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defamation law

Trump Destined to Lose First Amendment Fight

The Economist has an analysis of the legal consequences of Republican presidential nominee Donald Trump's increasing attacks on the media. The magazine notes that he has said he would open up libel law to make it easier for public figures to sue for defamation. But The Economist notes that U.S. Supreme Court rulings, including New York Times v. Sullivan, have made the protection of the freedom of the press "strong and well entrenched."

However, Supreme Court Brief's Tony Mauro recently noted that there is a case pending before the Supreme Court which could test the New York Times v. Sullivan precedent. The court has not yet granted allocatur in Armstrong v. Thompson

Online Reviews Protected Speech, Appellate Court Rules

Submitted by Amaris Elliott-Engel on Sun, 03/20/2016 - 14:09

The Oregon Supreme Court has ruled that a negative review of a wedding venue is protected by the First Amendment. In doing so, the court also set precedent for how to distinguish whether speech is protected opinion or a defamatory assertion of fact.

Justice Richard C. Baldwin, writing for the court, applied a Ninth Circuit test in Unelko Corp v. Rooney: "whether a reasonable factfinder could conclude that an allegedly defamatory statement touching on a matter of public concern implies an assertion of objective fact and is therefore not constitutionally protected." The Oregon Supreme Court set out a three-part test to answer that question: 1) whether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; 2) whether the defendant used figurative or hyperbolic language that negates that impression; and 3) whether the statement in question is susceptible of being proved true or false.

The defendant was a wedding guest who made a negative review of the venue on Google Reviews, including complaining that the owners were rude, the owners made wedding guests leave 45 minutes early and that the bridal suite was "'a tool shed that was painted pretty.'"

The case is only the second time that the Oregon Supreme Court has applied the U.S. Supreme Court's ruling in Milkovich v. Lorain Journal Co., which held that, in determining whether a defamatory statement is constitutionally protected, it must be decided if a reasonable factfinder could conclude that the statement implies an assertion of objective fact about the plaintiff. The Oregon Supreme Court decided to follow the Ninth Circuit's test in Unelko and found that the review did not imply an assertion of objective fact and instead was an opinion on a matter of public concern. 

The trial court struck down the wedding venue's defamation lawsuit under Oregon's anti-SLAPP law, but the Oregon Court of Appeals reversed.

Washington's Anti-SLAPP Law Found Unconstitutional

The Washington Supreme Court has ruled that state's law allowing defamation defendants to get cases thrown out early violates the constitutional right to a trial by jury, the Volokh Conspiracy's Eugene Volokh reports. The anti-SLAPP law says defamation plaintiffs can only move forward with their cases if they can show they would prevail by clear and convincing evidence, and the Washington Supreme Court said this stringent standard violates the right to a jury in civil cases. Volokh notes that many other states have anti-SLAPP statutes that only require judges to determine if the plaintiffs has "stated and substantiated a legally sufficient claim," not to weigh evidence.

Blogger Ordered to Pay $3.5 Million in Defamation Suit

Alabama blogger Roger Shuler has been ordered to pay $3.5 million in damages in a defamation lawsuit, Alabama Media Group's Kent Faulk reports. The lawsuit was brought by a former campaign manager for Alabama Attorney General Luther Strange over Shuler's posts about an alleged affair between Strange and the campaign manager. He also alleged that Strange was the father of the campaign manager's son.

Shuler  already spent five months in jail before agreeing to remove his posts about the son of a former governor.

Sixth Circuit Rules Falsely Linking Candidates to Political Positions Isn't Defamation

The Sixth Circuit has ruled that a congressman wasn't defamed when an anti-abortion advocacy group falsely tied his vote in support of Obamacare to supporting abortion, Courthouse News' Kevin Koeninger reports. Steven Driehaus, a pro-life Democrat, lost reelection, and he filed a complaint with the Ohio Election Commission, alleging that the Susan B. Anthony List group falsely advertised that his vote in support of Obamacare supported "taxpayer-funded abortion." Even if the SBA List's statements were actually false, the former politician couldn't prove that SBA List knew the statements were false or entertained serious doubts as to their truth, the Sixth Circuit ruled.

Judge Rules Anti-SLAPP Law Doesn't Apply to the Media

After a Georgia state-court judge ruled that the state's law protecting speech related to government proceedings doesn't protect a TV station from a defamation lawsuit, many in the media bar are concerned that his ruling, if upheld, could threaten the freedom of press, The Daily Report's Kathleen Baydala Joyner reports. The TV station reported that the plaintiff faked having a Purple Heart to get a free military award license plate. A petition for certiorari is pending with the Georgia Supreme Court on whether the anti-SLAPP statute applies to the case.

Is There a Right to Be Free From Blasphemy?

Does the right to free speech and free thought end where someone else's freedom of thought and freedom of speech start?

The issue is not an academic one with the killing of several Charlie Hebdo cartoonists and journalists in Paris and with a liberal Saudi Arabian blogger sentenced to 10 years imprisonment, 1,000 lashes, and a 1 million Saudi riyal fine (roughly $266,000) for insulting Islam, Foreign Policy's Michael Wahid Hanna reports. The Organization of the Islamic Conference has promoted the notion of defamation of religion as a cognizable legal concept, Hanna reports, but "international human rights law remains quite clear on the impermissibility of such discriminatory measures." However, laws against blasphemy, apostasy or defamation are not rare: "In 2011, the Pew Research Center’s Forum on Religion and Public Life found that nearly half the countries in the world have laws or policies that penalize blasphemy, apostasy, or defamation," Hanna further reports.

He argues that blasphemy laws are problematic because they chill free thought and inquiry and because authoriarian counties use such laws to suppress minority rights and punish nonconfirmity.

Lawyer Says Pa. Supreme Court Justice Cleared by FBI

According to Pennsylvania Supreme Court Justice Seamus P. McCaffery's lawyer, the justice has been cleared by the FBI in an investigation about fees paid to McCaffrey's wife and chief judicial aide, Lise Rapaport, by law firms for case referrals, The Legal Intelligencer's Gina Passarella reports. The revelation came as part of arguments held on whether preliminary objections should be granted in a defamation lawsuit brought by McCaffery and Rapaport against the Philadelphia Inquirer and the Philadelphia Daily News for coverage of the referral-fee issue. The U.S. Attorney's Office for the Eastern District of Pennsylvania and the FBI did not confirm or deny the status of the investigation.

The plaintiffs argue that the articles falsely suggest that McCaffery's decisions on the court were tainted by the referral fees, while the defense argue that the press' job is to highlight potentially problematic actions of public officials, The Legal further reports.

Blogger Released After 'Unconstitutional' Pre-Publication Restraining Order

Alabama blogger Roger Shuler was released last month after he spent five months in jail for refusing to delete allegedly defamatory posts about a lawyer and the son of a former Alabama governor, Reporters Without Borders reports. Shuler finally asked his wife to remove the articles in order to get out jail, but his release is conditional.

Reporters Without Border said that the court order "'constitutes prior censorship. It is unacceptable that this blogger has had to renounce his freedom to inform for the sake of his physical freedom.'"

New York Times v. Sullivan Still Going Strong to Protect Media in the Digital Age

Yesterday was the 50th anniversary of the New York Times v. Sullivan ruling, which led to greater protections for the media from being sued for defamation by public officials and public figures like celebrities, the Associated Press says. The "case applies equally to new media such as Twitter, Facebook and blogs," AP further reports. First Amendment lawyer Bruce W. Sanford told AP that there may be fewer libel cases because the Sullivan rule is widely accepted and because there's a greater opportunity to respond to untruths in the digital world.


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