Much of $3.5-million default judgment in Jessica Garrison case is built on allegations I did not report

How could this photo of Jessica Medeiros Garrison
and Luther Strange possibly be defamatory?

An order granting a $3.5-million default judgment against me and the Legal Schnauzer blog appears to be based on allegations regarding Republican operative Jessica Medeiros Garrison and Attorney General Luther Strange that I did not report.

A hearing on a Motion to Vacate the judgment is set for 10 a.m. Thursday (June 18) in Room 600 at the Jefferson County Courthouse. We've shown that the judgment is due to be reversed on multiple legal and factual grounds. But a copy of Judge Don Blankenship's order shows the judgment, to a considerable degree, is based on false information. It also apparently is based largely on comments left at my blog, even though well-settled law states that bloggers and other Web-based publishers are not liable for comments left at their sites.

Where did the false information come from? Blankenship's order indicates it came from testimony that Garrison and Strange provided at a hearing on March 9, for which I never received notice and did not appear, leading to the default. (The full order can be viewed at the end of this post.)

The most glaring falsehood involves testimony from Garrison, claiming I reported that Luther Strange is the father of her son. But I never reported that. In fact, I interviewed Garrison's former husband, Tuscaloosa businessman and school-board member Lee Garrison, and he told me he is convinced the child is his biologically. Based on the Lee Garrison interview, I never reported, or suggested, that the father was anyone other than Lee Garrison.

Blankenship's order contains language that perhaps can best be described as "absurdist." Strange apparently claimed in his testimony that I had engaged in defamation by publishing a photo of him and Garrison, cropping out a third person who was not mentioned in the accompanying article. Unbelievably, the court agreed that the photo--which indisputably was characterized accurately as including Luther Strange and Jessica Garrison--was false and defamatory. How can that be? Well, it can't, under the law, and Blankenship made no effort to find law that supports such a nonsensical notion. Editors have been cropping extraneous people out of photographs for decades; it's done for purposes of clarity and says nothing about the relationships of people left in the picture.

How off the wall is this court order--and the testimony upon which it apparently was based? Well, let's consider this section for starters:

A hearing was held on March 9, 2015 before the undersigned to prove damages. At that hearing, the Court heard testimony and received documents into evidence. The Plaintiff [Garrison] was present at the aforementioned hearing accompanied by able counsel. Neither the Defendant, nor any party purporting to represent the Defendant appeared at the hearing.

The Court first heard testimony from the Plaintiff. She testified that the Defendant [me] had written, in a blog dubbed Legal Schnauzer, several misleading and inappropriate comments concerning her and Alabama Attorney General Luther Strange. The comments suggested that the Plaintiff received preferential treatment from the Attorney General because the two were engaged in an ongoing extramarital affair; and that the Attorney General was the father of the Plaintiff's minor son. The Court received evidence offered by the Plaintiff which included the aforementioned comments. The Plaintiff testified that the comments were false. The Plaintiff further testified that the comments contained in the blog were embarrassing, hurtful, and degrading. She testified further that the comments made it difficult to perform her job. She works with a national organization, The Republican Attorneys General Association. She stated that since the comments posted to the blog have now become widely known, she constantly suffers from embarrassment and anxiety. She testified that she worries about how the comments could later affect her minor son. The Court finds the comments defamatory.

The wording of the order is unclear in a number of places, but let's take a shot at figuring out what it means:

(1) Only once does Garrison clearly refer to material I had written. And she claims that was "misleading and inappropriate." Even if that is a correct characterization, it doesn't come close to the standard of being false and defamatory.

(2) Garrison seems to claim that comments to my blog suggested Luther Strange had fathered her child. Even she seems to acknowledge that I never reported that.

(3) Again, this is not clear, and the court, in essence, is translating Garrison's words. But Garrison seems to say that comments on the blog regarding Luther Strange and her son are false--and that the comments were hurtful, embarrassing, and degrading, and they made it hard for her to do her job. Garrison does not clearly say that anything I reported is false; in fact, she does not clearly say (according to the order) that my reporting about an extramarital affair is false.

(4) Garrison says comments on my blog have caused her anxiety, and she worries about their later effect on her son. But she never says that anything in my reporting has led to such anxiety and worry.

Now, let's turn to Luther Strange's testimony. We should note that Strange seems to have no problem showing up for court when he knows the opposing party won't be present and he won't face uncomfortable questions. Strange, you might recall, was a no-show when it appeared he might have to answer questions under oath at a hearing on a liquor license for the VictoryLand casino in Macon County. From the Garrison court order:

The Court also heard testimony from the Attorney General of the State of Alabama, Luther Strange. The Attorney General testified that the Plaintiff, a lawyer licensed to practice law in the State of Alabama, worked in his unsuccessful bid for Lieutenant Governor in 2006; and his subsequent successful bid for Attorney General in 2010 and his re-election to that post in 2014. During the Attorney General's testimony, the Court received additional documents, which turned out to be more disparaging comments contained in the blog alluded to above. The evidence also contained a photo of the Attorney General's campaign staff. That photo was photo shopped, as printed in the Legal Schnauzer, to appear as a photo of the Attorney General and the Plaintiff alone. The Attorney General testified that the comments and photo posted to the blog, concerning his relationship with the Plaintiff, were false. The Court finds the Comments and the photo defamatory.

Again, we'll take a shot at trying to figure out what this means:

(1) Like Garrison, Strange apparently made no claim that anything I had reported was false. His problem, it seems, is with comments left at the blog.

(2) As for the language about the photo, it's almost hard to discuss that with a straight face. First, the court claims the picture was "photo shopped," but I don't even own a copy of the PhotoShop program and have never "photo shopped" a single picture on Legal Schnauzer. Did I crop the photo to take out an extraneous third person who was not mentioned in the accompanying article? I don't remember, for sure, if I did or not. But I do vaguely recall seeing a version of the photo where there was a fairly short, stocky young fellow to Garrison's right. I might have cropped him out because: (a) I didn't know who he was; and (b) He had nothing to do with the article. Neither the caption nor the story made any implication that Garrison and Strange were alone. How a photo that accurately displays two people posing in front of a privacy fence can be defamatory . . . well, it almost makes the brain explode. In fact, I'm not sure a photograph, unless it has been wildly doctored, can even be defamatory, under the law.

Will my attorney, Davy Hay, and I be successful in reversing the Garrison default judgment? If the law is applied correctly--and that's a big "if"--the answer is yes.

Aside from that, the default order itself suggests the Garrison lawsuit as a whole rests on a set of very shaky legs.

Davy Hay--Default Judgment Order by Roger Shuler