Wednesday, July 15, 2015

Ali Akbar, funded by GOP donor Foster Friess, never had a legal claim against me--and this law proves it

Ali Akbar
Ali A. Akbar, president of the right-wing National Bloggers Club, has threatened a defamation lawsuit against me and the Legal Schnauzer blog, but he has no case. Anyone who has studied communications law should know that--including Montgomery, Alabama, attorney Baron Coleman, who sent me a threatening letter on Akbar's behalf.

Coleman claims in his missive, which you can read at the end of this post, that I defamed Akbar by reporting on a letter that Alabama lawyer Jill Simpson wrote to Robert Bauer, counsel for President Barack Obama's 2012 re-election campaign. Simpson wrote the letter in response to a bizarre rant from GOP election guru Karl Rove on a Fox News program.

Rove took an unrelated question and turned it into an attack on Simpson, Bauer, and former Alabama Governor Don Siegelman. So Simpson stated in her letter to Bauer that she thought Rove became unhinged because he feared she was about to reveal damaging information about his personal life. In fact, Simpson wrote, she did have damaging information because her research had turned up evidence that Rove and Akbar had a sexual relationship at some point.

Are Simpson's statements true? She doesn't provide extensive details in the letter, but she does note that Akbar had placed an ad at the Grindr gay-sex Web site, stating that he "was looking for bisexual sex with men who were Republican, political, and loved to discuss politics and philosophy and just wanted to hang out and chill with them." (We will have more about the Akbar ad, and his rather extensive criminal history, in an upcoming post.)

Simpson is an attorney who has testified under oath before Congress about the Siegelman prosecution. She has come under regular attack from political figures on the right, but I'm not aware of anyone who has been able to prove that her sworn statements about the Siegelman matter were false.

I took her statements in the Bauer letter seriously and reported on them accurately, in a straightforward fashion, That means my work was protected by the "neutral reportage privilege," which has grown from a long line of First Amendment cases that date at least to the early 1970s.

The Alabama Supreme Court adopted the neutral reportage privilege in a case styled Wilson v. Birmingham Post Co., 482 So. 2d 1209 (1986). In Wilson, the state high court cited Edwards v. National Audubon Society, 556 F. 2d 113 (2nd Cir., 1977). (Ironically, Wilson involved two people I worked with at the now-defunct Birmingham Post-Herald--Editor Angus McEachran and reporter Kathy Biele.)

Edwards, perhaps the best-known case on the neutral reportage privilege, grew from a New York Times article on statements from an Audubon Society editor about scientists who supported the continued use of the insecticide DDT. Such scientists, the Audubon editor wrote, often make false statements about the society's bird-count totals, leading to the editor's conclusion that they are "paid to lie."

Times journalist John Devlin wrote an accurate, straightforward article about the editor's statements, and the scientists wound up suing the newspaper. A trial court found for the scientists, but the appellate court reversed, finding that Devlin's reporting was protected by the neutral reportage privilege. From the Edwards ruling:

At stake in this case is a fundamental principle. Succinctly stated, when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971). What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

The contours of the press's right of neutral reportage are, of course, defined by the principle that gives life to it. Literal accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made. Time, Inc. v. Pape, supra. . . .

It is clear here, that Devlin reported Audubon's charges fairly and accurately. He did not in any way espouse the Society's accusations: indeed, Devlin published the maligned scientists' outraged reactions in the same article that contained the Society's attack. The Times article, in short, was the exemplar of fair and dispassionate reporting of an unfortunate but newsworthy contretemps. Accordingly, we hold that it was privileged under the First Amendment.

A 1996 article from Fordham Law Review, borrowing from the Edwards ruling, sums up the elements of the neutral reportage privilege as follows:

First, the media must report the charges neutrally and accurately. Second, the charges must have been made by a responsible and prominent speaker. Third, the subjects of the accusations must be public figures. Finally, the charges must be newsworthy.

Let's briefly review these four elements in the context of my report on Simpson's letter:

(1) My report on the Simpson letter can be read here. I quote directly from the letter, and a full copy of the letter is embedded in the post. My reporting clearly was an accurate portrayal of her charges, and there is nothing in the post to suggest that my work was anything but neutral.

(2) Simpson is a prominent and knowledgeable speaker, who once served as a Republican operative under Rove. Her willingness to testify under oath before Congress goes to her history of responsible conduct.

(3) Rove, Akbar, and Bauer--by virtue of their deep involvement in political activities--unquestionably are public figures.

(4) At the core of Simpson's letter is this question: Why did Karl Rove use an appearance on Fox News to attack her and a key member of President Obama's re-election campaign? What were Rove's motivations? Rove helped George W. Bush get elected president twice (2000 and 2004), and he raised record numbers of campaign dollars for the 2012 Mitt Romney campaign against Obama. Anything involving Karl Rove's motivations clearly is newsworthy--it's hard to imagine that Rove himself would deny that.

In summary, my post meets all four elements of the neutral reportage privilege. That means it is protected from a defamation lawsuit, and Ali Akbar had no case. Perhaps he knows that because he never followed up Baron Coleman's threatening letter with a lawsuit.

Foster Friess (center), with Ali Akbar
and right-wing blogger Robert Stacy McCain
Our research indicates Akbar never threatened a lawsuit against Jill Simpson, with whom the alleged defamatory statements originated. That indicates Akbar has no interest in a court tussle with Simpson. Is that because the burden of proof to show the statements are false would rest with him--and he knows he can't meet that burden?

Maybe Akbar and his allies decided it would be best to go after Simpson in some sort of deceptive fashion--rather than going the straightforward (but likely baseless) lawsuit route?

Does Foster Friess, the devout Christian conservative businessman who helped bankroll Akbar's bloggers club, endorse this sort of shady, underhanded thuggery? Does Friess, who claims on his Web site that the private sector is the answer to most of America's challenges, endorse abusive use of the justice system?

This much is clear: If Ali Akbar is engaging in underhanded tactics now, it would not be his first experience with such activities.

(To be continued)


Anonymous said...

When have Republican thugs ever cared what the law says? They just wanted to threaten you.

Anonymous said...

Nice legal research, Mr. Schnauzer. You've done a public service by explaining an important First Amendment concept in a clear and concise way. I hope your readers, especially the ones who are serious about such issues, will read the post all the way through--and even click on the links to case law. Anyone who cares about a free press needs to grasp the concepts you are explaining here.

Anonymous said...

I doubt that Baron Coleman did the slightest bit of legal research before ripping off the letter to you. As @9:33 says, the law meant nothing to him or to Akbar. The goal was to terrorize you.

legalschnauzer said...

The odd thing is, I was in jail at the time and couldn't read it, so it didn't terrorize me. It terrorized my wife, who received it via U.S. mail. To say that I'm not happy with such thuggery would be an understatement, especially when it has zero basis in law.

Anonymous said...

So you worked for Angus McEachran at the Birmingham Post-Herald? I hear he could be a pretty tough newspaperman. Funny that your critics seem to say you aren't a journalist, but you worked for an editor who is quite well known in the field--especially in Birmingham, Pittsburgh, and Memphis, where he headed Scripps-Howard newspapers. Do you remember the Wilson case?

legalschnauzer said...

Yes, Angus McEachran hired me, and I worked at the Post-Herald from 1978 to 1989. Angus definitely had a gruff edge to him, but I learned a lot from working under him. He gave me my first professional opportunity, and you never forget those people. I believe Angus is now retired and living in Memphis. In fact, I found a YouTube video of him not too long ago, and I need to post it here.

My memories of the Wilson case are pretty dim, but I was at the paper then, and I remember newsroom talk of controversy about one of our stories in that time frame. Kathy Biele, by the way, was one of the finest reporters to come through the P-H--and we had lots of talented people come through there. I stayed 11 years, and that was much longer than most. The P-H didn't pay well, and we were always treated like the stepchild of The Birmingham News, so most folks left after 2-3 years. We were the largest morning newspaper in Alabama, even though our circulation figures were kept at an artificially modest level.

I stayed, largely because I liked my direct bosses (Tom Lindley, Don Kausler), liked my coworkers (Rubin Grant, Mack Shoemaker, Paul Finebaum, Ray Melick, Bill Lumpkin, Scott Stahmer, R.B. Fallstrom, Nancy Wilstach, Joe Rassenfoss, Tom Hargrove, Jim Nesbitt, Kathy Kemp, many others), and I liked Birmingham much more than I ever dreamed I would. Plus, I got to cover UAB's burgeoning athletics program under Gene Bartow and some great high=school athletes who came out of Birmingham (Charles Barkley, Bo Jackson, Britt Burns, Ennis Whatley, Buck Johnson, Jay Tibbs . . . and the list goes on.) Birmingham has long been a vibrant sports town, and that's still the case today.

If my memory is correct, Angus McEachran hired me for the princely sum of $175 a week. Working at the Post-Herald wasn't easy because we always were understaffed, but I have fond memories of my time there, and it was a great place for a young journalist to prove he could either sink or swim.

I have a few colorful Angus McEachran stories, and my wife has gotten a big kick out of them over the years. She's always wanted to meet him.

As for my critics, they don't have a clue what they are talking about. They are just pissed that I've reported accurately and doggedly on their misdeeds. I learned how to do that, in part, from my time at the University of Missouri School of Journalism. But I really learned how to do it, under fire, from my experiences under Angus McEachran at the Birmingham Post-Herald.

Anonymous said...

But . . . but . . . Ali Akbar says it's not true!

legalschnauzer said...

Here is a 2010 YouTube video of Angus McEachran on a panel discussing coverage of Elvis Presley's death. Angus was at the Memphis Commercial-Appeal, I believe as city editor, when Elvis died. Angus is the guy who looks like he's sound asleep when the camera pans to him at the 0:11 mark. Thankfully, Angus quickly springs into action.

Anonymous said...

I wanna hear an Angus McEachran story.

legalschnauzer said...

Here's one:

I covered a UAB basketball game somewhere around 1980. It was an exhibition game against some team from Canada, I think the University of Windsor, and I failed to mention in my report that about 2,000 people were on hand to watch it at the 16,000-seat BJCC Coliseum.

The next day, after my story had run that morning, Angus called me into his office. As I walked in, he was holding a long, shiny pair of scissors. He was sort of fondling the scissors, and they appeared to have an exceedingly sharp point.

As I sat down, Angus said, "Shuler, have you ever been circumcised?"

I was so stunned by the question, that I sort of fumbled around and finally said, "I think so."

"You mean you don't know?" Angus said.

When we both had sort of gathered ourselves, he got to the point.

"Well, if you haven't been circumcised, the next time you leave the attendance out of a game story, you're going to be."

Needless to say, that was the last time I ever left the attendance figure out of a game story.

Legal Insider said...

I have to join @9:52 in handing out props, Mr. Schnauzer. Of all the blog posts that will be published today (hundreds of thousands, millions?), this will be one of the most important. The Audubon ruling is seminal case law, and it is central to our American notion of a free press. I think the neutral reportage privilege is one of the most important First Amendment developments in the past 50 years. Good to see this issue getting some attention.

Anonymous said...

Hah, love the McEachran story. Would make a great scene from a newspaper movie. Got any others?

legalschnauzer said...

Here's another one:

Somewhere around 1980, the University of Alabama Crimson Tide was about to play a football game against some pathetic team (I think it was Wichita State) in Tuscaloosa. Alabama went on to win the national championship that year, if my memory is correct, and everyone knew the Tide was going to crush Wichita State, or whoever it was.

One of our reporters went to Coach Bear Bryant's weekly news conference--I think it was always on a Tuesday--before the game on Saturday. In his story on the press conference, our reporter quoted Bryant as saying he was "scared to death of Wichita State."

Well, Angus sort of went nuts and called the entire sports department into his office--I think there were about eight of us at the time.

"Listen," Angus said, "Bryant says every f----g week that he's scared to death of the other team. It's bulls--t, and we've got to quit writing our stories around stupid quotes like that. We've got to actually report something important, tell our readers something they don't know."

With that, Angus went around the room and asked each of us for ideas on how to improve our coverage.

The whole process, I'm sure, felt frustrating and demeaning to our sports editor, Tom Lindley, who was busting his hump to produce a pretty solid sports section with about half of the staff he needed to adequately cover a sports town like Birmingham.

Tom was, and is, a smart and super nice fellow--one of the truly decent human beings I met in the newspaper world. He gave me a lot of opportunities to grow as a young journalist, and I loved working for him. But Tom had a blind spot--he didn't realize that Angus McEachran was the kind of guy where you never offered up anything that could be interpreted as an excuse.

If Angus called you on the carpet, the correct response was something like, "You're right, Angus, and I will do better. I won't make that mistake again." Angus could be tough, but he usually was satisfied with an answer like that. After all, what more could he really say?

On this occasion, Tom made the mistake of saying, "Gosh, I'm trying real hard, Angus."

I cringed when I heard it because Tom was a great guy, and I knew he had given Angus an opening. Our beloved editor pounced, like a leopard on a gazelle.

"Hell, Lindley, I could hire a f-----g orangutang to try."

The meeting soon ended, and we went back to work, with the notion drilled into our heads: Do not include stupid Bear Bryant quotes in stories, especially if the coach claims to be "scared to death" of some sorry team.

I didn't know it at the time, but Angus McEachran had provided me with a catch phrase that would live on in the Shuler household for years, even to this day. Mrs. Schnauzer always cackles when I tell that story, so we use Angus' words on each other.

I might say, "Carol, why isn't dinner ready?"

"Well, I'm trying real hard," she'll say.

"Hell, Carol, I could find a f-----g orangutang to try hard."

Or, she will turn it on me.

"When in the world are you going to do something about that broken toilet?"

"I'm trying real hard around here," I'll say.

"Hell, Roger, I could marry a f-----g orangutang who would try real hard."

Tom Lindley, I believe, now lives in his native Indiana, and I'm sure he remains one of the finest people you ever could hope to meet. Neither he, nor Angus, I'm sure realizes that they helped create a catch phrase that has given us much entertainment over the years.

Anonymous said...

Great story about the meeting over the Bear Bryant quote. I remember Bryant often saying, "Oh, I'm scared to death" of Baylor or TCU or some other team that posed absolutely zero threat to Alabama back then. You really should write a book about your newspaper experiences, not to mention all the stuff you've been through as a blogger.

legalschnauzer said...

I just did some Googling and found that Alabama played Wichita State in 1979 and won 38-0, so that was the game. I'm guessing Alabama was ahead 38-0 at halftime and put in all the scrubs in the second half. Bryant probably would have made it 80-0 if he had wanted to. And Alabama did win the national title that year.

Wichita State's team, of course, was wiped out from a plane crash in 1970, but they kept playing until 1986. That's when they discontinued the program, and it has remained dormant ever since.

As a junior member of the sports staff back then, I often was assigned to cover the crappy UA games. It still was exciting for a 23-year-old sportswriter to cover a team that either won or competed for the national title every year. Times certainly have changed in college football. I can remember covering Alabama blowouts in 1979 against Virginia Tech (31-7) and Miami (Fla.) (30-0). Tech and Miami, of course, have gone on to become powerhouses.

Anonymous said...

Any Elvis Presley fans in your audience really should watch the YouTube video you reference @10:42. I watched it, and the info from Angus McEachran is fascinating about how a major news story comes to light and how it gets cover. Also says a lot about how the media has changed from 1977 until today. Good stuff.

legalschnauzer said...

I agree, it's an excellent video, both about journalism and Elvis. Angus references the outstanding reporting and writing of a guy named Bill Thomas, of the Memphis Commercial-Appeal. Here is a link to one of the stories Thomas wrote. It's dated August 21, 1977, and for anyone who appreciates good reporting and writing, it's a must read:

Anonymous said...

Certainly, Coleman's failure to follow through on his threat may indicate your interpretation and application of the neutral reportage privilege is appropriate. However, in researching your archives for the June 27, 2012 article he cites, I can only imagine Angus McEacharn would have somebody's head (yours) for the failure to attribute the statements in your opening two paragraphs to the original source. You don't even refer to them as allegations; rather, you flat out state that Karl Rove is having a gay love affair and proceed to name his (alleged) lover. Personally, I think your argument as to the neutral reportage privilege is a weak one for just that reason. Hopefully, it won't be necessary to make the argument, but a cursory reading of the blog posts Coleman cites could lead one to believe your normal strident reporting style could undermine a privilege claim in this instance. Good luck.

legalschnauzer said...

You seem to have a problem with reading comprehension, @4:54. You might try reading the June 27 article again. In the third paragraph, the Akbar/Rove information is referred to as "allegations," and I attributed them to Jill Simpson, via her letter to Obama re-election counsel Robert Bauer.

I don't know how it could be any more clear. Maybe you need to do more than a "cursory reading" of the blog posts in question.

You claim my neutral-reportage argument is weak "for just that reason," but anyone who actually reads the post will see your claim has no legs. There is nothing "strident" about my reporting. I called the information allegations, and I cited the source, and even ran the full letter.

A suggestion: Try actually reading the relevant post before trying to pretend you know what you're talking about.