Trump dossier libel suit dismissed

In a victory for First Amendment advocates,  a federal court ruled Dec. 19, 2018  that news articles about the Steel Dossier, which alleges illegal and immoral acts by Donald Trump and his campaign in 2016, were protected by the “privilege” defense against defamation suits.

The dossier (memo) was written by former British Intelligence head of the Russia desk, Christopher Steele and circulated in the months before and after the November 2016 election.   It was  published  January 10, 2017, by BuzzFeed News with the headline:   These Reports Allege Trump Has Deep Ties to Russia.

BuzzFeed cautioned that the dossier  “includes specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians.”

Although the major subject of the dossier was Donald Trump and his attorneys and advisors, the suit was filed by Aleksej Gubarev, a Russian whose name was peripheral to the events described in the dossier.     

In her ruling, federal judge Ursula Ungaro of  Miami granted a motion by Buzzfeed magazine to dismiss the lawsuit, saying that the press was protected by the legal doctrine of  fair report privilege.   

Privilege is one of three major defenses against libel suits. (The other two are truth and fair comment).   The defense of privilege gives journalists the ability to report on official government proceedings whether or not information in the proceedings is provably true or not.   The doctrine of privilege allows unfettered news reporting of conflicting ideas or versions of events that may surface in trials, executive memos or congressional hearings.

According to a Columbia University Global Freedom of Expression article,  the decision turned on the question of whether the report was an official proceeding.  In many cases, courts have interpreted proceedings to be official whether or not they are open to the public.

Why we can laugh at Trump

Some people are afraid of freedom of speech. Some even think that disrespecting a political  leader shouldn’t be legal.  But there is a long history of  freedom that opens the door  to criticism  about any leader or public figure.  Take the Dec. 16, 2018  Saturday Night Live sketch that used the theme of “It’s a Wonderful Life” (a 1946 movie) to imagine the world if Trump had not won the 2016 presidential election.

In response, Trump tweeted:

@realDonaldTrump  A REAL scandal is the one sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live. It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?    
The SNL satire was not flattering, and it’s not hard to see why it might upset someone who was its target, although it was not “news coverage” or a “Dem” commercial.
But to the main point:  Is it legal?  Shouldn’t a system that allows this unfairness be “tested in the courts”?

Actually, as it turns out, it already has been tested, and rather frequently in fact.  The “fair comment and criticism” defense against libel suits goes back for centuries. The freedom to criticize public officials has been a bedrock point of law since the founding of the country, reaffirmed many times in the courts, and it’s amazing and sad that  Trump doesn’t seem to know one of the most basic and profound facts of American history.

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Hollywood star sues for ‘false light’

Hollywood star Olivia de Havilland is suing FX network and Ryan Murphy Productions for “false light” over the way she is portrayed in a docudrama “Feud” that concerns a rivalry between two other stars, Bette Davis and Joan Crawford.  Davis and Crawford are dead, but de Havilland, at age 101, is still very much alive.

“I believe in the right to free speech,” says de Havilland,   “but it certainly must not be abused by using it to protect published falsehoods or to improperly benefit from the use of someone’s name and reputation without their consent.

The suit raises the interesting question of how much a living historical figure can control what is said about them.   See: New York Times story March 3, 2018.

Anniversary of Smith v Daily Mail

When should the names of juveniles accused of murder be made public? Forty years ago, under West Virginia state law, the answer was ‘never.’  It was illegal for a news organization to make public the name of anyone under 18  accused of a crime.

Generally there are good reasons for keeping the names of juvenile offenders private, including a better chance for rehabilitation.  But who has the duty to keep a name quiet? A newspaper? And would that be true for a teenager accused of murder, for which there is no chance of rehabilitation?

After a school shooting in 1977, editors of the West Virginia Daily Mail decided that a murder charge against  a 14 year old should be made public. A county prosecutor brought indictments against the paper’s employees for violating state law, and the paper fought the case to the US Supreme Court, which agreed that such state laws were unconstitutional prior restraints on the press in violation of the First Amendment.  The duty to keep a juvenile’s name confidential belonged to law enforcement, not the press, the court said.

See: Daily Mail editorial Feb 8, 2018  
Washington & Lee case summary

Libel laws don’t favor Roy Moore

Judge Roy Moore, the embattled Republican nominee for Alabama’s open U.S. Senate seat, must surely long for the good ole days, says Vincent R. Johnson,  a law professor at St. Mary’s University, in a Nov. 19 op-ed for the San Antonio Express-News. 

Until 1964, the American legal principles governing libel and slander were completely out of sync with the free speech and free press guarantees of the First Amendment.

First, a defamatory statement at that time was presumed to be false. The plaintiff did not have to prove falsity. Second, it made no difference how much care the speaker exercised. If the statement was false, strict liability was imposed. Third, certain statements were presumed to cause harm. Even if a plaintiff presented no evidence of actual losses, a jury could award a large amount of damages based simply on the nastiness of the utterance and the extent of its circulation.

All that changed with the 1964 New York Times v Sullivan case, Johnson notes.

FCC lifting rules on media concentration

US & International Media Concentration

Depending on your point of view, the new broadcast station ownership rules issued  Nov. 16, 2017  by the Federal Communications Commission  will either increase market diversity by ridding us of antiquated rules,  or,  it will decrease diversity by helping large media companies grow even larger.

The new rules are part of a standard four-year review of broadcast ownership rules. They follow a pattern of deregulation since the Reagan era.      Continue reading

Trump’s Russian allies slowly learning US libel law

Oleg Deripaska totally missed the point of US libel law. (Hint: It doesnt exist to punish the critics of the rich and the corrupt).

A libel suit by a Russian billionaire got booted out of federal court Wednesday, Oct. 18, 2017.

Oleg Deripaskaha had sued the Associated Press for exposing his links  to former Trump campaign chairman Paul Manafort.

US  District Judge Ellen Segal Huvelle said  the suit  “cherry-picked sentences” that he wrongly claimed were defamatory even though he “does not dispute any material facts.”     

According to the AP, the story revealed how Manafort, a decade before joining the Trump campaign, had proposed to Deripaska a confidential business strategy to support pro-Russian political parties and to influence politics, business dealings and news coverage inside the United States, Europe and former Soviet republics to benefit Putin’s government.

To recover for libel, a story must be false.

A busy year for US libel lawyers

US First Amendment guarantees for freedom of speech and press are fairly straightforward  “black-letter law” — That is, they are so well settled in precedent  and statute that they are no longer subject to reasonable argument.

And yet, this year and last,  we have seen a raft of lawsuits apparently filed in the unlikely hope that the Trump administration’s dream of curtailing First Amendment rights will be endorsed by the courts. As Melissa Rosenberg of the Washington Post says:  “Billionaires want to enlist you in their secret plans to take down the press.”   For example:

Fake earthquake: Comedian John Oliver  was sued by coal company owner Bob Murray on June 21, 2017. The libel suit alleged that Oliver “meticulously planned attempt to assassinate the character  of … Mr. Murray.” (See Murray’s brief here).  Murray filed a similar lawsuit in April over a New York Times editorial.  (The Times response is here .)  In both cases, Continue reading

Does anti-trust law apply to Google & Facebook?

It may be time to think about breaking up the high-tech monopolies that dominate American telecommunication, says  Jonathan Taplin,  director emeritus of USC’s  Annenberg Innovation Lab in a New York Times article April 23, 2017.  Taplin is the author of “Move Fast and Break Things: How Google, Facebook and Amazon Cornered Culture and Undermined Democracy.”

Taplin notes that Google has an 88 percent market share in search advertising, Facebook owns 77 percent of mobile social traffic and Amazon has a 74 percent share in the e-book market. “In classic economic terms, all three are monopolies,” Taplin says.

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Trump damaging press freedom worldwide

Turkish presidet Recep Tayyip Erdogan has warmly embraced Trump’s “fake news” concept.

US president Donald Trump’s unprecedented attack on freedom of the press is being used as an excuse for repressive policies worldwide, according to Reporters Without Frontiers, a global press advocacy group.

“Predators of press freedom have seized on the notion of ‘fake news’  to muzzle the media on the pretext of fighting false information,” the group said in a March 16, 2017  statement.

“By targeting journalists in this manner, the US president ended a longstanding American tradition of promoting freedom of expression and sent a powerful message to media censors.”