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Friday, August 17, 2007

On the Rutgers' player's defamation case against Imus

On Overlawyered, my very ethical and articulate lawyer friend

frivolous. As I argued (from a decidedly minority position) in last night's OTB web broadcast, however, I think it's a very plausible case — indeed one of "defamation per se" under long-established common law.

David ultimately ended up conceding at least my point that "[f]ifty years ago, Vaughn would have won easily on these facts." But at a minimum, he's still unconvinced that in today's coarse world, she was genuinely damaged, or that calling someone a "ho" is anything more than a generalized insult like calling someone an SOB. In any event, I enjoyed the civil back and forth with David, so I commend the post and its comments to your attention there, rather than trying to summarize them further here. As always, gentle reader, it is for you to make up your own mind whose arguments you find persuasive, and to what extent.

Posted by Beldar at 05:50 AM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to On the Rutgers' player's defamation case against Imus and sent a trackback ping are listed here:

» "Nappy-headed ho's" = defamation? from Overlawyered

Tracked on Aug 21, 2007 2:12:23 PM


(1) stan made the following comment | Aug 17, 2007 12:20:47 PM | Permalink

I think the worst part of this whole mess was when the coach and school had a nationally televised press conference for the players to complain that their feelings were hurt. The players would have been much better served by the adults who guide them if they had been told to ignore Imus and respond to any media inquiries by saying that they had no intention of letting some fool's blather hurt them.

(2) DRJ made the following comment | Aug 17, 2007 5:23:32 PM | Permalink

She'd win in my community, which I guess proves what a 1950's kind of place I live in.

(3) Supremacy Claus made the following comment | Aug 17, 2007 9:22:46 PM | Permalink

Beldar: Address Hustler Mag v Falwell.


(4) Beldar made the following comment | Aug 17, 2007 9:47:28 PM | Permalink

Ms. Vaughn's claim and Hustler Magazine v. Falwell, 485 U.S. 46 (1988), are not even remotely similar to one another.

Falwell was a public figure under N.Y. Times v. Sullivan, meaning that to prevail on his defamation claim, he had to show actual malice (i.e., "knowledge that the statement was false or [made] with reckless disregard as to whether or not it was true"). The jury found that he had not met that standard, and so ruled against him on his defamation claim. However, the jury ruled in Falwell's favor on a different claim, "intentional infliction of emotional distress."

The Supreme Court held:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

Ms. Vaughn isn't a public figure, nor even a "limited purpose public figure" (as I explained in this comment over on Overlawyered). As such, Imus can have no defense based on the First Amendment. She need not allege or prove actual malice to recover on her defamation claim (although I suspect she probably could meet that hurdle if the law did require it of her). And at least according to press accounts, she's not suing for intentional infliction of emotional distress, either.

Additionally, there was no allegation in the Hustler piece that Falwell was a criminal. Rather, it took the form of a mock interview with Falwell, patterned after a recent series of Campari Liqueur "first times" advertisements, in which Falwell purportedly describes a "drunken incestuous rendezvous with his mother in an outhouse." A footnote and the issue's cover page confirmed that the ad was a fictional parody. Nowhere does the SCOTUS opinion suggest that Falwell had pleaded a defamation per se claim based on allegations of sexual impropriety; that doesn't surprise me, because in the mid-1980s, most states' then-existing caselaw included a defamation per se category for statements that a woman was unchaste, but nothing with respect to males. It's only been fairly recently that courts have begun referring to "sexual improprieties" on behalf of either sex as the last category of per se defamatory statements.

And one last thing: Some legal pundits and scholars (e.g., here) have suggested that there should be a "parody/satire" defense to defamation because of First Amendment concerns. They argue by analogy from Campbell v. Acuff-Rose Music Inc. But Campbell is a copyright case; the issue was "fair use," not actual malice; and Justice Souter's ruling wasn't based on the First Amendment. Even if some later court should invent such a defense for defamation cases, surely it could only apply in cases involving public figures. In other words, being funny, or unsuccessfully trying to be funny, ought not give anyone a license to call private persons a criminal or otherwise defame their characters.

(5) Supremacy Claus made the following comment | Aug 17, 2007 10:48:02 PM | Permalink

Beldar: By this blog, aren't you a public figure? Vaughn is a million times more famous than you are, counting the total audience watching her play ball, being interviewed. She may be more famous around the world than Falwell.

The reasonable person standard of today does not allow of any per se defamation. All those anger management courses have taught everyone that. Big lawsuits for insults should be just against public policy, and waste the court's time. Those are two good reasons for summary dismissal.

What damage has she suffered, besides being rescued from obscurity? Shouldn't she produce a person who subsequently and mistakenly thought her morals to be loose as a result of the Imus remark?

She may owe Imus for the free advertising. Should Vaughn get a favorable verdict on the defamation claim, the value of the benefit should be subtracted. The benefit may far outweigh the damage.

No one has addressed the legal status of the republishers which are numerous. Please, note your blog above, over which you had control, in contrast to the comments.

Lastly, if you were plaintiff attorney, what would you warn Vaughn about before letting her sign the complaint?

(6) Gregory Koster made the following comment | Aug 17, 2007 11:05:15 PM | Permalink

Dear Mr. Dyer: I read your replies at OVERLAWYERED, and conclude you are fortunate to need only one hour of sleep at night...

a) I think what a lot of us nonlawyers are having trouble with is the notion that calling someone a crook is a slam dunk winner in a defamation case. I can only say if such is true, all of society should drop everything it is doing and hie off to the trial courts. This has not happened. Ergo, something is not adding up. It could be that it is my inadequate understanding. I just can't believe that defamation law is as stacked against free speech as your explanation makes it seem.

b) I don't think your Duke case analogy works very well, because of the sheer scale of difference. Speaking of armaments, Imus fired a pellet gun. Duke University a full broadside from the MISSOURI. I think there is more than just a difference of scale involved. The laws rightly differentiates between a punch that merely inflicts pain, and one that through ill luck or design, kills. So too, it seems to me, for defamation.

c) I don't agree that fifty years ago, she would have won automatically as the OVERLAWYERED fellow argued. Shucks the Chicago TRIBUNE wrote that the original Henry Ford was an anarchist in 1916. Ford sued for libel, demanding a million bucks. After a trail that gave a lot of cheap amusement to the cynics and made Barnum and Bailey envious, the jury found for Ford and awarded him---six cents. More amusement. What kind of victory is it that gives you six cents? So, too, with this lawsuit.

d) Sure, the Rutgers players have every right to sue. How much they will win is a matter for the jury. You rightly pointed out that as time goes on, the case will blur in many people's minds, so that a cloud might settle on the players, despite Imus's groveling. So this gives them another reason to sue. But following that logic, at least one of the players is now going to be identified in a portion of the public's mind as someone greedy for money, by suing a deep pocket. That she realized this and went ahead anyway is going to mark her still more. She has a case; according to you she has the law on her side. Is what she is doing wise? Ask us in ten years, when we know if she won six cents or six million.

On your blogroll, take a look at the spelling of the link for Megan McArdle's blog.

Many thanks as always.

Sincerely yours,
Gregory Koster

(7) Supremacy Claus made the following comment | Aug 17, 2007 11:05:29 PM | Permalink

Beldar: Saw your pic with Knievel from 1978. You have been in the paper. Falwell covers you, and a million times more so covers Vaughn.

How is it possible to be in the paper, and not be a public figure?

By filing a splashy lawsuit, how has one avoided inserting oneself into a public controversy?

I am not being sarcastic. I really do not know, and would like to hear your arguments.

(8) Beldar made the following comment | Aug 18, 2007 12:12:19 AM | Permalink

Mr. Koster: Thanks for the spelling pointer; I blush. I needed to change her URL anyway, because she's moved.

Henry Ford, although a brilliant industrialist, was also a notably nasty man — an unabashed, notorious racist and anti-semite. It is likely that the jury concluded that his reputation was already so tarnished that it could hardly be damaged any further; and although the case you refer to long pre-dated N.Y. Times v. Sullivan, the verdict may also have reflected the jury's common-sense appreciation that public figures ought to have thicker skins than private ones.

You are entirely correct that initiating legal proceedings may keep wounds from scabbing over, expose embarrassing skeletons in her closet (if any exist), subject her to intense attacks from Imus' lawyers, and, as a practical matter, increase her public notoriety. That is exactly the sort of thing that I would counsel privately with a client like her about before filing suit, to ensure that she could make an informed decision in weighing those risks against the benefits of potentially clearing her name and recovering money damages. Alger Hiss and Oscar Wilde both famously started off as defamation plaintiffs, and ended up as convicted criminals.

Supremacy: The paragraph just above answers your last question, I think.

"Public figure" for purposes of defamation law has a very specific meaning. Being in a newspaper or on TV isn't enough. Per Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974)(citations omitted; emphasis added):

An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, the public's interest extends to "anything which might touch on an official's fitness for office .... Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character."

Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment....

Since then, courts have been pretty careful not to let the exception swallow the rule.

Even though I am not a public official, I almost certainly am a "limited purpose public figure" with respect to anything I might write here on legal and political topics because I have regularly and repeatedly and deliberately "thrust [myself] to the forefront of particular public controversies in order to influence the resolution of the issues involved." If Newsweek were to write of me, for instance, "Bill Dyer and the SwiftVets jointly sold cocaine in elementary school playgrounds to finance their attacks on John Kerry before the 2004 election," for instance, I'd probably have to satisfy the "actual malice" requirement before winning my defamation lawsuit against Newsweek. If Newsweek just wrote, "Bill Dyer sells cocaine in elementary school playgrounds," however, my blogging wouldn't much relate to that, and I probably wouldn't have to show actual malice.

Ms. Vaughn, by contrast, didn't choose to be thrust to the forefront of any particular controversies. Imus did that for her — or, she would contend (and I would agree) to her. See also my comments here. Filing a lawsuit to recover damages inflicted upon you as a private party doesn't convert you into a public figure either.

Regarding republication: That's a complicated subject, but basically, Imus is deemed to have been able to expect that his remark would be widely re-circulated, based on his own notoriety and the nature of the remark. He's responsible for reputational damages, then, with respect to people who didn't hear his original show, but only learned of his comment when it was reported by others. They, by contrast, are generally not going to become liable for repeating the remark so long as they make it clear that it was him who said it, and so long as they don't endorse or adopt it.

The suggestion that she "owes Imus for the free advertising" is profoundly offensive, as I'm sure you'll conclude after further reflection. Just ask yourself if you'd want your child (or sister or mother) called a "ho" on a national radio show. A crack like that from one of Imus' lawyers, or from him, during the trial could result in an enormous punitive damages verdict.

(9) Supremacy Claus made the following comment | Aug 18, 2007 12:33:08 AM | Permalink

The Gertz Court provided this collateral "test" of being a public figure:

"The first remedy of any victim of defamation is self-help - using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. 9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater."

Vaughn had good access to the media, across the world.

If my daughter, a Rice student, were defamed this way on national radio, as reasonable people in 2007, we would all have a hardy laugh, have custom T-shirts made with the epithet, and hand them out to her friends as party favors.

The main, unstated trigger for the lawsuit was the $20 mil CBS contract settlement.

(10) Beldar made the following comment | Aug 18, 2007 1:00:27 AM | Permalink

Supremacy, that's not a "collateral test," that's part of the explanation for the holding. The Rutgers team had substantially better media access after Imus called them "ho's" than beforehand, that's certainly true. And their press conference constituted a reasonable effort to mitigate their own damages. Tort law imposes that duty on potential plaintiffs. Like Imus' apology, that's all grist for the mill of what would be an appropriate award of damages. It has nothing whatsoever to do with whether she was or wasn't a "public figure" for defamation law purposes at the time Imus first made his remarks, however.

It's great that you and your daughter are so secure in yourselves. Not many people are. I don't think many parents would make up t-shirts to hand out saying that their daughters are whores, but if that's your cup of tea, more power to you. I pass by the Rice campus frequently; I can't say I've seen one like that there, but Rice students are known for their offbeat sense of humor.

Imus was a rich man long before the CBS settlement. He's presumably richer now, probably because he slandered these athletes, which is a repulsive thought. Defamation cases typically have a very short statute of limitations — one year in most states. It's possible that Ms. Vaughn's lawsuit was tactically timed. But it had to be brought soon, or not at all. That Imus has money doesn't give him a license to commit defamation (although solvent parties are always more likely to be sued for the torts they commit than insolvent ones are).

I see from your new blog that you have, umm, issues with the legal profession. "The law student is undergoing indoctrination by a criminal cult enterprise." Wow. That's fine too, I guess. Given the obvious strength of your feelings, I'm grateful that your comments here have been civil, and I wish you luck, sir (or ma'am, as the case may be).

(11) Supremacy Claus made the following comment | Aug 18, 2007 1:36:16 AM | Permalink

Perhaps, one day, you can explain how bright people come to believe in the supernatural core doctrines of their profession, mind reading, future forecasting of rare accidents, standards of conduct based on fictional characters, the belief that the gut feelings of twelve people off the street is a valid truth detector.

I am open to alternative explanations to criminal cult indoctrination. You entered 1L a well educated person. You emerged believing in magic. That requires explanation.

I would appreciate your being the first lawyer to ever answer this question.

Were you told the true meaning of the word, reasonable, in law school? It means, in accordance with the New Testament, in violation of the Establishment Clause. If it does not have that very specific definition from St. Thomas Aquinas and Scholasticism, then it means, anything the judge feels like at the moment. That makes it void for vagueness.

I am more than civil. I am loving of the lawyer. Who else but a loving person would take the effort to correct the profession to this depth?

These concepts permeate the Imus case, and all other cases. They are really big problems in this secular nation with an Establishment Clause. That Medieval praxis you lawyers do to this day is unbearable. It must go.

(12) Gregory Koster made the following comment | Aug 18, 2007 1:44:03 AM | Permalink

Dear Mr. Dyer: No! Henry Ford's rep as an anti-Semite comes from the notorious newspaper he controlled, the Dearborn INDEPENDENT, which he bought in 1918. The verdict came down in 1919, before the INDEPENDENT achieved notoriety. In any case, anti-Semitism was not nearly so damaging to personal reputation in those days as it is now. This was the era that:

a) had plenty of classfied ads for rental houses that ended, "Christians only." No Jews etc. need apply.
b) this was also the era in which the second incarnation of the Ku Klux Klan was gaining steam. This incarnation of the Klan was far more anti-Jewish and anti-Catholic than its ancestor or descendent.
c) Ford's rep was high enough to have talk of him running for the Presidency in 1924. I would characterize this talk as being in the same category and weight as all the talk about Condoleezza Rice being a candidate for President in 2005-6.

No, what did Ford in was good old fashioned vanity. During the trial, Ford was repeatedly asked to read from documents. He always declined, saying he didn't have his spectacles. After a time, the TRIBUNE's lawyers thought, hmm, the old boy can't read, that's why he's refusing. So they asked Ford point blank: Can you read at all? Ford said Yes, but still refused to read aloud the document they gave him, saying he had hay fever and would make a botch of it. The defense said, you refuse to read, even though it leaves a terrible impression that you do not know how? Ford: You can leave it that way. You see what I mean when I said that Barnum & Bailey were jealous.

Sincerely yours,
Gregory Koster

(13) Beldar made the following comment | Aug 18, 2007 1:54:25 AM | Permalink

I think I've now exhausted the bounds of civil discussion that's reasonably pertinent to the topic of this post with you both, Supremacy and Mr. Koster, so I hope you'll forgive me if I don't try to make further substantive replies. Let's give others a chance to weigh in, if they choose — on topic, please (as fascinating as cults and Henry Ford may be).

(14) Supremacy Claus made the following comment | Aug 18, 2007 9:01:22 AM | Permalink

Beldar: Thank you for your hospitality.

Vaughn, if a public figure, would have done better with her lawsuit in England.

(15) John made the following comment | Aug 18, 2007 11:14:50 PM | Permalink

What about Richard Jewel (sp?)
Re: Olympic bombing?

(16) Supremacy Claus made the following comment | Aug 19, 2007 10:00:25 AM | Permalink

Beldar: This case will give us guidance about extreme, hypertrophied, lawyer rent seeking in NY.


Name calling cases wastes the court's time. The plaintiff and the attorney should pay double all costs from personal funds. To deter.

I see no difference between this silly case and Vaughn's. Both heap more opprobrium on the ridiculous legal system.

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