Judge Bypasses The First Amendment, Conjures Up A Right To Be Forgotten For The Complainant

from the not-just-the-1st-Amendment...-also-Sec.-230,-fair-use,-etc. dept

Eugene Volokh has tracked down another questionable defamation court order targeting Google with a delisting demand. The plaintiff doesn't appear to be abusing the legal process -- he may not understand the request the judge granted is unconstitutional -- but the whole thing seems more than a little weird.

The court papers make clear that the order is targeted largely at a Chicago Tribune blog post by columnist Eric Zorn about a police assault on [Greg] Malandrucco and his friend Matthew Clark; the column contains photos of the two men with injuries to their faces. (The order was issued July 6, but I found it, with the help of the invaluable Lumen Database, only a few days ago, and just got the court documents; the order has apparently not been written about anywhere else.) Google has apparently not complied, and Malandrucco has asked Judge Jablonski to hold Google in contempt of court; the hearing on that will be held Aug. 17. Indeed, the request for the contempt sanctions, filed July 25, seems to have been accelerated by a remark by the judge at a hearing on July 24: "The concern that the court has is that there is not compliance with the [July 6] order."

So, this doesn't necessarily seem like the normal courtroom runaround where someone's trying to slide an unconstitutional order past a judge. The targeted content isn't the normal "disparaging" content people tend to want vanished, but rather an article about an altercation with cops in which the cops come out looking the worst.

But Greg Malandrucco wants it gone… or at least delisted. This follows a string of DMCA takedown notices issued by Malandrucco claiming the selfie he took is his intellectual property and can't be used without permission. (Matthew Clark appears to make the same claim in the single DMCA notice he sent out.) Malandrucco appears to have applied pressure elsewhere, resulting in this weird bit of redaction in the Chicago Maroon's coverage which removes Malandrucco's name from the post. (Matthew Clark's name remains.)

Google, understandably, has not delisted this blog post. First off, the use of the photo is clearly fair use and is used in an article discussing a topic (alleged police brutality) of significant public interest. Malandrucco may have a personal interest in seeing this post delisted (he claims it has harmed his reputation and affected his income), but that doesn't mean his personal interests override the rights of others. (As is noted by Volokh, any attempt to drag copyright into this is doomed to fail since this isn't a federal court case.)

But even under the specifics of the state laws invoked, the order is doomed to fail.

To start with the substantive law, there was no evidence that the material is defamatory -- the picture is apparently accurate. It is not actionable under the "disclosure of private facts" tort, since that tort does not apply to newsworthy material, and the picture of a victim of police brutality that illustrates a post about the brutality is newsworthy.

Malandrucco's complaints in the cases argue that the picture is causing emotional distress, but speech on matters of public concern (which would certainly include pictures of police brutality) cannot lead to liability for intentional infliction of emotional distress (see Snyder v. Phelps).

As for the damages claimed by Malandrucco, they're still unproven. And from what's been seen of the case so far, there's no reason to believe Malandrucco's case is so close to winnable that an injunction is warranted because of the odds of "substantially prevailing" are high. The injunction was issued without any input from Google or the Chicago Tribune -- both of which received nearly identical orders (but with a key error in the Tribune order, which fails to actually order the Tribune to remove that URL).

What makes this all that much weirder is Malandrucco sued the Chicago PD for police brutality and won. He openly discussed this case on newscasts and multiple websites. For a few years, he was an activist engaged in fighting excessive police force. Now, he simply wants it all to go away. The problem is he can't just erase his past because he's no longer engaged in the same activities. What happened to him was newsworthy and he was instrumental in ensuring he and his lawsuit victory stayed visible. Volokh's post contains links to several sites where he appeared, noting with dismay they've all decided to voluntarily strip his name from these posts at his request.

So, it may be Malandrucco doesn't know the law or realize the Constitutional implications of his request. Or maybe he knows and just doesn't care. But the judge sure as hell should know and it appears he's more than willing to tapdance all over the First Amendment to assist in Malandrucco's vanishing act.

Filed Under: defamation, eric zorn, first amendment, free speech, greg malundrucco, matthew clark, right to be forgotten, texas
Companies: google

California Court Not Yet Ready To Undermine The Entire Internet; Rules Yelp Can't Be Forced To Delete A Review

from the Section-230-not-quite-dead-yet dept

In 2016, Techdirt wrote about a troubling case, Hassell v. Bird, in which a court issued an injunction telling Yelp to delete a review after a lawyer won a default judgment in a defamation case. The court ignored that Section 230 of the CDA says that platforms like Yelp cannot be held liable (and thus can't be legally mandated) to remove content of third parties, and didn't seem to care that Yelp wasn't even a party in the case.

The good news is that Yelp won its appeal of the injunction. The bad news, though, is that it barely won, and the relatively elegant, cogent opinion finding that Section 230 prevented the injunction is tempered in its effect by only being a plurality decision: victorious in its ultimate holding only because of a concurring vote on different grounds that provided a less-than-full-throated endorsement of the plurality's conclusion.

This case began when someone, who the plaintiff Hassell believes to be Bird, had posted a critical review of the Hassell law firm on Yelp that Hassell claimed to be defamatory. Hassell sued Bird and ended up with a default judgment agreeing that it was defamatory. Hassell also got the trial court in San Francisco to issue an injunction ordering Yelp to delete the offending posts. Yelp appealed the injunction on several grounds, including that it never had a chance to be heard by the court before it issued a judgment against it, and because Section 230 should have barred it. After losing at the California Court of Appeals, the California Supreme Court agreed to take up its case, and this week it issued its ruling.

The plurality opinion, which garnered three votes, found it sufficient to invalidate the injunction entirely on Section 230 grounds without having to reach any due process consideration. It cited plenty of prior cases to support its Section 230 analysis, but spent some time discussing the holdings in three in particular: Zeran v. AOL, Kathleen R. v. City of Livermore, and Barrett v. Rosenthal [p. 14-20]. Zeran was an early case construing Section 230 that set forth why it was so important for speech and ecommerce that platforms have this statutory protection for liability arising from their users' content. Barrett v. Rosenthal was a subsequent California Supreme Court case, which similarly construed it. And Kathleen R. was a case where a California Court found that Section 230 precluded injunction relief. These and other cases underpinned the plurality's opinion.

It also made several other points in support of its Section 230 finding. One was the observation that if Section 230 couldn't prevent the non-party injunction against Yelp it would just prompt litigants to game the system by not even bothering trying to name platforms as defendants, since they'd have better luck getting injunctions against them if they did NOT try to sue them than if they did.

The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no. [p. 22]

And part of the reason the answer is no, is that Section 230 was never intended to only limit damages liability against a platform; it also was meant to prevent injunctions as well. [p. 26-27].

An injunction like the removal order plaintiffs obtained can impose substantial burdens on an Internet intermediary. Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform. (See Noah v. AOL Time Warner, Inc., supra, 261 F.Supp.2d at p. 540 [“in some circumstances injunctive relief will be at least as burdensome to the service provider as damages, and is typically more intrusive”].) Furthermore, as this case illustrates, a seemingly straightforward removal order can generate substantial litigation over matters such as its validity or scope, or the manner in which it is implemented. (See Barrett, supra, 40 Cal.4th at p. 57.) Section 230 allows these litigation burdens to be imposed upon the originators of online speech. But the unique position of Internet intermediaries convinced Congress to spare republishers of online content, in a situation such as the one here, from this sort of ongoing entanglement with the courts. [p. 28]

And it had to prevent injunctions, in order for platforms and the online speech they facilitate to be protected:

Perhaps the dissenters’ greatest error is that they fail to fully grasp how plaintiffs’ maneuver, if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation. What plaintiffs did in attempting to deprive Yelp of immunity was creative, but it was not difficult. If plaintiffs’ approach were recognized as legitimate, in the future other plaintiffs could be expected to file lawsuits pressing a broad array of demands for injunctive relief against compliant or default-prone original sources of allegedly tortious online content. Injunctions entered incident to the entry of judgments in these cases then would be interposed against providers or users of interactive computer services who could not be sued directly, due to section 230 immunity. As evinced by the injunction sought in Kathleen R., supra, 87 Cal.App.4th 684, which demanded nothing less than control over what local library patrons could view on the Internet (id., at p. 691), the extension of injunctions to these otherwise immunized nonparties would be particularly conducive to stifling, skewing, or otherwise manipulating online discourse — and in ways that go far beyond the deletion of libelous material from the Internet. Congress did not intend this result, any more than it intended that Internet intermediaries be bankrupted by damages imposed through lawsuits attacking what are, at their core, only decisions regarding the publication of third party content. [p. 30-21]

Unfortunately the rest of the Court was not as amenable to the plurality's application of Section 230 as a defense against the injunction. Even the concurrence by Justice Kruger, which provided the fourth vote in favor of overturning the injunction, did so, as Eric Goldman observed, with potentially some qualification of the Section 230 analysis ("I express no view on how section 230 might apply to a different request for injunctive relief based on different justifications."). [concurrence p.1]. But both the concurrence and the plurality recognized that there were problems with trying to hold a non-party platform like Yelp responsible for complying with the injunction to take down content that had also been directed to the defendant Bird. For the plurality it was a straightforward violation of Section 230.

[I]t is also true that as a general rule, when an injunction has been obtained, certain nonparties may be required to comply with its terms. But this principle does not supplant the inquiry that section 230(c)(1) requires. Parties and nonparties alike may have the responsibility to comply with court orders, including injunctions. But an order that treats an Internet intermediary “as the publisher or speaker of any information provided by another information content provider” nevertheless falls within the parameters of section 230(c)(1). In substance, Yelp is being held to account for nothing more than its ongoing decision to publish the challenged reviews. Despite plaintiffs’ generic description of the obligation they would impose on Yelp, in this case this duty is squarely derived from “the mere existence of the very relationship that Congress immunized from suit.” [p. 24]

For the concurrence the platform's relationship with the defendant was too attenuated and not the sort of agency relationship where it may be proper to hold a third party responsible for complying with an injunction on another.

Plaintiffs, as well as [dissenting] Justice Liu, argue that the injunction naming Yelp is valid because it merely makes explicit that Yelp, as an entity “through” whom Bird acts, is obligated to carry out the injunction on her behalf. But the trial court made no finding that Bird acts, or has ever acted, “through” Yelp in the sense relevant under Berger, nor does the record contain any such indication; we have no facts before us to suggest that Yelp is Bird’s “agent” or “servant.” It is true and undisputed, as plaintiffs and Justice Liu emphasize, that Bird’s statements were posted on Yelp’s website with Yelp’s permission. And as a practical matter, Yelp has the technological ability to remove the reviews from the site. These facts might well add up (at least absent section 230) to a good argument for filing suit against Yelp and seeking an injunctive remedy in the ordinary course of litigation. But the question presented here is whether these facts establish the sort of legal identity between Bird and Yelp that would justify binding Yelp, as a nonparty, to the outcome of litigation in which it had no meaningful opportunity to participate. Without more, I do not see how they could. [concurrence p. 7]

The plurality also rejected the theory raised by the trial court and pushed by the dissent that the platform had somehow "aided and abetted" the defamatory speech. If this argument could prevail, Section 230 would become a nullity, since every platform enables user expression, and not all that expression is necessarily entirely legal.

In his dissent, Justice Cuéllar argues that even if the injunction cannot on its face command Yelp to remove the reviews, the removal order nevertheless could run to Yelp through Bird under an aiding and abetting theory premised on conduct that remains inherently that of a publisher. (See dis. opn. of Cuéllar, J., post, at pp. 3, 20-22, 34-37.) We disagree. As applied to such behavior, Justice Cuéllar’s approach would simply substitute one end-run around section 230 immunity for another. [p. 25]

The dissenting opinions, on the other hand, were very focused on the plight of the plaintiff who had apparently been injured by these purportedly defamatory posts. (I say "purportedly," because although the Supreme Court decision does not spend much time on this issue, it's worth noting that the conclusion of the posts' defamatory nature was drawn from an ex parte default proceeding at the trial court where no defense was supplied. It is certainly easier for a court to accept a plaintiff's characterization of language as defamatory when there is no one present – even Yelp was left out – to show that it is not.) As we've seen in cases like Garcia v. Google, the operation of Section 230 can make it difficult for a legitimately aggrieved plaintiff to obtain a remedy against someone who has defamed them. But it isn't necessarily impossible, and the plurality reminded everyone that Hassell was not without any recourse:

On this last point, we observe that plaintiffs still have powerful, if uninvoked, remedies available to them. Our decision today leaves plaintiffs’ judgment intact insofar as it imposes obligations on Bird. Even though neither plaintiffs nor Bird can force Yelp to remove the challenged reviews, the judgment requires Bird to undertake, at a minimum, reasonable efforts to secure the removal of her posts. A failure to comply with a lawful court order is a form of civil contempt (Code Civ. Proc., §1209, subd. (a)(5)), the consequences of which can include imprisonment (see In re Young (1995) 9 Cal.4th 1052, 1054). Much of the dissents’ rhetoric regarding the perceived injustice of today’s decision assumes that plaintiffs’ remaining remedies will be ineffective. One might more readily conclude that the prospect of contempt sanctions would resonate with a party who, although not appearing below, has now taken the step of filing an amicus curiae brief with this court. [p. 32]

Perhaps this is the most important passage in the whole opinion. It's become really popular especially as of late to try to make platforms responsible for everything their users do. It's good to have courts remind us that it's the people who do the things who really should be held accountable instead.

Filed Under: california, cda 230, dawn hassell, defamation, free speech, injunctions, section 230
Companies: yelp

Court Tosses Out Silly Trollish Publicity Stunt Defamation Lawsuit

from the but-no-anti-slapp-win dept

Almost exactly a year ago, we wrote about a ridiculous defamation lawsuit filed by a plaintiff who has a history of fairly trollish, attention seeking behavior. I chose not to name the person in the post as I argued that the lawsuit itself was something of a publicity stunt, and I'll continue to do that here, even though it will become clear in the quoted parts of the ruling below. I have no interest in participating in the publicity stunt part of the lawsuit -- but do feel compelled to write about it because of the First Amendment issues that are a key component in the case. Amusingly, the plaintiff had a history of loudly proclaiming her support for free speech and the First Amendment, even going so far as to once state: "I care more about free speech... than almost any other issue."

And yet, she sued a reporter over a tweet. Here's the way I described it last year:

The background is pretty straightforward. The person in question, who is known as a strong Trump supporter (though, in the past also got attention as a strong Bernie supporter, and once said this: "I got called a literal Nazi so many times, I eventually went, Fuck it, I’ll just go all in.") was at the White House and had a picture taken of herself and someone else, standing behind a podium, with both doing the "OK" sign with their hands. There was a stupid little thing a few months back where some 4chan trolls tried to pretend that the OK sign was a symbol for "White Power". The idea was to get the press to report on this kind of thing and then laugh at how silly the press could be. Well, mission accomplished. A reporter for Fusion tweeted about the photo of these two people doing the "OK" sign were "White Power" hand signals being done in the White House.

As we noted last year, among the many, many issues that doomed the plaintiff's case was the fact that she admitted in a tweet that the whole thing was an attempt to troll journalists:

For a defamation case against a public figure to have any chance, a plaintiff needs to show first that the statement was a false statement of fact, but also that it was done with "actual malice." Actual malice has a specific legal meaning that is not just "the person wanted to do something mean." It specifically means that the person making the statement did so knowing it was false or, alternatively, with reckless disregard for whether it was false. Having the plaintiff flat out admit that it was all part of an attempt to trick people kind of undermines the entirety of the "actual malice" part of the lawsuit.

And the court noticed. In a ruling yesterday, the DC district court tossed out the case. And the key reason? A failure to show "actual malice." Oh, it also recognizes she's a troll. In the very first sentence of the opinion.

Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of herself and a fellow journalist in the White House press room making a gesture widely recognized as the “okay” hand symbol but also speculated at the time to be a “white power” symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, “just two people doing a white power hand gesture in the White House.” Ms. Fairbanks sued Ms. Roller for defamation. The First Amendment requires that Ms. Fairbanks’ claim be considered “against the background of a profound national commitment” to the freedom of speech and especially of political speech, which is “essential to the security of the Republic.” See New York Times v. Sullivan... This “fundamental principle of our constitutional system” obligates Ms. Fairbanks, as a public figure, to support her defamation claim by alleging facts that support a finding of actual malice on the part of Ms. Roller.... Because Ms. Fairbanks has failed to allege such facts, Ms. Roller’s Motion to Dismiss under the Federal Rules of Civil Procedure will be granted.

Oh yeah, note how the court, from the opening, is talking about the First Amendment. I should remind you what the plaintiff said about the lawsuit at one point:

Anyway, back to the case. As we expected, the court noted the Plaintiff's own admission to trolling. It mentions the tweet we showed about "trolling" above and in the discussion part notes that's part of the reason there's no actual malice:

Especially given the public debate about the “okay” hand gesture at the time of Ms. Roller’s tweet, Ms. Fairbanks’ allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller—whether because the gesture was actually offensive or because they would think that it was offensive—not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.

Unfortunately, we were also correct in the second part of our initial post -- that because the case was filed in federal court in Washington DC, it would mean that Washington DC's (pretty strong) anti-SLAPP law would be inapplicable. A horrible ruling from a few years back, which goes against rulings in most other federal courts, found that DC's anti-SLAPP law couldn't be used in federal court. The defendant in this case sought to use it anyway, but the court rejected it:

The District of Columbia’s anti-SLAPP statute does not apply in federal court, so Ms. Roller’s Motion to Dismiss and request for attorney’s fees under the anti-SLAPP statute will be denied.

The Defendant had tried to argue that the infamous Michael Mann ruling had overturned that earlier ruling concerning DC SLAPPs in federal courts, but the court disagreed.

Once again, this is another example of why we so badly need a federal anti-SLAPP law.

Oh, and I should note that the plaintiff's lawyer in this case just happens to be the same guy, Robert Barnes, who we wrote about yesterday for his failed arguments that Twitter somehow violated Chuck Johnson's rights in kicking Johnson off its platforms. So while he seems to making a name for himself, it mostly appears to be in filing failed lawsuits that are dumped on First Amendment grounds on behalf of infamous Trump supporting internet trolls. I'm not sure that's a reputation worth having.

Filed Under: anti-slapp, cassandra fairbanks, dc, defamation, emma roller, first amendment, free speech, robert barnes, trolling, trolls

FlightSimLabs Installs More Questionable Stuff On Users' Machines, Then Threatens Reddit

from the bumpy-landing dept

Hopefully you will recall FlightSimLabs, the company that makes custom add-ons for computer flight simulation software. FSL made it onto our pages after a Reddit user noticed that every installation of FSL software, including that of a legitimate purchase, installed a file named "test.exe" which was not just a form of DRM, but which also serves as a Chrome password dumping tool, extracting user names and passwords from people's web browsers. Whatever the fuzzy line between DRM software and malware, FLS's installation of its text.exe file clearly leapt over that line with a flourish. The backlash in the Reddit communities and elsewhere was swift and severe, leading Lefteris Kalamaras, who runs FSL, to release the following statement.

We have already replaced the installer in question and can only promise you that we will do everything in our power to rectify the issue with those who feel offended, as well as never use any such heavy-handed approach in the future. Once again, we humbly apologize!

And that really, really should have been the end of it. If nothing else, the backlash from the community should have informed FSL as to the precise tolerance its customers had for this type of nonsense, which is to say zero. Amazingly, despite Kalamaras' promise, it appears FSL tried to give this DRM thing another try, and somehow managed to make itself look even shittier in the process.

Just before the weekend, Reddit user /u/walkday reported finding something unusual in his A320X module, the same module that caused the earlier controversy.

“The latest installer of FSLabs’ A320X puts two cmdhost.exe files under ‘system32\’ and ‘SysWOW64\’ of my Windows directory. Despite the name, they don’t open a command-line window,” he reported. “They’re a part of the authentication because, if you remove them, the A320X won’t get loaded. Does someone here know more about cmdhost.exe? Why does FSLabs give them such a deceptive name and put them in the system folders? I hate them for polluting my system folder unless, of course, it is a dll used by different applications.”

If you don't have a technical background at all, essentially FSL attempted to deliver DRM again onto users' machines, but named the files to mimic a common Windows background file that users see all the time. It's actually quite common for a user opening Task Manager to see several instances of cmdhost.exe running at once. In other words, it's the kind of thing nearly everyone would scroll past, assuming its legit.

As several people on Reddit have pointed out, this sort of misleading naming of software services is a hallmark of malware.

“Hiding something named to resemble Window’s “Console Window Host” process in system folders is a huge red flag,” one user wrote.

“It’s a malware tactic used to deceive users into thinking the executable is a part of the OS, thus being trusted and not deleted. Really dodgy tactic, don’t trust it and don’t trust them,” opined another.

Why FSL seems to get all of its best ideas from the realm of malware is an open question. The company put out a statement explaining that the file is a part of its product activation software and that the file had been vetted by every major antivirus maker out there. Both appear to be true, which doesn't even begin to explain why FSL, having had its reputation so thoroughly tarnished recently, thought pulling this name convention trick with its DRM was a good idea. Reddit users remained on the warpath, causing FSL to really torpedo its reputation even further.

In private messages to the moderators of the /r/flightsim sub-Reddit, FSLabs’ Marketing and PR Manager Simon Kelsey suggested that the mods should do something about the thread in question or face possible legal action.

“Just a gentle reminder of Reddit’s obligations as a publisher in order to ensure that any libelous content is taken down as soon as you become aware of it,” Kelsey wrote.

Noting that FSLabs welcomes “robust fair comment and opinion”, Kelsey gave the following advice.

“The ‘cmdhost.exe’ file in question is an entirely above board part of our anti-piracy protection and has been submitted to numerous anti-virus providers in order to verify that it poses no threat. Therefore, ANY suggestion that current or future products pose any threat to users is absolutely false and libelous."

The letter concluded with the suggestion of how much FSL would just hate to have to get their lawyers involved if the Reddit moderators left the critical posts up. The mods refused to comply, leading to FSL sending another message to the moderators accusing the critical posts of being defamatory and, if not cleaned up, the company would have "no choice" but to send in the lawyers.

Just to be clear, the legal threats here are nonsense. Contrary to the claims in the message, Reddit is not under any "obligation as a publisher" to take down such content, thanks to CDA 230. Oh, and all of that presumes that the original content is, indeed, libelous. Which it is not.

The mods again refused, while also accusing FSL of trying to game Reddit's voting system to push down critical posts.

“While what you do on your forum is certainly your prerogative, your rules do not extend to Reddit nor the r/flightsim subreddit. Removing content you disagree with is simply not within our purview.”

The letter, which is worth reading in full, refutes Kelsey’s claims and also suggests that critics of FSLabs may have been subjected to Reddit vote manipulation and coordinated efforts to discredit them.

Once again, responding to internet posts and comments a company doesn't like by trying to censor them, particularly after going through a reputational gauntlet previously, might just be about as dumb as it gets. Between the DRM, the shady installation of software, and the anti-consumer behavior to cover it all up, one wonders what flight simulator mod could possibly be worth engaging with FlightSimLabs ever again.

Filed Under: censorship, defamation, drm, flight sims, free speech, intermediary liability, malware, threats
Companies: flightsimlabs, reddit

Appeals Court Finally Shuts Down Bogus Lawsuit Targeting A School Official For Words A Journalist Wrote

from the PERRY-MASON-MOMENT-INCLUDED dept

At long last, one of the stupider defamation lawsuits in recent history is finally over. Last year, the ousted director of a Tennessee culinary school (Tom Loftis) sued over an article appearing in a local paper. The article, written by journalist Jim Myers, insinuated the departure of Loftis signaled a return to quality for the culinary program. It also spoke highly of his replacement, Randy Rayburn.

The article featured few direct quotes from Rayburn. The bulk of it consisted of Myers' take on the program's declining quality while Loftis was at the helm. So, naturally, Tom Loftis decided to sue his replacement, Randy Rayburn, who was responsible for none of the supposedly defamatory content contained in the article.

Loftis argued this was "defamation by innuendo," all the while refusing to target the journalist and paper responsible for the alleged innuendo. He not only lost his lawsuit, but now owes legal fees for that attempt. Rather than accept this loss and cut a check, Loftis appealed. This recent state appeals court decision [PDF], via Randy Rayburn's legal representative, Daniel Horwitz, has nothing positive to say about Loftis' bogus lawsuit.

First, the court points out the obvious: Rayburn didn't say the things Loftis is suing about.

To prevail on his defamation by implication or innuendo claim, Mr. Loftis must establish in his complaint that Mr. Rayburn published the statements and that the meaning reasonably conveyed by the statements was defamatory.

[...]

Mr. Rayburn is not the author of the article, and he is not quoted anywhere in the article. However, Mr. Loftis asserted in his amended complaint that during an interview with Mr. Myers, Mr. Rayburn spoke the words that Mr. Myers printed.

Even "liberally construing" Loftis' argument doesn't help. The court agrees that giving his allegations an extremely favorable reading supports his claim for "defamation by implication," but when all the facts are in, the allegation is baseless.

Mr. Loftis does not question the literal truth of the statements in the article, but he argues they imply that he personally was to blame for the unqualified line cooks in Nashville. We do not agree. Mr. Myers’ statement that the school’s culinary program was not turning out qualified students appears to have been based on the feedback Mr. Rayburn got from other chefs in the area. The article does not suggest that all of the unqualified line cooks in the area received training at the culinary program at Nashville Tech or that Mr. Loftis was to blame for the dearth of qualified line cooks, as Mr. Loftis argues. Mr. Loftis is not mentioned at all until the second page, toward the end of the article, when Mr. Myers wrote: “They started by cleaning house from the top by removing director Tom Loftis.” Mr. Myers does not clarify who “they” were, and the article does not impugn Mr. Loftis personally. Contrary to Mr. Loftis’s argument, we do not believe the article can reasonably be interpreted as depicting Mr. Loftis as “personally responsible for the perceived deficiencies of the culinary program.”

It follows this up with a blunt take on Loftis' creative legal thinking.

We are not bound by Mr. Loftis’s interpretation of the statements because we find they do not reasonably have the meaning he ascribes to them.

It also disposes of his "false light invasion of privacy" claim. While the statements made to the Tennessean reporter might satisfy the publicity requirement (in essence, Rayburn could assume that by speaking to a reporter his comments would be published in some form), this claim similarly fails because the statements were made by the reporter -- not Randy Rayburn. And even if they were, they do not even approach the the "false light" standard.

We do not, however, believe that the statements can be considered “highly offensive to a reasonable person,” as they must be for Mr. Loftis to proceed with this claim. For the reasons we found the statements in Mr. Myers’ article fail to imply a defamatory meaning, we also find they are not susceptible to the requisite inferences casting Mr. Loftis in a false light. We do not believe a reasonable person would be justified, in the eyes of the community, of being seriously offended and aggrieved by the statements at issue.

Finally, there's this: Tom Loftis' attorney made a stunning admission during oral arguments. It's a fact common to many bogus defamation cases, but one rarely stated so baldly by legal representation while still engaged in bogus litigation. Defamation lawsuits are a handy way to silence critics, especially when the target of the lawsuit is perceived to be ill-equipped to tackle the case in court. In response to the court's logical question as to why Loftis chose to sue Randy Rayburn rather than the journalist or paper whose article Loftis found defamatory, his lawyer had this to say:

Judge Neal McBrayer: “Why isn’t the Tennessean the proper party here?”

Gary Blackburn (Attorney for Mr. Loftis): “Your Honor, there were practical reasons for that . . . . It is easier to bring a lawsuit against the person who uttered the words than against a publication that buys ink by the barrel, as they say, and has lots of resources.“

This is Loftis' lawyer saying he felt he had a better chance of winning against Randy Rayburn than against a newspaper that might have the legal team and resources to put up a fight. Blackburn tries to disguise it by saying Rayburn "uttered the words," but the oral argument [beginning at 6:05] includes the court's rebuttal that the article contains "no direct quotes." This statement lays bare the lawsuit's true aims: to ruin a replacement school official who seems to be better liked by Tennessean journalists, if nothing else.

Filed Under: anti-slapp, defamation, free speech, jim myers, randy rayburn, slapp, tennesee, tom loftis