Appeals Judge Won't Allow Fox Chicago Affiliate to SLAPP Away Libel Suit

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In James Ryan v. Fox Television Stations Inc. et al (Case No. 10 L 006258), Illinois appellate court Justice Maureen Connors this week upheld a lower court ruling denying WFLD Fox News Chicago a route to escape a $28 million defamation suit filed by enraged Judge James Ryan via Illinois' anti-SLAPP ("Strategic Lawsuit Against Public Participation") statute [735 Ill. Comp. Stat. 110/15].

As reported by the THR, Esq. Web site, circuit court judge Ryan was reassigned after being one of the judges targeted in a four-part investigative report by the Chicago Fox affiliate regarding judges' purported lax work habits. The series featured sheriff's logs allegedly depicting courtrooms closing early during work hours and employed hidden cameras to show judges sunbathing and engaging in other decidedly non-jurist activities.

Ryan's suit was prompted by footage allegedly showing a car in the driveway of his home during daytime work hours as narration suggested Ryan had left the courthouse early. Unfortunately for Fox, it was Ryan's neighbor's home and vehicle that was featured in the account.

Ryan sued for defamation, invasion of privacy and intentional infliction of emotional distress and Fox offered an anti-SLAPP defense, which is intended to derail intimidating lawsuits designed to stifle free speech about issues of public interest. Although Justice Connors ceded that a news story in furtherance of free speech was the type of activity warranting anti-SLAPP protection, she ruled against Fox because she didn't believe Ryan's lawsuit was without merit.

Though she tweaked her judicial colleague by questioning how the $28 million damages amount he is seeking could be "factually justified," Justice Connors expressed doubt that Fox's story was "substantially true." She wasn't sold on the proposition that Ryan not being present in courtroom at certain hours equated to neglecting his judicial duties, writing in her opinion that "a judge's official duties do not require a constant presence in the courtroom itself at all times, or even in the courthouse."

Mom & Daughter Give Ex a Good SLAPP in Online Libel Suit

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In Chaker v. Mateo, Cal. App. 4th (Case No. D058753 (2012)), the court granted defendants' anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to defeat an online defamation claim. But the underlying principle of the case decided earlier this month and reported by www.findlaw.com is that Hell hath no fury like an ex-girlfriend and her mother scorned.

A brief dalliance by Darren Chaker and Nicole Mateo produced a child, bitter paternity and custody battles, and two women determined to employ an Internet Web site to share their impressions of the plaintiff.

Negative comments about Chaker's character and his forensics business appeared on a Web site that invited consumers to evaluate the honesty and reliability of service providers and businesses.

When Chaker found comments on the site branding him a criminal, drug-using deadbeat dad whose business engaged in fraudulent conduct, he surmised that Nicole's mom, Wendy, didn't think too highly of him. He also alleged in his defamation suit that Nicole weighed in with negative comments as well. Wendy responded to the suit with an anti-SLAPP motion pursuant to Calif. Code Civ. Proc. sec. 425.16.

The anti-SLAPP analysis requires a court to find that a defendant's actions were in furtherance of her constitutional right of free speech regarding a matter of public concern and that the plaintiff has a likelihood of prevailing on his claim.  In this case, the judge concluded that the offending statements were made in a public forum about a matter of public interest and that Chaker couldn't sustain his burden of proving defamation.

Apparently, in this Internet age, a bouquet of flowers and saying "it's not you, it's me" to a jilted significant other just doesn't cut it.

UPDATE: SLAPPing a Birther: Judge Tosses Defamation Suit Against Esquire

In a 20-page Memorandum of Decision in Joseph Farah et al. v. Esquire Magazine et al. (Case No. 11-cv-1179), United States District Court for the District of Columbia Judge Rosemary Collyer this week dismissed a defamation suit brought by a publisher and the author of a book questioning President Barack Obama's U.S. citizenship against Esquire magazine over a satirical post (see "TUOL" post 7/6/11).

Farah, creator of WorldNetDaily.com and political science Ph.D. and professed investigative reporter Jerome Corsi, author of Where's the Birth Certificate? The Case That Barack Obama Is Not Eligible to Be President, sued Esquire magazine and blog poster Mark Warren for defamation, false light invasion of privacy, interference with business relations and violation of the Lanham Act [15 U.S.C. sec. 1125(a)], seeking $285 million in actual, compensatory and punitive damages over a post in the Politics Blog of Esquire.com that appeared May 18, 2011.

The plaintiffs support the position of  the so-called "Birthers" who believe President Obama does not satisfy the requirement set forth in Article II, Sec. 1 of the U.S. Constitution that a president be a Natural born citizen or U.S. citizen. Soon after President Obama released his long-form birth certificate from Hawaii, Warren wrote a post headlined: BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!. Two hours after his intial post, Esquire published another item noting that Warren's piece was intended as satire.

In her decision, Judge Collyer said the Lanham Act count was inapplicable because it covers only commercial speech, not non-commercial satirical content such as the Warren post. She granted the defendants' motion to dismiss the suit under Washington, D.C.'s anti-SLAPP ("Strategic Lawsuits Against Public Participation") statute enacted in 2010 [D.C. Code sec. 16-5501], which enables a party to fend off lawsuits filed by one side of a political or public policy debate in an attempt to stifle speech presenting an opposing view.

The judge noted that satire is protected First Amendment speech and that the blog post at issue was clearly satire because it was denoted as humor, contained an exaggerated, decidedly un-newslike headline sporting an exclamation point, and used the same siren logo employed by conservative blogger Matt Drudge. Judge Collyer also pointed out that Dr. Corsi himself had originally dismissed Warren's post as a poor attempt at satire.

The plaintiffs' attorney reportedly plans to appeal the dismissal.

EFF Opposes Forum Shopping in Online Defamation Suit

(Photo credit: ElectronicFrontierFoundation)The Electronic Frontier Foundation ("EFF"), a nonprofit online free speech advocate, wants a California federal court to retain a defamation suit into which a federal judge in Illinois has inserted himself, the Courthouse News Service reports.

The United States District Court for the Central District of California is where plaintiffs last month initially filed an 18-page Complaint alleging, among other counts, defamation, trade libel and trademark infringement in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-04095). McFadden, a VH1 tv reality star of House of Consignment, alleges the defendant's blog posts amounted to cyberbullying and harmed her eBay business by accusing McFadden of engaging in "shill bidding", a practice that artificially inflates a product's value.

Since then, however, the plaintiffs obtained a temporary restraining order from United States District Court for the Northern District of Illinois (Eastern Division) Judge Matthew F. Kennelly prohibiting the defendant from levying "shill bidding" allegations against the plaintiffs in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-036323).

Enter the EFF, which has filed a 16-page amicus curiae brief urging that the case remain in California and that the court deny plaintiffs' motion to dismiss the California case without prejudice. The crux of the EFF's argument is that the plaintiffs are seeking to move to Illinois to avoid California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute and the United States Court of Appeals for the Ninth Circuit's free speech-friendly approach toward the Communications Decency Act. The EFF asserts transferring the case from California would have a chilling effect on free speech.

No Anti-SLAPP Shield for CNN in News Captioning Lawsuit

Seal of the en:United States District Court for the Northern District of California (Photo credit: Wikipedia)A United States District Court for the Northern District of California judge last week denied a motion by CNN to strike a complaint against it by the Greater Los Angeles Agency on Deafness ("GLAD"), ruling the cable news network's reliance on California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [Cal. Civ. Proc. Code sec. 425.16] was improper.

In her 19-page decision in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. (Case No. 3:11-cv-03458], U.S. Magistrate Judge Laurel Beeler rejected CNN's attempted anti-SLAPP defense. The statute affords a party the right to strike a complaint against it based on "an act in furtherance of [the party's] right of petition or free speech under the United States or California Constitution in connection with a public issue."

GLAD sued CNN on behalf of 100,000 deaf or hearing-impaired Californians for failing to provide captioning for online video content. Like CNN, no other major news network captions online videos.

The defendant argued its choice not to caption online videos constituted editorial discretion protected by the First Amendment and the anti-SLAPP legislation. Judge Beeler, however, said the plaintiff's action was grounded in discrimination and not based on CNN's protected speech or petition activity.

Tip of the hat to the Reporters Committee for Freedom of the Press Website (www.rcfp.org) for its coverage of the case.

UPDATE: Ill. High Court Slaps Down Anti-SLAPP Defense in Coach's Libel Suit

Image via WikipediaDefendants in a defamation suit brought by a former high school basketball coach may not rely on their state's anti-SLAPP(Strategic Lawsuits Against Public Participation) statute to defeat the claim, the Illinois Supreme Court ruled this week.

Steve Sandholm was let go by the local school board in 2008 as Dixon High School's basketball coach because his coaching style allegedly included verbally abusing and bullying players (see "TUOL" post 10/28/10). He filed  defamation and false light claims against a group of parents, bloggers and a radio station who had criticized him, but the trial court and the Appellate Court of Illinois Second District both ruled the defendants were protected by the state's anti-SLAPP measure, the Citizen Participation Act [735 Ill. Comp. Stat. 110/1 et seq.] ("CPA") in Sandholm v. Kuecker et al. (Case No. 08-L-19).

As reported by the excellent Reporters Committee for Freedom of the Press Web site (www.rcfp.org), the Illinois Supreme Court found the CPA could not derail Sandholm's suit, which the Court said did not seek to suppress constitutionally protected speech, but rather, sought recovery for harm to his reputation. "If a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts, and thus, does not constitute a SLAPP," according to the Supreme Court opinion, "it is irrelevant whether the defendants' actions were 'genuinely aimed at procuring favorable government action, result or outcome.'"

The CPA  is intended to promote citizen involvement in government without fear of retaliation in the form of SLAPP suits, which are very costly to defend against.

UPDATE: 'Bruno' as Hard as 'Borat' to Defeat in Court

Cover of Brüno [Blu-ray]English actor/comic Sacha Baron Cohen was engaged in protected First Amendment speech when an improvised scene involving his film character "Bruno" disrupted a charity Bingo game and sparked a lawsuit by a woman who blamed the actor for injuries she sustained, according to reports by Associated Press and The Hollywood Reporter's law blog, THR, Esq.

California's 2nd District Court of Appeal in Los Angeles said an 11-count complaint brought by Richelle Olson and her spouse Lance Olson against Cohen, NBC Universal, Cold Stream Productions, LLC and others two years ago should be dismissed (see "TUOL" post 6/8/09). Mrs. Olson, the former executive director of Desert Valley Charities that staged the Bingo game, sued for assault and negligence, among other claims, alleging Cohen was responsible for injuries she suffered when she fell and struck her head shortly after grappling with the actor as she tried to regain the microphone he was using to call a ribald version of Bingo.

Olson originally had consented to allow Cohen to film the Bingo game in May 2007, as part of  the movie Bruno that focused on a gay Austrian fashion designer, but objected when the actor graphically linked the numbers he was calling to homosexual relationships in which his character had been involved. The unscripted scene was not included in the final version of the comedy film.

The defendants filed an anti-SLAPP (Strategic Law Against Public Participation) against the plaintiffs, asserting that Cohen's zany conduct advanced free speech.  The appellate court agreed, saying Cohen was offering commentary on homophobia and gay stereotypes during the scene at issue, which is protected  speech under the First Amendment.

The plaintiffs are likely to be socked with the defendants' legal costs.

California Appeals Court Backs Talk Radio Yakker's Anti-Slapp Defense to Libel Claim

Image via WikipediaIn Michael J. Rood v. Steve Yuhas (Case No. D056840), an appellate panel of California's Court of Appeal Fourth Appellate District Division One unanimously held that a talk radio commentator was shielded from a libel claim by a former school principal by the state's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [CCP sec. 425.16].

In 2008, former principal Rood sued talk radio commentator Yuhas of A.M. 600 KOGO after the latter reported on an alleged audit involving whether Rood had used school resources to solicit ads for a gay magazine. Yuhas considered the publication at issue pornographic, and voiced his opposition to the principal's alleged conduct after confirming the existence of the inquiry and interviewing school district officials, among other background research.

Yuhas invoked the anti-SLAPP law, which protects journalists who provide a "fair and true report" of legislative, judicial or other official proceedings. Rood contended the audit did not constitute such a proceeding or investigation implicating the statute, thereby exposing Yuhas to personal liability, but the appellate court disagreed.

Pursuant to California law, the appellate panel concluded, "the record adequately supports Yuhas's claims that he was given facially reliable information, investigated and learned of an official District proceeding that involved Rood, sufficient to assert these privileges."

Rood had appealed a trial court's dismissal of the gist of his libel suit based on the anti-SLAPP defense.

Federal Judge Whistles Beckham Offsides on Call Girl Depo Request

Image via WikipediaU.S. District Court for the Central District of California (Western Division) Judge Manuel L. Real has shot down soccer great David Beckham's motion to depose pre-discovery ex-high-priced hooker Irma Nici, a defendant in his $25 million defamation suit against the publisher of In Touch Weekly.

As reported by Matthew Heller on onpointnews.com, Beckham sued based on a graphic article in the October 4, 2010, issue of In Touch entitled "David's Dangerous Betrayal," that alleges Beckham had sexual liaisons with Nici--who purportedly once worked as a $10,000-a-night prostitute-- in London and New York City, including a "girl-on-girl" show involving another prostitute.  The magazine paid Nici $50,000 for her exclusive story, but Beckham, who is married to former Spice Girls chanteuse Victoria Posh Spice (Adams) Beckham, denies even having met Nici.

The lawsuit, David V. Beckham v. Bauer Publishing Co. et al. (Case No. 2:10-cv-07980-R) includes a cross-complaint by Nici against Beckham. Bauer, which is based in Germany, filed a motion under California's anti-Slapp ("Strategic Lawsuit Against Public Participation") statute [Cal. Civ. Proc. Code Sec. 425.16] to strike the complaint on free speech grounds, asserting that the story involves a matter of "public interest."

Beckham's attorneys argued that deposing Nici and In Touch Weekly's editor was necessary to prepare a response to the anti-SLAPP motion. Judge Real, however, disputed that call, ruling that Beckham's request was a "fishing expedition" that  failed to satisfy the legal goal, as it were, of showing the discovery was essential to opposing the anti-SLAPP motion.

The 35-year-old Beckham is a midfielder for the LA Galaxy in Major League Soccer and a former Manchester United star.

Ill. Appeals Court Slam Dunks Ex-Hoops Coach's Libel Suit

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The Appellate Court of Illinois Second District this week in Sandholm v. Kuecker et al. (Case No. 08-L-19) affirmed the trial court's dismissal of a defamation and false light suit by a former high school basketball coach against a group of parents critical of his coaching style.


In a 49-page opinion, the appellate court upheld the lower court's rejection of the plaintiff's constitutional challenge of the state's anti-SLAPP (Strategic Lawsuits Against Public Participation) measure, the Illinois Citizen Participation Act ("ICPA") [735 Ill. Comp. Stat. 110], which the trial judge cited in throwing out the suit on the basis that it chilled free speech.  Writing for the court, Justice John J. Bowman said the ICPA "provides a qualified privilege, granting more protection for speech than the common law provides, when the speech occurs in the exercise of the right to participate in government."


Sandholm coached the Dixon High School boys basketball team until the school board unanimously voted not to renew his contract in April 2008, in response to criticisms concerning his coaching style, which purportedly involved verbally abusing, discouraging and bullying team members.

Wash. Court Sides with Filmmaker Moore in Anti-SLAPP Suit

Image by shannonkringen via FlickrControversial filmmaker and political activist Michael Moore, 56, stands to receive $10,000 and attorneys' fees after a U.S. Magistrate Judge for the U.S. District Court for the Western District of Washington tossed invasion of privacy and misappropriation of likeness claims against him.

Magistrate Judge Karen Strombom's 17-page decision in Ken Aronson v. Dog Eat Dog Films, Inc. (Case No. C10-5293) applied for the first time Washington's revised anti-SLAPP (Strategic Lawsuits Against Public Participation) statute in ruling against Aronson, whose voice and image appeared in a 71-second snippet of Moore's Oscar-nominated documentary Sicko, which focused on the U.S. health care system.


Aronson's 1997 London footage of his friend Eric Turnbow sustaining a shoulder injury after walking on his hands appeared in Sicko without Aronson's knowledge or consent, though Turnbow executed a waiver. Aronson is heard singing Oh England Here We Go in the footage.


Copyright claims remain unresolved between the parties.  Washington was in the vanguard of anti-SLAPP legislation, though 28 jurisdictions have enacted such bills, which are intended to derail meritless lawsuits that threaten the exercise of free speech. 

SJC Rules Anti-SLAPP Statute Inapplicable to Reporters

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Massachusetts' anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, M.G.L. c. 231, sec. 59H, does not protect reporters, ruled the Supreme Judicial Court today in Fustolo v. Hollander [SJC-10485].

Steven Fustolo, a real estate developer who owns several properties in Boston's historic North End, claims he was defamed by a series of articles in the Regional Review written by former reporter Fredda Hollander, a community activist, who along with spouse William Lee, is active in the North End Waterfront Residents' Association.  Hollander responded to Fustolo's allegations that she stirred public sentiment against him in the series of articles that forced him to scuttle building projects by filing a motion to dismiss the defamation suit pursuant to M.G.L. c. 231, sec. 59H, which states in part: "In any case in which a party asserts that the civil claims...against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss."

SJC Justice Margot Botsford's opinion noted that the anti-SLAPP statute applies only to citizens' rights to petition government for redress of a perceived grievance, and does not encompass articles about the issue. Journalists are not defenseless, the SJC pointed out, citing the seminal libel case, New York Times v. Sullivan, 376 U.S. 254 (1964), which affords First Amendment protection to reporters against frivolous suits.