|Stalking is a peculiar issue in our "House Case"
It comes from Hearst Corporation, publishers of the Marie Claire women's fashion magazine that published an article in October 2015 that included several false and defamatory statements about me. Hearst is represented in the proceeding by a couple of in-house lawyers from New York City, plus two or three from Birmingham's Lightfoot Franklin and White firm. Get a load of a scheme they presented in their Motion to Dismiss for the "House Case."
The article in question was an "as told to" piece that Alabama GOP operative Jessica Medeiros Garrison dreamed up, apparently with no questioning from writer Liz Welch, about experiences surrounding the $3.5-million default judgment she received against me. The article contains at least three statements that are false and defamatory: (1) That I reported Alabama Attorney General Luther Strange was the biological father of Garrison's child; (2) That Garrison claimed I was stalking her, and stalking is a crime; (3) That the court proceedings involved a trial.
For now, let's focus on item No. 2. Hearst lawyers claimed that the statement they published regarding stalking could not be defamatory because it was in the form of a question. (Kind of like on Jeopardy!, I guess.) Here's how the Hearst lawyers explained the law: (Their brief, and our response to it, are embedded at the end of this post.)
A prerequisite to establishing a prima facie defamation claim is the publication of a false statement of fact. See, e.g., Corporate Am. Car Wash Sys. v. City of Birmingham, 165 F. Supp. 3d 1117, 1127 (N.D. Ala. 2016). “A statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Marshall v. Planz, 13 F. Supp. 2d 1246, 1257 (M.D. Ala. 1998) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).
Is that an accurate statement of the law? Knowing the Hearst grew, I'd say that's debatable. But this much is certain: The citation relies on two cases from Alabama district courts, which generally do not produce binding law. Law that sets precedent comes from circuit courts, such as the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida), or the U.S. Supreme Court.
For now, we are going to overlook such technicalities and assume the statement is at least somewhat close to the actual law. Let's look at how Hearst spins things:
Here, in the Article Ms. Garrison does not state as a matter of fact that Mr. Shuler was stalking her. To the contrary, she informs the readers about her concern when Mr. Shuler posted a photograph of her home on his blog, and wondered: “Had he been at my house? Was he stalking me?” She is clearly expressing “conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, [and thus] the statement is not actionable.” Id.
That's swell and peachy, but here's the catch: Hearst did not provide the full Garrison quote from the Marie Claire article. The full quote apparently caused them doubt, so they left it out -- probably figuring the court would be no wiser. Here is the full Garrison quote on the subject of stalking from the article:
“Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . .
Does Garrison live in a world of hysteria? Apparently so, because the photos in question came from a real-estate Web site and almost certainly were taken well before Garrison ever lived there. I didn't take them, and any reasonably grounded person could have determined that in a matter of seconds on the Web. The sentence "Was he stalking me?" is, in fact, in the form of a question. But look at the highlighted part above, the part Hearst's lawyers conveniently left out of their motion.
Taken in context with the full quote, it's clear Garrison is not concerned about a general stalker or prowler. She's concerned about me, the guy who never had any significant interaction with law enforcement (other than maybe one or two traffic tickets) until I started reporting accurately on this blog about legal and political corruption in Alabama. Garrison says she installed a home security system because of me, and she put the police on notice because of me. It's not just a question. Here's how we responded to the Hearst argument:
Re: Hearst’s claim that Garrison’s statement about Roger Shuler stalking her was a question posed in the article and not a statement of fact: On pp. 12-13, Hearst claims Garrison’s statement is a question, a matter of conjecture. But Hearst fails to cite the full statement. Here it is: “Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . . “ The highlighted section clearly is not a question or a matter of conjecture. Garrison and Liz Welch tell Marie Claire’s readers that Garrison installed a home security system and put police on notice out of concerns about stalking. And it was not just a general concern; it specifically was about Roger Shuler. Stalking, of course, is a crime, which makes this a case of defamation per se, where false statements are considered harmful on their face.
That last sentence is important. If defamation per se is proven, damages are assumed. And to publicly accuse a man of stalking, in today's environment of heightened sensitivities on gender issues, is serious business.
I have no way of knowing what a court might do on this, or any other, issue. Defamation presents a particularly complex and tricky form of law. For example, someone once said that trying to determine a public figure in a defamation case is like "trying to nail a jellyfish to a wall."
So, I will refrain from reaching too far on conclusions. But this much seems clear: The Hearst Motion to Dismiss almost certainly is due to be denied (on a number of grounds), and I am entitled to discovery that should reveal more information about what Jessica Garrison said to others (friends and neighbors, plus law enforcement) about the notion of me stalking her.
The whole point of Hearst's deceitful motion is to avoid discovery. Well, by law, that effort should fail.