputations have been unfairly damaged in the media do not have a viable legal claim. Defamation cases can fail for a million reasons, and here I want to focus on just two problematic issues: the fact that the fraternity is bringing the case, and the Coll report’s findings about the mindset of Rolling Stone.

Let’s start by being clear about what this post is not about. This post is not about sexual assault on college campuses; for that, watch The Hunting Ground. This post is not about journalistic standards; for that, Poynter has compiled more than a dozen reactions to the article’s retraction.

Rather, this post is about the single issue raised by the press release: whether “the Virginia Alpha Chapter of Phi Kappa Psi” has any “available legal action against the magazine.” 
Continue Reading Phi Kappa Psi’s Doubtful Defamation Claim Against Rolling Stone

Update: I spoke with Geraldo Rivera on 77 WABC about the issue (MP3 file here, segment starts at 13:00), and with LXBN TV, with the below video:

The Philadelphia Daily News has an article today quoting me on the Sandra Fluke / Rush Limbaugh defamation scandal:

Max Kennerly, a lawyer with The Beasley Firm in Center City, thinks Fluke “definitely” has a defamation case against Limbaugh if she chooses to pursue it.

Limbaugh could argue that he was simply rendering an opinion protected by the First Amendment or, alternatively, that the statements would be seen as so outlandish that nobody would believe they were true.

But Kennerly said Limbaugh’s comments that Fluke was a “slut” and “prostitute” “embedded false statements of fact,” were thus defamatory and that a judge might allow a jury to decide the case.

“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” Kennerly said.

Kennerly also said that Premiere Networks, Inc., a subsidiary of Clear Channel Communications which syndicates the radio show, could also be liable for “publishing” Limbaugh’s words.

The potential for a lawsuit has been a hot topic lately, with Google telling me it has 15,000 results for “limbaugh defamation” in the past week. Separating the wheat from the chaff, I’ve found two detailed legal analyses.

Russell Smith at Legal As She Is Spoke goes through the old favorites like New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., to conclude there’s nothing there:

But did he assert as fact that Ms. Fluke is a slut or a prostitute? He did not. Mr. Limbaugh has long history of using his radio show to spout rhetoric and hyperbole. All of his listeners were perfectly aware that this was not an actual assertion about Ms. Fluke’s sex life, but a “vigorous epithet” slung at Ms. Fluke in order to advance the argument that her position on contraception is wrong.

Marc Randazza at Legal Satyricon takes a different tact, bringing in some lesser known cases, and argues that “slut” is now protected opinion:

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson v. News Am. Publs., 672 N.E.2d at 1221; Howard v. Town of Jonesville, 935 F.Supp at 861; Smith v. Atkins, 622 So.2d at 800. …

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).

Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.”

I’d add to Randazza’s mention of Bryson, which allowed a “slut” defamation lawsuit, the case of Anson v. Paxson Communications Corp., 736 So. 2d 1209 (Fla. 4th Dist. Court of Appeals, 1999), which allow a defamation claim against radio shock jocks who called the plaintiff a prostitute.

Smith and Randazza make reasonable arguments, but I disagree, given the full context of Limbaugh’s remarks. Let’s go back to what Limbaugh actually said: 
Continue Reading Sandra Fluke Can Sue Rush Limbaugh For Defamation And IIED

Via TechDirt, I learned this week of an interesting defamation case in Indiana which tests the boundaries of “journalistic shield” laws. As The Indiana Lawyer describes it:

The Marion County case involves newspaper coverage of Jeffrey Miller, the former president and CEO of a non-profit youth education group known as Junior Achievement of Central Indiana. In March 2010, The Indianapolis Star published an article about an audit the organization was facing and a reader, known as “DownWithTheColts” posted a comment on the online story, saying the state attorney general should investigate Miller about missing money.

Miller and his wife, Cynthia, filed a complaint against officials with Junior Achievement and the Central Indiana Community Foundation on various claims that included defamation, and they later expanded the lawsuit to target the anonymous posters at the Star and Indianapolis Business Journal (a sister publication of Indiana Lawyer). Specifically relating to the Star, Miller sought non-party discovery to turn over information about the identity of “DownWithTheColts.”

Marion Superior Judge S.K. Reid last year ordered that information be turned over. The information is typically an Internet protocol address or Internet service provider that an attorney can use to subpoena the provider for the poster’s real name. The Star contested the disclosure order, and earlier this year Reid ruled that an Indiana journalism shield law that protects reporters from having to reveal their sources does not protect websites from being forced to disclose who made anonymous posts.

The Indiana Law Blog has followed the case closely.

I’ve written a lot about defamation, libel and slander on this blog, and about suggested changes to defamation law (like the proposed federal anti-SLAPP law). To be honest, I’ve grown tired of writing about them lately, because the debates about them online often disregard a practical issue that, to me, cannot be ignored.

Defamation is not a one-size-fits-all claim.  There are very real differences between a private citizen suing a media outlet for reporting erroneous facts about them in a press report, a corporation suing a private citizen for negative opinions about them, and private citizens suing one another over heated remarks. It’s ludicrous to argue that we should treat each situation the same way, but that’s normally embedded within the suggestions put forth, typically by media companies’ insurers lobbying for anti-SLAPP laws by trotting out the little guy — the little guy they want to make sure can’t sue them in the future.

Of course, it’s no secret that the comments on news websites are the cesspool of the internet. Like a moth to a flame, hateful and resentful people flock to the comments of media sites to hurl invective at everyone they can find, including parents who have just lost a child in an accident. It’s the 21st century version of “go pound sand” — “go write something nasty in the comments.” People use it to blow off steam, without much worry over the consequences. 
Continue Reading Anonymous Internet Defamation And Journalist Shield Laws

It’s not easy being Google. (I’m talking about the company itself; it’s easy to be famous, powerful, and wealthy, so I don’t feel sorry for the management and shareholders of Google.) When you are that big, and asked to do that much, it’s inevitable that everyone will have some sort of complaint about you.

Thus…

As you’ve probably already read (see, e.g., WSJ Law Blog), yesterday the Supreme Court held in Synder v. Phelps that the First Amendment precluded Synder, father of deceased soldier Matthew Synder, from suing Fred Phelps, a hate-monger who protests funeral’s soldiers with a variety of bigoted and incoherent slogans, for intentional infliction of emotional…

As I have written many times before on this blog, and as I know from my own experience, defamation lawsuits against major media outlets are no joke. Defamation law across the United States has been mostly settled for the past generation, and so most newspapers, television stations, publishing houses, and film production companies have editors…

[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…