Internet Defamation

Is it defamatory to call someone “racist”?

In today’s political climate, the term “racist” gets used in seemingly every discussion. I get at least one call a week from a potential client wanting to sue someone for defamation because they were called a racist.

But is it defamatory to call someone “racist”? Would such an action be viable? To answer that question, let’s first set the legal scene, beginning with the elements of defamation.

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) The elements for libel and slander differ slightly, but both require a false and unprivileged statement.

Laying out the elements as such, the caller will quickly respond, “I’m not a racist, so the statement is false.” And therein lies the rub. It may well be false, but is it provably false? What evidence could we offer to show that the caller is not a racist?

The sine qua non of recovery for defamation … is the existence of falsehood. Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18–19.) The critical question is not whether a statement is fact or opinion, but whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.

Wong v. Jing, 189 Cal. App. 4th 1354, 1370, 117 Cal. Rptr. 3d 747, 762 (2010).

A hypothetical tale of racism.

Let’s use an example from a recent caller (changing the facts slightly to protect privacy) to illustrate the conundrum.

The caller was checking out at a grocery store, and got into an argument with the cashier over something minor. The cashier immediately responded by calling the customer a racist, in front of other customers. When the customer asked to talk to the manager, the cashier again repeated the claim of racism to the manager.

This exchange appears to satisfy all the elements of a defamation claim, if it is true that the customer is not a racist. There was (1) a publication (just legalese meaning that the statement was communicated to a third party) that was (2) false, (3) defamatory, (4) unprivileged, and (5) had a natural tendency to injure (the fact that it damaged his reputation is enough).

But how do we prove that second element; that it was false? Who gets to decide when behavior is based in racism? The customer may be 100% confident that he is not racist, and may be able to offer as proof that his wife is a minority as are most of his friends. Heck, the customer might even be a minority. But the cashier may be equally confident that the customer would not have argued over the minor point but for a bias against minorities. What meter can we hold up to the people involved to determine which is correct?

This precise issue was addressed in the case of Overhill Farms, Inc. v. Lopez, and even there the three Justices could not agree on the law.

In Overhill Farms, the IRS informed the company that 231 of its employees were using bogus social security numbers, and that the company would face criminal prosecution if it permitted the situation to continue. Overhill investigated and determined that such was the case, and it terminated all those employees.

Some of the terminated employees participated in protests outside Overhill’s two plants and outside of one of Overhill’s customers’ place of business. Defendants’ protest efforts included issuing a press release, carrying signs, and handing out leaflets, flyers, and handbills which stated, among other things, that Overhill had used a “supposed discrepancy” in Social Security numbers as a pretext for employment terminations which were both racist and a targeted attack on older and more senior employees.

On its face, the claims were ridiculous. Overhill had hired all these same employees, and obviously had no issue with their race, nationality, age or gender, and only fired them because its hand was forced. As to the “supposed discrepancy,” the bulk of the employees had admitted that they were using false social security numbers.

Overhill sued defendants for defamation, intentional interference with prospective economic advantage, intentional interference with contractual relations, extortion, and unfair competition; all of Overhill’s claims were based on alleged defamatory statements made by defendants in the course of the protests. Although Overhill sought damages, it alleged that defendants are “virtually judgment proof,” and made clear that injunctive relief to prohibit future misconduct was its primary goal.

Defendants filed an anti-SLAPP motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. The trial court granted the anti-SLAPP motion as to the unfair competition claim, but otherwise denied the motion. The court concluded that although Overhill’s claims arose out of protected conduct, Overhill had carried its burden of proving a probability of prevailing on the merits of all its claims except its unfair competition claim. Defendants appealed, claiming that none of their alleged statements were actionable, because none declared or implied a provably false assertion of fact under the totality of the circumstances.

What is necessary to show a provably false assertion of fact?

In determining whether a statement declares or implies a provably false assertion of fact, courts apply the totality of the circumstances test.

Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense…. Next, the context in which the statement was made must be considered.’ (see Nygard, Inc. v. Uusi–Kerttula, 159 Cal.App.4th at p. 1049 [Court considers the totality of the circumstances “[t]o ascertain whether the statements in question are provably false factual assertions”].) Whether a challenged statement ‘declares or implies a provable false assertion of fact is a question of law for the court to decide, unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.’ (Franklin, supra, 116 Cal.App.4th at p. 385.)

The term ‘racist’ is of course an exceptionally negative, insulting, and highly charged word—it is hard to imagine being called much worse. It is, however, also a word that lacks precise meaning, so its application to a particular situation or individual is problematic; indeed, defendants contend no court has ever found the use of the term ‘racist’ to be actionable defamation in a context similar to this one.

In Stevens v. Tillman, for example, the Seventh Circuit Court held that use of the term racist was not actionable under Illinois defamation law, observing (over 20 years ago) that the term lacked a precise meaning, can imply many different kinds of fact, and is no more than meaningless name calling. The appellate court further observed, ‘[t]he word has been watered down by overuse, becoming common coin in political discourse.’ We agree that general statements charging a person with being racist, unfair, or unjust – without more – such as contained in the signs carried by protestors, constitute mere name calling and do not contain a provably false assertion of fact. Similarly, references to general discriminatory treatment, such as that contained in the handbill and flyer here, without more, do not constitute provably false assertions of fact. (See, e.g., Beverly Hills Foodland v. United Food & Commercial Workers Union, Local 655 (8th Cir.1994) 39 F.3d 191, 196 [‘To use loose language or undefined slogans that are part of the conventional give and take in our economic political controversies – like ‘unfair’ and ‘fascist’ – is not to falsify facts.’)

Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1262.

So no defamation in our hypothetical? Well, in the Overhill case, two of the three Justices found what they considered to be a distinction from the general rule that calling someone a racist is just meaningless name calling.

In Overhill, the defendants did not merely accuse Overhill of being “racist” in some abstract sense. The press release contains language which expressly accused it of engaging in racist firings and decried the disparate impact the firings have had on “immigrant women.” Similarly, after discussing Overhill’s termination of one-fourth of Overhill’s work force, the leaflets explicitly asserted that the discrepancy in social security numbers was merely a “pretext” to eliminate certain workers, and referred to Overhill’s conduct as “racist and discriminatory abuse against Latina women immigrants.” Moreover, in almost every instance, defendants’ characterization of Overhill as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of Overhill’s black corporate heart – it represents an accusation of concrete, wrongful conduct.

The gist of the press statement, leaflets and flyers was that while Overhill was claiming the employment terminations were based strictly on the disparities in social security numbers, that claim was false, as the Social Security Administration had decreed that such discrepancies were not grounds for termination. Thus, defendants were clearly portraying the “supposed” discrepancies as merely convenient cover for Overhill’s true, racist, intent. Indeed, the leaflet explicitly characterizes the social security number discrepancies as a mere “pretext” for the firings. And a claim of racially motivated employment termination is a provably false fact. Indeed, that very fact is subject to proof in wrongful termination claims on a regular basis. If we were to conclude that an employer’s racist motivation for terminating an employee’s job were not “provable,” it would come as a great shock to the Fair Employment and Housing Commission.

Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1263.

For all these reasons, the Court of Appeal reversed the holding of the trial court, and found that the anti-SLAPP motion should have been denied entirely.

But one of the three justices was not persuaded, and dissented to the opinion. Justice Fybel stated:

The First Amendment to the United States Constitution guarantees a cherished freedom—the right to speak openly and freely. (U.S. Const., 1st Amend. [“Congress shall make no law … abridging the freedom of speech…”].) Within the past few years, the United States Supreme Court has broadly protected speech in a public forum in the analysis of permissible speech by candidates for judicial office (Republican Party of Minnesota v. White (2002) 536 U.S. 765), and of corporations in elections (Citizens United v. Federal Election Commission (2010) 558 U.S. 310). The anti-SLAPP (strategic lawsuit against public participation) statute provides that it should be construed broadly to protect against “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).)

Defendants’ anti-SLAPP motion should have been granted because none of defendants’ statements contains actionable defamation. The statements describe Overhill Farms, Inc.’s (Overhill), firing of a large number of Hispanic and female employees as “racist” and “discriminatory” in the context of vigorous public protests. Overhill failed to produce evidence showing defendants declared or implied a provably false assertion of fact within the meaning of the First Amendment and defamation law jurisprudence (see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19); thus, Overhill’s defamation claim fails as a matter of law. The majority opinion is an unprecedented and unwarranted extension of defamation law and is contrary to the First Amendment.

By this lawsuit, Overhill seeks to curb and chill employee protests. As acknowledged by the majority opinion, Overhill has “made clear that injunctive relief to prohibit future misconduct was its primary goal.” (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [“If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”].) To illustrate this point, would it be actionable if the Los Angeles Times, the Orange County Register, Fox News, or MSNBC complained that actions by anyone were “racist” or “discriminatory”? Of course not. Employees complaining about their employer enjoy the same protection.

Considering defendants’ speech under the totality of the circumstances in this case, their speech too is constitutionally protected from a civil suit. In my view, Overhill is perfectly capable of ably presenting its side of the story in the public forum and has done so. Justice Brandeis’s statement in Whitney v. California is apt: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Defendants’ assertions might not be persuasive, but they are not actionable.

Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1272–73.

Interestingly, this precise fact pattern also arose in a case involving “Transformers” actor Shia LaBeouf. LaBeouf, who admits to having a drinking problem, was refused service by bartender David Bernstein at Jerry’s Famous Deli. Bernstein felt that LaBeouf was intoxicated, and under California law it is a violation to serve alcohol to someone who is intoxicated.

LaBeouf was having none of that, and as is common practice in today’s world, regardless of the absurdity of the claim, immediately screamed that Bernstein was a “fucking racist bitch.” Very classy. LaBeouf was removed from the premises.

Bernstein sued for defamation and assault (LaBeouf had allegedly threatened Bernstein with a bottle at some point).

Here’s where it gets fun (with a perfect anti-SLAPP tie-in).

I hate to see something like this turn into a lawsuit, and if I were Bernstein I would have simply written it off as a fun story to tell the grandkids. “See that wimpy guy fighting the Transformers, kids? I threw him out of my bar after he called paw-paw a fucking racist bitch.” It would soon become a tradition at family gatherings. “Paw-paw, please tell us that story about how Shia LaBeouf called you a fucking racist bitch, pleeeese!”

But I can also understand the desire to say enough is enough. LaBeouf (allegedly) has a string of inappropriate behaviors, and at some point someone needs to take him to the woodshed. Being called a “FRB” might be the time for a line in the sand.

So Bernstein sued, and LaBeouf’s attorneys come up with the brilliant idea to try and dispose of the case with an anti-SLAPP motion. While it is true that a situation involving a celebrity can turn the facts into a matter of public interest, and bring it under the anti-SLAPP statute, it is important to keep in mind who is making the statement. So, if Bernstein had been the one to call LaBeouf an FRB, and LaBeouf had sued for defamation, the public interest analysis might apply. The public might be interested in whether LaBeouf is an FRB.

But LaBeouf does not enjoy protection for every word coming out of his mouth, just because he is a celebrity. Quite properly, the Court found that LaBeouf’s statements did not even satisfy the first prong of the anti-SLAPP analysis. Nonethess, LaBeouf’s attorneys have appealed.

So what is the answer to our opening question? Is it defamatory to state someone is racist?

The answer 99% of the time will be no. In most every conceivable circumstance, the claim that someone is a racist will be considered nonactionable opinion.

The fact that Bernstein’s action against LaBeouf survived the anti-SLAPP motion does not mean that it has any merit; only that it did not satisfy the statute. At trial, if the law is followed, the defamation action should be decided in favor of LaBeouf. Stating that Bernstein is an FRB is simply not a verifiably false statement. (He could, however, still prevail on the assualt claim which has nothing to do with the speech.)

“But what about Overhill Farms?,” you ask. Thank you for engaging.

At best, Overhill Farms provides a very narrow clarification. If the statement is offered in the context of provably false statements, it might be actionable. In Overhill Farms, the claim was that the problem with the Social Security numbers was a “pretext” for the discriminatory terminations, and that added assertion was provably false. Perhaps if LaBeouf had shouted, “you know I’m not drunk and the only reason you are refusing to serve me is because you are an FRB,” then Bernstein could establish that the “not drunk” is a verifiably false statement.

Shia LaBeouf walks the red carpet.


Council spent £200,000 trying to unmask anonymous blogger

A council has dropped a five-year, £200,000 legal campaign trying to unmask a blogger called Mr Monkey, who made allegations of impropriety against four senior members of the authority. A Freedom of Information request has forced South Tyneside council to admit how much they spent trying (and failing) to discover the identity of Mr Monkey, who made allegations of impropriety against four senior members of the authority. They've dropped the curious case after the Guardian started asking questions


The Council suspected the blog was authored by Ahmed Khan, but Khan has always vehemently denied being Mr Monkey and unsuccessfully filed an ‘anti-SLAPP’ (Strategic Lawsuits against Public Participation) motion in 2011, which would have prevented the council from obtaining more of his details. But this claim was dismissed by a judge as “frivolous”, as the nature of the John Doe suit meant he was never named as a defendant. 

There are procedures by which an anonymous blogger can oppose a subpoena that would expose his identity, but you can't simply bring an anti-SLAPP motion claiming you're not the defendants.

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Cooley Law School loses defamation suit against New York law firm

Cooley Law School has lost an appeal in their defamation lawsuit against a law firm that posted criticism of the school's reporting of student debt on a popular law school message board.

The school had filed a $17 million lawsuit against Kurzon Strauss LLC, a New York firm, and two attorneys associated with the firm, Jesse Strauss and David Anziska, accusing them of posting defamatory statements on the popular law school message board "JD Underground". The post said that federal regulators were investigating Cooley Law School over student loan default rates and employment for graduates.

Those statements were later retracted, but the firm then began preparing a proposed class-action lawsuit against the school, at which point Cooley filed its suit against the firm accusing them of defamation, breach of contract and interference with business relations, among other claims.

A trial court granted judgment to Kurzon Strauss before trial, saying that Cooley Law School was a "public figure" and therefore would have to prove that the firm acted with a disregard for the truth, a bar the court said Cooley could not clear


When in individual or entity is deemed to be a "limited public figure", the theory is that such a person has greater access to the media, and therefore tell their side of the story. Therefore, when a limited public figure sues for defamation, they have  a higher standard of proof to show that defamation. Specifically, they must show the person who allegedly defamed them acted with "actual malice" or "reckless disregard for the truth".

Here, the court concluded that Cooley Law School would not be able to meet that burden.

Go here for more Internet Defamation cases.

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Defamation is Bad, but it Doesn’t Justify Chilling Free Speech

Blocked in Canada

Our neighbors to the North are very American-like, until you get to issues of free speech. Most view Canada as the “least protective of free speech in the English-speaking world.” Reasonable minds can differ on some of Canada’s laws, such as prohibiting the media from identifying criminals until they have been convicted, but most of the law is still based on policies designed to prevent any criticism of the government. Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed.

A recent parody video posted on You Tube illustrates just how lacking the concept of free speech is in Canada. The video is a fake cable company ad posted by Extremely Decent Films. It does not mention any cable company by name, and indeed it is specifically directed at American cable companies. Nonetheless, someone lodged a complaint in Canada, and that was sufficient to scare You Tube into removing the video, given the vagaries of Canada’s libel laws (although the video has since been reposted in response to articles such as this one).


An Employee’s Report to Human Resources is Protected by SLAPP Statute

Human Resources Internet DefamationAlways remember when reviewing a complaint to see if it is a potential SLAPP that the anti-SLAPP statute is not only about speech, it includes the right of redress. Then, whenever you see that the defendant has complained to someone — anyone — consider whether that is a natural step one would pursue in seeking redress.

We were the first firm (that we know of anyway) to successfully pursue an anti-SLAPP motion based on a report to a bank. Our client’s partner had opened a credit card in the name of the company, and when our client found out, he went to the bank and closed the account, informing the bank personnel that his partner had committed fraud. The partner sued for defamation, and we successfully brought an anti-SLAPP motion on the grounds that reporting the fraud to the bank was the first logical step dealing with the fraud. Stated another way, all would recognize that if our client had gone to the police and reported the fraud, that would be protected, but who would go directly to the police without first running to the bank to get the card cancelled in order to stop any false charges? The court agreed with my argument that the report to the bank is part of the same right of redress.

And so it was found in the just reported case of Aber v. Comstock. There, and employee brought a claim against her employer and two of its employees for sexual assault. Comstock, one of the employees who Aber was suing, filed a cross-complaint against Aber for defamation and intentional infliction of emotional distress.

Comstock’s case was likely doomed from the start, because as I have already explained here, suing someone for suing will almost always be a SLAPP, and he even alleged that part of the defamation was the report to the police, which is clearly protected. Specifically, Comstock alleged that Aber “orally published false statements about COMSTOCK to third parties, including but not limited to, friends, employees of Wolters Kluwer, health care practitioners, and the police.” The court reviewed the law that applied to each of these statements, and the most interesting was the analysis of the statement Aber made to her employer’s HR representative.

Were Ader’s statements to the HR department protected under the SLAPP statute?

An earlier case (Olaes v. National Mutual Ins. Co.) had found that statements to a company’s HR department were not part of “an official preceding authorized by law” and therefore did not fall under the SLAPP statute. Here, however, the court noted that a U.S. Supreme Court case (Faragher v. City of Boca Raton) had found that the failure of an employee to take advantage of corrective opportunities afforded by the employer could be used as an affirmative defense against a claim by the employee. So, put them together. Aber did not have to report the alleged assault to HR, but had she failed to do so, then her subsequent action for the assault could have been defeated. Bingo. That makes the report to HR a necessary part of the right of redress, and pulls it into the anti-SLAPP statute.

The case was properly decided, but is a little concerning given the course the court followed. The justices shoe-horned the report to HR into the SLAPP statute by finding it was necessary in order to preserve the ultimate legal action. As we demonstrated with our credit card case, the standard need not be so stringent, and instead the determining factor should be whether the conduct was a natural part of the process.

Go here to see the complete decision in Lisa Aber v. Michael Comstock.


Suing Someone for Suing Will Almost Always be a SLAPP

Anti-SLAPP attorneyI’ve been writing about SLAPP actions and anti-SLAPP motions for so long that I start to believe that surely by now attorneys must be aware of what constitutes a SLAPP. Apparently not.

When a client wants me to get defamatory content removed from the Internet, they normally ask me to send a cease and desist letter. Normally, I refuse. Most attorneys will happily take the client’s money and send a cease and desist letter, but I have seen hundreds of such letters, brought to me by clients asking me to do something about the defamation after another attorney sent an unsuccessful cease and desist letter. Long ago I learned that cease and desist letters are very ineffective. Often, the defamer will even post the letter as a badge of honor, to show that he succeeded in getting the victim’s goat, to the point that he retained counsel.

I think the reason cease and desist letters are so ineffectual is because they are perceived as toothless threats. In most instances, the defamer will ignore the letter and sit back and wait to see if the victim is really willing to pursue the matter in court. But if you send that cease and desist letter along with the complaint, giving the defamer five days to comply, they become very effective. Now he knows that the victim has already taken the time and expense to have the attorney draft the complaint, and is ready to pull the trigger.

So I followed this draft complaint approach for a client who had terrible things published about him on multiple blogs, and I could not believe how the defamer’s attorney responded. When the defamer did not comply within the five day deadline, we filed and served the complaint, and the defamer’s attorney responded with an answer and cross-complaint. The attorney brought an action for the emotional distress his client was suffering as a result of my demand letter, the draft complaint and the subsequent legal action.

This was the quintessential SLAPP, but there was a problem. The cross-complaint was so poorly drafted, I worried that if I filed the anti-SLAPP motion it might fail just because we could not determine exactly what the defamer was suing for. I needed the defamer’s attorney to better state his SLAPP, so I demurred to the cross-complaint pointing to the lack of specificity in the allegations.

The defamer’s attorney fell into the trap. Not only did he amend the cross-complaint to make very clear that cross-complainant was suing for the emotional distress he suffered from the demand letter and draft complaint, he added a new cause of action for abuse of process. Follow this logic. He contended that since my demand letter and draft complaint were sent to the defamer with the intent to make him take down the defamatory posts, the complaint was only then filed because he refused to do so. Therefore, the defamer’s attorney reasoned, the complaint was filed for an improper purpose. Instead of seeking damages, the complaint was seeking to have the defamatory comments removed, and therefore was an abuse of process. (The complaint did, of course, seek damages, but counsel contended that since the cease and desist letter had not demanded damages, then the complaint was not really intended to recover damages.) You can’t make this stuff up.

Now the cross-complaint was ripe for an anti-SLAPP motion. In opposition to my motion, defense counsel argued that the facts were identical to Flatley v. Mauro, where an attorney’s demand letter was found not to be protected by the litigation privilege because it amounted to extortion. One problem though – the cease and desist letter did not ask for any money. Thus, defense counsel was arguing that my cease and desist letter was extortion even though it did not ask for money, and the subsequent complaint was an abuse of process because the cease and desist letter had not asked for money. Talk about damned if you do, damned if you don’t.

Of course the court granted the anti-SLAPP, and the attorney moved to be relieved, leaving the client to fight the motion for attorney fees in pro per. Wow. It was an interesting motion to draft, because I did not need to say one word about the falsity of the statements published by the defamer. The first prong of the SLAPP analysis was easily met because the cross-complaint dealt with my client’s seeking redress, and the second prong was equally automatically met since the cross-complainant could never show a likelihood of succeeding because his action was barred by the litigation privilege.

Yes, some SLAPPs can be harder to spot than others, but to all attorneys, if you find yourself preparing a cross-complaint based on the fact that someone sued your client, that’s probably a SLAPP. Malicious prosecution is still a viable cause of action, but only after having successfully defended the original action, and only then if all the elements can be met. Here is another attorney who learned that lesson the hard way.


Hacienda Heights Doctor, Pankaj Karan, Hit with $1.5 Million Judgment for Internet Defamation

In this case, we represented a business and the individual who owns that business. The defendant, a medical doctor named Pankaj Karan, was starting his own business, MDTelexchange, and traveled to an overseas company also owned by our client (we’ll call that the “foreign company”) and entered into a contract for the creation of some custom call center software.

And that is where the divergence in the two versions of the story begins. Our clients asserted (and proved at trial) that the working software was delivered on time by the foreign company. The defendant, Dr. Karan, claimed otherwise, and blamed the failure of his start-up company on the software.

Dr. Karan’s claims never made sense, because while the software would have been useful in his business, it was in no way essential. Blaming the software for the failure of the business was akin to saying a business failed due to a lack of business cards. But for whatever reason, Dr. Karan chose to blame our clients, and in an email announced that he was going to “work night and day to inflict the maximum amount of financial pain that is allowed under the law.” To that end, he ignored the fact that his contract was with the foreign company, and instead attacked our client personally, along with his other company, taking to the Internet to trash their reputations.

This is a scenario that I see over and over in defamation cases. Someone becomes unhappy with a business or individual, and decides to criticize them on-line. It might even begin with a laudable motive – just putting out the word to the public to avoid a business that did not satisfy the critic. I would defend to the death the right of anyone to go on line and publish a legitimate criticism of a business.

But something happens that takes the person beyond a legitimate review. As the person types the words, he or she decides it’s just not stinging enough and won’t cause enough harm. In this case, Dr. Karan must have felt that a legitimate review of the foreign company, stating that in his opinion the software did not work as promised or was not delivered on time, just wasn’t hurtful enough. He posted two articles on his own blog, and sent an email to our clients’ customers. In the email and postings, Dr. Karan’s comments had almost nothing to do with the alleged problems with the software. Indeed, he abandoned his claim that the software was late, and instead claimed that it had never been delivered at all. He added that our client had cheated an employer ten years earlier, and that his company had failed to pay vendors hundreds of thousands of dollars. Although our clients had never received a single complaint from a customer, Dr. Karan claimed that “they are swindlers of the highest kind and have milked many of their clients of money and time.”

At trial, Dr. Karan could not identify a single customer that our clients had “swindled”, he could not identify a single vendor they had failed to pay, could not specify how he had cheated his former employer, and acknowledged that the software was in fact delivered. Today, an Orange County jury, known for being very conservative with damage awards, awarded $1.5 million jointly and individually to both of our clients for the damage to their reputations and business, caused by Dr. Karan.

In a standard civil action, the plaintiff has the burden to prove the case. This is true in a defamation action as well, but since truth is a defense to defamation, the burden of proving a statement is true falls on the defendant. I can’t fathom how defendant thought he would get away with what he published in this email and on his blog, but I think he may have thought he would be safe because we could not prove a negative. In other words, how do you show that you have never defrauded any of your customers? Bring in every customer you have ever worked with to testify that you did not defraud them? That would be impossible, and that is why the law puts the burden on defendant to prove the TRUTH of the statements. Dr. Karan could not prove his statements were true.

[UPDATE — January 2, 2014]  Dr. Karan did not go silently into the good night. His attorneys appealed the $1.5 million verdict, claiming there was insufficient evidence to support an award of that size. To that claim, and in denying the appeal, the court opened its opinion with the sentence, “All things considered, appellant Dr. Pankaj Karan got off cheaply in the trial court.” Better yet, in commenting on our brief, the court stated:

[Dr. Karan] has misstated the record in numerous particulars, as shown in a respondents’ brief so devastating it has left Karan, like Job, with no reply but silence and a hand over his mouth.


Judge Orders Man to Apologize to Ex-Wife on Facebook

Facebook Censorship

Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.

In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.

With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:

“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “

But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.

The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:

I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.

This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.

Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.


How India Deals with Twitter Defamation

Pooja Bedi suffers Twitter Libel

Pooja Bedi

I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law like the Communications Decency Act. Now comes a case out of India.

India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.

In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her.  “These things are serious in nature and need to be investigated,” said Bedi in her complaint.

However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.


Is Rush Limbaugh Facing a Claim for Defamation?

Rush Limbaugh Liable for Slander

I’m getting calls from media outlets about some comments made by Rush Limbaugh, and whether they constitute defamation. I’m always happy to talk to you reporters and provide comments, but thought I’d put this post up to provide some background for your articles.

Apparently Rush Limbaugh weighed in on the controversy over religious organizations being forced to pay for birth control for their employees. Following an appearance by Sandra Fluke, a Georgetown University student, at an informal House Democratic hearing last month. Ms. Fluke testified in favor of Mr. Obama’s mandate, which Georgetown and other Catholic institutions have roundly condemned as an infringement on their religious rights.

At the hearing, Ms. Fluke said fellow students at her Jesuit university pay as much as $1,000 a year for contraceptives that are not covered by student health plans.

On Wednesday, during his radio show, Limbaugh allegedly said:

“What does that make her? It makes her a slut, right? It makes her a prostitute . . . she wants to be paid to have sex … She’s having so much sex she can’t afford contraception.”

Accusing a woman of being unchaste is the classic, old-school form of slander. Here is the definition of slander under California’s Civil Code § 46:

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

I’ll bet you never knew it was slander to accuse a man of being impotent, but I digress. There it is in black and white – it is slander to impute to a woman a “want of chastity”. (For those of you who carefully read the section and see that it said “imputes to HIM . . . a want of chastity”, you get bonus points. However, there is a catchall statute that provides statements of gender in statutes don’t exclude the other gender, so you can’t accuse men or women of being loose.)

So is Rush Limbaugh toast?

Not at all, because defamation law makes clear that context is everything. Back in 2009 I wrote about the case of radio commentator Tom Martino who stated on his consumer show that the sellers of a boat were “lying”. The plaintiffs/sellers took umbrage with that remark, and sued Martino for defamation. Defendants responded with an anti-SLAPP motion, claiming the statement was merely an opinion and therefore could not constitute defamation. The trial court agreed with defendants and ruled that as a matter of law the comments did not constitute defamation. Under the anti-SLAPP statute, plaintiffs were ordered to pay all of defendants’ attorney fees.

A true opinion cannot constitute defamation unless it is offered as an assertion of fact. While it was true that the radio program host accused the plaintiffs of “lying” to their customer, that could not seriously be taken as an assertion of fact given the context of the show. As the court observed, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audiences’ expectation of leaning an objective fact: drama, hyperbolic language, an opinionated and arrogant host and heated controversy. In the context of the show, Martino was simply listening to the complaint of a caller, and possessed no independent knowledge of the facts beyond what he was being told. It could not be taken, in that context, that he intended his “lying” comment to be taken as a verifiable fact.

So it is with Rush Limbaugh. He knows nothing about this woman who believes others should pay for her birth control, and he was engaging in a little hyperbole about what that makes her. He was creating a false syllogism to make a point, claiming that based on her testimony she wants to have sex, she can’t have sex without birth control, she wants someone else to pay for her birth control, so she is being paid to have sex.

As the old saying goes, you can sue for anything, but a defamation action by Ms. Fluke would not survive the first motion (especially if I was the attorney defending free speech).

And speaking of free speech, the fight for free speech should not depend on the politics of the speaker. Here is a colorful article from someone who hates Limbaugh, but quite properly would fight for his right of free speech.

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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Tustin, CA 92780

(714) 954-0700

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