Congressional subcommittee holds hearing on federal anti-SLAPP bill

While the Democratic sit-in protesting gun control garnered the nation’s attention this week, a less publicized piece of legislation gained traction in the U.S. House of Representatives Judiciary Committee. The Committee’s Subcommittee on the Constitution and Civil Justice heard testimony Wednesday on the SPEAK FREE Act (H.R. 2304), a federal anti-SLAPP bill. The bill extends speech protections for defendants subject to SLAPPs (Strategic Lawsuits Against Public Participation) to federal court and to states without anti-SLAPP laws.

Currently, 28 states, the District of Columbia, and the territory of Guam have enacted anti-SLAPP statutes with varying degrees of protection. SLAPPs are brought against those exercising their speech rights under the First Amendment and on matters of public concern. Often the goal of SLAPPs is to silence critics by subjecting them to costly and burdensome litigation. Anti-SLAPP laws grant defendants of these suits mechanisms in which to quickly dismiss claims, stay discovery, and receive attorney’s fees. These laws deter litigants from filing speech-chilling lawsuits.

The SPEAK FREE Act, introduced by Rep. Blake Farenthold (R-Tx) in May 2015, permits anti-SLAPP protections to apply in federal court and in states lacking an anti-SLAPP law.

Wednesday’s hearing (video here) included testimony from Bruce D. Brown, Executive Director of the Reporters Committee for Freedom of the Press; Aaron Schur, Senior Director of Litigation at Yelp, Inc.; Laura Prather, Partner at Haynes and Boone, LLP, and board member of the Public Participation Project; and Alexander Reinert, Professor of Law at Cardozo School of Law.

For more on the hearing, visit the Reporters Committee’s website here.

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U.S. Supreme Court rejects review of opinion doctrine in Scholz v. Delp

The U.S. Supreme Court once again denied review of a media law case Monday, refusing to hear the appeal from the Supreme Judicial Court of Massachusetts involving Tom Scholz’s defamation suit against Micki Delp, the Boston Herald, and other defendants.

The certiorari denial leaves in place the finding of the highest court in Massachusetts that Delp’s statements published in the Boston Herald about the death Scholz, the lead singer of the band Boston, were nonactionable opinion protected by the First Amendment.

Is calling kennel a “puppy mill” protected opinion under the First Amendment? The Missouri Supreme Court will decide in upcoming Humane Society case

On the heels of Missourians voting on the “Puppy Mill Cruelty Prevention Act,” the Humane Society of the United States, the nation’s largest animal protection organization, published a Report titled “Missouri’s Dirty Dozen: A report on some of the worst puppy mills in Missouri.” The Report, released October 5, 2010, listed Smith’s Kennel on the “Dirty Dozen,” citing numerous U.S. Department of Agriculture violations involving unsanitary conditions, exposure of dogs to extreme temperatures without adequate shelter, injured and bleeding dogs, and a bevy of other health hazards. Smith’s Kennel has not denied the veracity of these violations.

Responding to this Report and a subsequent press release, summary, and updated Report, Mary Ann Smith, owner of Smith’s Kennel, sued the Humane Society for defamation and false light in Missouri state court. The Humane Society filed a motion to dismiss, arguing its statements were constitutionally protected non-actionable opinion. The trial court agreed, granting the Humane Society’s motion to dismiss. However, the Court of Appeals reversed and remanded the trial court’s decision. Upon remand, the Defendants transferred the case to the Missouri Supreme Court.

On Feb. 4, the Reporters Committee for Freedom of the Press (RCFP), with a coalition of 22 media organizations, filed an amicus brief with the Missouri Supreme Court. RCFP had the assistance of attorney Joseph E. Martineau of Lewis Rice and the support of organizations such as the St. Louis Post-Dispatch, Kansas City Star, Council of Better Business Bureaus, BuzzFeed, Gannett Co., and the E.W. Scripps Company.

In our brief, amici urge the Missouri Supreme Court to find the statements are constitutionally protected opinion and affirm the trial court’s dismissal. Our argument centers around the following premise:

The Humane Society’s statements are protected opinion because they are based on disclosed, truthful facts and are core political speech.

Furthermore, we contend that broadly protecting statements of opinion preserves the vitality of the marketplace of ideas and encourages speakers to infuse valuable information into the public sphere.

To answer the question posed above: Is calling a kennel a ‘puppy mill’ protected opinion under the First Amendment? We firmly believe so.

The Missouri Supreme Court will have the final say. Oral arguments are scheduled for March 2, 2016.

To read RCFP’s amicus brief in Smith v. Humane Society, click here.

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Amicus brief advocates for reversal of unprecedented actual malice interpretation by California trial court

The actual malice standard is a critical component of a defamation claim. Its stringent requirements give journalists the liberty to challenge authority and seek the truth regarding powerful public figures and officials.

When the standard applies, many libel cases hinge on whether the plaintiff can prove a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  New York Times Co. v. Sullivan, 376 U.S. 254, 280.

The Sullivan Court demanded this rigorous standard when public officials sue for defamation (later expanded to public figures in Gertz v. Robert Welch, Inc.) because it believed in a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id. at 270.

Part of Justice Brennan’s justification for establishing the actual malice standard was to echo the sentiments of James Madison, the draftsman of the First Amendment. Madison strongly believed that the government should not have the sole power to censor its constituents and that the public possess absolute sovereignty.

In the recent case of Angel v. Winograd, a California Superior Court reached a finding of actual malice incompatible with Sullivan and Madison’s convictions. The trial court found that the defendant, Marcy Winograd, spoke with actual malice because she continued to protest the conditions of a petting zoo after animal control officers found no violations. Winograd is appealing the trial court’s order to the California Court of Appeal.

In our amicus brief, the Reporters Committee and five other media organizations urge the Court to Appeal to reverse the Superior Court’s unprecedented interpretation of the actual malice standard. By finding that Winograd acted with actual malice because she spoke in disagreement with government employees, the trial court essentially concluded that speakers cannot counter or question government employees without the risk of defamation liability. The opinion of the trial court grants the government the ability to dictate the truthfulness of statements in defamation cases.

This interpretation of the actual malice standard cannot stand. Besides ignoring years of actual malice jurisprudence, the court’s understanding of actual malice conflicts with the purpose of the First Amendment and would deter journalists from investigating the government and reporting on matters of public concern.

Marcy Winograd, the defendant in the case, sent a touching email to our local counsel, Jean-Paul Jassy of Jassy Vick Carolan LLP in Los Angeles, California, describing her favorite quote of the brief:

Instead of using the actual malice standard articulated in the wake of Sullivan, the Superior Court fashioned its own unprecedented understanding of actual malice that ignores years of reasoned constitutional justifications.

Winograd nailed the heart of our argument: The Superior Court’s finding of actual malice in this case strikes against justifications for the enactment of the actual malice standard in Sullivan and why courts have continued to uphold its stringent requirements. We hope the Court of Appeal reverses the Superior Court’s novel finding of actual malice, realigning the standard to comport with the First Amendment.

To read the Reporters Committee’s amicus brief in Winograd, click here.

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Columbia Journalism Review teaches copyright, privacy, and defamation basics in legal primer series

Many journalists have an arm’s length relationship with the law. Unless they are a legal beat writer, reporters seek to avoid the legal realm during their career. This is partly because if a journalist is involved in litigation, it usually finds itself on the right side of the “v.” defending against a lawsuit.

But becoming familiar with some legal concepts could reduce the risk of having to deal with the financial burdens and frustrations of fighting a suit down the road.

Jonathan Peters (@jonathanwpeters), a media law attorney and the Columbia Journalism Review’s press freedom correspondent, recently published an informative three-part series outlining some common legal principles journalists should to know. In a simple, easy-to-understand format, Peters walks journalists through some legal concepts and provides quick answers for commonly asked questions.

In part one of the trifecta, called “Can I use that?,” Peters explains copyright law, including how copyrights are obtained and what constitutes fair use. In his second article, “Can I do that?,” the author explores recording and privacy concerns journalists often confront. And finally, Peters caps off his series with “Can I say that?,” which details the ins and outs of defamation.

I recommend the articles for both journalists and lawyers alike to gain insight into fundamental media law topics in a comprehensive and digestible manner.

Supermodel Janice Dickinson joins others suing Bill Cosby for defamation, seeking vindication of sexual assault claims

Comedian Bill Cosby has largely remained mum in the wake of an onslaught of sexual assault claims in recent months – 39 according to Entertainment Tonight. In November, Supermodel Janice Dickinson came forward and asserted that Cosby sexually assaulted her in 1982. But because the statute of limitations expired on her claims and the other alleged victims, they have not been able to pursue criminal charges.

Now, Dickinson and at least three other women, including Tamara Green, are using defamation to seek recourse against Cosby and force him to discuss the allegations. Dickinson sued Cosby for defamation, false light, and infliction of emotional distress in Los Angeles County Superior Court on May 20, claiming that Cosby’s attorney, Martin Singer, defamed Dickinson by calling her a “liar” after she said Cosby assaulted her.

Dickinson told the Daily News:

“I want vindication. I’m doing it for women. I’ve been called a liar, and I’ve been re-victimized.”

Watching the watchdog: Columbia University investigates Rolling Stone’s “A Rape on Campus” story; Defamation suit possible

The press is the watchdog of government, providing a check on the legislative, executive, and judicial branches. But sometimes the Fourth Estate needs to be checked itself. This is what occurred recently as Columbia University’s Graduate School of Journalism conducted an investigation into a Nov. 19 Rolling Stone piece by Sabrina Rubin Erdely titled, “A Rape on Campus.” The article detailed how a student, referred to as “Jackie” in the article, was brutally raped at the University of Virginia by seven men at a fraternity party. The piece also highlighted the troubling rise in rape incidents on college campuses.

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Soon after publication, The Washington Post and other media outlets reported inaccuracies in the story. Later it was discovered that Erdely did not contact Jackie’s friends that were quoted in the article or any of the accused fraternity members. After the problems with the story surfaced, Rolling Stone sought Columbia University to undergo a full review of the article.

Columbia’s findings, called “An anatomy of a journalistic failure,” were released online April 5 and will be published in the upcoming issue of Rolling Stone. You can read the report here.

Erdely apologized, saying:

“I allowed my concern for Jackie’s well-being, my fear of re-traumatizing her, and my confidence in her credibility to take the place of more questioning and more facts.” “These are mistakes I will not make again.”

For Rolling Stone, the fallout is not quite over. Phi Kappa Psi, the University of Virginia fraternity mentioned in the original piece, is considering “all available legal action” against Rolling Stone, according to CNN Money. This could include a defamation suit by the fraternity.

Eugene Volokh thoroughly explains the elements and likelihood of a successful defamation claim against Rolling Stone in an article for The Washington Post‘s Volokh Conspiracy

In the end, this type of transparency from a media outlet that is typically counted on to provide transparency to others should be applauded. Other press entities should learn from the mistakes of the original story and also study the way in which Rolling Stone opened its doors to an independent third-party to review its actions and publish the findings.

Sometimes the watchdog needs to be watched.