Articles Posted in Defamation

In Winslow v. Saltsman, No. M2014-00574-COA-R3-CV (Tenn. Ct. App. Oct. 21, 2015), plaintiff brought claims against two defendants, a political candidate and his campaign advertising consultant, alleging false light and defamation. Finding that the defendants negated the element of actual malice, the Court of appeals affirmed summary judgment for defendants.

Plaintiff was Chief of Staff for the Tennessee Republican Party (TRP) and was given an employment agreement by his boss before she resigned to run for Congress. The new TRP chair offered plaintiff a different position, but instead plaintiff chose to negotiate a severance based on his employment agreement and leave his employment with the party. Shortly thereafter, he began working for his old boss’s campaign. The defendant democratic candidate for the Congress seat hired the defendant consultant for advertising, and at some point the consultant obtained copies of a financial review of the TRP, plaintiff’s employment agreement, and a document drafted by plaintiff while negotiating his severance. These documents showed that the TRP had extensive debt and overdrafts.

Before the primary elections, the democratic campaign ran advertisements on TV and in print stating that the opposing candidate and former TRP chair “left the state Republican party over $100,000 in debt” and “gave her future Congressional campaign staff lavish bonuses.”  In a radio interview, defendant consultant stated that plaintiff “was paid out of Republican Party funds for three months while he was working for [his former boss’s] campaign,” and that such an arrangement was “at worse, illegal and, at best, just plain wrong.” The democratic campaign also launched a website where they published the TRP financial records, records showing payments to plaintiff, plaintiff’s employment agreement and the document he drafted when negotiating his severance. Based on these statements, plaintiff filed suit against the democratic candidate and his consultant for false light.

To prove his claim, plaintiff had to show that the false light he was placed in “would be highly offensive to a reasonable person” and that defendants “acted in reckless disregard as to the falsity of the publicized matter and the false light in which [plaintiff] would be placed.” Importantly, here plaintiff conceded that he was at least a limited public figure, so the standard for his false light claims was actual malice. “Actual malice exists where the defendant publishes or makes a statement with knowledge that it was false or with reckless disregard of whether it was false or not.” (internal quotations and citation omitted). Failure to investigate information alone, however, is not enough to establish actual malice.

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In Grant v. The Commercial Appeal, No. W2015-00208-COA-R3-CV (Sept. 18, 2015), plaintiff sued defendants for various causes of action related to an online and print newspaper article, although on appeal the only causes of action at issue were defamation and defamation by implication. The articles were about plaintiff’s involvement in a mall revitalization project in Memphis that had recently been approved by the Memphis City Council. The article, in part, contained information regarding the following:

• plaintiff failed to tell the City Council that he owed a large sum of money to the federal government;
• plaintiff “stated that he had no financial interest in the project, yet…various state records and other transactions [plaintiff] has been involved with suggested otherwise;”
• upon investigation, it was discovered that plaintiff had an office on the mall’s property;
• a city councilman was quoted as saying the project was the “worst project we ever approved” and that the city council was unaware that plaintiff was “one of the project’s principals;”
• a quote from a “frat brother” of plaintiff saying plaintiff worked on the mall project as an adviser for free;
• an online headline saying “Silent partner? [plaintiff’s] involvement clouds $1.5 million Southbrook Mall deal.”

Plaintiff asserted that “the substance of the articles [were] defamatory to him,” making it appear that he was dishonest and deceptive, and that defendants had acted with actual malice.

Defendants filed a motion to dismiss, which the trial court granted on two bases: (1) “that the complaint failed to state a claim upon which relief can be granted as the statements at issue ‘are not defamatory or capable of defamatory meaning,’” and (2) that the article fell within the fair report privilege.

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The recent opinion in Byrge v. Campfield, et al., No. E2013-01223-COA-R3-CV (Tenn. Ct. App. Sept. 8, 2014) serves as a good reminder of Tennessee defamation law involving a public figure.

In October 2008, Stacey Campfield, then a Republican State Representative for Tennessee’s 18^th District, posted on his political blog an entry about the 36^th State House District race featuring Democrat Roger Byrge. Campfield’s blog entry alleged that Byrge had a drug-related arrest record. The blog post stated, in part:

Word is a similar mail piece has gone out exposing Byrges multiple separate drug arrests. Including arrests for possession and drug dealing. (I hear the mug shots are gold).

In Nardone v. Cartwright, et al., No. E2013-00522-COA-R3-CV (Tenn. Ct. App. March 17, 2014), Plaintiff sued his previous employer for slander (spoken defamation) and libel (written defamation).  The case arose after Plaintiff quit his job and was told that he would not receive his final paycheck until he turned in his uniforms. The employer’s office manager was then informed by the Tennessee Department of Labor that it could not withhold plaintiff’s paycheck pending plaintiff’s return of the uniforms and was also advised to contact the police to seek assistance in getting plaintiff to return the uniforms. Employer then contacted Knox County Sheriff’s Office. The officer who took the call keyed in information to create a report, and in the section labeled “primary offense” the officer selected “theft from business by employee.” The employer did not request that plaintiff be prosecuted, nor did the employer say that plaintiff was guilty of theft.

After plaintiff’s lawyer returned the uniforms, plaintiff filed suit against employer alleging that he had been defamed by the report. At trial, plaintiff admitted that nothing in the narrative of the report was untrue. Plaintiff also testified that he still had his job with his new employer after leaving the defendant and also that he was making more money at his new job. No evidence was submitted to show plaintiff’s reputation was damaged, and plaintiff could not name one person who thought less of him as a result of the report.

Finding no evidence in the record to support a case of libel, and because the six-month statute of limitation had run on the slander allegation, the trial court granted employer’s motion for directed verdict and dismissed plaintiff’s case. Plaintiff appealed the dismissal of his libel claim, but the appellate court affirmed the trial court’s decision.

You don’t see a lot of defamation cases winding their way up Tennessee appellate courts. Rarer still are defamation cases decided entirely on an affirmative immunity defense. Miller v. Wyatt hits both those marks, so it’s worthy of a crash course in legislative immunity even though it’s a very fact-specific result.

Defendant, a City Councilman, placed on item on the Council’s meeting agenda to discuss campaign ads for the City Mayor’s race. Defendant explained that he wanted to address a political ad placed by another City Councilman who was running for Mayor. Defending the ad, the candidate pulled out a letter written by Plaintiff, a former City Manager referring to the incumbent mayor as “the most ethically challenged, ego-mani[a]cal, narcissistic elected official I have ever know.” (We haven’t gotten to the allegedly defamatory stuff yet, by the way.) Defendant responded at the meeting by saying that Plaintiff “was discharged from City Manager up here because of misappropriating funds and not following procedures.” (There’s the allegedly defamatory part.)

Plaintiff sued Defendant for slander. The trial court granted summary judgment to Defendant based on the legislative privilege, and Plaintiff appealed.

When a new lawyer decided to try his first case by defending a man accused of murder, it is no surprise to any lawyer with a room-temperature IQ that things would not go well.  At all.

So, when a mistrial was declared in the case based on the lawyer’s ineptness, some lawyers expressed dismay over the decision of the lawyer to accept representation in the case.  Word got around and the new lawyer sued.  He sued lots of folks.  Including Max Kennerly, author of Litigation and Trial.  And Eric Turkewitz of the New York Personal Injury Law Blog.  Here is the complaint.

Here is Max’s Motion to Dismiss.  It gives you a good feel of the defense to the claims.  Here is a post where Eric explains his view of the lawsuit.

That tweet might just get you sued.  Courtney Love allegedly fired off a negative tweet about a fashion designer, and now the defamation case against Love is going to trial.

Read more about it at this post from the Connecticut Business Litigation Blog.

The Tennessee Supreme Court has released an opinion that sets forth the scope of the litigation privilege to pre-litigation activity by counsel.  The Court said that "an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding, even though the communication may be received by individuals who are unconnected with the proposed proceeding. In order for the privilege to apply, (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published."

Read the entire opinion here.

The California Supreme Court has ruled that a court may issue an order prohibiting a defendant in a defamation case from repeating statements about the plaintiff that were deemed defamatory at trial.

The concern about such a ruling is that an injunction is a "prior restraint" and would be a violation of the right of free speech.  But the California Court thought to the contrary, and said that "preventing a person from speaking or publishing something that, allegedly, would constitute a libel if spoken or published is far different from issuing a posttrial injunction after a statement that already has been uttered has been found to constitute defamation. Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful." 

The opinion has a nice collection of law around the country that reaches a similar result.  The dissent does a fine job collecting opinions to the contrary.

A patient unhappy with the results of her plastic surgery created a website about her experiences.  Her surgeon sued her for defamation, infliction of emotional distress, etc.  The patient moved to dismiss, lost, and appealed the case to the California Court of Appeals (Third Appellate District).

This is how the Court describes the alleged defamatory statements: "[Dr.] Sykes alleges that [patient] Gilbert’s Web site defamed him in four different ways: (1) presenting misleading before and after facial photographs in that the after photos were taken after ‘additional and significant cosmetic surgery’ performed by others; (2) falsely indicating that Sykes recommended and performed procedures that Gilbert did not need or want; (3) misstating ‘the content of communications’ relating to the procedures he performed; and (4) falsely suggesting that Sykes was compensated for procedures ‘under the table.’"

The Court held that Sykes had not met his burden of proving that the statements were defamatory.  The opinion carefully disects each statement and discusses the failure to Sykes to meet his burden of proof as to each.  To be sure, the opinion is based on California law, but to those readers from Tennessee (and other states with an undeveloped body of defamation law) it is very informative.