No 'Air Jordan' to Help, 7th Cir. Slam Dunks Scottie Pippen's Libel Suit

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The United States Court of Appeals for the Seventh Circuit this week upheld the trial court's dismissal of former Chicago Bulls great Scottie Pippen's defamation suit against several broadcasting and Internet defendants who allegedly erroneously reported he had filed for bankruptcy.

In the nine-page ruling in Pippen v. NBC Universal Media LLC et al (Case No. 12-3294), Judge Frank Easterbrook said the Basketball Hall of Fame Forward had failed to satisfy the elevated burden of proof of actual malice that public figures must meet in defamation claims, which means showing that the media defendants published the purportedly false statements knowing they were untrue or with reckless disregard of their truth or falsity.

The 48-year-old Pippen filed suit in 2011 in the United States District Court for the Northern District of Illionis (see "TUOL" post 12/29/11) alleging that the defendants falsely reported that he had sustained $120 million in financial losses and had filed for bankruptcy, which he claimed cost him fees from endorsements and personal appearances.

"Since Pippen's opportunities diminished after the statements were made," Judge Easterbrook wrote, "he believes they must have diminished because the statements were made. This theory of causation is weak for professional athletes, whose earnings related to past stardom drop as time passes since their playing days."

Judge Easterbrook's opinion also rejected Pippen's argument that the defendants were liable for not correcting the false information about his financial well-being in online accounts. "[E]xcluding the Internet from the single publication rule would eviscerate the statute of limitations and expose online publishers to potentially limitless liability," Judge Easterbrook concluded.

Under the single publication rule, subsequent circulation of an allegedly libelous story does not create fresh claims of defamation; rather, the claim for relief for defamation is complete when the initial publication occurs. Evidently, Pippen's  court appearances require Michael Jordan and Phil Jackson to be successful.

Tip of the hat to THR, Esq. Web site for its full-court press on this story.

Federal Judge Blots Out Noted Art Authenticator's Libel Suit

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In a 51-page ruling in Biro v. Conde Nast et al. (Case No. 11-civ.-4442), United States District Court for the Southern District of New York Judge J. Paul Oetken tossed a defamation claim brought by a forensic art expert arising from an unflattering 2010 article in The New Yorker.

David Grann, author of the article, The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art, was sued for defamation by Canadian art authenticator Peter Paul Biro, as was The New Yorker's publisher, Conde Nast, and in subsequent amended complaints, Gawker Media, Business Insider, among others. The 16,000-word article casts a suspicious eye on Biro's methodology that matched fingerprints on artwork to the artists who painted the pieces.

Oetken, who according to accounts by Courthouse News Service and The New York Times, has been widely published in scientific journals and often lectures at universities, was deemed a limited public figure by the Court. Judge Oetken ruled Biro failed to meet the elevated burden of proof of actual malice in his defamation claim or show that Grann fabricated quotes or relied on "wholly unverified or patently unreliable sources" in preparing The Mark of a Masterpiece.

In granting the defendants' motion for judgment on the pleadings, Judge Oetken found: "There is little question that a reader may walk away from the article with a negative impression of Biro, but that impression would be largely the result of statements of fact that Biro does not allege to be false."  Attorneys for the plaintiff plan to appeal the ruling to the United States Court of Appeals for the Second Circuit.

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.

UPDATE: 'Boston' Rocker Scholz Loses Boston Herald Libel Suit

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Suffolk County Superior Court Judge Frances A. McIntyre yesterday dismissed the defamation lawsuit brought by Tom Scholz, co-founder and keyboardist/songwriter of legendary rock band Boston, against the Boston Herald and two of its gossip columnists based on allegations concerning the March 2007, suicide of the band's lead singer, Brad Delp, according to reports in the Boston Globe and Boston Herald.

Scholz sued the tabloid in 2010 for defamation and intentional infliction of emotional distress, alleging that Fee & Raposa, who penned the Herald's Inside Track gossip column, implied he was to blame for Delp taking his own life, by quoting Delp's former spouse Micki, who said the singer was despondent over Boston's long-ago breakup and subsequent changes in the band (see "TUOL" posts 9/15/11 & 3/18/10). Scholz claimed the defendants made up the quotes attributed to Micki Delp and suggested that personal problems contributed to Delp killing himself, including his fiancee's purported infidelity and the discovery that Delp allegedly secreted a camera in the bedroom of his fiancee's younger sister.

In the 24-page opinion in Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee  & Laura Raposa (Case No. 10-1010), Judge McIntyre wrote that Scholz could neither prove nor disprove what prompted Delp to commit suicide, and "[a]ny views on the subject necessarily would be opinions." That is critical in defamation cases, which are rooted in false statements of fact, because, as Judge McIntyre noted, "an opinion cannot be false; the free expression of opinion on any matter of public interest is constitutionally protected by the First Amendment. Therefore, the publication by these media defendants of their opinion about the cause of Delp's suicide is not vulnerable to a claim of defamation."

Although acknowledging that Delp's suicide was a "private tragedy," Judge McIntyre wrote that "for the public who cared about him during his life, his death was an issue of public concern." The Herald account of the decision noted that the court rejected Scholz's assertion that the defendant columnists fabricated remarks attributed to Micki Delp. Among the alleged defamatory statements was a headline, "Pal's snub made Delp do it; Boston rocker's ex-wife speaks."

Boston's 1976 debut album sold 17 million copies, the second-biggest debut in U.S. rock history, according to the Globe article. The band's hits included Don't Look Back and Peace of Mind.

Scholz's counsel said his client has yet to decide whether to appeal Judge McIntyre's decision. If he decides to pursue an appeal, as a public figure saddled with the heightened defamation burden of proof of actual malice, Scholz is going to have to show by More than a Feeling that his reputation was sullied by false assertions.

UPDATE: Fed Appeals Court Rules No Actual Malice in Judge's Libel Suit

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In its 39-page decision in The Hon. Leon A. Kendall v. The Daily News Publishing Co. d/b/a The Virgin Islands Daily News (Case No. 11-4162), the United States Court of Appeals for the Third Circuit last week upheld the Virgin Islands Supreme Court's dismissal of a V.I. Superior Court Judge's defamation suit based on a series of 16 articles and an editorial that ran in the newspaper from 2006 to 2009.

The appellate court found that Judge Kendall, who filed suit in October 2007, and retired from the bench in 2009, failed to prove that the daily published the articles with actual malice, that is, knowing that the alleged defamatory statements were false or with reckless disregard of the offending material's truth or falsity.

An eight-member jury awarded Judge Kendall $240,000 in damages after a 12-day trial in March 2010, (see "TUOL" post 3/18/10), but a couple of months later, the court granted the defendants' motion for a directed verdict based on its finding of insufficient evidence to enable a reasonable juror to side with the plaintiff. Judge Kendall appealed to the Virgin Islands Supreme Court, which upheld the dismissal of the defamation suit.

The plaintiff's claims, in part, were based on the defendant's coverage that was critical of Judge Kendall's handling of a couple of criminal cases. An April 2007, article, according to the plaintiff's complaint, defamed him by inferring that Judge Kendall knew of an arrestee's violent past, but granted bail to the man who subsequently murdered a 12-year-old girl. The 3rd Circuit panel concluded that Judge Kendall did not prove the paper published the article with knowledge of its defamatory meaning or in reckless disregard of its known defamatory meaning.

NY App. Court Affirms Dismissal of Journo's Libel Suit

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In Farber v. Jefferys et al (2013 NY Slip Op. 01044), the N.Y. Appellate Division last week upheld Supreme Court Judge Louis B. York's dismissal of a defamation claim by journalist/author Celia Farber against HIV/AIDS researcher Richard Jefferys.

Beginning in the 1980s, Farber covered the AIDS epidemic for Spin Magazine and subsequently wrote several books on the subject. A lightning rod, she stirred controversy in a 2006 Harper's Magazine article that attacked AIDS activists, drawing rebukes from activists and researchers of the disease.

Semmelweis Society International honored her for the Harper's piece, prompting Jefferys to email the organization, alleging that Farber was a liar and had misrepresented published papers on the topic and doctored quotes, according to the plaintiff's Complaint. Judge York granted a summary judgment motion dismissing her complaint.

The appellate panel agreed with Judge York that Farber had failed to meet the elevated burden of proof of actual malice to sustain her defamation claim because, regarding the HIV/AIDS controversy, she was a limited public figure who "voluntarily injected herself into the controversial debate on whether HIV causes AIDS with a view toward influencing the debate." The court found that she failed to prove by clear and convincing evidence that the defendants knew or should have known the alleged offending statements were false or made with gross irresponsibility.

Additionally, the court ruled that Jefferys purportedly calling Farber a liar was not actionable as defamation, but rather, constituted opinion. "[E]ven if plaintiff were correct about her work," the court wrote, "she can point to no evidence that would establish actual malice or gross irresponsibility."

Tip of the hat to the Reporters Committee for Freedom of the Press (www.rcfp.org) for flagging this decision. When it comes to journalists, actual malice is a better shield than a sword.

Holistic Healer Laying Hands on $1m Defamation Judgment from Minn. ABC Affiliate

Image via WikipediaABC Minnesota affiliate KSTP-TV will appeal a $1 million defamation judgment--the largest such award against a broadcaster in the state's history--awarded to a Wisconsin naturopathy healer for a 2009 story alleging she told a client to discontinue taking an anti-anxiety medication.

According to reports by Associated Press and the Reporters Committee for Freedom of the Press Website (www.rcfp.org), the healer, Susan Anderson, then-known as Susan Wahl, denied dispensing that advice to Cheryl Blaha, and, after a five-day trial, a Dakota County (Minn.) jury agreed, awarding Anderson $100,000 consequential damages for lost past and future income, and $900,000 in damages based on a finding that the broadcaster acted with actual malice in airing the story in March 2009. The jury passed on awarding the plaintiff punitive damages.

In the KSTP story, Blaha, also a defendant in the case along with her spouse, claimed she attempted suicide after heeding the healer's alleged advice to cease taking the anti-anxiety medication.  The jury found the tv station failed to verify Blaha's allegation, noting the absence of a medical record reflecting a suicide attempt, along with testimony from the woman's physician that he recommended she stopping taking the drug at issue.

The station is appealing the verdict, both claiming that it fairly reported both sides of the story and that the mammoth jury award was unsupported by the evidence.

N.J. Court Finds Donald Trump Lacks Appeal

Image via WikipediaIn a 30-page opinion issued this week, the Appellate Division of the Superior Court of New Jersey upheld a trial judge's dismissal of  real estate magnate/"The Apprentice" reality TV star Donald Trump's 2009 $5 billion defamation suit against the author and publisher of TrumpNation: The Art of Being the Donald for writing that Trump was not a billionaire.

The 63-year-old Trump, through his attorney, assesses his personal worth as exceeding $7 billion, but then again, Trump also claimed that investigators he hired had scoured Hawaii and were going to blow the lid off President Barack Obama's birth certificate. TrumpNation author Timothy O'Brien estimated Trump's net worth as somewhere between $150 million and $250 million. A New Jersey Superior Court judge last May granted summary judgment for the defendants, holding that Trump, a public figure, could not show "actual malice," that is, that the defendants published false statements about him with knowledge of their falsity or with reckless disregard of the truth or falsity of the statements. Trump's attorneys argued that the defendants' reliance on anonymous sources constituted actual malice.

In Donald J. Trump v. Timothy O'Brien, Warner Book Group, Inc. and Warner Books Inc. (Docket No. A-614108T3), the appellate panel affirmed the lower court's ruling, stating: "There were no significant internal inconsistencies in the information provided by the confidential sources, nor was there 'reliable' information that contradicted their reports, so as to provide evidence of actual malice. Nothing suggests that O'Brien was subjectively aware of the falsity of the source's figures or that he had actual doubts as to the information's accuracy."

The New Republic Has Fewer Editorial Staffers

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Five editorial staffers at The New Republic, including senior editor Christopher Orr, have been let go in the face of slumping ad sales and ciruclation.

The center-left semi-monthly politics and arts magazine, which was co-founded by Walter Lippmann in 1914, is reducing its workforce by between 10 to 15 percent. Frank Foer stays on as editor, but some staffers, although still listed in the masthead, will become freelancers. The New Republic is owned by Marty Peretz and in 2007, had a circulation of roughly 60,000.

Actual Malice Claim v. CBS May Proceed

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A U.S. District Court Judge for the District of New Mexico has ruled that a jury could find actual malice against CBS, giving the go-ahead to a defamation suit brought by a procurement assistant at Los Alamos National Laboratory.

The case, Lillian Anaya and Mel Anaya v. CBS Broadcasting, Inc., et al (No. 06-0476) involves several broadcasts alleging that Mrs. Anaya used $30,000 in government funds to purchase a customized Ford Mustang. The court allowed in part, and denied in part, the defendants' motion for summary judgment, holding that the plaintiffs could pursue punitive damages based on certain statements that aired in follow-up stories. In a 107-page opinion, the court also found that Mrs. Anaya, though initially a private individual when the accusations initially were broadcast, became, for defamation purposes, a limited public figure plaintiff in late 2003 and early 2004 because she sought out the news media to clear her name.

CBS reported that Mrs. Anaya was the target of an FBI probe for allegedly using a government credit card to purchase the Mustang. Court documents claim that an internal inquiry concluded that Mrs. Anaya provided the credit card information via fax to a Mustang dealership in the mistaken belief that she was ordering equipment from a government vendor, unaware that the vendor's phone number had changed and was now a car dealership.

The Court found that the CBS reporter in one story showed footage of a customized Mustang while doing a voiceover stating Mrs. Anaya purchased the vehicle with taxpayer money, despite evidence suggesting no car had been purchased and that the evidence, "supported, at most, an allegation she attempted to charge a car, and the attempt was stopped." The court will allow a jury to decide whetherr CBS intentionally took the report out of context.