It has been nearly 10 years since then-vice presidential candidate Sarah Palin could not name a single newspaper that she read to stay informed in an interview with Katie Couric. But it appears that she has learned to occasionally peruse national publications since then, as the former Alaska governor filed a defamation lawsuit Tuesday against the New York Times in response to an editorial that linked her to the 2011 shooting of Democratic Representative Gabby Giffords.

Palin’s lawyers claim that the connection was published “knowingly, intentionally, willfully, wantonly and maliciously, with the intent to harm Mrs. Palin, or in blatant disregard of the substantial likelihood of causing her harm.” They also added that by keeping the editorial up, the Times “violated the law and its own policies.”

The editorial in question–titled “America’s Lethal Politics”–drew a parallel between the June 14 shooting that injured Representative Steve Scalise (R-LA) and several others at a baseball field in Alexandria, and the 2011 shooting in Arizona. The piece said that both attacks were incited by political rhetoric which has become a “sickeningly familiar pattern.”

“Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs,” it read at one point. It also went on to draw connections between that advertisement and the shooter’s motivation to attack Giffords, despite a Times article from earlier this year that rejected that notion. The Times’ opinion section corrected these concerns the next day and later tweeted out an apology.

The $75,000 defamation suit claims the newspaper’s correction and subsequent apology were “devoid of any reference to Mrs. Palin” and were “woefully insufficient.”

Essentially Palin is arguing that the editorial published by the Times was libelous. Because the defamation in question was published as a written work, the suit would have to follow the legal standards of a libel case. Palin is a “public figure”–specifically an “all-purpose public figure”–meaning she is someone whose fame or position regularly puts them in the public eye. The courts decided in the 70s–ironically through a case that also involved the Times–that public figures have to prove “actual malice”–meaning the statements about the person were published with reckless disregard for whether they were false or true. In other words, Palin’s lawyers need to show that the alleged false statements in the editorial were published intentionally, or with total disregard for the truth.

If it seems like this is a high standard that is tough to prove, it’s because it is. Especially given this situation. Most statements made in editorials are defended as opinion. Even if the court does not consider the statements to be opinions, it might be even more difficult to prove her reputation was damaged. When Sarah Palin’s contract with Fox News ended in 2015, FiveThirtyEight found that her favorability rating was at an all time low, even among Republicans. It is difficult to defame the character of someone who is already not viewed too highly, especially when the average Times reader is left-leaning. Some might even argue that this situation has made Palin more sympathetic. While it was expected that conservatives would cheer the lawsuit, even the Washington Post was quick to call out the Times for its mistake.

There is a chance, as there always is, that she could win this case. Palin’s legal team includes one of the lawyers from the famous case in which Hulk Hogan sued Gawker into oblivion for publishing his sex tape. The Columbia Journalism Review referenced this case–among others–as “evidence that the growing unpopularity of media may translate into less-sympathetic jury pools.”

Regardless of how this case turns out, the Times publishing a debunked talking point is far from a good look for the publication. At best, the editorial board lazily tried to remind readers that Sarah Palin did put out an ad with crosshairs of a gun sight over districts with Democrats that voted for the Affordable Care Act with the phrase “Don’t Retreat, Instead – RELOAD!”, and the next day vandals happened to smash in her office’s windows. At worst, the board committed libel against a woman who promoted birtherism and claimed that former president Barack Obama spent $2 million to hide his real birth certificate.

Gabe Fernandez

Gabe is an editorial intern at Law Street. He is a Peruvian-American Senior at the University of Maryland pursuing a double degree in Multiplatform Journalism and Marketing. In his free time, he can be found photographing concerts, running around the city, and supporting Manchester United. Contact Gabe at Staff@LawStreetMedia.com.

The post Will Sarah Palin’s Defamation Suit Against the New York Times Succeed? appeared first on Law Street.

Welcome to RantCrush Top 5, where we take you through today’s top five controversial stories in the world of law and policy. Who’s ranting and raving right now? Check it out below:

North Carolina Moves to Repeal HB2…Sort of

A North Carolina Senate committee moved toward repealing the infamous bathroom bill, HB2, today. The controversial bill has led to a lot of negative publicity and backlash against the state. Now politicians say they’ve reached a compromise: they want to repeal the law, but also prohibit any local municipalities from passing anti-discrimination laws for three full years. LGBTQ groups are not happy with this development “The initiative is not a repeal. It’s doubling down on the discrimination that HB2 exacts–it’s HB2.0,” said Chris Sgro, executive director of Equality NC. “It doesn’t do anything to better the lives of LGBT North Carolinians.”

Don’t let political spin fool you. N.C. lawmakers are NOT voting to “repeal” HB2. They’re voting to make protecting LGBTQ people illegal.

— Raymond Braun (@raymondbraun) March 30, 2017

The bill is set for a vote this afternoon, and if it passes, North Carolina would still be one of a few states in the U.S. where it is actually “illegal for cities to protect the rights of their residents,” as Mara Keisling, executive director of the National Center for Transgender Equality, put it. The timing of this vote isn’t a coincidence–the NCAA said that the state had until today to address this issue, or else the organization would continue to avoid holding events in the state.

BOYCOTTS WORK.

North Carolina was poised to lose BILLIONS & BILLIONS of dollars over this. They buckled under that economic pressure. https://t.co/WvdNcyhUSk

— Shaun King (@ShaunKing) March 30, 2017

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post RantCrush Top 5: March 30, 2017 appeared first on Law Street.

A judge has ordered “The Wolf of Wall Street,” aka Leonardo DiCaprio, to testify in a lawsuit against the filmmakers of the 2013 movie. You might think it would be flattering to have a character featured in a movie with one of the biggest stars of today based off of you, but businessman Andrew Greene claims that it portrayed him as a “criminal, a drug user and a degenerate.” Now he wants $25 million in damages.

@BBCWorld @LeoDiCaprio
Is he going to be questioned about The Titanic sinking as well?

— Paul_Ed (@eddo75) June 17, 2016

Greene is the former executive at the brokerage firm the film depicts, Stratton Oakmont, portrayed through the character Nicky “Rugrat” Koskoff, the guy with the bad toupee. DiCaprio plays the main character, Jordan Belfort, who founded Stratton Oakmont and made a fortune by defrauding investors.

Greene initially sued Paramount Pictures for over $50 million in 2014. Paramount claims that Koskoff, played by P.J. Byrne, is a mashup of multiple people and that Greene is just one of them. The hairpiece played a role in many jokes in both the movie and in Belfort’s memoir that the movie is based on.

Oh, it's not even about Jordan Belfort. It's about how Nicky Koskoff was portrayed to look bad in the film lol. pic.twitter.com/7BDABHMzRF

— Tea Lizard (@brettSTYX) June 17, 2016

The judge rejected Greene’s claims of defamation, but allowed him to change his suit to malicious libel. The plaintiff’s side wanted DiCaprio to testify since he played a big part in the production of the movie, but he has so far been “too busy.” The defendants claim that the accounts of director Martin Scorsese and screenwriter Terence Winter should be enough. They have also argued that DiCaprio didn’t have any means of controlling other actors’ performances.

.@LeoDiCaprio is being asked to testify against the creators of Wolf of Wall Street in a defamation case. #9Today https://t.co/98ZIaOo6OA

— The Today Show (@TheTodayShow) June 15, 2016

But the judge sided with the plaintiffs, and has now ordered DiCaprio to court. However, the orders are vague, stating he should show up for his testimony “at a reasonable time and place agreed to by the parties.”

The real “Wolf of Wall Street,” Jordan Belfort, spent 22 months in prison for money laundering and fraud. He went on to write his biography and is still paying off debts to the victims of his financial schemes.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post Leonardo DiCaprio to Testify in Lawsuit Against “The Wolf of Wall Street” appeared first on Law Street.

Actress Lindsay Lohan and her mother Dina filed a defamation lawsuit against Fox News, Sean Hannity, and Hannity’s guest commentator Michelle Fields on February 2 over allegations that the mother and daughter did cocaine together.

The alleged statements occurred on a February 4, 2014 Hannity episode where Fields and Hannity discussed celebrity drug overdoses. Fields can be heard saying, “Lindsay Lohan is doing cocaine with her mother.”

Mediaite.com has a clip of the segment, which you can view here.

The Lohans are seeking compensatory and punitive damages and “will continue to suffer severe mental and emotional distress; embarrassment and humiliation; pain and suffering; and economic loss, including loss of income, entertainment and acting contracts, present and future diminished income and economic opportunities,” according to E!.

Moreover, E! further reports that a Fox News spokesperson issued a statement saying, “We will defend this case to the fullest. The remark about which Lindsay and Dina Lohan complain was made on live television by a guest nearly a year ago. We removed the segment from our archives altogether last February and also apologized on-air. At that time, the Lohans did not make any demands for money, and we are surprised they are doing so now.”

A big issue in the case will likely surround when Fox News took down the segment. Nevertheless, I want to talk about a more elementary, and arguably more interesting, area of defamation law that will have an immediate effect on the case’s outcome.

In slander cases, the first question that needs to be asked is if the statement is true or false. If the statement is true here, then Lohan’s case will not succeed.

If the statement is false, victory or defeat in slander cases comes down to various burdens of proof that a potential plaintiff needs to prove. Burdens of proof in a slander case vary depending on whether the plaintiff is a private citizen or public figure. Since the younger Lohan is a global celebrity, she will likely qualify as a public figure, and in particular a general purpose public figure. Being a general purpose public figure, she will have to prove that Fields’ statement was made with knowledge that the statement was false or that Fields said the statement with a reckless disregard to the statement’s falsity. In other words, Lohan will have to prove that Fields made the statement with actual malice.

Lohan’s mother may classify as a different type of public figure, that is, a limited purpose public figure. A limited purpose public figure is someone who is a private citizen who thrusts herself into a public controversy. Limited purpose public figure must also prove that a defamatory statement was made with actual malice. Nevertheless, an argument can be made that Lohan’s mother is a general purpose public figure because of her Living Lohan fame.

Regardless, given the recent multimillion dollar libel verdict in favor of Jesse Ventura, I doubt that Fox News will want to prolong this issue all the way to trial, despite its statement that it will defend the case to the fullest. I will be surprised if the case is not settled out of court.

Editor’s Note: A previous version of this article referred to Lohan’s suit as libel; the suit is one of defamation.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Lindsay Lohan Sues Fox News Over Cocaine Use Statement appeared first on Law Street.

There has been a surge lately in a certain category of books on Amazon and Barnes & Nobles’ websites: memoirs. Many people think that they have something new or unusual to share with the world, and they share it through self-publishing, or in some cases, market publishing. These works talk about everything from living with drug abuse to parenting a child with Autism. For authors–especially those who self-publish–when it comes to the legality of what you are saying who you are naming, it can quickly become a slippery slope. This debate has made news out of many memoirs–from A Child Called It to the latest drama with Lena Dunham’s Not That Kind of Girl. So legally, what can an author say, and what can’t be said? How do you walk that thin line between complete honesty in your own memoirs and what is legally permissible to divulge about other people? Read on to learn when you can name names in memoirs, and the details behind some of the most famous cases that have shaped opinion on the subject.

What’s the legality behind “naming names?”

In an article with Writer’s Weekly, legal expert Howard G. Zaharoff says there are two ways to tell if you should name names. The first has to do with the actual law of the land: “…U.S. law prohibits defamation, that is, oral or written falsehoods that hold the subject up to scorn or ridicule. Every negative statement you make about a living person must be true and, ideally, supported by evidence.” So you can name names, as long as everything you say is true. But it goes a little deeper than that, as there have been many cases where people truthfully name names and still get into legal trouble.

The second way requires a little more discretion: “The right to avoid disclosure of truthful but embarrassing private facts is the first right,” explains Zaharoff. “For example, I am reading John Sandford’s latest Prey novel, in which a well-known politician is accused of having sex with an underage woman. She offers proof that she had sex with him by describing two semicolon-shaped freckles on his testicles. Unless they are relevant to an important and truthful account you need to tell, I would avoid that kind of disclosure.” While that image is shocking, it is something that a writer probably would not need to share in a written piece–it does not add interest or pique curiosity. Try not to reveal anything too personal or embarrassing about whomever you are writing about.

Legal action is tricky, because in the end, it is probably only going to be the writer’s word versus that of the plaintiff. Even if you do not lose the lawsuit, you will still have done some damage to your reputation and to your book. So on to the real question: how do you tell your story without risking litigation?

• Disguise as much personal information as you can.
• Try not to describe physical appearances; or change physical appearances.
• Do not use biographical information to describe why a person did something.
• Use a pseudonym if at all possible.
• Talk to a lawyer before you publish the book.

But the question is, again, how authentic can your story be if you are fabricating characters? Truthfully, if you want your memoir to be authentic, you can’t change very much at all about the character’s upbringing, education, career, appearance, or even economic status–that makes up a person’s character. Is it enough to change a name?

Let’s look at some of the most famous cases where an author faced possible legal action for naming names.

Augusten Burroughs’ Running with Scissors

Augusten Burroughs had a close relationship with Theresa Turcotte throughout his life. In fact, it was Burroughs’ relationships with Turcotte and her entire family that inspired his wildly popular memoir Running with Scissors, which chronicles his life from the ages of nine to 17. During most of this time, Augusten lived with the family of his mother’s rather unorthodox psychiatrist. Following his mother Deirdre’s first minor psychotic break, she began to see Dr. Finch. Before long Burroughs’ parents divorce and (SPOILER ALERT) his mother reveals that Finch had been controlling her through medication.

Vanity Fair explains that, “The character based on Theresa is named Natalie Finch, and in her first appearance she is described as a ‘ratty’ 13-year-old. In the next reference she has ‘long, greasy stringy hair and dirty clothes.’ In the next five pages she is described ‘spilling crumbs down the front of her striped halter-top’ from a tube of Pringles and wiping ‘her hands on her bare knees’ and using the word ‘cunt.’” The woman who inspired the character, who now works professionally for the University of Massachusetts Medical School, was taken aback.

In subsequent press interviews, members of the Turcotte family cried foul on many of the accusations that Burroughs made. They do not call everything into question, including some of the accusations about their controversial father. But of course in order to file a suit, the family would have to go public, which could be even more damaging if they lost.

The family took both Burroughs and the publisher to court, where they came to an agreement that Running with Scissors would no longer be called a memoir. Burroughs’ new acknowledgments note at the back of the book will say that the Turcottes “are each fine, decent, and hard-working people.” Financial terms of the settlement are completely private. Sony Pictures made a deal with the family before releasing it as a movie.

Burroughs won in this case, saying: “I’m not at all sorry that I wrote [the book]. And you know, the suit settled–it settled in my favor. I didn’t change a word of the memoir, not one word of it. It’s still a memoir, it’s marketed as a memoir, [the Turcottes] agreed one hundred percent that it is a memoir.”

Not That Kind of Girl by Lena Dunham

Lena Dunham, actress and outspoken feminist, was sexually assaulted while studying at Oberlin College. Anyone who has read her memoir or seen an interview with her in the last few months during its publicity tour will know this, because in Not That Kind of Girl, she details exactly what happened to her. But now she is being called an unreliable narrator by some people associated with the college.

According to the Washington Post:

‘Barry’ the purported assailant in Dunham’s ‘Not That Kind of Girl,’ is characterized as Oberlin College’s ‘resident conservative,’ suggesting that such a designation is rare at that Ohio bastion of liberal politics. He is described in considerable detail, sporting a flamboyant mustache and purple cowboy boots, working at the campus library and hosting a specific radio talk show. The book’s copyright page acknowledges that ‘some details and identifying details have been changed.’

When questioned why she decided to publish her account, she said, “I hoped I might inspire others to share, and that forming these connections would assist us in healing.” She then continued: “There is no right way to survive rape and there is no right way to be a victim. What survivors need more than anything is to be supported.”

Random House, which reportedly paid more than $3.5 million advance for Dunham’s book, has offered to pay Barry’s legal fees, but made no further comment on the way Dunham’s book was fact checked or edited for names. Future editions will make it clear that Barry is supposed to be a pseudonym.

Though we don’t know the end of this one yet, knowing the public’s love/hate relationship with Dunham it is bound to get interesting.

For anyone who has read the book, it seems that Dunham’s intentions were not to shame the man who did it,  but rather to raise awareness of the fact that things like sexual abuse and rape happen on college campuses everywhere–even those that are progressive. Dunham is known to be a hot topic in the public eye, and people tend to jump on her case whenever she does anything. Still, as someone who is not a first time writer–she has awards and a lot of media attention from writing Girls–she probably should have known better than to use an actual person’s name and exact likeness in her autobiography.

Conclusion

Memoirists walk a very fine line because many of them have also written fiction, including Dunham–who has blurred the lines with her book and her television show Girls–Binjamin Wilkomirski, and James Frey. The brunt of the responsibility is on them to write honestly, precisely, and clearly about their pasts. Readers also have to realize that each story is told from the perspective of the writer–not necessarily who the included stories are about. Geoffrey Wolff wrote The Duke of Deception about his father, a pathological liar, whose fantastical stories he studied. “I’m going to write everything I believe to be true,” he says. “The writer knows memory bends, but everything I write I believe to have happened.”

Resources

Primary

Buzzfeed: Lena Dunham: Why I Chose To Speak Out

Additional

Vanity Fair: Ruthless with Scissors

Telegraph: The minute you tell me your story – it’s mine

USA Today: Burroughs Settles Lawsuit with “Scissors” Family

Writers Digest: Will I Get Sued if I Use Real Names in my Memoir?

Creative Penn: 7 Mistakes to Avoid When Writing Your Memoir

NPR: Augusten Burroughs’ Mother Speaks Out

Washington Post: Lena Dunham and the damage done by false accusations

The New York TImes: The Problem with Memoirs

Editor’s Note: This post has been edited to replace a source that has been taken off the web. 

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post The Gray Area in Memoir Writing: When Can You Name Names? appeared first on Law Street.

Matthew Bissonnette, a former Navy SEAL who wrote the book “No Easy Day,” is suing his former lawyers for malpractice.

According to CBS New York, Bissonnette, whose pen name is Mark Owen, alleges that his former attorneys told him that the federal government did not need to perform a pre-publication review of his book, which describes the 2011 raid that killed Osama Bin Laden. He later relied on their advice that they told him they had performed pre-publication review themselves and removed all classified and sensitive government information. Bissonette alleges that his former attorneys’ guidance “prompted a Pentagon inquiry that evolved into a criminal probe by the Justice Department,” which “tarnished his reputation, cost him his security clearance and caused him to surrender much of the book’s income to the government,” as well as ruined his “‘exemplary military record’ by the false accusation that he sought to profit from disclosing military secrets.”

Bissonette claims he had to forfeit $4.5 million to the government for following his attorneys’ advice and publishing his book without the government’s permission.

The former Navy SEAL seeks unspecified compensatory damages, but claims his losses are at least $8 million, partly because he believes his tarnished reputation will cause him to lose consulting positions, speaking engagements, and other future employment opportunities.

Since book publishers are in the book business, they are not strangers to pre-publication reviews, which are reviews undertaken by attorneys to prevent defamation lawsuits. I have had the privilege of assisting in pre-publication during some of my internships, and it’s quite an interesting process, during which an editor will ask an attorney to read a manuscript for any libelous statements. The attorney looks for any false statements of facts or opinions that may be construed as false statements of fact.

Pre-publication review can be implemented for both fiction and non-fiction books; however, from my experience, I have noticed that editors request more non-fiction books for pre-publication review. This may be because non-fiction books are about real events and real people, and reported facts can sometimes also be false. A potentially defamed person can easily point to the words in the story and claim, “I’ve been defamed. It says so right there in this book.” This may be harder in fiction where the author can presumably make anything up, notwithstanding that fiction authors can still be sued for defamation (e.g., a person believes he or she is a particular character that portrays him or her in a false light). Nevertheless, pre-publication review is quite common in book publishing.

Moreover, when publishers attempt to publish books about the government, there is a second stage to pre-publication review in which the federal government routinely vets manuscripts in order to redact any classified or sensitive information that may harm national security.

Thus, I would like to know why Bissonnette’s attorneys supposedly advised him that the government did not need to perform a pre-publication review, especially considering that he participated in the raid that killed Osama Bin Laden and “decided to write the book after realizing that others who did not know the accurate facts were writing about and discussing the daring May 2011 raid by SEAL Team 6 in Pakistan that resulted in the killing of the head of al Qaeda and inspiration behind the Sept. 11, 2001, terrorist attacks.” They knew the government would want to make sure that Bissonnette’s version of the 2011 raid did not hamper national security, and they had nothing to gain from advising Bissonnette to forgo pre-publication review. Their alleged misstep could easily have been avoided.

I will be eagerly waiting to see what happens in this case.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Navy SEAL Author of Bin Laden Raid Book Sues Attorneys for Malpractice appeared first on Law Street.

On August 21, 2014, Pulitzer Prize-winning architect Zaha Hadid, who designed the stadium for the 2022 World Cup, sued the New York Review of Books and its critic, Martin Filler, for defamation. Hadid claimed that Filler defamed her in his June 5, 2014 article, “The Insolence of Architecture,” in which he reviewed non-party Rowan Moore’s book Why We Build: Desire and Power in Architecture. Hadid asserted that Filler’s following passage defamed her:

“However, despite the numerous horror stories about this coercive exploitation, some big-name practitioners don’t seem moved by the plight of the Emirates’ imported serfs. Andrew Ross, a professor of social and cultural analysis at New York University and a member of Gulf Labor, an advocacy group that is seeking to redress this region-wide injustice, earlier this year wrote a chilling New York Times Op-Ed piece. In it he quotes the Iraqi-born, London-based architect Zaha Hadid, who designed the Al Wakrah stadium in Qatar, now being built for the 2022 World Cup. She has unashamedly disavowed any responsibility, let alone concern, for the estimated one thousand laborers who have perished while constructing her project thus far. ‘I have nothing to do with the workers,’ Hadid has claimed. ‘It is not my duty as an architect to look at it.‘”

Hadid contends that Filler defamed her because workers have not begun constructing the stadium, and no workers have died. Moreover, the passage implies that she is indifferent to the workers’ deaths. Architectmagazine.com reports that Hadid’s complaint seeks “a withdrawal of the article from publication, a retraction, unspecified damages from the defendants, full payment of legal fees, and ‘any further relief as justice may require.’”

On August 25, 2014, Filler retracted his statement in a letter to the editor entitled, An Apology to Zaha Hadid, which is also added to the end of the review online. The Los Angeles Times reports that Hadid’s legal team received Filler’s retraction but has yet to respond.

Although Hadid obtained Filler’s retraction, it may be difficult for the architect to receive any other relief that she seeks in her complaint if her lawsuit reaches the trial stage. Since Hadid is a Pulitzer Prize-winning architect, she will likely be deemed a public figure, and consequently, she has to prove that Filler acted with “actual malice” when he wrote his article, which is a difficult standard to prove, as explained in this post about celebrity defamation suits.

—

Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [Phil Gyford via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post New York Review of Books Retracts Defamation Error appeared first on Law Street.

This summer has been filled with celebrity defamation lawsuits, particularly against video game makers.  Early last month, Lindsay Lohan filed suit against the makers of Grand Theft Auto 5, Take-Two Interactive Software, Inc. and its subsidiary Rockstar Games, claiming that they used Lohan’s likeness without her permission.  Two weeks later, Panama dictator Manuel Noriega filed a legal action against Activision, the maker of Call of Duty: Black Opps II, also claiming that it used Noriega’s image without his permission.

Courtesy of [Chris Alcoran via Flickr]

The book publishing world also felt the sting of defamation lawsuits this summer brought by Hollywood starlet Scarlett Johansson and former Minnesota Governor Jesse Ventura.

In May 2013, Scarlett Johansson filed a libel lawsuit against French novelist Gregoire Delacourt for using Johansson’s name and image without her permission and for making false statements about her personal life in his best-selling French novel, The First Thing We Look At. The novel contains a scene in which the female protagonist, a French model who looks identical to Johansson, seeks the help of the lead male protagonist, a mechanic who mistakes the French model for Johansson. The character then has two affairs as Johansson, but her name is later revealed to be Jeanine Foucaprez. Johansson’s lawyer claimed that the two affairs that Jeanine had were untrue, and that the novel depicts Johansson as a sex object. Delacourte argued, however, that Jeanine was meant as a “tribute” to Johansson.

Courtesy of [pop torrent via Flickr]

Last month, a French court ruled in favor of Johansson and ordered Delacourt to pay damages in the amount of 2,500 euros (approximately $3,400) for his demeaning portrayal of Johansson.  Although Delacourte had to pay damages to Johansson, it seems that Delacourte’s publisher, J-C Lattes, won at the end of the day because the court denied Johansson’s attempt at an injunction to stop translations and film adaptations of the novel.  According to the Guardian, Emmanuelle Allibert of J-C Lattes said, “The book has already been translated into German and Italian and there has been interest in translating it into English, but publishers were waiting for the outcome of the case. Now we are open to offers.”

Across the pond in the United States, another defamation case unfolded this summer in federal district court in Minnesota, which book publishers took note of nationwide. Former Navy SEAL, pro wrestler, and Minnesota governor, Jesse Ventura, sued the estate of Chris Kyle for libel in Kyle’s book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History¸ published by HarperCollins. Kyle’s book contains a chapter entitled, “Punching Out Scuff Face,” which detailed a California bar fight that Kyle had with a celebrity in 2006. Ventura was not mentioned in the book, but Kyle said in interviews after HarperCollins published his book that Ventura was “Scruff Face.”  Ventura acknowledged that he was in the bar with Kyle but did not say that the Navy SEALS “deserved to lose a few,” nor did Kyle punch him in the face as Kyle alleged in his book. The district court in Minnesota favored Ventura and awarded him $1.8 million consisting of $500,000 for damages and $1.3 million for unjust enrichment.

Courtesy of Pesky Librarians via Flickr

Ventura’s award may be surprising due to the higher “actual malice” standard that public figures face in prevailing in libel actions throughout the United States. In libel lawsuits, public figures are placed in two categories: public figures and limited-purpose public figures. Public figures are people who are of great public interest (e.g., President Obama, Michael Jordan, Julia Roberts, etc.). Limited-purpose public figures are people who thrust themselves into a public issue or controversy to try to influence the resolution of that issue (e.g., guests brought on national news networks like MSNBC and Fox News to argue about ways to resolve various issues). In this case, being an ex-governor of Minnesota categorized Ventura as the former. Since Ventura was deemed a public figure, he had to prove that Kyle wrote false statements of fact about him that were made with “actual malice” (i.e.,  Kyle knew the statements he wrote were false, and Kyle deliberately or recklessly disregarded the false statements and published them anyway). Ultimately, the court believed that Ventura overcame the difficult “actual malice” burden of proof and awarded him damages.

The case isn’t quite over, however, as  on August 19, 2014, Kyle’s widow, Taya Kyle, filed a lawsuit in Dallas County Court against her attorney, Christopher Kirkpatrick, for malpractice. She claims that Kirkpatrick was negligent in his legal services and did not explain or disclose to the Kyles the various conflicts of interest that he had.

Ventura’s verdict is disconcerting to U.S. book publishers not only because of Ventura’s million dollar verdict, but because the lawsuit against Kyle’s estate could possibly have been avoided.   Publishers routinely tell authors to edit their respective manuscripts in order to avoid potential libel lawsuits (e.g., referring to Ventura by a different name, “Scruff,” and not mentioning Ventura’s name in the book). Kyle’s publisher, HarperCollins, likely did not bet on Kyle’s admission in an interview that “Scruff” was Ventura. Kyle’s confession serves as a warning to publishers that they cannot be too careful in fact checking and advising authors during the pre- and post-publication processes.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured image courtesy of [Clyde Robinson via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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This week Law Street broke the story of the FBI’s latest violent crime data — if you haven’t checked it out yet you definitely should. This week, though, I want to talk about crimes of defamation, because though they are rarely discussed, they have similar ability to do serious harm to a person’s life. These are caused by careless, negligent, and often malicious words of one person against another. Some of these people are just talking to hear their own voices, and some are liars — there is a special place in hell for liars.

Crimes of defamation are rarely talked about on a large scale because, really, how do you quantify them?  Where do we draw the line between “Freedom of speech” and “defamatory content?” The area between the two is gray, but the laws exist to determine what is casual conversation and what is illegal.

The Supreme Court defines defamation as a four-element offense, which requires:

1. A false statement purporting to be fact concerning another person or entity;
2. Publication or communication of that statement to a third person;
3. Fault on the part of the person making the statement amounting to intent or at least negligence;  and,
4. Some harm caused to the person or entity who is the subject of the statement. 
   

Some states, like New York, take these federal guidelines a step further and determine various rules for defamation depending on the person being defamed. The first category is for “private” people — a group into which most of us fall. Private people are more broadly protected. If you negligently say something that is defamatory against me, and the above four elements are met, you’ve broken the law. It’s that simple!

New York also has two other classes: public official and public figure. President Barack Obama is a public official; Kim Kardashian is a public figure. (Get the difference?) These people have taken steps to thrust themselves into the public consciousness, and with widespread notoriety comes widespread ridicule and judgment. I believe the legal term is “Mo Money, Mo Problems.”

When dealing with Kim Kardashian, President Obama, or any other public person, New York mandates that a fifth requirement must be met: the defamatory speech must be malicious. Malice requires a specific intent to cause harm to a person — it’s a tougher hurdle to jump, but the rewards are much greater. When a U.K. newspaper claimed that Liberace was gay in the late 50s, he sued it for defamation and libel and was awarded a large amount of money. Tom Cruise won a similar suit, and let’s not forget when Lindsay Lohan tried to sue E-Trade for their drunk baby named “Lindsay.”

Liar, Liar Pants on Fire

The law says that truth is an affirmative defense to any claim of defamation. That is, if the defamatory statement is based on a true story, the speech is within the bounds of the law. This makes sense, right?  If you are a known thief, and someone tells their best friend that you steal, that is totally okay.

What’s not okay is when the defamation occurs and is based on untrue information. The law recognizes that the power of words and one’s reputation can carry a person very far, and does its best to protect an otherwise innocent person from being victimized by lies and rumors.

The point of these defamation laws is to combat that victimization. Because of these laws, an unfairly accused or viciously maligned person can stand firm in her innocence or his correct assertion. An easy way to do this is to have an adjudicatory decision in your favor, i.e. you’ve gone to court and won. In other words, proof is of paramount importance when attempting to bolster one’s argument in a defamation case.

“Show Me the Receipts!”

There are various ways to determine if something is true or false, and one of the easiest ways to make that determination is to review the record. Courts and triers of fact rely on hundreds of thousands, likely even millions, of pages of documents annually in order to parse out the truth from all of malarky. That is why law schools across the country focus on organization, meticulous record keeping, and the importance of creating a paper trail. It’s why we create elaborate filing systems, why every document is backed up, and why everything is committed to writing. The quickest way to piss off a lawyer is to make an assertion without substantiating evidence.

50 Cent, the Poet Laureate of the early 2000s, put it best when he said, “I talk a lot of shit, but I can back it up.”

The moral of the story is that crime is a problem, but we need to broaden the discussion. All criminal activity is reprehensible, and when the law is broken there need to be consequences. The law exists so that criminals don’t do whatever they want to do, and the same preclusions apply with words.

And if all else fails, don’t lie.

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Peter Davidson is a recent graduate of law school who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Tweet him @PeterDavidsonII.

Featured image courtesy of [Angie Linder/Christina via Flickr]

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Peter Davidson II

Peter Davidson is a recent law school graduate who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Contact Peter at staff@LawStreetMedia.com.

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