Tuesday, March 20, 2012

Georgia bloggers lose libel cases

A reader sends this story:
Bloggers aiming to subject their enemies to flaming rhetoric should take note of three six-figure verdicts from Georgia courts in the past 15 months for plaintiffs who said they were defamed on the internet.

The latest occurred Feb. 24, when a jury in Gwinnett Superior Court in the state said a Snellville, Ga., woman should pay $900,000 to a couple she had claimed were responsible for the actions of convicted murderer Gary Michael Hilton.
I suppose he is trying to warn me about criticizing psychologist Ken Perlmutter and others for their evil practices. I have posted details about why I think that they are corrupt, unethical, and incompetent.

The Georgia cases are newsworthy because they are unusual. They are man bites dog stories.

It is sometimes said that an opinion cannot be libel, and you can say anything you want on the net. But that is not quite right, as the above story shows, you cannot call someone a murderer and automatically escape libel action by saying that it is an opinion. More precisely, the law says that a statement which is based on publicly disclosed information is not actionable.

For example, you could call O.J. Simpson a murderer if that is your opinion based on the TV trial, even tho the jury said otherwise. You could possibly run into trouble if you claimed to have some inside info (not presented in court or to the public) that shows him to be a murderer. (Even in that case, OJ would have a lot of trouble suing you, for various other reasons.)

Here is how a a federal appeals court explained how opinions are not defamatory:
Of course, the fact that a statement is an opinion does not automatically shield it from a defamation claim. After all, "expressions of 'opinion' may often imply an assertion of objective fact." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990); Dulgarian, 420 Mass. at 849. Thus, a cause of action for defamation may still be sustained where an opinion "implies the allegation of undisclosed defamatory facts as the basis for the opinion." Nat'l Ass'n of Gov't Employees, Inc. v. Central Broad. Corp., 379 Mass. 220, 227-28 (1979). Chief May's opinion, however, was based on disclosed nondefamatory facts. As the district court correctly noted, May "makes clear that the information was derived from witness statements, and qualifies his recitation of facts with phrases like 'according to witnesses' ... and 'it was reported.'" Yohe v. May, 2002 WL 924225 at *1. Since the articles establish that May's opinion was based on witness statements and reports he received, the "logical nexus between the facts and the opinion sufficiently apparent to render unreasonable any inference that the derogatory opinion was must have been based on undisclosed facts." Dulgarian, 420 Mass. at 850-51, quoting Lyons, 415 Mass. at 266. An "expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is." Id. Consequently, Chief May's opinion about Yohe's mental state is not actionable.

In sum, the statements challenged by Yohe all fall into one of three categories: (1) unrefuted statements of fact; (2) statements which -- although likely false -- could not reasonably be considered offensive to the average person in the community; and (3) statements of opinion based upon disclosed facts. As none of these types of statements provides a basis for a defamation cause of action, Yohe's defamation claim against Chief May fails. [Yohe v Nugent et al, 1st Cir (Boston), 2003]
A 9th Circuit (federal appeals court for California) decision said the same thing in Standing Committee on Discipline v Yagman (1995).

You might think that Perlmutter might sue anyway, in order to tie me up in court and intimidate me. But that would be a SLAPP lawsuit, and it is forbidden under California law, which broadly protects speaking out on any public issue. I could hire this firm:
Since 1993, the California Anti-SLAPP Project (CASP) has been providing legal assistance and representation to individuals and organizations being sued in California for exercising their First Amendment rights of free speech and petition. CASP has earned a reputation as one of the leading anti-SLAPP firms in the state and exclusively represents defendants who have been SLAPPed, allowing us to offer unique, focused expertise to our clients.
The best part is that I would not even have to pay the law firm, because California anti-SLAPP law says that the SLAPP plaintiff has to pay attorney fees.

I post this info in the hope that other whistleblowers are not intimidated by the legal system. As long as you are reporting publicly available facts, expressing opinions based on those facts, and attempting to influence public policy with your First Amendment rights, then you are in no danger whatsoever. You are doing what our Bill of Rights was written to protect, and the courts will back you up.

You can still be hassled by Chicago cops:
When police showed up, reporters with NBC Chicago claim they respected their request to move across the street and into a median, away from the public sidewalk in front of the facility.

But that was not good enough for one officer, who argued with reporters in the road’s median, telling them that they must move. When they refused, he insisted: “Your First Amendment right can be terminated if you’re creating a scene or whatever.”

Challenged by reporters that they had not created a scene, the officer replied: “Your presence is creating a scene.”

One of the reporters’ responds: “But this is what we do for a living! What we do for a living is creating a scene?” Another reporter adds: “You’ve got a lawsuit coming.”

“I don’t care about no damn lawsuit!” the officer answers. “F*ck a lawsuit. Just ’cause you sue doesn’t mean you’re going to win.”

He then promptly arrested Donte Williams, a photographer, and Dan Ponce, a reporter for WGN-TV Chicago. Both journalists were detained for approximately 10 minutes and then released without charge.
That's funny. Jounalists arrested in Chicago for "creating a scene or whatever.” The cop is right about one thing -- they won't win a lawsuit against the city of Chicago.

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