Defamation

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The U.S. District Court for the District of Columbia recently dismissed a case against three media corporations – CNN, Rolling Stone, and HuffPost – and several employees of those corporations for publishing or broadcasting allegedly defamatory statements regarding Joseph Arpaio’s 2017 criminal contempt of court conviction.

Arpaio is no stranger to public controversy. While serving as sheriff of Maricopa County, Arizona from 1993 to 2017, Arpaio was often criticized for, among other things, his office’s policing tactics in Latino neighborhoods. In one lawsuit against him, Arpaio and his office were enjoined from detaining people “based only on knowledge or reasonable belief . . . that [they were] unlawfully present within the United States[.]” Arpaio ignored the court’s order and continued to engage in conduct that violated the injunction. In July 2017, Arpaio was convicted of criminal contempt of court (a misdemeanor) for willfully disobeying the injunction. In August 2017, President Donald Trump pardoned Arpaio before he was sentenced. In January 2018, Arpaio then decided it was a good time to run for the U.S. Senate.

CNN, Rolling Stone, and HuffPost each published a story about Arpaio’s Senate run and colorful background. CNN anchor Chris Cuomo introduced a report about Arpaio’s Senate run and erroneously referred to him as a convicted felon. (The report itself correctly stated that Arpaio was convicted of a misdemeanor and provided context for the crime.) Rolling Stone published an article about Arpaio and erroneously referred to him as an “ex-felon.” HuffPost published an article about Arpaio and erroneously stated that Arpaio had spent time in prison for his contempt of court conviction. The three corporations corrected their statements when they learned of their errors.

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In an age where the luxurious lives of reality housewives populate millions of televisions throughout the country, the day-to-day activities of wealthy suburban moms are well known to Americans. Stephanie Smith, a wealthy mother of five young children living in the Pacific Palisades near the luxurious Los Angeles coastline, was one such woman. One noteworthy thing set Stephanie Smith apart, however – her multi-million-dollar marijuana empire.

Smith was a commercial real estate developer and landlord who leased her properties to marijuana growers. Those growers allegedly paid her more than three times the standard rent and produced tens of thousands of weed plants. On December 13, 2017, Smith’s weed-growing warehouses became public knowledge after police raided her home and discovered the plants.

Newspapers immediately picked up the story, calling Smith a “Queenpin” and her property “a weed fortress.” Smith v. Palisades, No. B292107 2019 WL 4744765 (Cal. Ct. App. Sept. 30, 2019) at *1. Palisades News, a local community newspaper, published an article stating that Smith was “busted” for running an illegal marijuana-growing operation of a size normally associated with a “drug lord” and that Smith made millions of dollars per month from the operation. Id. Three months after the raid, Smith sued Palisades News for defamation (libel), false light, and intentional infliction of emotional distress in Smith v. Palisades News.

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On July 10, 2019, the United States District Court for the Eastern District of Pennsylvania dismissed with prejudice a defamation and false light lawsuit filed by a dancer at a New Jersey Strip club against the New York Daily News, holding that the plaintiff had failed to plead actual malice with respect to her claims.

The case stemmed from a December 2017 Daily News article about the government-ordered closing of the strip club Satin Dolls, best known as a frequent filming location for a popular television series. The article noted that New Jersey state authorities had ordered the shutdown of Satin Dolls after accusing the club of engaging in illegal activity, such as alleged prostitution, lewd activity, racketeering, and extortion-related charges. The article was accompanied by a photograph of two Satin Dolls employees posing with merchandise related to the television series. One of the photographed employees, Diane LoMoro, subsequently sued the Daily News for defamation, claiming that the article falsely linked her to alleged criminal conduct; that the paper allegedly doctored the photo to make Ms. LoMoro appear “fatter, larger, uglier, blotchier, discolored, disproportionate, and grotesque”; and that the Daily News allegedly invaded Ms. LoMoro’s privacy by portraying her in a false light.

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On September 18, 2019, the Florida Third District Court of Appeal held in Hullick v. Gibraltar Private Bank & Trust Co. & Hayworth that a corporation’s board of directors’ discussions during a board meeting did not constitute defamation because the board’s intra-corporate communications were not “published” or communicated to a third party. Since the U.S. Supreme Court in Citizens United fortified the notion that corporations are people, the Florida Court of Appeal allows corporations to talk to themselves—without fear of defamation lawsuits.

Hullick v. Gibraltar Private Bank & Trust Co. & Hayworth is set against the backdrop of an allegedly well-documented $1.2 billion Ponzi scheme purportedly orchestrated by a prominent Florida lawyer (now disbarred and serving a 50-year sentence in federal prison).[1] Gibraltar Private Bank and Trust Company, one of the appellees (co-defendant below), was one of two banks where the lawyer allegedly laundered money.[2]

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The Sixth Circuit Court of Appeals recently affirmed the dismissal of a case against actor James Woods over a tweet he posted during the 2016 presidential campaign. Woods, an outspoken conservative, was sued by plaintiff Portia Boulger, who described herself in her complaint as “a very active volunteer and pledged convention delegate for U.S. Senator Bernie Sanders.”

The case arose from inaccurate information shared on social media. On March 11, 2016, Donald Trump held a Republican primary campaign rally in Chicago. That evening, the Chicago Tribune posted a photograph on its Twitter account of a woman at the Trump rally giving a Nazi salute. The next day, a Twitter user posted the photograph, together with a separate photograph of Boulger, and a caption identifying Boulger as an organizer for Bernie Sanders. The Twitter user wrote (falsely) that “[t]he ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.”

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Two federal courts recently dismissed defamation claims brought against the New York Times and the Kansas City Star, finding the subject articles employed standard investigative journalism techniques that immunized the newspapers from liability under state defamation laws.

In Croce v. New York Times Co., No. 18-4158 (6th Cir. July 17, 2019), the 6th Circuit upheld the dismissal of an Ohio State University cancer researcher’s defamation claim, finding that a “reasonable reader” would interpret the article as presenting both sides of the controversy.  The suit arose after the Times published an article examining Dr. Carlo Croce’s cancer research in the context of a broader piece about the inherent conflicts present when large research institutions reap millions of dollars in grant money for “star” researchers, and then are put in the position of investigating those researchers’ methods.…
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