Tuesday, January 17, 2017

Lawyers for Hearst Corporation try to wriggle out of defamation count by falsely claiming their article was a "privileged" account of an official court proceeding

Hearst Tower in NYC
(From skyscrapercenter.com)
Hearst Corporation tries to get around a defamatory article about me in one of its publications, the Marie Claire fashion magazine, by claiming the story is a "privileged" account of a court proceeding.

Hearst's argument has a slight problem: There is not a single reference in it to indicate writer Liz Welch attended a court proceeding or checked the court record. In fact, Welch mistakenly called a "hearing" a "trial" (there was no trial) and never mentioned that GOP operative Jessica Medeiros Garrison received a $3.5-million award that was a default judgment because the opposing party (yours truly) never received notice of the default application or hearing. In short, Welch referred to a "default-judgment" hearing as an "evidentiary" hearing, where only one side was able to present "evidence."

You might think that an outfit as vast and moneyed as Hearst would be able to hire lawyers who keep their stories straight; in this instance, Hearst has at least two in-house lawyers and the Birmingham firm Lightfoot Franklin and White on the case. But all the "counselors" can't keep their stories straight. (See Hearst Motion to Dismiss and our response to it at the end of this page.)

On page 5 of its document, Hearst claims "author Liz Welch relied not just on Ms. Garrison, but also on the record of her defamation lawsuit.” Does Hearst provide a shred of evidence to support that bold assertion? Not one. In fact, Hearst admits multiple times in its document that the article was based on Garrison’s first-person account, but provides no evidence that either Garrison or Welch checked the court record. In fact, there is substantial evidence -- based on the errors noted above -- that they ignored the court record altogether.

Consider this from our response to the Hearst motion:

Re: Hearst’s false claim that Roger Shuler reported that Alabama Attorney General Luther Strange is the father of Ms. Garrison’s son: On p. 9, Hearst claims these words are privileged as a fair and accurate report of judicial proceeding. However, there is nothing in the article to suggest Garrison consulted the court record before making her false/defamatory statements, or that Welch consulted the record before writing the false/defamatory statements. In fact, Marie Claire writer Liz Welch quotes Garrison:

“The final straw was when Shuler wrote a follow-up post claiming my then five-year-old son was actually Luther's illegitimate child. I could handle the professional stuff—I have pretty thick skin—but this crossed a line. It upset his father, my ex-husband, who sent Shuler a comment to set the record straight, which of course he never posted.” That’s not from a court document; it’s straight from Garrison’s mouth to Welch’s ears.

Of course, I never wrote the follow-up post that Garrison claims I wrote, and I never reported that her son was Luther Strange's illegitimate son. Welch could have cleared that up simply by contacting me -- or by checking this blog, using the search function at the top of first page, to see if such a post existed. But she did not do that, leading to another failed legal argument from Hearst.

The media giant drags out Code of Alabama 13A-11-161 for the proposition that the Marie Claire article was privileged as a "fair and impartial" account of a judicial proceeding. As we already have noted, Hearst presents no evidence that the article was an account of a judicial proceeding at all. But fair and impartial? As we try not to guffaw about that, here is our response:

As noted above, Heart’s own attorneys admit the article was a first-person account from Jessica Garrison. Hearst cites Alabama law holding that “a fair and impartial report of [a judicial proceeding] shall be privileged, unless it be proved that the same was published with actual malice.” Hearst’s defense fails on both counts here; (1) A report hardly can be called “fair and impartial” when (as Hearst admits) it was based totally on one party’s word (Garrison), and the other party never was asked for a response. (2) Even if the report is considered “fair and impartial,” Shuler is entitled by law to show it was published with actual malice. Finally, Hearst never refers in the article to Garrison’s award as a default judgment, and it falsely claims there was a trial. Both suggest Hearst did no reporting on a court proceeding, other than what Jessica Garrison told them.

Have we finished dissecting Hearst's arguments? Oh, no, there is more lunacy where that came from.

Marie Claire: A Hearst publication
Consider this as an example of how low Hearst and its lawyers will stoop. Code of Alabama 13A-11-161 is from the Alabama criminal code. Like a number of other states, Alabama has a statute for criminal defamation. But that has nothing to do with a civil matter such as ours. In fact, Alabama no longer has a valid criminal defamation statute, even though it still appears on the books.

Alabama had a criminal defamation statute for 125 years, but it began to crumble as the 2000s approached. In 2000, the statute was renumbered (from 163 to 161), but otherwise left alone. Roughly one year later, in a case involving well-known lawyers Garve Ivey and Steve Windom, the Alabama Supreme Court dismantled the law as unconstitutional. That, of course, has not stopped Hearst from trying to rely on criminal law in a civil case -- criminal law that has been invalid for quite some time.

Hearst might be one of the best known media companies in the world, but it still hires con artists as lawyers. We will show you more examples of that in a moment.

(To be continued)


Anonymous said...

So Jessica Garrison can lie on the stand and get away with it because it was in a court proceeding?

legalschnauzer said...

That seems to be the argument, @12:23. I challenge anyone to read the Marie Claire article in question and show that it was based at all on a court proceeding. Here is link to it:


Anonymous said...

No way Hearst can prevail on this issue. Look at what the byline says:


The story is by Jessica Garrison. No way that can be considered a fair and impartial reporting of a court proceeding. The very idea is absurd.

legalschnauzer said...

Thanks for pointing that out, @12:41. I remembered the "as told to" part, but it flat out says , with the words "By Jessica Garrison," that this is her story, that she is the author. I had forgotten about that.

Anonymous said...

Can't Hearst afford to hire lawyers who aren't morons. My God, it says right of the top of the article, it's by Jessica Garrison. So she gets to present her own "truth," and for the parts that aren't the truth, she skates because there was a court proceeding? Pure bullshit.

Anonymous said...

Does Hearst hire reporters from the Donald Trump School of Journalism? You have a controversy involving at least two parties, and Hearst lets one of them write an article (with Liz Welch as stenographer) without even consulting the other. And when they get stuff wrong about the second party, they claim this form of "reporting" is privileged? What a bunch of con artists!

Woodie said...

I could not help but notice this from the Hearst legal documents:

" . . . author Liz Welch relied not just on Ms. Garrison, but also on the record of her defamation lawsuit."

The article clearly says it was "by Jessica Garrison." Liz Welch, by Hearst's own words was not the author at all.

legalschnauzer said...

Interesting point, Woodie. So Jessica Garrison is the author, the story is "by" her, and yet we're supposed to believe Liz Welch checked the court file?

This is the kind of tomfoolery -- out and out fraud is a better term -- I've seen over and over in Motions to Dismiss in this case.

Anonymous said...

Does Hearst really think a judge is going to fall for this?

legalschnauzer said...

A corrupt judge will, and the Hearst lawyers will sit back and not say a peep about it. I've seen it happen over and over. It happens to other parties in U.S. courts every day. No wonder Donald Trump gets "elected" president. We are a country filled with stupid, unethical, inattentive people.

Anonymous said...

I've read the Marie Claire article from beginning to end, and I see no sign that the author checked the court file.

legalschnauzer said...

That's because they did not check the court file, @3:45. Lord, they said there was a trial and the court file clearly shows there was no trial. I certainly was not involved in a trial. I don't know how much more clear the evidence can be that they did not "rely on the record."

They relied on Jessica Garrison's mouth, to give her version of what happened, and much of it is false and harmful to my reputation. That's defamation.

Tim said...

I confess I did not read the pleadings, so this may be off. But, generally speaking, an otherwise defamatory statement will not result in liability if it is privileged.

In common law, privilege is defined as a mutuality of interest -- there is an interest by the person who made the statement and a corresponding interest by the person who received it. The interest is the same. In that circumstance, privilege will protect the defamer. Example: Person X applies for a job with McDonalds. McDonalds asks Person X's former employer, Burger King, for a reference. The Burger King manager tells the McDonalds manager that Person X stole orange juice on a regular basis for re-sale on a black market. Person X finds this defamatory. But, because both McDonalds and Burger King have a mutual interest in exchanging this information, the doctrine of privilege may protect Burger King.

I wonder if this is what the Hearst lawyers were getting at. Statements made in court proceedings are also privileged, but that would not apply to a magazine publication. The court proceedings privilege applies to things like statements made under oath at trial or written by the parties in pleadings. Hearst would be way off base claiming the court proceeding privilege for its publication. It just does not fit. But they may have been saying that their publication was subject to the broader common law privilege. That would be a better argument, especially since the case involves public persons and the possible application of the First Amendment. It may not be a winning argument, but it's better than the court proceeding privilege. That is an obvious loser.

legalschnauzer said...


Thanks for your insights. I see nothing in the pleadings that Hearst is relying on common-law privilege. The heart of their claim seems to be that this article was a "fair and accurate" portrayal of a court proceeding (as reported in Marie Claire magazine), and thus privileged.