What It Means to Lose a Libel Case

 (Photo credit: Al Jazeera English)

The ramifications of bringing an unsuccessful defamation suit hit home this week for Yasser Abbas as counsel for the media defendant are asking the court for more than $200,000, according to the blog of the Legal Times (Legaltimes.typepad.com).

Abbas is appealing the trial court's dismissal of his defamation claim against Foreign Policy magazine regarding a June 2012, article. Abbas is the son of Palestinian Authority President Mahmoud Abbas. Meanwhile, Williams & Connolly wants $100,481 in attorneys' fees and counsel for the article's author, Jonathan Schanzer, is seeking $107, 174 for his successful defense, according to Legal Times.

Inmate's Defamation Suit May Proceed, Federal Judge Rules

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Yorie Von Kahl, presently serving a life sentence in a Terre Haute (Ind.) prison for the 1983 fatal shooting of two U.S. Marshals in North Dakota, may pursue his libel claim against the Bureau of National Affairs ("BNA") Criminal Law Reporter ("CLR") concerning its alleged defamatory summary of his 2005 sentencing hearing, a federal judge ruled last week.

United States District Court for the District of Columbia Judge Richard W. Roberts, in  Yorie Von Kahl v. Bureau of National Affairs Inc. (Case No. 09-0635(RWR)), denied the pro se plaintiff 's libel per se claim, but also denied the defendant's motion for reconsideration, thereby upholding his September 2011, decision denying both parties' summary judgment motions.

At issue, according to a post by the Legal Times blog, is the CLR August 2005, account of Von Kahl's petition for writ of mandamus to the U.S. Supreme Court that discussed Von Kahl's sentencing hearing in 1983, writing "he showed not a hint of contrition" and indicating he justified the murders to the press based on his religious and philosophical tenets. Von Kahl claimed the CLR summary took statements actually made by a prosecutor and made it appear as if the judge at sentencing had made them in his ruling.

BNA ran a clarification in 2007 saying it was summarizing the judge's decision, but that hasn't prevented Von Kahl from filing suit that seeks a correction and damages of $10 million per count in his Complaint, which could buy a lot of cigarettes in the slammer.

"A trier of fact reasonably may conclude that such statements make plaintiff appear odious, infamous or ridiculous," Judge Roberts wrote in his decision allowing the suit to proceed. He did find Von Kahl to be a limited public figure, which means Von Kahl will have to satisfy the higher burden of proof of actual malice at his defamation trial.

Judge Roberts also said the media defendant may use the fair report privilege defense at trial, which shields media defendants who accurately report on information from public hearings or documents, but that the defense was inapplicable at the summary judgment stage. Judge Roberts specifically held that Von Kahl was not "libel proof." There are a smattering of cases that suggests individuals who engage in anti-social behavior such as committing multiple homicides are incapable of having their reputations besmirched, but Judge Roberts determined Von Kahl's criminal background didn't put him quite that low on the food chain.

When push comes to shove, "TUOL" suspects BNA will avoid liability both because of the fair report defense and because a comment about whether the criminal defendant did or didn't show contrition, regardless of who made it, constitutes non-actionable opinion. Cases such as these happen when inmates skip the weight room and thumb through law books in the prison library.

Appeals Court Weighs Release of bin Laden Death Photos

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A three-judge panel of the United States Court of Appeals for the District of Columbia last week heard arguments from a conservative watchdog group seeking to overturn a federal judge's refusal to order the U.S. Department of Defense to release graphic photos of the slain Al Qaeda leader Osama bin Laden.

In a 29-page Memorandum of Decision last year in Judicial Watch, Inc. v. United States Department of Defense (11-cv-00890), United States District Court for the District of Columbia Judge James Boasberg rejected a Freedom of Information Act [5 U.S.C. sec. 552 et seq.] request by conservative watchdog Judicial Watchdog, Inc. to release 52 images concerning the death and burial of bin Laden on the grounds that the depictions were inflammatory and posed a national security risk, (See "TUOL" posts 4/27/12, 1/30/12.)

The group made its case for reversal of the lower court decision before appellate justices Judith Rogers, Merrick Garland and Senior Judge Harry Edwards, according to a post by the Legal Times blog (www.Legaltimes.typepad.com). Justice Garland, in particular, appeared disinclined to undo Judge Boasberg's ruling, stating during oral argument that deferring to the government's determination that public distribution of the photos of bin Laden, who was killed during a Seal Team Six raid of Pakistan in May 2011, could incite riots among the terrorist leader's supporters seemed a sensible course, in view of the violent demonstrations touched off by editorial cartoon depictions of Islam prophet Mohammed.

Judicial Watch attorneys contend that the gruesome photos were improperly classified pursuant to procedural criteria set forth in a presidential executive order, the Legal Times post noted.

Libya Loses Cybersquatting Case

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In his 19-page decision last week in Libya & Embassy of Libya v. Ahmad Miski (Case No. 1:06-cv-02046), United States District Court for the District of Columbia Judge Reggie Walton sided with a domain name-holder, ruling that the North African nation failed to show "Embassy of Libya" or "Libyan Embassy" were entitled to trademark protection.

As reported by Legal Times, Libya sued Miski, executive director of the Washington-based Arab American Chamber of Commerce, for trademark infringement [15 U.S.C. secs.1125(a)(1)A,(B)] and violation of the AntiCybersquatting Consumer Protection Act [15 U.S.C. sec. 1125(d)]. The defendant in 2002 and 2003 purchased four domain names that combine the words embassy and Libya.

Judge Walton noted that the plaintiffs never registered the Embassy of Libya name for trademark protection, and failed to present evidence that the public was confused by the defendant's Web sites. Judge Walton held that the embassy's name was descriptive, rather than suggestive, and therefore, did not merit trademark protection. Descriptive names merely describe the essence of an entity, whereas suggestive names require consumers  to work harder to understand what the name or mark entails.

In ruling that Miski had done nothing illegal, Judge Walton wrote that the Libyan embassy also failed to show continuous use of its mark because it was unable to offer services during the 18 years that the U.S. imposed sanctions on the nation then ruled by Muammar Gaddafi, who was deposed and killed in a 2011 insurrection.

If you want to do business online with the Embassy of Libya, you have to go to www.libyausaembassy.com.

UPDATE: bin Laden Death Photos FOIA-Exempt

(Image credit: Getty Images via @daylife)

In a 29-page Memorandum of Decision in Judicial Watch, Inc. v. U.S. Department of Defense et al. (Docket No. 11-890-JEB), U.S. District Court for the District of Columbia Judge James Boasberg yesterday granted the government's summary judgment motion barring the public release of video and images of the shooting and burial of Osama bin Laden.

The plaintiff sued the government last May 2, the day after President Obama announced the killing of the al-Qaeda leader, for the release of images associated with his death under the Freedom of Information Act [5 U.S.C. sec. 552] (see "TUOL" post 1/30/12). As reported by Legal Times (www.Legaltimes.typepad.com), the CIA withheld 52 documents in response to the FOIA request, arguing release of the volatile classified bin Laden records posed a national security risk.

Judge Boasberg ruled "the CIA's explanation of the threat to our national security that the release of these records could cause passes muster." Judicial Watch has filed a notice of appeal to the United States District Court of Appeals for the D.C. Circuit.

Govt. Seeks to Keep a Lid on Graphic bin Laden Photos

Image via WikipediaThe U.S. Justice Department wants the United States District Court for the District of Columbia to back its efforts to keep graphic photos depicting the death of Osama bin Laden from seeing the light of day.

In a supporting memorandum to its summary judgment motion to the Court in the case of Judicial Watch, Inc. v. U.S. Department of Defense & Central Intelligence Agency (Case No. 1:11-cv-00890-JEB), the DOJ claims the grisly images must remain classified to prevent the incitement of violence against the U.S. their release might create. According to a post by the Legal Times Blog, the photos would reveal sensitive intelligence data and military methodology.

The plaintiff contends the CIA violated classification procedures and that the government agencies in queston conducted an inadequate search for material requested under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.]. Osama bin Laden, the leader of al-Qaida, was killed in May during a Navy Seal raid in Pakistan last May.

The photos at issue, according to the DOJ, include images of bin Laden's corpse and its burial at sea.

Federal Judge Upholds 1st Amendment: Defendant Was Talkin', Not Stalkin'

Image via WikipediaIn his 27-page Memorandum of Opinion in U.S. v. William Lawrence Cassidy (Case No. RWT-11-091), U.S. District Court for the District of Maryland Judge Roger W. Titus last week granted the defendant's motion to dismiss, ruling the First Amendment overrides harassment allegations based on offensive Tweets and blog posts.

As reported by the Legal Times blog (LegalTimes.typepad.com), Cassidy was indicted in February 2011, pursuant to a federal  interstate stalking statute [18 U.S.C. sec. 2261A(2)(A)], which originally was passed as a component of the Violence Against Women Act of 1994. The Electronic Frontier Foundation filed an amicus brief in support of the defendant.

The case arose from the defendant's introduction in 2007 to a Buddhist sect leader who was an enthroned tulku whose power was derived by lineage within her community. Cassidy had claimed the same status, which the other tulku questioned, prompting a Twitter and blog campaign by the defendant critical of the tulku and her place of worship, according to Legal Times.

Judge Titus ceded that the online assault by Cassidy may have caused the tulku emotional distress, but noted the government's indictment was not limited to unprotected speech, such as defamation, true threats or obscenity. Said Judge Titus: "The Government's Indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters."

Though prosecutors argued the First Amendment does not confer a right to harass or intimidate, Judge Titus said: "Twitter and blogs are today's equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim."



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Cigarette Cos. Hack at FDA Regs with 1st Amendment Lawsuit

Image via WikipediaFive tobacco companies have joined forces to file suit in the U.S. District Court for the District of Columbia to challenge the constitutionality of Food & Drug Administration regulations set to take effect in September 2012.

In R.J. Reynolds Tobacco Co. et al. v. U.S. Food & Drug Administration et al. (Case No. 1:11-cv-01482), Reynolds, Lorillard Inc., Santa Fe Natural Tobacco Co., Liggett Group LLC and Commonwealth Brands, Inc., claim their First Amendment rights would be violated by the Family Smoking Prevention and Tobacco Control Act of 2009 [H.R. 1256], which would require them to display graphic images of the health dangers of smoking in advertising and on their packaging.

First Amendment attorney Floyd Abrams, who represents the plaintiffs, told LegalTimes the FDA regs constitute anti-smoking advocacy by the government, rather than merely requiring disclosure of uncontroversial facts. Abrams told LegalTimes his clients' First Amendment rights would be infringed on if they were mandated to include information on their products urging the public not to purchase them.

Under H.R. 1256, the FDA includes nine warnings, including images of diseased lungs, a body on an autopsy table, and a quit-smoking hotline telephone number. Judge Richard J. Leon will hear the case.

UPDATE: Court Denies Breitbart Motion to Toss Sherrod Defamation Suit

Image by Getty Images via @daylifeU.S. District Court Judge for the District of Columbia Richard J. Leon last week issued orders denying motions to dismiss or alternatively, relocate Shirley Sherrod's defamation suit against Andrew Breitbart and Larry O'Connor, Legal Times reported.

Sherrod, the one-time U.S. Department of Agriculture director for rural development, in her complaint, Sherrod v. Breitbart et al. (Case No. 00015711), alleges she was defamed by conservative blogmeister Brietbart, his associate O'Connor and another whom she accused of "deceptively edit[ing]" a video clip of a speech she delivered in March 2010, that made her appear racist and discriminating against white farmers. (See "TUOL" post 4/20/11).

Though he did not issue a written opinion, Judge Leon denied the defendants' motion to relocate the suit to the U.S. District Court for the Central District of California where they reside and work. Judge Leon also refused to dismiss the defamation suit based on the defendants' argument that it violated their First Amendment right to free speech. The defendants unsuccessfully invoked the anti-SLAPP law recently enacted by the District of Columbia on March 31[D.C. Law 18-0351] that allows for dismissal of a lawsuit and a stay of discovery in cases in which parties contend they are being sued over protected speech.

The parties argued the motions before Judge Leon on July 19, according to the Legal Times article.

60 Minute Egg: Poultry Co. Scrambles to DC Circuit Court to Appeal Libel Dismissal

Image via WikipediaMar-Jac Poultry, Inc., v. Rita Katz et al (Case No. 11-0736), filed this week in the U.S. Circuit Court of Appeals for the District of Columbia Circuit, seeks to reinstate a defamation suit incubating since 2003 until U.S. District Court for the District of Columbia Judge Rosemary Collyer last month granted summary judgment to defendants Rita Katz and CBS News' 60 Minutes.

As reported by the Legal Times blog, the suit arose from a segment aired by the popular tv news magazine in May 2003, involving an interview with researcher and self-anointed terrorist hunter Rita Katz, appearing in disguise and using an alias. In the story, Katz allegedly made defamatory comments about the Georgia-based plaintiff, purportedly linking it to terrorist financing.  The poultry farm was not verbally identified by name in the story, though the Mar-Jac name was displayed.

In her 34-page Memorandum Opinion granting defendants' summary judgment motion (Mar-Jac Poultry, Inc. v. Rita Katz et al. Case No. 03-cv-2422-RMC), Judge Collyer said, based on the flamboyant Katz's account, "no reasonable jury could find Ms. Katz's statements about laundering money through misreporting dead chickens were anything but rank speculation, surmise or hyperbole, engendered, perhaps, by her thrill at being involved in an undercover capacity."  In other words, going undercover in a henhouse is exciting stuff for a researcher used to being cooped up, as it were.

The plaintiff hopes for a less fowl reception from the appellate court.