Love's pricey tweets

The Hollywood Reporter broke the news yesterday on its always entertaining Hollywood, Esq. (the intersection of entertainment and law) Web page that Courtney Love has settled a defamation case against her for a reported $430,000. The case arose from a series of tweets that Love posted on Twitter about fashion designer Dawn Simorangkir, the self-described Boudoir Queen whose online, one-line bio states "eccentric living is what I do best."


As reported by THR, Simorangkir became embroiled in a dispute with Love over a $4,000 payment for clothing, and accused Love of ruining her business with a series of allegedly defamatory tweets (including referring to Simorangkir as an "asswipe nasty lying hosebag thief”) posted during a "20 minute rant" in 2009.


In its article, THR reports that Love had argued in her defense that her rants were merely an expression of opinion, and that Simorangkir could not prove how they damaged her. The designer, it is reported, pointed to Loves's influence as an entertainer and the power of social media to disseminate damaging comments.


While Love might have felt that it was "Awful" that she was "Hit So Hard" by Simorangkir's suit, which Love, perhaps having thicker "Celebrity Skin" might have thought was "Uncool," THR reports that her lawyer is pleased with the deal, which he views as a modest payout because it is extended over the next few years.


It is reported elsewhere that while Love wanted the settlement to remain confidential, Simorangkir insisted upon going public, perhaps as a show of vindication. 


Simorangkir might even feel that the money she will receive and the publicity about the settlement is "Almost Golden."


Bonus First Amendment Trivia: Love was nominated for a Golden Globe for her performance in the 1996  film The People v. Larry Flynt, which is based in part on the legendary Supreme Court case Hustler Magazine, Inc. v. Falwell, and in which Love starred as Flynt's wife.

Recipe for dismissal

A New York state trial court this week tossed out a defamation claim brought by cookbook author Missy Chase Lapine against comedian Jerry Seinfeld, apparently concluding that Lapine's recipe for legal relief had the wrong ingredients.

The court's 24-page decision and order in Lapine v. Seinfeld also dismissed claims against Harper Collins, which passed on publishing Lapine's cookbook (later published by Running Press as The Sneaky Chef) and then published a cookbook by Seinfeld's wife, Jessica, Deceptively Delicious.

Both books offered ways to sneak veggies and other healthy foods into meals for kids.

Lapine alleged that Seinfeld used an appearance on the David Letterman show to launch an attack on Lapine due to mounting charges of plagiarism concerning Jessica Seinfeld's book. Lapine said in her complaint that on Letterman Seinfeld made outrageously false statements about her mental health. The allegedly defamatory statements included calling Lapine  "a wacko" and "a nut," stating that she was "angry and hysterical," and "a mentally unhinged stalker" of the Seinfelds, and observing that "many of the three-name people do become assassins."

The court noted that expressions of opinion are constitutionally protected, and then found it "inconceivable" that a reasonable viewer would believe that Seinfeld's statements conveyed facts about Lapine.

Lapine argued in opposing Seinfled's motion to dismiss that Seinfeld defamed her by conveying the "unmistakable message" to the TV viewers that "Lapine had fabricated opportunistic allegations of plagiarism against his wife."

In rejecting that argument, the court explained that Seinfeld's are protected not because they were made in a comedic context or were themselves comedy, but because they were statements of opinion that are not actionable as a mater of law.

The court concluded by stating that to decide otherwise in this case would deny "protection of the First Amendment to persons who publicly defend themselves against what they believe to be baseless public charges or lawsuits."

No chance for LaChance

In a to-the-point rescript opinion in Edward D. LaChance, Jr. v. Boston Herald et al.,the Appeals Court of Massachusetts this week affirmed a summary judgment dismissal of defamation and other claims brought by LaChance, an incarcerated prisoner, against the Boston Herald and one of its reporters.

In 2004, while serving a sentence for aggravated rape, LaChance placed a personal ad on a Web site known as “Inmate Connections” (in violation of prison rules barring maximum security inmates from Internet access). 

In 2005, the Herald published three articles on the topic of online “dating" by incarcerated felons. The articles variously stated—incorrectly—that LaChance had been convicted of manslaughter, that he claimed in his ad to be in prison for manslaughter, and that he had committed a brutal sexual attack on an elderly woman.

The Herald and its reporter concede that those assertions were factually inaccurate, in that LaChance was not in prison for manslaughter, did not make such a claim in his ad, and did not commit a crime against an elderly victim.

The trial court ruled that the alleged defamatory statements were either privileged or substantially true, and granted the defendants' motion for summary judgment.

In affirming the dismissal, the Appeals Court concluded that the newspaper articles at issue addressed matters of public concern—the dangers of interacting with violent felons online—and that as a result of his own actions—whereby LaChance thrust himself into a particular public controversy—LaChance was a limited purpose public figure. In arriving at that conclusion, the court noted that LaChance’s ad was misleading and controversial, finding particularly deceptive his assertion that, “I’m not a bad man and I treat everyone the way I wish to be treated.”

The court then turned to whether the subject statements were false and made with actual malice.

Although the articles contained inaccuracies (even a literal falsehood), the court concluded that such statements did not rise to the level of actionable falsity or defamation. The gist of the articles was accurate: inmate ads should not be trusted in general, and LaChance’s ad in particular was dangerously deceptive in that he withheld details of his violent criminal history and portrayed himself in a light that might seem more innocuous to potential respondents on the match-making site.

As LaChance offered no proof of actual malice—that is, that the statements were published with knowledge of falsity or reckless disregard for whether they were false—LaChance failed to carry his burden of proving actual malice.

Finally, the court rejected LaChance’s contention that the fair reporting privilege did not apply to his case. The published article contained a fair and accurate report of a court docket entry as it existed at the time of publication. Even though the entry was in error, it was not corrected until months after the publication of the articles, and the paper had no way of knowing about the error at the time of publication. As such, the reference to a brutal sexual attack on an elderly woman was, although inaccurate, privileged and insulated from a claim of defamation.

And to answer your question ("Who would represent this guy in a defamation case?") ... yes, LaChance represented himself. The media defendants were represented by Liz Ritvo.

Post-Season Play?

The Super Bowl is history, and pitchers and catchers have headed south for spring training, but for those of us keeping an eye on media and First Amendment issues, football is not yet out of the picture. At least not the off-field contest now being waged by Dan Snyder, principal owner of the Washington Redskins, against the Washington City Paper and related entities.

In his Complaint, Snyder alleges that the paper "has engaged in an ongoing campaign against [him] to smear his business and personal reputation through the publication of false and malicious articles ... ."  Snyder's "ability to turn the other cheek" allegedly was exhausted by a November 18, 2010, cover story, which he alleges provided "an 'encyclopedic tour' of the 'heinous deeds' and 'various perfidies of Dan Snyder'."

Snyder's complaint--which includes as an exhibit a copy of a November 24, 2010, letter sent by David P. Donovan, Redskins' General Counsel, to individuals associated with the paper's ownership group--apparently refers to the piece by columnist Dave McKenna, "The Cranky Redskins Fan's Guide to Dan Snyder." An online copy of that piece is dated November 19, 2010, and now includes a link to a letter from Amy Austin, publisher of the paper, concerning the legal action and a defense fund.

The paper is represented by Seth Berlin at the prominent media and First Amendment law firm Levine Sullivan Koch & Schulz. The paper's ownership group is represented by First Amendment powerhouse Floyd Abrams from Cahill Gordon & Reindell.

Now that Snyder has kicked off, stay tuned for details about the return by the defense. Given the First Amendment values here, I expect we will see a Statue of Liberty play at some point, and a strong blitz if Snyder regains possession.

No Sure Thing in Jersey

Earlier this week the Supreme Court of New Jersey heard oral argument in a case concerning the application of New Jersey's shield law to statements posted online by an independent, investigative blogger. The case is Too Much Media, Inc. v. Shellee Hale.


TMM is a New Jersey software company that provides software for Internet businesses, reportedly including those in the online adult entertainment business. 

Hale, a resident of Washington and former Microsoft employee, was investigating organized crime infiltration of the online porn industry, and had set up a Web site, Pornafia.com (which now forwards to shelleehale.com), to report on her investigative work.

Hale posted the remarks that are the subject of TMM's defamation action on a bulletin board of another site, Oprano.com, which describes itself as "the Wall Street Journal for the online adult entertainment industry." Hale allegedly accused TMM of engaging in fraudulent practices and of threatening the life of someone who divulged details of TMM's activities. 


In response to plaintiff's discovery seeking the identity of Hale's confidential source, Hale invoked the protection of the New Jersey shield law. The trial court and the lower level appeals court ruled against her.

At issue is whether a blogger such as Hale, who operated a Web site she claimed was intended for investigative reporting on issues of public importance, and who posted allegedly defamatory information about TMM on another Web site’s bulletin board, is a journalist entitled to the protection of New Jersey’s shield law and the First Amendment? Also at issue is whether the trial court erred in subjecting Hale to a preliminary hearing to determine whether she qualified for the protection of the statute.

You can read here an amicus brief filed in support of Hale by the Reporters Committee for Freedom of the Press, Gannett, and the Society of Professional Journalists . As noted in that brief, the New Jersey shield law was enacted in 1933 and is considered one of the strongest in the country.

An archived Webcast of the oral argument should be available here soon.

Stay tuned for more on the situation in New Jersey.

Do the right thing

Yesterday the Massachusetts Supreme Judicial Court heard argument in the case of Fustolo v. Hollander, SJC-10485. The underlying action involves a defamation claim brought by a real estate developer, Steven C. Fustolo, against Fredda Hollander, a reporter for a community newspaper, the Regional Review, and a neighborhood activist. Fustolo alleged that Hollander defamed him in five articles she wrote for the paper.

Hollander appealed from a denial by Superior Court Judge Geraldine Hines of her special motion to dismiss under the Massachusetts anti-SLAPP statute, G. L. c. 231, sec. 59H.

The Massachusetts ACLU, joined by the Citizen Media Law Project and the Lawyers' Committee for Civil Rights, submitted an amicus brief in support of Hollander's position.

Copies of the briefs submitted by the parties, and the amicus brief, can be found here.

Both Hollander's reply brief and the amicus brief, cite Joyce v. Slager, a case in which I successfully moved under the Anti-SLAPP statute for the dismissal of a defamation action against my clients, a newspaper and its publisher.

Click here for a link to the Webcast of the SJC argument.

Bottom line: Hollander should prevail in her appeal.

Nothing in the statue precludes its application to individuals or entities engaged in commerce. As Harvey S. Shapiro, counsel for Hollander, noted in his argument, the commercial context of Hollander's petitioning activity pales in comparison to the commercial nature of defendants in cases where the statue has been applied.

Second, nothing in the statute precludes the application of the statue to journalists or the media. If such a limitation is to be imposed--which I would argue it should not--it should be done by the legislature, not the courts.

Some of the questions from the bench seemed to suggest that if the Court acknowledged the application of the anti-SLAPP statue to journalists, then defamation law would be tossed aside.

Not so.

In arguing for a dismissal under the statute, a moving party first must establish that its conduct at issue in the defamation claim was petitioning activity. The opposing party then has the opportunity to show that the petitioning activity was devoid of any reasonable factual support or any arguable basis in law, and that the moving party’s acts caused actual injury to the opposing party. If the opposing party sustains that burden, then the special motion to dismiss will be denied, and the defamation case may continue.

Staples Nails Verdict

The National Law Journal reports that last week a jury sitting in the Noonan v. Staples case in federal court in Boston found that when Staples sent a mass email about a former employee's violation of company travel and expense policies it did not do so with actual malice.

Earlier this year the First Circuit Court of Appeals rejected a dismissal of the case against Staples, holding that the plaintiff could seek to establish a libel claim based on the publication of truthful facts if they were published with "actual malevolent intent or ill will." In so doing, the Court relied on an old Massachusetts law, G. L. c. 231, sec. 92, which provides that truth is a justification for a publication alleged to be libellous, unless it was published with actual malice.

The jury in the Staples case evidently found that there was no such "actual malice" on the part of Staples.

It is important to note that the use of the term "actual malice" in the 1902 Massachusetts statute long-predates, and should not be confused with, the the term "actual malice" used by the Supreme Court of the United States in the seminal 1963 case of New York Times v. Sullivan. In that case, the Court laid out constitutional standards to protect the press from defamation claims brought by public officials. holding that a public official could not recover for libel unless the plaintiff could show that the defamatory statement was made with "actual malice," which the Court defined as making the defamatory statement with knowledge of its falsity or with reckless disregard of whether it was true or false.


The Noonan case, of course, involved a private plaintiff and defendant.

Newspaper Wins Dismissal of Defamation SLAPP Suit

Statute applies to commercial media entities.
A Massachusetts trial court judge recently dismissed a defamation case brought by a police chief against my clients, a local newspaper and its publisher. The court’s decision in the case, Thomas A. Joyce v. Robert Slager and The Wareham Observer, appears to be the first known decision in Massachusetts where a defamation case against a commercial media defendant has been dismissed under the Massachusetts anti-SLAPP statute.

The court determined that the statements at issue were protected petitioning activity, rejected plaintiff’s contention that prior Massachusetts case law barred commercial entities or commercial media entities from the statute’s protection, and concluded that the special motion to dismiss must be allowed because the plaintiff failed to meet his burdens under the statute.

Plaintiff Thomas Joyce has been chief of police in Wareham, Massachusetts, for many years. The Wareham Observer is a small, weekly newspaper, which seeks to encourage citizen participation in town government. Defendant Robert Slager is the publisher of the paper, and, at the time of the subject publications, its sole full-time employee.

In his complaint, Joyce cited as false and defamatory three specific items: a headline, a paragraph in an opinion column, and a sentence in a short blurb, asserting that each was published “with actual malice and actual knowledge of its falsity or a high degree of awareness of its probable falsity.”

We Said

Defendants argued that the anti-SLAPP statute applies to newspapers and other media entities, that each of the subject statements fell within the statute’s definition of petitioning activity, and that plaintiff’s defamation claims were based solely on that petitioning activity. The defendants emphasized that commercial media were not excluded from the statute’s protection either by the terms of the statute itself or by Massachusetts common law (and that nothing in the Paton decision limited the application of the statute to non-commercial media entities), and that the statute’s protection was not restricted to petitioning activity concerning matters under active consideration.

He Said

Joyce opposed the special motion on the grounds, essentially, that “commercial media enterprises” are not entitled to protection under the statute, and that even if they are, the subject statements were devoid of reasonable factual support. He argued that the statute only protected petitioning activity of a “private citizen,” that the statute did not apply to a commercial media entity (and that MacDonald v. Paton, a 2003 decision of the Massachusetts Appeals Court, acknowledged the statute’s protection only as to a non-commercial, individual Web site operator), and that petitioning activity must involve issues under active governmental consideration.

The Decision Read

The court rejected Joyce’s arguments that the subject statements do not qualify as petitioning activity because they were made in support of a commercial enterprise, that commercial entities are barred from enjoying the protection of the statute, that petitioning activity must be by someone acting as a private citizen in order to be protected, and that no media defendant can enjoy the protection of the statute. The court also stated that petitioning activity need not be motivated by a matter of public concern or be undertaken simultaneously with active governmental review in order to be subject to the statute’s protection.

The court then stated how each of the subject statements qualified as protected petitioning activity. In doing so, the court cited instances where one or another of the three subject statements had caused people to contact selectmen, or caused selectmen to investigate Joyce’s activities. The court concluded that the defendants had met the burden of showing that Joyce’s claims were based solely on defendants’ petitioning activity, and that they were entitled to invoke the statute’s protection.

In discussing why Joyce then failed to meet his burden of showing that the petitioning activity was devoid of any reasonable factual support, the court cited the factual bases advanced by the defendants, and also noted that any minor inaccuracies found in hindsight are protected under law if a statement was reasonably supported by fact at the time it was made. Implicitly acknowledging that the standard under a special motion to dismiss is not the same as that used in assessing a rule 12(b)(6) motion to dismiss for failure to state a claim, the court further noted that Joyce could not meet his burden simply by stating conflicting facts without any support because he is not here entitled to any inferences in his favor.

Noting that Joyce did not address whether the subject statements had any arguable basis in law (one of the standards stated in the statute), the court agreed with the defendants, and concluded that the statements had at least an arguable basis in law under New York Times v. Sullivan, and, further, that in Massachusetts commentary is a legally protected expression of opinion.

You're Dismissed!

A new Jersey state superior court judge Wednesday dismissed the defamation case brought by Donald Trump against an author, Timothy L. O'Brien, who had stated in his book Trump Nation: The Art of Being the Donald that Trump was worth (only) $150 to $250 million. Trump asserted that at the time the book was published he was actually worth $4 or 5 billion.

The court concluded that Trump had failed to show by clear and convincing evidence that the author had acted with actual malice.

Trump, who sought $5 billion in damages, indicated he will appeal.

A pre-July 4 sparkler

In an illuminating pre-Independence Day display of judicial clarity, U.S. District Judge Patti Saris has disposed of former Massachusetts Superior Court judge Ernest Murphy's attempt to obtain $6.8 million dollars from Mutual Insurance Company Limited, an insurer for the Boston Herald.

Murphy's consumer protection law claim against the insurer arose out of his successful 2005 defamation trial against the Herald and one of its reporters. That case concerned reports in the Herald attributing certain comments to Murphy regarding cases before him.

The 2005 defamation trial resulted in an award to Murphy of more than $2 million. The Herald appealed the verdict, but it was upheld in a 2007 decision by the Massachusetts Supreme Judicial Court.

Within days of that SJC's decision, Mutual Insurance paid Murphy more than $3.4 million in satisfaction of the judgment, which amount included interest and costs. A month later, however, Murphy demanded an additional $6.8 million from the insurer, claiming that it had violated Massachusetts law concerning insurance claims practices and consumer protection. The amount demanded by Murphy was three times the amount of the jury verdict with interest.

Mutual Insurance subsequently commenced a declaratory judgment action against Murphy in federal court.

In that action, in which Murphy filed a counterclaim, Mutual Insurance ultimately moved for summary judgment seeking a declaration that it had no liability to Murphy under the pertinent insurance and consumer protection laws, and also seeking a dismissal of Murphy's counterclaim. Saris's July 1 decision did both.

In reaching her decision, Saris concluded that "because Mutual did not exercise exclusive control over the defense or settlement of the claim and the Herald never agreed to settle, Mutual did not have a duty to “effectuate prompt, fair, and equitable settlement” under Massachusetts law."

In the aftermath of the 2005 jury verdict in the defamation case, Murphy sent two letters on state court stationery to the Herald's publisher demanding a settlement. The letters ultimately resulted in an ethics investigation and reprimand of Murphy, who subsequently left the bench on a disability retirement.

Mutual Insurance was represented by Joseph Sano, a partner in the Boston firm Prince Lobel Glovsky & Tye.

First Circuit brings home the bacon for Fox media defendants

In Levesque v. Doocy (No. 08-1814) the U.S. Court of Appeals for the First Circuit last month affirmed the district court's grant of summary judgment in behalf of the media defendants--Fox News Network and two individual anchors for the Fox & Friends program--in a defamation and false light case brought by a superintendent of schools in Maine.

In short, the case arose from an April 2007 incident at a Maine middle school, where a student placed a bag of ham on a cafeteria table where Somali Muslim students were sitting. A producer for Fox & Friends subsequently picked up an online story (published via Associated Content) about the incident and the reaction by school officials. That story included certain mischaracterizations and humorous references, which made it through the Fox producer's fact-checking process and found their way onto the air.

In affirming the district court decision, the court agreed with the district court's conclusion that even as to three statements (including the erroneous attribution to the plaintiff of a comment that "ham is not a toy") that were "materially false, reasonably susceptible of a defamatory meaning, and highly offensive for purposes of the false light claim," the plaintiff (a public official) failed to produce evidence that the defendants had acted with "constitutional malice" when making the statements.

The district court had determined that other statements were protected on multiple grounds, such as being substantially true or constituting protected rhetorical hyperbole.

The opinion by the First Circuit provides a good discussion of the Times v. Sullivan actual malice standard that applies to defamation claims by a public official.

Truth with consequences?

In Noonan v. Staples, the U. S. First Circuit Court of Appeals today denied Staples' request for rehearing en banc. The court also stated that there is no need to certify the question at issue to the Supreme Judicial Court of Massachusetts.

Last month the court issued a controversial opinion in which the court held that, based upon an anachronistic Massachusetts statute, G. L. c. 231, sec. 92, a private figure plaintiff may recover for defamation based on truthful statements--yes, you read that correctly, truthful statements--made with "actual malevolent intent or ill will," as long as the subject statements relate to matters of purely private concern.

The case will now return to the trial court. Stay tuned.

"Public criticism of public officials"

That is how renowned media lawyer Bruce Sanford, from the Washington, D.C., office of Baker Hostetler, appearing on behalf of the Boston Herald before the Massachusetts Supreme Judicial Court this morning, characterized the subject matter of the reporting at issue in the Herald's appeal of the 2005 $2 milllion libel award to Superior Court Judge Ernest Murphy.

And that is exactly right.

While the judicial climate in the SJC courtroom was not as frigid as the weather outside, my impression is that the Herald's arguments were met with something cooler than a warm welcome.

Justice Cowin, in particular, focused repeatedly on the words "tell her," which she said changed the gist of the reported statements. Sanford, however, viewed those words as immaterial and insignificant, and commented that applicable law does not require reporters and sources to agree precisely. He also noted that none of the reporter's [district attorney] sources ever contacted the paper to say that he was misquoted.

While acknowledging that the reporter may have made one or two technical mistakes in his stories, Sanford emphasized that such mistakes do not equal substantial falsity.

Sanford also cautioned that under the standards of Times v. Sullivan, appellate judges are not charged with being "superannuated editors."

Arguing for Murphy, Suffolk Law School professor Michael Avery referred to what he called the reporter's knowing fabrications, and essentially argued that whatever the standard of review, there is overwhelming evidence to support the jury's decisions in favor of Murphy.

In posing questions to Avery, Chief Justice Margaret Marshall noted that her own research showed that on appeal few libel awards in favor of public officials, and judges in particular, are upheld on appeal.

Let's hope that is a harbinger of the Court's decision in this case.

Dismiss Me Once ...

On January 13, federal district judge Claude Hilton (E. D. Va.) again dismissed the defamation case brought by scientist Steven Hatfill against the Times and columnist Nicholas Kristoff. Hatfill claimed he was defamed by columns written by Kristoff about the government's anthrax investigations. A recent article in the Times provides the pertinent background.

As noted in that article, Judge Hilton previously dismissed the case on the grounds that there was no defamation. That dismissal was overturned by the federal court of appeals, and the Supreme Court declined to consider the case. Judge Hilton has not yet issued a memorandum, of decision, but I'll post a link as soon as it is available. Let's hope that this time the judge;s decision is bullet-proof, and that Hatfill decides to accept the second dismissal of his case.

Onward and Upward

The Boston Herald and the Boston Globe reported this morning that the trial judge yesterday denied the Herald's request to vacate the jury's $2.1 million award in the libel action brought by Superior Court judge Ernest Murphy against the Herald and one of its reporters.

The paper's motion was based, at least in part, on the outrageous post-verdict letters Murphy sent to Herald publisher Pat Purcell, some of which were on court stationery, in which Murphy, in effect, sought to bully the Herald into paying him more than the jury award, and dropping plans to appeal. The judge apparently felt that vacating the award was too extreme, and that an assessment of Murphy's conduct was better left to the appropriate commission.

The judge left open Murphy's motion to freeze the Herald's assets, which is reportedly based on Murphy's concerns over whether the Herald's media liability insurer will make good on the judgment if it is upheld on appeal.

Nationally-known media lawyer Bruce Sanford will represent the Herald in its appeal.