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)

Garrison-strange, Hearst MTD by Roger Shuler on Scribd

Garrison-strange, Responses to Hearst, Yellowhammer, Gore MTDs by Roger Shuler on Scribd