Published By: Maxwell S. Kennerly, Esquire

First Amendment Law

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This post was inevitable. I’ve been writing about defamation law on this blog for years. Back in July 2010, for example, I explained why Mark Zuckerberg wouldn’t sue the makers of The Social Network, and he didn’t. In 2012, I said Michael Mann’s claim against the National Review was “non-frivolous,” but that it was a difficult question as to whether it could proceed – and three years later the Washington Post said it seemed “the court may be having some difficulty” deciding it, and the case is still stuck. Earlier this year, I spelled out the legal issues in the Hulk Hogan v. Gawker trial, based on the lawyers’ own briefs.

 

Now Donald Trump, faced with an onslaught of sexual assault allegations — essentially alleging that he committed the sexually aggressive behavior he bragged about in the 2005 Access Hollywood tape — has started threatening to sue for defamation. Funny coincidence: years ago, I met New York Times Assistant General Counsel David McCraw, who wrote the paper’s response to Trump. He told me the New York Times hasn’t paid a dime on a defamation case in fifty years, and they’re not going to start any time soon. I’m pretty sure that is still true today and will be true for years to come.

 

When a lawyer writes a letter for public consumption, it looks like Donald’s letter. When a lawyer writes a letter as a prelude to a lawsuit, it looks like Melania’s letter. Donald Trump hasn’t sued a newspaper for libel in thirty years, but Melania did just last month. As I’ll explain below, it looks like Donald Trump is just blowing smoke for show – perhaps he’ll file a lawsuit now then dismiss it after the election – but Melania Trump’s lawyer, the same lawyer who represented Hulk Hogan against Gawker, is using the same strategy he did in that case to position her for a similar outcome.
Continue Reading How Donald and Melania Trump Will Dodge The First Amendment

I must confess no interest in attending Insane Clown Posse’s Gathering of the Juggalos, but that’s the beauty of America: if someone wants to paint their face like a clown and drink Faygo all night long, that’s their right.

Or is it? On Friday, the Insane Clown Posse announced that they had hired counsel to investigate their designation as a “hybrid” gang by the Federal Bureau of Investigation’s National Gang Intelligence Center’s 2011 National Gang Threat Assessment, and they’ve set up a website asking for their fans to provide information if they’ve been stopped by federal law enforcement agents, or subjected to any sort of increased sentencing or other denial of rights, as a result of their “Juggalo” status.

It’s actually old news that the FBI considers the Insane Clown Posse to be a gang — Spencer Ackerman reported it back in October 2011 — but it seems the government is really moving forward with it with the recent arrest of Mark Carlson, formerly of the U.S. Marshal Office’s New Mexico’s Most Wanted list, who, as Camille Dodero reported, was identified as “a Known Gang Member of the Insane Clown Posse ‘Juggalo.’”

Let’s start with the obvious: nobody, not even the FBI, is proposing that being a Juggalo is itself a crime. But one of the ICP duo summed up the problem at his seminar announcing the effort:

The judge is not going to sentence [people like Mark Carlson] as a civilian,” Violent J told the crowd, referencing that case and others like it. “The judge is going to sentence you as a gang member selling weed.”

It’s a legitimate concern; I certainly wouldn’t want anyone to be subjected to enhanced penalties simply for identifying themselves as a reader of my blog, so I can respect why he’s concerned. (Dodero has a longer interview with them here.) So, can the government actually act on its designation of the Juggalos as a gang, or is there a right to be a Juggalo? 
Continue Reading The First Amendment Right To Be A Juggalo

Earlier this week, the Philadelphia Fire Department — following in the footsteps of the Philadelphia Police Department — released a new social media policy that applies to their employees. (Policy here, Inquirer story here.) The policy is, in a word, “no.”

The policy has a number of limits on the use of social media while firefighters are on the job, and on off-duty communication of threatening and harassing materials. Whether or not that’s the right policy, it’s rational, and connected to normal limitations on employee’s use of employer’s equipment and time on-the-job.

But the Philly FD policy goes much further:

Employees shall not identify themselves as a member of the Philadelphia Fire Department on any Social Media and Networking site without prior approval of the Fire Commissioner. The only exception will be a professional networking site (e.g. LinkedIn). Postings will only pertain to professional networking and development.

Employees shall not post any material on the internet or via electronic transmission that may adversely affect the efficiency or effective operation of the department.

Employees shall not post on any Social Media site or electronically transmit any information that is inconsistent with the duties, ethics and Oath of Office of a firefighter or paramedic, such as racist or sexist comments, inaccurate information, personal attacks, or rumors.

Employees shall not post any information or images involving off-duty activities that may bring a member’s or the department’s reputation into question.

Employees are prohibited from posting on any Social Media site or electronically transmitting any information regarding a Fire Department incident, ongoing investigation, or pending litigation (both criminal and civil actions).

All of those limitations raise serious legal questions. 
Continue Reading Does The Philly Fire Dept’s Social Media Policy Violate The First Amendment?

[Update, December 22, 2016: As I predicted below, the Court of Appeals for the District of Columbia has agreed that Mann can pursue his case. The opinion is quite lengthy, in part because of a variety of procedure issues that had to be resolved, but to me the key part is this:

A jury could find that the article accuses Dr. Mann of engaging in specific acts of academic and scientific misconduct in the manipulation of data, and thus conveys a defamatory meaning, because “to constitute a libel it is enough that the defamatory utterance imputes any misconduct whatever in the conduct of [plaintiff’s] calling.” Guilford Transp. Indus., 760 A.2d at 600 (alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS § 569, cmt. (e)); see Tavoulareas v. Piro, 817 F.2d 762, 780 (D.C. Cir. 1987) (en banc) (holding that statement that “a father set up his son in business” accuses father of nepotism and is defamatory because it, “might ‘tend[] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community’” (quoting Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 654 (D.C. Cir. 1966))). Moreover, a jury could find that by calling Dr. Mann “the [Jerry] Sandusky of climate science,” the article implied that Dr. Mann’s manipulation of data was seriously deviant for a scientist.

It really is that simple. It’s one thing to criticize another’s viewpoints or ideas; it’s another thing entirely to accuse them of fraud.]

The entire scientific community, save a dwindling number of attention-seeking contrarians, believes temperatures on Earth since 1950 have risen by a little under 1 degree Celsius as a result of humanity’s relentless burning of fossil fuels. Even the Koch brothers’ own funded study agrees. As Bill McKibben explains, the global warming math is pretty simple: another 2 degrees increase will probably create a catastrophic environmental disruption, and right now in the ground are “proven reserves” of more than five times the fossil fuels needed to produce amounts of carbon dioxide sufficient to create that 2 degree increase.

But this is America, where everyone has freedom of speech, the constitutionally-guaranteed right to open your mouth and remove all doubt that you are indeed a fool, and so anyone, anywhere can show themselves to be scientifically illiterate by claiming there’s no proof of global warming. What Americans don’t have, though, is the right to make up falsehoods about others. Milkovich v. Lorain Journal, 497 U.S. 1 (1990)(rejecting attempt to dress up defamatory factual assertion as “opinion,” noting, “at common law, even the privilege of fair comment did not extend to ‘a false statement of fact, whether it was expressly stated or implied from an expression of opinion,’” quoting Restatement (Second) of Torts, § 566, Comment a (1977)). I’ve written a lot about defamation in the past; perhaps there’s some right to lie about yourself and the Congressional Medal of Honor you didn’t win, but, at least for now, the Supreme Court has rejected every effort to claim a right to maliciously defame others.

Which brings us to Michael Mann, the physicist and climatologist at Pennsylvania State University famous for his work on the Intergovernmental Panel on Climate Change and for the “hockey stick graph” showing a dramatic increase in global temperature over the past century. He’s also been called “the Jerry Sandusky of climate science.”

Wait, what? 
Continue Reading Can Michael Mann Sue The National Review For Defamation Over Accusations Of Scientific Fraud?

[Update: In what can only be described as self-immolation, FunnyJunk’s lawyer, Charles Carreon, has sued The Oatmeal, Indiegogo, the National Wildlife Fund, and the American Cancer Society claiming the “BearLove” charity drive is not compliant with California law. He’s asked for control of the funds plus attorney’s fees. He also raises meritless Lanham Act and computer hacking claims. Popehat has the details on Carreon’s lawsuit.]

I love writing about lawsuits and I love reading The Oatmeal, so imagine my joy when I heard that The Oatmeal was threatened with “a federal lawsuit!” Hooray! Unfortunately, I doubt it’s as much fun for everyone else, and deep down the case raises a very important issue: the extent to which artists can complain in public about perceived or actual infringement of their works by user-generated content websites.

The Oatmeal (nom de plume for Matthew Inman) writes and draws original comics. FunnyJunk is a user-driven humor site where users post primarily pictures, some of which are entirely original, some of which are taken from other sources and then modified, and some of which are simply copied. A year ago, The Oatmeal got tired of seeing all of his comics copied there, without any attribution, and so he posted a blog post ranting about FunnyJunk:

Here’s how FunnyJunk.com’s business operates:

  • Gather funny pictures from around the internet
  • Host them on FunnyJunk.com
  • Slather them in advertising
  • If someone claims copyright infringement, throw your hands up in the air and exclaim “It was our users who uploaded your photos! We had nothing to do with it! We’re innocent!”
  • Cash six-figure advertising checks from other artists’ stolen material

Nate Anderson at Wired covered the whole thing. As best I can tell, it ended with most, but not all, of The Oatmeal’s works being removed, and The Oatmeal giving up on the rest. This is how a lot of pre-litigation disputes end: a big, messy spat followed by a partial resolution to avoid litigation. Litigation is expensive and burdensome.

Then earlier this week FunnyJunk, through their lawyer Charles Carreon, served Matthew Inman with a threatening letter demanding he remove any mention of FunnyJunk from his website and pay FunnyJunk $20,000.

If you haven’t seen it, do read The Oatmeal’s hilarious response to FunnyJunk. It seems he’s already raised $60,000 for “bearlove” and cancer prevention.

Let’s review the actual allegations.
Continue Reading FunnyJunk v. The Oatmeal Threatened Lawsuit Going Nowhere

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

[Update, March 6, 2012: The study was published and is available here. The blog at Nature magazine has some commentary.]

A week ago, ScienceInsider (part of Science magazine) reported on lawyers for the mining industry sending a vaguely threatening letter to several scientific journals over the results of twenty-year diesel exhaust study:

Editors with at least four research publications say they have received a letter advising them against “publication or other distribution” of data and draft documents. The warning, including a vague statement about “consequences” that could ensue if the advice is ignored, is signed by Henry Chajet, an attorney at the Patton Boggs firm in Washington, D.C., and a lobbyist for the Mining Awareness Resource Group, which works on behalf of the mining industry.

Chajet declined to comment, but his letter makes it clear that he seeks to persuade journals to delay publishing or distributing papers containing results from the Diesel Exhaust in Miners Study (DEMS), a government-funded research project. His letter pointed out that a coalition of mining industry groups are legally entitled to review data from the study before publication. Other lawyers and researchers involved in the case also declined comment because the 2-decade-long dispute over DEMS is now under review in the U.S. Court of Appeals in New Orleans.

ScienceInsider posted a copy of the letter. We’ll get to it in a moment.

The stakes are high; the DEMS diesel study is a joint effort of the National Institute for Occupational Safety and Health (NIOSH) and the National Cancer Institute (NCI) to evaluate whether diesel exhaust, currently classified as a “potential human carcinogen,” is not just “potentially” but is actually a carcinogen, a finding that could prompt a wave a lawsuits and workers compensation claims by thousands miners in the United States, and changes in the mining industry itself.

The timing of the letter is no accident; in June the International Agency for Research on Cancer will review its position on diesel exhaust, and the U.S. National Toxicology Program is expected to do so soon as well.

Scientists are understandably upset over the threat; as John Cherrie at at the Institute of Occupational Medicine in Edinburgh, UK, worries:

I don’t pretend to understand the ins-and-outs of the court debate but it seems wholly wrong that the court, US congress or industry representatives should have some veto on publication of scientific results. It seems as though the original court ruling that this was the case was overturned but now the issue is about disclosure of data by the government agencies.

Pretending or not, he’s right about the original court ruling being overturned, but let me shed a little light on the current situation and why the mining company’s letter is more puzzling than truly worrisome.

The Federal Advisory Committee Act (FACA) establishes certain guidelines and limitations for all those committees, boards, commissions, councils and the like set up to advise federal agencies. The requirements are for the most part fairly easy to comply with, and are more focused on ensuring transparency than on altering the functioning of the committee itself. The FACA is not meant to be a vehicle for quashing scientific studies.
Continue Reading Will Mining Companies Really Sue Scientific Journals For Defamation?

Over at the North Carolina Law Blog, Jim Dedman, proprietor of Abnormal Use (and friend of this blog) writes about a perceived risk of writing a law blog: that your opponents may take the things you write and use them against you in court.

I agree with Jim entirely that there isn’t much reason to worry about that, not least because of the low odds that you will actually say something your opponent could really use against you in court.  I believe in what I do as a lawyer and so my thoughts expressed on this blog are usually consistent with the arguments I make in court.  I assume the same is true for Jim, even though he does exactly the opposite of what I do.  If you don’t believe strongly enough in the work you do as a lawyer, you should probably focus more on finding direction in your professional life or changing practice areas than on writing a blog.

But that’s not to say there aren’t some very real risks in setting up and writing a blog.
Continue Reading The Real Risks Of Writing A Legal Blog

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 was quite funny, if you’re into dark humor. Yesterday a group affiliated with the prankster Yes Men set up a “Coal Cares” website which, while falsely claiming affiliation with the very real coal company Peabody Coal, offered free children’s-themed asthma inhalers to any family living within a 200 mile radius of a

…