Thursday, January 19, 2017

Lawyers for Hearst Corp. and Yellowhammer News argue that demonstrably false statements are "substantially true" and not defamatory -- no kidding!

Lawyers for Hearst Corporation take a demonstrably false claim from their Marie Claire fashion magazine -- that there was a trial in Jessica Medeiros Garrison's lawsuit against me -- and argue that it was "substantially true," and, thus, not defamatory. The same lawyers -- from Birmingham's Lightfoot Franklin and White firm -- represent the right-wing propaganda site Yellowhammer News (YH) and argue that its reporting on the Garrison case is not defamatory because it came from a "well-respected news source." Check out the cover of a recent Marie Claire magazine above and tell me if that looks like a "well-respected news source." (Is that a spectacularly attractive young woman with no clothes on? Absolutely! Is she on the cover of a respected news source? I don't think so.)

Finally, we learn the likely reason Marie Claire,, and Yellowhammer News reported the same story, almost verbatim. It probably was part of a plan to flood the market with unfavorable articles about me, thus turning me from a private person to a public figure. Never mind that it is unlawful to pull such a stunt; the evidence suggests these "bastions of journalism excellence" did it anyway -- and that strongly points to "actual malice," which probably means they defamed me, whether I'm considered a public figure or not.

I wish I was making this stuff up, but I'm not. It shows just how far "journalism" has fallen, leading all of us into a "post-truth world" that Donald Trump surely will cherish. Let's address these issues, and perhaps a few others, in order:

A false statement in an article is "substantially true"? 

As noted in an earlier post, Hearst can't keep its story straight. It claims the Marie Claire article was based in part on court records from Garrison's lawsuit. But the article repeatedly misstates facts that easily could be found from a check of the court records. For example, the article states there was a trial when there clearly was no trial. There wasn't even any discovery or summary-judgment proceedings that generally must precede a trial.

Still, Hearst wants the court, and the public, to believe that the article's false statement regarding a trial is "substantially true" -- that a hearing and a trial are more or less the same thing. I'm sure that would be news to anyone who has the slightest knowledge of our justice system. I guess it means that a rhinoceros and a rabbit are substantially the same thing, given that both words begin with "r". Here is how we responded to the Hearst nonsense. (Both the Hearst/Yellowhamer motions, and our response to them, are embedded at the end of this post.)

Hearst’s false claim that there was a trial in the Garrison matter: On p. 10, Hearst claims the statement is “substantially true” and “not capable of defamatory meaning.” Hearst claims “a trial is synonymous with an evidentiary hearing,” but it provides zero citations to law to support that statement. In fact, Hearst cites Alabama law holding, “A communication is considered defamatory ‘if it tends so to harm the reputation of another as to lower him in the estimation of the community . . . “ The statement in the Marie Claire article does exactly that to Roger Shuler. It claims that Mr. Shuler was hit with a $3.5-million judgment after a trial (supposedly a jury trial, as required by First Amendment law), after discovery and a trial on the merits. But none of that happened; there was no discovery, there was no trial, there was no jury, and there was no valid judgment. The report of a trial is false, and it clearly harms Roger Shuler’s reputation as a journalist and as a human being. It suggests Roger Shuler was found liable for a huge award by a jury of his peers; in fact, that did not happen at all. Finally, Hearst claims this ruling is a question for the court. If that is so, the court is required to make all findings while viewing matters in “a light most favorable to the nonmoving party (the Shulers).” On multiple grounds, the court is required to find for the Shulers on this issue.

Marie Claire fashion magazine for women is a "well-respected" news source?

A lawyer representing Yellowhammer News apparently wrote the following with a straight face:

Even assuming that Shuler is a private figure, he must still show that Defendants were at least negligent in publishing the article which reported on the Marie Claire story. However, this he cannot do because courts routinely find that republishing a story from a well-respected news organization is not negligent as a matter of law, even at the motion to dismiss stage.

We invite you again to take a gander at a recent Marie Claire cover above and decide for yourself if that represents a "well-respected" news source. If you are able to concentrate for a moment on the wording, and not the fetching (to put it mildly) naked woman, note the powerful news stories the magazine is covering:

* The Naked Truth: Jennifer Bares All For Charity (Her name is Jennifer! And she's naked for charity, not to sell magazines!)
* Right Hair, Right Now 
* Love Your Look: Hot Hair and Make-Up Ideas To Suit You 
* Gossip Girls: The Socialite Spat That Changed The Web Forever 
* How Would Your Partner Describe Your Sex Life? (Gee, this rag doesn't play on women's insecurities, does it?)

Now you know that Marie Claire is the place to turn when you want the latest news about Aleppo. Here's how we responded to the nutty Hearst/Yellowhammer argument:

YH claims its reporting cannot be negligent because it came from a “well-respected news source” (Marie Claire). Marie Claire is a women’s fashion magazine. There is no evidence that it is a news source at all, much less one that is well respected. YH cites non-binding law from outside the 11th Circuit or Alabama state courts to the effect that “a republisher, was qualifiedly privileged to rely on the research of the original publisher unless it ‘had or should have had, substantial reasons to question the accuracy of the articles or the bona fides of [the] reporter.’” YH had every reason to question the bona fides of a reporter who writes a law-related article published in a fashion magazine. YH, however, failed to do that, and thus, loses any privilege.

Why did Marie Claire,, and Yellowhammer News publish pretty much the same story?

Answer: They probably were trying to turn me, an otherwise private figure, into a public figure -- and that makes it harder for me to prove defamation. Here is how we addressed that issue in our response:

YH cites Little v. Breland, 93 F. 3d 755 - Court of Appeals, 11th Circuit 1996 to support its claim that Shuler is a limited-purpose public figure. Little, however, concerned issues presented at a jury trial. There is nothing in Little to show that Shuler is a limited-purpose public figure at the Motion to Dismiss stage. YH also cites Silvester v. American Broadcasting Companies, Inc., 839 F. 2d 1491 - Court of Appeals, 11th Cir. 1988 to support its claim that Roger Shuler is a limited-purpose public figure. . . . Also, the Silvester court found, “These cases stand for the proposition that the press entity which publishes the defamatory material cannot make a previously private individual into a public figure merely by flooding the public with many articles about the plaintiff. The essence of these cases is that the plaintiff must have been a public figure prior to the publication of the particular defamatory speech which is the issue of the litigation.” That is precisely what defendants in this case have done. By creating a defamatory article at Hearst-Marie Claire, and having it republished at YH and, they have tried to turn Roger Shuler into a public figure, after the fact.

Hearst, Yellowhammer and hardly are alone in seeking dismissal by relying on wild misstatements of law and fact. Just about every defendant in "The House Case" has done the same thing.


Anonymous said...

Aren't lawyers supposed to be sanctioned when they file documents like this?

legalschnauzer said...

I've never seen anyone take it seriously when a lawyer lies in court -- orally or in writing. That's one of many reasons the Charles Todd Henderson case stinks so much.

Anonymous said...

Justice in 'Merica: You write true articles about Jessica Garrison, and she gets a $3.5-million default judgment. She writes false article about you and probably will get away with defamation.

legalschnauzer said...

Hadn't thought of it in those terms, @10:50, but I'd say you nailed it.

Anonymous said...

Why did Jessica Garrison disappear from social media? Facebook? Gone. Twitter? Gone.

legalschnauzer said...

Just a guess on my part, but I know her FB page included evidence that she was a Jeb supporter. I'm guessing she's desperate to use her ties to Sessions and Pryor to get position in Trump camp.

That becomes even more interesting when you consider reports that dossier began with oppo research from Jeb campaign during primaries.

Anonymous said...

Schnauzer, why no post today? All I see is a magazine cover with a gorgeous nekkid woman on it.

Anonymous said...

If a trial and a hearing are the same thing, I guess a jaywalking complaint and a felony arrest are the same thing?

Anonymous said...

Two thumbs up for Jennifer. She's a babe, and she's into charities, too!

Anonymous said...

My first thought after reading the Marie Claire story was: "Why did they do this? What is the point? Jessica Garrison is not so well known nationally that she merits this kind of coverage. And the coverage was gift-wrapped -- by her." I didn't know about the inaccuracies, but it just seemed like a pointless, ridiculous story.