UPDATE: DC Appeals Court Upholds Dumping Birther's Defamation Suit Against Esquire

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The United States Court of Appeals for the D.C. Circuit last week in Farah et al. v. Esquire Magazine (Case No. 12-7055) upheld a lower court decision granting summary judgment to Esquire Magazine in a defamation suit brought by the author and publisher of a book questioning the U.S. citizenship of President Barack Obama.

Writing for the appellate court, Judge Judith W. Rogers said a post by Esquire that offended publisher Joseph Farah and author Jerome Corsi was protected political satire. Reasonable readers of the defendant's Politics Blog would not take the article as factual, the court ruled.

"Satire," Judge Rogers wrote, "is effective as social commentary precisely because it is often grounded in truth." United States District Court for the District of Columbia Judge Rosemary Collyer last year dismissed the plaintiffs' lawsuit, finding they had failed to state a claim (see "TUOL" post 6/7/12).

The appellate court ruling did not reach the question of the viability of Esquire's anti-SLAPP defense.

Oregon Judge 'SLAPPs" Lawyer; Let's Out a Yelp

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In Daniel Bernath v. Tabitha J. & Yelp, Inc. (Case No. 1305-06167), Multnomah County (Ore.) Circuit Court Judge Henry Kantor last week granted Internet Service Provider Yelp!'s Motion to Strike a defamation lawsuit brought by an attorney irate over a client's negative review of his legal services.

A Eugene, Oregon, resident identified as Tabitha J. was sued by Bernath after her negative Yelp! post. Judge Kantor, noting that the review involved a matter of public interest, ruled that Yelp! was shielded from liability both by Oregon's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [ORS 31.150] and Sec. 230(c) of the Communications Decency Act.

Dentists, realtors and restaurateurs stung by negative Yelp! postings are among those who have sought recourse in court (See, e.g., "TUOL" posts 4/24/13 & 2/11/13), usually, unsuccessfully because of the CDA protection accorded ISPs in Sec. 230(c): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Tip of the hat to (blogericgoldman.org) Eric Goldman's Technology & Marketing Blog for following the case.

Texas Appeals Court Tosses Defamation Suit Against Local TV Station

A three-judge panel for The Court of Appeals for the First District of Texas last week ruled that a trial court erred in denying a local television news station the use of the state's anti-SLAPP ("Strategic Lawsuits Against Public Participation") law as a defense in a defamation claim by the founder of a school for special needs students.

Justice Jim Sharp wrote the 21-page opinion in KTRK Television, Inc. v. Theaola Robinson (Case No. 01-12-00372-CV) that decided the station should have been able to invoke the Texas Citizens Participation Act ("TCPA") [Tex. Civ. Prac. & Rem. secs. 27.001-011] in its defense against the plaintiff's December 2011, lawsuit alleging she was defamed by reports aired by the ABC affiliate that purportedly accused her of embezzling $3 million in state funds. The station was covering a dispute between the Texas Education Association and Benji's Special Education Academy, the charter school Robinson founded in 1980.

"The reports did not say or imply that the entire $3 million in state funds had been misappropriated or embezzled," Justice Sharp wrote. "Rather, the statements speak to the insufficiency of financial records to account for spent state funds."
                                                                           
The appeallate panel said the plaintiff's defamation claim lacked sufficient proof and should have been dismissed under the TCPA.  (Tip of the hat to the Reporters Committee for Freedom of the Press Web site, www.rcfp.org, for reporting on the case.)

                                                                              

UPDATE: Calif. Appeals Court Allows Ryan O'Neal Libel Suit to Proceed

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In the 7-page decision, Ryan O'Neal v. Craig Nevius (Case No. B238640), the California Second Appellate District Court has ruled the actor and long-time boy friend of the late Farrah Fawcett may proceed with his defamation case against a producer who alleged he stole an Andy Warhol painting from the actress' estate.

As reported by the THR, Esq. blog, the appellate court upheld an earlier trial court finding that denied the defendant's attempt to dismiss O'Neal's complaint under the state's anti-SLAPP law [Calif. Code Civ. Proc. sec. 425.16], ruling: "There is at least minimal merit to the defamation claim to satisfy the evidentiary standard to defeat an anti-SLAPP motion."

O'Neal sued Nevius for defamation and intentional and negligent infliction of emotional distress, seeking more than $1 million damages. (See "TUOL" post 7/18/11). Both Good Morning America and Star Magazine reported--purportedly based on information provided by Nevius--that after Fawcett died of anal cancer in 2009, O'Neal concealed a Warhol portrait of her valued at $30 million in his home that was uncovered after daughter Tatum O'Neal repeated the allegation in her autobiography, Found. The University of Texas, to which Fawcett bequeathed her art collection, sued O'Neal to recover the silkscreen portrait that he insists is his.

The appellate decision sends the case back to the trial court.

Seattle TV Station Defeats Defamation Claim

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In an 18-page ruling in U.S. Mission Corp. v. KIRO-TV, Inc. (Case No. 66868-4-1), Washington Court of Appeals Judge C. Kenneth Grosse this week upheld a trial court's dismissal of a defamation claim against a Seattle television station filed by a transitional housing service, the Reporter's Committee for Freedom of the Press Web site (www.rcfp.org) reported.

The local tv news station reported in 2010 that U.S. Mission Corporation allegedly solicited door-to-door contributions using transitional shelter residents, some of whom allegedly had criminal records. Judge Grosse sided with KIRO-TV, finding that investigative reporter Chris Halsne's story was substantially true, even though some of his statements, such as contending the plaintiff "'recruited' felons and sent 'bevies' of felons into neighborhoods," were not literally true.

The court ruled that the plaintiff failed to prove it was harmed by the station's story. In affirming the trial court's grant of summary judgment to the defendant, Judge Grosse did not rule on the parties' arguments regarding the constitutionality of Washington's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [RCW 4.24.525].

UPDATE: Sherrod Defamation Claim Moves Forward

(Photo credit: Wikipedia)Shirley Sherrod, former U.S. Dept. of Agriculture director for rural development, is getting closer to having her day in court.

The United States Court of Appeals for the D.C. Circuit denied the plaintiff's motion to affirm the trial judge's denial of a motion to dismiss Sherrod's defamation suit against the late conservative blogger/journalist Andrew Breitbart, according to the Reporters Committee for Freedom of the Press Web site (www.rcfp.org). The appellate court referred defendants' motion to dismiss to the merits panel assigned to the case. A year ago, United States District Court for the District of Columbia Judge Richard J. Leon, in Sherrod v. Breitbart et al. (Case No. 00015711), said defendants Breitbart, Lawrence O'Connor and their BigGovernment.com Web site could not rely on the District of Columbia's anti-SLAPP law ("Strategic Lawsuit Against Public Participation") [D.C. Law 18-0351]. (See "TUOL" post 8/1/11.)

Sherrod claims she was defamed by a YouTube video of a speech she delivered that she alleges was unfairly edited by the defendants to portray her as a racist. Her attorneys argue that the D.C. anti-SLAPP measure is inapplicable in federal court. The Court of Appeals ruling said the merits of the parties' opposing positions are not dispositive and do not warrant dismissal of the suit at the present juncture of the case.

The appellate court also refused to consolidate Sherrod's action with another defamation suit before the court that involves an anti-SLAPP defense.

Will Oregon Twibel Case Proceed to Trial?

Image via WikipediaThe Multnomah (Ore.) County Circuit Court this month may hear Darm v. Craig (Case No. 1107-08823), Oregon's first Twitter-based defamation ("Twibel") trial in which Jerrold Darm, a physician at the Aesthetic Medicine spa in Tigard, Oregon, is seeking $1 million in damages to his reputation against blogger Tiffany Craig, according to a report on the OregonLive.com Website.

According to the OregonLive account, the 62-year-old Darm's suit is based on June 2011, postings by the defendant in which she allegedly described him as "ubiquitous" because of his spa's extensive television advertising and allegedly alluded to a decade-old disciplinary action taken against Darm by the Oregon Medical Board ("OMB"). Darm alleges that the defendant posted that he sought sex in exchange for treatment.

Reportedly, Darm was reprimanded in 2001 for violating the state's Medical Practices Act and was subjected to an order mandating interviews with the probationary board, mental health reviews, mandatory enrollment in risk management and doctor boundaries courses and required chaperones when Darm saw female patients. The OMB lifted the order in 2009.

According to Darm's suit, the OMB-imposed discipline for an "inappropriate boundary violation" and for "unprofessional or dishonorable conduct," made no mention of sexual relations with patients as he alleged the defendant's blog and Twitter posts suggests. Craig's attorney in August filed a motion to dismiss the suit with the court under the state's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [ORS 31.150], which contends that the plaintiff's lawsuit infringes on Craig's First Amendment rights to address a matter of public concern. The defendant's counsel claims Craig's postings were substantially true and included a hyperlink to OMB documentation.

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.

UPDATE: City Paper Tries to "SLAPP" Away Redskins' Owner's Libel Suit

Image by Getty Images via @daylifeThe Washington CityPaper last week filed a motion to dismiss Washington Redskins' owner Dan Snyder's defamation suit against it (see "TUOL" posts 4/27/11, 2/3/11), according to The Washington Post.

Snyder sued the paper and its parent, Atalaya Capital Management LP, in February 2011, regarding an unflattering portrayal of the owner entitled "The Cranky Redskins Fans Guide to Dan Snyder," written by defendant Dave McKenna that was published in November 2010. The CityPaper's motion to dismiss filed in Superior Court relies on The District of Columbia Anti-SLAPP Act of 2010 [D.C. Law 18-0351], enacted by Congress, which also stays Snyder's discovery against the defendants.

Anti-SLAPP ("Strategic Lawsuits Against Public Participation") measures are intended to deflect litigation aimed at intimidating and silencing critics concerning matters of public concern through the threat of costly lawsuits. The CityPaper claims a letter from Snyder's counsel to Atalaya in November 2010, that demanded an apology and retraction and addressed the prospect of legal action supports the anti-SLAPP argument.