Ousted Educator Tries To Talk Appeals Court Into Letting Him Sue Someone For Things Someone Else Said

from the self-screwing-intensifies dept

Because prudence is always in short supply but stupid is the world's foremost renewable resource, an ousted director of a Tennessee culinary school is appealing the dismissal of a defamation suit he brought against his replacement for things a journalist said.

The original lawsuit didn't live long, fortunately. Heavily quoting a Tennessean article by journalist Jim Myers, Tom Loftis -- the former head of the culinary school at the Nashville university -- sued Randy Rayburn (Loftis' replacement) over things Myers said.

Loftis apparently expected his status as a private person (given more reputational protection by courts than public figures) to overcome the deficiencies of his lawsuit. But the deficiencies won and Loftis lost, having failed to show how words written by Jim Myers were somehow libelous statements issued directly by Randy Rayburn.

Loftis should have quit while he was behind. He's already on the hook for the legal fees racked up by Rayburn's defense at this point, but apparently feels the best use of a university severance package is as an accelerant for the fire consuming what's left of his reputation.

Daniel Horwitz, who defended Rayburn against Loftis' first legal leap of faith, is back on board defending against the appeal. According to Loftis, the lower court erred by refusing to read his defamation lawsuit the way Loftis would prefer it to be read: as a false light invasion of privacy lawsuit.

There are shades of difference, but the latter tort allows negative impressions to be actionable, rather than relying on actual defamatory statements made by the defendant. This is about the only choice Loftis has (other than walking away from this) considering there's no indication the statements he's suing about are anything other than Jim Myers' (not Randy Rayburn's) opinions.

It won't make any difference. The allegations remain unchanged. Loftis is still trying to twist the words of a journalist into statements made by his replacement. But nowhere in Myers' article on the cooking school will you find a direct quote of Randy Rayburn. For that matter, you'll find almost nothing in the piece that indicates the statements Loftis is suing over are anything more than Myers' take on the Nashville culinary scene. This is hammered home in Rayburn's reply brief [PDF], something neither he nor his representation probably thought they'd ever have to do.

The entirety of Mr. Loftis’s complaint concerned statements that were neither made by nor attributed to the Defendant, Mr. Randy Rayburn. In fact, at no point in the article was Mr. Rayburn even quoted. Further, nearly all of the objectively innocuous statements referenced in the article did not mention Mr. Loftis, were incapable of conveying any defamatory meaning or inference as a matter of law, and could not seriously be considered “highly offensive” by any reasonable person. Critically, Mr. Loftis also pleaded that the only statements in the article that did mention him were accurate—rendering this lawsuit “possibly unprecedented” in its frivolousness.

It goes on to point out the negative implications of the court treating this appeal with any more respect than it actually deserves.

Despite its frivolousness, however, the implications that the instant lawsuit will carry if its dismissal is not forcefully affirmed by this Court are anything but. Simply put: forcing the supposed source of a news story to defend against a $1.5 million lawsuit for the transgression of being mentioned alongside coverage that a hypersensitive plaintiff considers unflattering poses serious and severe risks to the viability of newsgathering in Tennessee. Consequently, if allowed to move forward, this lawsuit would threaten both free speech and the public’s willingness to engage with journalists at all.

I don't think Loftis has any better chance on appeal. His brief [PDF] claims the court never considered his false light claim, but Rayburn's reply points out the lower court clearly did so… and it did so right out of the gate.

Looking to the Trial Court’s actual Order, the Order’s first paragraph specifically referenced both of Mr. Loftis’s theories of relief, noting that “Mr. Loftis has filed claims for false light invasion of privacy and defamation by implication or innuendo based on statements contained in a newspaper article attached to his Amended Complaint that was written by Jim Myers and published by the Tennessean.”

Next, Paragraph 3 of the Trial Court’s Order recited the legal standards that govern both defamation and false light claims, and it correctly noted that “there is significant and substantial overlap between false light and defamation.”

Thereafter, Paragraph 4 of the Trial Court’s Order applied the law to the facts of Mr. Loftis’s Amended Complaint. After so doing, the Court held that “the statements contained in the Tennessean article are not capable of conveying a defamatory meaning and that they do not give rise to liability as a matter of law.”

At this point Loftis is doing more than just wasting his own money. He's wasting his opponent's money. Considering he's going to be on the hook for both sets of legal fees, he really should have allowed the suit to peacefully expire when the lower court declared it dead.

Filed Under: defamation, false light, jim myers, nashville, randy rayburn, tom loftis

Facebook Sued In Israel For Blocking All Links To Site Critical Of Facebook & Suggesting Site Was 'Unsafe'

from the questions,-questions,-questions dept

Mizbala is an Israeli marketing/creative agency that runs a news site as well, commenting on issues related to internet marketing and advertising. The site has been quite critical of Facebook, including a few recent posts where it mocked Facebook for its aggressive/arbitrary blocking of users and content:

Over the past few days, Mizbala has written about other cases in which Facebook automatically blocked and/or erased posts. In one case, comedian Guri Alfi complained about the erasure of one of his posts, which he attributed to the fact that he credited photographer Guy Kushi. The Hebrew word “kushi” is a derogative term for blacks.

In another incident, Gili Cohen, a participant in the “Big Brother” reality show, was blocked for 30 days after posting a video clip in which he harshly criticized the fact that he and others had been blocked for using “banned words” in old posts.

This is something that we've been known to post about on quite a few occasions as well. The fact is, Facebook isn't always good with its blocking decisions. Frankly, this isn't a huge surprise, given that it has to use a combination of algorithms and low level human reviewers to cover a fairly large amount of content -- a decision the company made when it decided that it would be the arbiter of what is and what is not allowed on the site. Mistakes are going to happen, and with it comes people mocking Facebook for making bad decisions.

However, with Mizbala, something extra strange happened. Soon after posting a few of these stories mocking Facebook, suddenly Mizbala itself was blocked by Facebook. Entirely. Even worse, previous links to Mizbala disappeared and anyone posting a link to Mizbala was given a fairly scary sounding message suggesting the site was deemed "unsafe" by Facebook.

In some other cases, it told people posting Mizbala links that the links "might be spam."

Yeah, so that certainly feels pretty sketchy. The site is regularly critical of Facebook -- specifically how it blocks people arbitrarily -- and suddenly it too gets blocked by Facebook with a nasty warning that the site itself is "unsafe." Even if this was an accident, it really looks quite bad.

In response, Mizbala has sued Facebook in Israel arguing that the messages associated with the block are defamatory and a "false description" of Mizbala (which appears to be similar to the concept of "false light" in American law).

I'll admit that I'm a bit torn about this whole thing. The arbitrary/hamfisted blocking is pretty ridiculous, and it's made much worse when it comes right after Mizbala was directly criticizing Facebook for arbitrary blocking and when it then is telling people that the site is either unsafe or spam. But, at the same time, it seems like a flat out public shaming is always going to make more sense here than going legal. In the US, at least, this kind of lawsuit would almost certainly fall flat (quickly). Nearly a decade ago, we wrote about a case in which it was found that Section 230 of the CDA protected an antivirus company (Kaspersky) from calling some adware "spyware." CDA 230(c)(2) makes it quite clear that attempts by companies to filter content taken in good faith don't expose the company to liability (of course, if this case were in the US, I'd guess that Mizbala could argue that the block wasn't made "in good faith.")

Of course, the case is in Israel, not in the US, and Israel doesn't have an equivalent to Section 230 for cases like this.

Given all that, this case could be troublesome. Obviously, Facebook's actions here look sketchy, and I'm all for calling out the company for its bad filtering policies, and the really iffy "unsafe" labelling it gave to the site here. But by putting liability on a company for deciding to block certain sites opens up a pandora's box of mischief. It could enable just about any site that was blocked -- even if for legitimate reasons, to gum up the judicial system with lawsuits and would make it much more difficult for lots of internet companies (including small ones who don't have the litigation budget of Facebook) to have to defend almost any moderation decision they make. This is the kind of thing that Section 230 protects against in the US, letting companies make their own moderation decisions (while the First Amendment then lets anyone mock the companies for making bad decisions).

Filed Under: blocking, false description, false light, filters, intermediary liability, israel, links, section 230
Companies: facebook, mizbala

Clinton Campaign Also Not A Fan Of Free Speech: Sends Legal Threat Letters Over Trump Ads

from the oh-please dept

If there's one thing that the two major Presidential candidates seem to agree on it's that we have too much free speech and all you First Amendment whiners should quiet down. Just this morning, we wrote about Trump threatening a documentary filmmaker with a cease & desist letter (the latest in a fairly long list of defamation threat letters). And it appears that the Clinton campaign is also ramping up its similar legal threat letter business.

Last week, it sent cease & desist letters to broadcasters in Florida who were airing Trump ads that used some footage of Michelle Obama back in the 2008 campaign taking something of a swipe at Clinton. And, just today, the campaign supposedly sent out cease & desist letters to broadcasters airing new Trump ads claiming that Clinton is "under investigation by the FBI."

The letter lists some pro-Trump PACs, including Rebuilding America Now and Future 45, and the titles of ads they are funding.

Elias' letter says that "at no point" did the FBI "reopen" the investigation into Hillary Clinton's emails.

Uh, yeah, there's no way in hell that's defamation. Yes, it's inaccurate to say that the FBI "reopened" its investigation, because technically the investigation never closed. But it's perfectly accurate to say that the FBI was investigating things related to Clinton's emails. There's no way in hell that the difference between continuing an investigation and "reopening" an investigation reaches the level of "actual malice" needed to satisfy a defamation claim. And, no, the fact that Comey said that there's nothing new in the emails doesn't change the analysis here. Especially in a political ad, some amount of rhetorical hyperbole is to be expected.

Yes, I know this campaign has been pretty bitterly fought by both sides, and a month ago, Trump threatened to sue Clinton over her campaign ads, but both of them are full of shit, and are blatantly misrepresenting or ignoring how the First Amendment protects speech, including the speech in their opponents' TV ads.

Wouldn't it be nice if one of the two people who will win tomorrow actually respected the damn First Amendment?

Filed Under: campaign ads, cease & desist, defamation, donald trump, false light, first amendment, free speech, hillary clinton

Nutty Trollish Guy On The Internet Files Nutty Trollish Defamation Lawsuit In Random State

from the news-at-11 dept

Okay, look. We've really tried to ignore Chuck Johnson. It's pretty obvious that he's the kind of guy who does a bunch of the stuff that he does to get more attention. We've never covered his various hilarious legal threats, though you can see a bunch of them nicely cataloged at this website. If you're not aware, you can do some Google searches, but suffice it to say that he plays a "journalist" on the internet, and he's somewhat infamous for the various stunts he pulls, combined with his penchant for threatening people with libel, as well as for many of his biggest stories being, well... ridiculous. A few weeks ago he threw something of a public tantrum because Twitter kicked him off its service. He had a lawyer in Missouri, John Burns, send a ridiculous threat letter to Twitter, based on an interpretation of the law that might be described as "crazy" by some and... "wrong" by many others.

But, now, by all accounts, it appears that Johnson has actually filed a defamation lawsuit in Missouri against Gawker (who is currently fighting a big (and much more important) lawsuit concerning the Hulk Hogan sex tape excerpt that it published). The lawsuit is equally as nutty as most things associated with Chuck Johnson, but go ahead and read it. The one thing that's important to note is that there hasn't, yet, been confirmation that it's actually been filed, but at the very least someone put work into it.

By all public appearances, the only reasons that this was filed in Missouri was because... that's where Johnson could actually find a lawyer willing to file something so ridiculous (the same lawyer who made the silly threats against Twitter) and, perhaps, because Missouri lacks a real anti-SLAPP law. It has one, but it only applies to petitioning the government. All the more reason to support a federal anti-SLAPP law.

We can go through all the reasons why the lawsuit is likely to fail, but, come on, we've got other stories to write as well, so we'll just pick out some of the highlights.

1. Missouri?!? WTF? There is no legitimate reason to file this lawsuit in the state court in Missouri. Johnson is in California. Gawker is in NY. And no, the fact that it's kind of "in the middle" doesn't count. This lawsuit will almost certainly be thrown out over the venue choice. The rationale in the lawsuit is laughable:

   Because Plaintiffs have been injured in the State of Missouri, the matter is properly before a circuit court of Missouri. Venue is determined solely by statute. State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). Because the matter alleges torts, including defamation and invasion of privacy, venue is proper in this Court.

   That's unlikely to fly. As Adam Steinbaugh notes in his write-up (the link above), the case will almost certainly get dumped for "lack of personal jurisdiction." At the very least it won't stay in state court as it meets all the easy criteria for removal to federal courts (parties in different states, over $75k at stake...). Steinbaugh also wonders if Gawker might try to jump into federal court and file for declaratory relief in a state where it can use an anti-SLAPP law, but that's not actually as easy as it may sound for a variety of reasons.
   
2. The standard for defamation: As we've discussed many, many times, if you're a public figure, the standard for defamation is very high (as it should be). The statements need to be done with "actual malice," meaning that Gawker published false stuff, knowing it was false and that it would harm Johnson. That's not happening.
   
3. That's not defamation: Among the things that Johnson complains about is a Gawker claim that he is the "web's worst journalist." That's clearly a statement of opinion. No court is likely to find that defamatory.
   
4. Intermediary liability to the rescue: Johnson also claims that Gawker reporters "solicited" defamatory comments. That's protected by CDA 230 and should get tossed out. From the lawsuit:

   It is very common for initiators of writings (such as Defendants Howard and Trotter) to create content amongst other non-initiating content creators, and to directly respond-to and collaborate with non-initiating content creators, instigate and solicit responses from non-initiating content creators, and adopt the conclusions of or otherwise advertise or approve of the content of non-initiating content creators as signified through text content or by hyperlinking to additional locations on the same webpage or the webpages of other stand-alone writings.

   Yeah, that's not how the law works.
   
5. False things about false light: The lawsuit makes "false light" claims in addition to defamation. There's a problem with that. For the most part, Missouri does not recognize "false light." It's not absolutely true, but mostly true, as noted in a recent Missouri Supreme Court ruling that notes that it has left open the possibility of false light in future cases, but that it absolutely will not allow attempts to just pile on a false light claim that is nothing but an attempt to allege defamation in another form. This is not false light and Missouri's courts have rejected basically all false light claims for decades.

In the end, this may be more of the same nutty trolling from a nutty troll, but now that it's (supposedly) actually hitting the judicial system, it's worth highlighting yet another attempt to use defamation law to silence the press. What's almost hilarious about this is that Johnson often holds himself out as a strong supporter of the First Amendment. Funny stuff.

Filed Under: cda 230, chuck johnson, defamation, false light, first amendment, free speech, john burns, jurisdiction, missouri, opinion, venue
Companies: gawker

Journalist Sues American Hustle Makers For Defamation Because Crazy Character Misunderstood His Article

from the that's-just-crazy dept

Hey, remember that funny little trademark lawsuit brought by a software company against the Batman movie makers over fictional software that appeared in the film? Oh, I have one way better than that. Let me tell you about the lawsuit being brought by a journalist against the filmmakers behind American Hustle because a notably crazy character in the film totally portrayed said journalist's article from the 70's incorrectly.

Paul Brodeur, a real-life science journalist who has written for The New Yorker, is suing the team behind American Hustle for a reference made to him in the film. In the film, Rosalyn (Jennifer Lawrence) tells her husband, Irving (Christian Bale), that microwaves take “all of the nutrition out of our food.” When Irving calls the claim bullshit, Rosalyn responds, “It’s not bullshit. I read it in an article. Look, by Paul Brodeur.”

Brodeur’s complaint states, “Paul Brodeur has never written an article or ever declared in any way that a microwave oven ‘takes all the nutrition out of our food.'” Rather, it states, Brodreur has publicly denounced that claim, pointing to a 1978 interview with People Magazine.

And, as it turns out, Brodeur is actually correct about that part: he didn't claim that microwaving food took all the nutrition out of it. He made claims about the resulting radiation exposure being a problem, but nothing about nutrition. Even in the book, he wrote about all the myriad dangers of microwave energy, be it from ovens or from US and Soviet soldiers beaming them into each other's faces and stuff, but still there was no mention of nutrition. For this slight against his position, Brodeur is claiming libel, defamation, slander and false light, and would please like $1 million and the removal of his name from future prints of the film, mmkay?

Since he appears to have missed out on the character development in the movie, the character of Rosalyn is a complete damned whack-job who says innumerable crazy things. In other words, she's portrayed in a manner that renders the viewer completely incapable of taking her seriously or in anyway thinking anything she claims or says is valid. She's a manipulative sociopath. In other words, nobody watched this scene in this movie and immediately thought, "Ha, what a piece of shit Paul Brodeur is."

That's because the referenced article came out in the late 70's, featuring a subject nobody really cares about any more, and...whatever this is dumb, and I don't want to talk about all the reasons why. The point is, Brodeur wasn't harmed by a crazy fictional character misstating his position in an article from a time when John Lennon was reigning king.

Filed Under: american hustle, defamation, false light, jennifer lawrence, microwave ovens, movie, nutrition, paul brodeur

Dorian Nakamoto Wants To Sue Newsweek -- But It Seems Unlikely To Succeed And Could Cause More Problems For Him

from the freedom-of-the-press-isn't-always-pretty dept

As you may recall, earlier this year, Newsweek "relaunched" with a cover story by reporter Leah McGrath Goodman claiming to have unmasked the real creator of Bitcoin. Bitcoin was created by someone (or some people) using the name Satoshi Nakamoto, but no one knew who it really was, and over the past few years Nakamoto had more or less disappeared from the Bitcoin scene. Newsweek claimed that Nakamoto was really a person named Satoshi Nakamoto, who actually goes by the name Dorian Nakamoto. The article was weakly sourced, heavy on speculation and based its key arguments on some really clueless assumptions. The most ridiculous parts involved the "forensic analysis" that Newsweek supposedly relied on in identifying Nakamoto. Specifically, this "forensic analyst" looked at the original Bitcoin paper and noted what she said were "old-school technological tropes" -- specifically, discussions about saving disk space, mentioning Moore's Law, and the use of two spaces after a period. This, according to Newsweek, pointed to a much older engineer:

"The idea of conserving any kind of resources, and this is part of my formation, my long background in systems testing, that was a critical issue. But those are very very old-time concerns," she said. "To even mention disk space, things like that — disk space is cheap! And Moore's Law is an old maxim that computing power will double. We've gone exponentially away from Moore's law, but that was what it was all about in that interim period."

Except that while disk space is cheap, the size of the Bitcoin blockchain is a big deal since the whole basis of Bitcoin relies on an ever growing blockchain, and if you didn't figure out ways to minimize the need to redownload the entire blockchain, it would create a massive problem for Bitcoin. The concerns about space weren't archaic at all, but right on point. As for the claim that "we've gone exponentially away from Moore's law"? I mean, that's just flat out wrong.

Either way, it became pretty clear pretty quickly that Dorian Nakamoto wasn't Satoshi Nakamoto -- though Newsweek (bizarrely) still stands by its story. The latest, however is that Dorian Nakamoto has launched a crowdfunding effort to sue Newsweek on a website called NewsweekLied (and for those wondering, Nakamoto's lawyer has confirmed the page is legit).

I sympathize with Nakamoto, having his life shaken up by a shoddy reporting job, plucking him out of obscurity and incorrectly naming him as the creator of Bitcoin. But... I have a lot of trouble seeing how any lawsuit could possibly make sense. In fact, it seems likely that any lawsuit could actually make things worse for Dorian Nakamoto. From the details on the website, it appears that they're likely to use a combination of false light and defamation claims. Both would be pretty difficult to prove, though false light is perhaps a lower bar in this case. The real problem, though, is that most of what is in the article could be considered to reflect positively on Nakamoto, rather than negatively. Claiming he was a secret, if eccentric, creator of a global cryptographic currency phenomenon? Even if it's false (as it appears to be), how would that be "highly offensive to a reasonable person" as required under California law?

As for a defamation claim, they probably wouldn't have to show "actual malice" since Nakamoto wasn't a public figure (though, potentially Newsweek would argue that the Nakamoto they thought they were identifying was a public figure, and thus the higher bar should apply), but they would still have to show the harm to Nakamoto's reputation, leading to the same problem as the false light issue.

Also, Nakamoto's lawyers would likely have to show that Newsweek knew the story was wrong (which doesn't appear to be the case) or that it was "negligent" in reporting the story. While I think we agree that Newsweek was sloppy and there was just generally bad reporting and bad conclusions involved, to reach the level of negligence is not easy.

And here's where it gets even more difficult for Nakamoto. As we've discussed many times in the past, California (thankfully!) has a strong anti-SLAPP law that protects publishers from being sued in an attempt to silence their reporting on issues of public interest. We're big fans of California's anti-SLAPP laws and you'd have to imagine that Newsweek would seek to be protected under that law. And, the bigger issue for Nakamoto is that under California's anti-SLAPP law, if Newsweek were to win, it can go after Nakamoto for its legal fees. And, the law actually would allow Newsweek to go even further, and file a SLAPPback lawsuit, to seek compensatory and punitive damages (though, that might be a longshot for Newsweek).

As ridiculous as the original article was, and as sympathetic as I may be to Dorian Nakamoto's situation, it's difficult to see how his lawsuit has much of a chance. Conceivably, there could be other claims made, or additional evidence that Nakamoto's lawyers think they have on Newsweek, but it seems like a massive longshot and a situation that could potentially create more legal headaches for Nakamoto than it solves.

Filed Under: anti-slapp, bitcoin, california, defamation, dorian nakamoto, false light, inventor, leah mcgrath goodman, satoshi nakamoto, slapp
Companies: newsweek