Defamation & Douchebags

By: Marc J. RandazzaFirst Amendment Lawyers’ Association

Summer 2009 - Vancouver

DefinitionsDefamation: A statement which is:

1.False statement of FACT2.About another3.Causes reputational harm4.Not protected by any privilege

DefinitionsDouchebag: noun. Definition 1: A hygiene product used for cleansing bodily orifices.

Douchebag: noun. Definition 2: An objectionable person; from the Penobscot Indian word meaning “objectionable white man who needs a slap upside the head.”

See also, Asshat, Fahkin’ Douche (used in Massachusetts), Prick, Twat, Jack Thompson.

Modern Defamation Elements 1. Defamation – there was defamatory language. 2. Identification – the defamation was about the

plaintiff. 3. Publication – the defamation was

disseminated. 4. Fault – the defamatory content was published

as a result of recklessness or negligence. (A.M. for publ. figures).

5. Falsity – that the statement was false. 6. Damages (unless it is per se defamatory).

Constitutional Issues Some argue that defamation law itself is

inconsistent with the First Amendment. An outlier theory But has some textual support

Chilling Effect Even valid defamation suits may chill protected

speech Many plaintiffs count on that – SLAPP suits

SLAPP Suits Proliferating, and little is being done to stop the tide But see Cal Code Civ Proc Sec. 425.16

Minelli v. Simon & Schuster, et al., Case No. A575825 (D. Nev. 2008) Minelli, 27, a “club promoter”

in Las Vegas Website:

hotchickswithdouchebags.com Simon & Schuster publishes a

book based on the website. Michael Minelli spews vinegar

at S&S sues for defamation for a portrayal in the book that was neither sweet nor fresh.

Minelli v. Simon & Schuster Book describes Minelli:

“his popped-collar, spikey-haired presence was so far beyond regular douche, so far beyond uberdouche, he could spontaneously create a new element on the periodic tables–Douche Nine.”

Minelli says: he “has been, is now and continues to be called a douchebag by friends, acquaintances, coworkers, employers and strangers alike.”

Go figure!

Minelli v. Simon & Schuster Minelli’s complaint explains that “a Douchebag

is, inter alia, ‘a feminine hygiene device used for cleansing.’”

It also states “The Publication depicts Plaintiff as a ‘Douchebag’ and a dubious man.”

Minelli v. Simon & Schuster “Under the First Amendment there is no such thing

as a false opinion. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).

An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

Gorzelany v. Simon & Schuster, BER-L-7775-08 (Bergen Cty. 2009) The three plaintiffs in this suit “contend[ed] that the use of

their photographs in the book Hot Chicks With Douchebags was defamatory.”

The three attended Club Bliss A lair of douchebaggery so foul that vinegar and water should

be served at the bar. While there, they consorted, at least momentarily, with a few

douchebags Background fodder in the author’s photographs of “The

Federbag” and in some instructions on how to cease being a douchebag.

Step five was “Leave New Jersey”

Gorzelany v. Simon & Schuster, BER-L-7775-08 (Bergen Cty. 2009)

Nothing is mentioned about plaintiffs or any of the other “background females”

The Court found that as a matter of law, the book was not about the chicks,

No defamatory meaning could be imputed to any of the photographs.

Gorzelany v. Simon & Schuster, BER-L-7775-08 (Bergen Cty. 2009) In count five, plaintiffs assert a cause of action for unfair

competition under a non-existent New Jersey statute described as the “Business & Professions Code Section 17200.

1. Three years of law school: $120,000 2. PACER access: $.08 a page. 3. Copying a defamation complaint from California without

knowing what the hell you are doing, and making yourself look like a total mook in the process: PRICELESS”

The New Jersey judge flushed the case out of his courtroom — granting Simon & Schuster’s motion to dismiss.

(Mook = New York / New Jersey variant of a Douchebag)

Douche Bonus!

Immediately after Gorzelany case dismissed, Michael Minelli dropped his.

First Circuit Turns Libel Law on its Head

Noonan V. Staples, Inc., 561 F.3d 4, C.A.1, March 18, 2009

Noonan pads his expense reports

Gets fired from Staples Staples sends email to all

employees, warning them of the consequences of expense padding

Explains that this is why Noonan was fired.

Noonan V. Staples, Inc., 561 F.3d 4, C.A.1, March 18, 2009

Although all the facts in the email were true, Noonan sues for defamation.

Mass. Gen. Laws ch. 231, § 92, says that truth is a defense to libel “unless actual malice is proved.”

1st Cir (Torruella) rules that this definition of “actual malice” is the 1902 meaning, not the NYT v. Sullivan meaning.

“disinterested malevolence”

Noonan V. Staples, Inc., 561 F.3d 4, C.A.1, March 18, 2009 In prior case, Mass. Sup Ct

determined that when matter was of public concern, the Mass law did not apply.

This was not a matter of “public” concern.

1st Cir. Ruled that in matters of “private concern,” ch. 231, § 92 applies even to truthful statements.

First Amendment be damned…

Noonan V. Staples, Inc., 561 F.3d 4, C.A.1, March 18, 2009 Torruella wrote that the First Amendment

issues had not been briefed properly. No mention of Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 499 (1984)

”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

Noonan V. Staples, Inc., 561 F.3d 4, C.A.1, March 18, 2009

Piles of Amici petitioned the 1st to rehear en banc

Denied Should have gotten involved sooner

Mandingo, et al. v. Advance Publications, Inc. Daniel Wemp was Jared

Diamond’s driver in New Guinea

Wemp tells Diamond stories of his tribe’s inter-village warfare

Rapes, killings, and yes, even pig theft

Mandingo, et al. v. Advance Publications, Inc. Diamond finds this fascinating Writes an article for the New

Yorker about “Vengeance” and these New Guinea tribes.

The article makes it to New Guinea Wemp gets ostracized by

community

Mandingo, et al. v. Advance Publications, Inc. Wemp now claims that the stories

are all made up. False statements of fact About him Hurting his reputation Only catch – HE is the source! Jungle Douche!

Mandingo, et al. v. Advance Publications, Inc. Case being pushed by Rhonda Shearer –

stinkyjournalism.org Seems likely that there are a lot of

inaccuracies in the story But, none are of the defamatory flavor. Wemp claims tradition of “lie to the

foreigner” Claims cultural insensitivity to this “tradition” Case pending in Manhattan Dist Court, where

hopefully Wemp will learn about our cultural traditions.

Blogger Cases The douchebaggery of frivolous suits vs. media

companies – Douche level 5 Vs. bloggers, who usually can’t afford counsel

– Douche 10.

Orlando Florida Police Chief – Douchebag! Val Demings Left gun in car, gun got stolen Critics called for her resignation One critic put up a website,

http://www.valdemings.com 15 USC s 1129 prohibits this if for

profit – but not for political speech

Orlando Florida Police Chief – Douchebag! Attorney writes letter to website owner

threatening lawsuit Attorney says in interview: “Truth is not always a defense,” Winthrop

said. “I hope he [Harris] gets himself a really good lawyer,” he said.

Streisand effect ensues Bloggers swarm No case filed to date Very different from Noonan v. Staples

Public figure Not in MA NYT v. Sullivan controls

Comins v. Van Voorhis, Case No. 09-CA-15047, Ninth Judicial Circuit, Orange County

Florida

Comins shoots two huskies Claims dogs were attacking

him Shoots them even after

owner is on scene Conflicting stories

Comins v. Van Voorhis, Cont’d

Whoops! Irish tourist

captures event on video.

Posts to Youtube.

Comins v. Van Voorhis, Cont’d

Multiple newspapers write about the incident Mainstream TV news reports on it International coverage Matthew Van Voorhis blogs about the incident

Univ of Fla. Student No money Comins sues him for defamation Does not sue any mainstream media Case pending in Orange County, Florida.

Ayman el-DiFrawi DiFrawi goes by many

aliases Has spent time in prison

for fraud “Employment

Companies” Internet Solutions Corp. Multiple sub-companies

Alec DiFrawi Mainstream media outlets have written exposes

on his companies Orlando TV station did an expose Bloggers followed

Tabatha Marshall Archie Garga Richardson (1st Am Proj) Les Henderson All sued for defamation

Alec DiFrawi Tabatha Marshall

Won MTD for lack of PJ P appealed to 11th Cir 11th Cir certified to Fla Sup Ct Awaiting decision

Archie Garga Richardson Sued in Calif. Won pro se motion to dismiss Appeal filed Convinced to withdraw appeal Re-sued in Florida for allegedly sending an email to ISC management

Les Henderson Pro-se defense in MD Fla.

What Can You Do? Many of the defendants in these

cases can not afford representation. Even when they can, the plaintiff is

usually financially stronger Use the force

Blogosphere Streisand Effect

What Can You Do? Not suggesting “trial by media” But, the suits themselves are

newsworthy CMLP (www.citmedialaw.org) is both a

great resource AND a place to report threats/cases.

Blawgers comb CMLP Join OMLN

What is OMLN? Initiative of the Citizen Media Law Project at

Harvard University’s Berkman Center for Internet and Society

Nationwide network of law firms, law school clinics, in-house counsel and individual lawyers providing legal assistance to new journalism ventures and other online media creators

Launching in Fall 2009

A great potential FALA ally/symbiotic group.

What Criteria Will OMLN Use to Screen Prospective Clients? Viability Adherence to journalistic standards Innovation Independence Original reporting Fostering community

What Types of Matters Will OMLN Members Handle? Mixture of pro bono, reduced-fee, and full-fee

matters Transactional and Counseling

Freelancer and independent contractor agreements Pre-publication review Advice on FOIA and state open records laws

Litigation and Dispute Resolution First Amendment defense Defamation Litigating open meetings disputes and matters

involving access to court proceedings and documents

How Will Matters be Assigned? All matters are prescreened by OMLN staff,

who prepare readily digestible client/matter summaries

Bi-weekly email sent to all members with client/ matter summaries

Access to a password-protected website with search and filtering by client location and legal needs, among other things

Once a member has selected a matter, it will be placed in an administrative “hold” until the member has had an opportunity to check and clear conflicts