Reputation and Privacy Trial

Palin v. New York Times pushes new boundaries on libel suits

By Josh Gerstein  |  POLITICO  |  January 23, 2022  |  Read Original Article
The libel case focuses on a 2017 editorial that suggested a link between a PAC’s map and a deadly Arizona shooting. More than a decade after Sarah Palin found herself roundly mocked by the nation’s media elite as a small-town rube during her stint as Sen. John McCain’s populist vice presidential running mate, the former Alaska governor has a chance this week to strike back in court at those she viewed as her tormentors.
Palin is set to take on the colossus of the establishment press, The New York Times, in a libel suit she filed over a 2017 editorial that erroneously linked her political activities to the 2011 shooting attack in Tucson, Ariz., that left six people dead and Rep. Gabrielle Giffords (D-Ariz.) badly wounded. Within a day, the Times corrected the editorial and noted that no connection was ever established between the rampage and a map that Palin’s political action committee circulated with crosshairs superimposed on the districts of 20 Democrats, including Giffords. The Times also acknowledged it erred by suggesting that the crosshairs appeared over images of the candidates themselves. But less than two weeks after the errant editorial ran, Palin filed suit against the Times, accusing the news outlet of defaming her.
After years of litigation, as well as delays because of the coronavirus pandemic, a trial in Palin’s suit is scheduled to begin with jury selection on Monday in federal court in New York City. Some media advocates say the fact that the case is going to trial at all is a sign that almost a half-century of deference to the press in the courts is giving way to a more challenging legal landscape for journalists, media companies and their attorneys.
“Everybody representing media entities has noticed the chill is there,” said Bruce Johnson, a Seattle-based attorney who has represented journalists and publishers in a slew of legal battles. The prominent First Amendment litigator Floyd Abrams recalled: “If you go back to the ’70s and ’80s, there were a number of very pro-press decisions coming down in the Supreme Court and trial courts, as well. A student of mine at Yale Law School called that ‘the golden days. …’ Those days are over. … The sort of broad sweeping, powerful generalizations about the role that the press plays cut little ice.”
That shift has been on clear display at the highest level of the American legal system in the past few years, with two members of the Supreme Court — Justices Clarence Thomas and Neil Gorsuch — urging that the court’s landmark decision reining in libel cases brought by public officials, 1964’s New York Times v. Sullivan, be rethought. The conservative justices’ opinions emerged amid very public calls from Donald Trump as a candidate and then as president to “open up” libel law to make it easier to sue the media. In addition, the barrage of criticism of social media companies from the right and the left appears to have eroded public support for the basic First Amendment notion that a publisher has the right to decide what appears in its publication. Some on the left also seem so dejected by the traction of Trump’s views and rhetoric that they’ve lost faith in the bedrock notion that a freewheeling marketplace of ideas can be relied upon to govern the country.
“Social media has transformed the landscape in ways I don’t think anyone would have expected 10 years ago,” Johnson said. “The onrush of social media commentary, much of which is completely false, must have had an impact or will have an impact on the law.”
Just how these factors will play into the spectacle of a Palin v. New York Times trial is unclear. While some judges are clearly tilting at Sullivan’s famous “actual malice” standard for libel cases, it remains the law of the land. While Palin’s lawyers envisioned their case as a potential vehicle to overturn that standard, that hope seems to have been dashed in 2020 when the New York Legislature passed a bill that effectively enshrined the Sullivan standard for virtually all libel cases related to disputes on issues of public policy. Palin is represented in the case by two Florida lawyers who spearheaded the last major courtroom defeat for a publisher: the $140 million that a jury in St. Petersburg, Fla., awarded to former professional wrestler Hulk Hogan over Gawker’s publication of a sex tape depicting him. Hogan eventually settled for $31 million, but the outsize damages awarded in the case essentially drove the gossip website out of business. Palin and her attorneys are clearly looking to deliver a similar blow against the Times and are seeking punitive damages. However, the chief danger for the newspaper may be less one of a substantial monetary verdict and more the public airing of the storied news outlet’s dirty laundry. For one thing, the Palin case lacks the salacious subject matter of the Hogan-Gawker fight. The legal standards involving an invasion-of-privacy suit and a defamation case are quite different. And the political overtones in Palin’s case mean it may be hard for her team to convince a New York jury that the Times intentionally lied about the Alaska governor or acted recklessly enough to satisfy the actual malice standard.
“In this case, you have a very prominent plaintiff who is suing in a city that I would say would not be her favorite place to be judged,” observed Abrams, who earlier in the case filed a friend-of-the-court brief for other news organizations backing the Times.
Much of Palin’s case is expected to focus on the role of the Times’ editorial page editor at the time, James Bennet, who has admitted inserting into the editorial two phrases claiming a link between the Tucson shootings and Palin’s political map. Palin’s lawyers have argued that because Bennet edited another publication, The Atlantic, when it published an article making clear that no connection had been established between the Palin PAC’s crosshairs publication and the shooting, he must have known the claims were false. Palin’s attorneys are also expected to call attention to the fact that Bennet’s brother is a prominent Democratic senator, Michael Bennet of Colorado. However, the aspect of the case that has the potential to be the messiest for the Times is the Palin team’s effort to discuss the fraught circumstances of Bennet’s departure from his prestigious post as the paper’s editorial editor in June 2020. Bennet resigned after a revolt from Times readers and many of its own employees over an op-ed from Sen. Tom Cotton (R-Ark.) urging the use of military troops to quell rioting and looting in U.S. cities that followed the killing of George Floyd, an unarmed African American man, by Minneapolis police. The publication of the Cotton op-ed and Bennet’s subsequent departure from the paper drew attention to racial and generational divides at the Times. It also raised questions about whether, in the Trump era, the newspaper had become so devoted to and dependent upon its liberal readership that it could not air the views of a staunchly conservative senator. Palin’s attorneys have suggested that Bennet’s resignation under pressure was the product of several factors, including lingering concern among Bennet’s superiors about his handling of the Palin editorial. If so, that could amount to an admission by the Times of wrongdoing in that episode, her lawyers argued.
“Anytime internal hiring and firing decisions come up publicly, it’s uncomfortable for the entity,” Abrams said. “It should have no impact on the resolution of the case.”
Bennet, who was added to the case as defendant after it was initially filed, is being represented by Times lawyers in the suit and declined to comment on the looming trial. Palin’s attorneys did not respond to messages seeking comment. A Times spokesperson, Jordan Cohen, said the trial amounted to a test of whether news outlets can report on public figures without fear that a mistake will lead to a libel judgment.
“In this trial we are seeking to reaffirm a foundational principle of American law: public figures should not be permitted to use libel suits to punish unintentional errors by news organizations,” Cohen said in a statement.
“We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction,” he added. “We are deeply committed to fairness and accuracy in our journalism, and when we fall short, we correct our errors publicly, as we did in this case.”
In addition to delving into Bennet’s exit from the paper, Palin’s lawyers have asked Judge Jed Rakoff for permission to tell jurors about a slew of other Times controversies, including the newspaper’s decision to eliminate its public editor, or ombudsman, position weeks before the flawed Palin editorial. The journalist who held that position at the time, Liz Spayd, criticized the decision as indicating that the Times was “morph[ing] into something more partisan, spraying ammunition at every favorite target and openly delighting in the chaos,” a Palin legal filing notes. The former Alaska governor’s lawyers even want to raise the Times’ taste in theater, zeroing in on its role in 2017 as a sponsor of a Shakespeare in the Park production of “Julius Caesar” that imagined Trump as the emperor being slain. Of course, the Times’ lawyers will also have an opportunity to trot out some of Palin’s baggage and to remind jurors that a large swath of the country didn’t hold her in high esteem well before the Times editorial. A Gallup poll taken in 2010, two years after she made history as the Republican Party’s first female vice presidential nominee, found that 52 percent of Americans viewed her unfavorably. There may also be discussion in court of some of her more unusual career choices in the wake of her vice presidential run, including her hosting of two short-lived reality TV series. It remains unclear how far afield of the central allegations in the case Rakoff will allow lawyers for either side to trudge. Lucy Dalglish, dean of the University of Maryland journalism school and a former media lawyer, said she expected Rakoff to try to confine the trial largely to the process of publication of the editorial at the heart of the case.
“A good judge is going to say, ‘You know what? So what?’” Dalglish said. “I’d be really surprised if the judge allows [Palin’s lawyers] to try to show a pattern of behavior.”
Rakoff tried to resolve the case soon after it was filed by holding an unusual hearing where Bennet testified that the misstatements in the editorial were the product of time pressure as he sought to strengthen the piece, which was prompted by the shooting of Rep. Steve Scalise (R-La.) in Alexandria, Va., as Republican lawmakers practiced for a congressional baseball game.
Rakoff, an appointee of President Bill Clinton, later dismissed Palin’s suit. The judge said that the statements in the editorial were too ambiguous to qualify as statements of fact, and that Bennet’s actions were “much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.”
Palin appealed, however, and a 2nd U.S. Circuit Court of Appeals panel ruled, 3-0, in 2019 that the expedited proceeding Rakoff held violated the former Alaska governor’s right to try to buttress her case through fact-gathering and depositions of people involved. That set in motion the trial expected to open this week. While civil jury trials remain essentially suspended in many parts of the country and criminal jury trials are also rare at the moment, Rakoff seems intent on proceeding with the Palin-Times trial this week. At a telephone conference earlier this month, the judge said he’d presided over six trials since the pandemic began. While the urgency of trials for jailed criminal defendants has been widely accepted, jurors might be resentful about being called in during a pandemic to decide a civil dispute about an inaccuracy in a four-and-a-half-year-old editorial that was corrected within hours. Rakoff said 82 people had been summoned for potential jury service in the case. The judge said he planned to seat nine jurors. All members of the jury will have to agree for a verdict to be returned for either the Times or Palin. The law firm representing the Times, Ballard Spahr, also regularly represents POLITICO and other media outlets in a range of legal matters and litigation.

Kid Rock Makes Big Shake Up To Tour Days Before It Begins

Just a few weeks before embarking on a 23-city arena tour, Kid Rock was hit with a lawsuit from the owners of the world’s oldest circus. According to Business Wire, Ringling Bros. and Barnum & Bailey Circus filed a lawsuit against the singer and Live Nation over using their trademarked term “The Greatest Show On Earth.”

Feld Entertainment, Inc., the owners of the circus, filed a lawsuit accusing Rock and his tour promoter of trademark dilution and infringement after the singer announced his upcoming “Greatest Show on Earth Tour” that is slated to kick off January 19 in Nashville, Tennessee.

“We have authorized licensees for Ringling Bros. and The Greatest Show On Earth, but Kid Rock is not one of them,” Lisa Joiner, General Counsel of Feld Entertainment said to BusinessWire. “Feld Entertainment was not contacted by Kid Rock (or anybody else on his behalf) regarding his use of Feld Entertainment’s trademark The Greatest Show On Earth.”

Now, just eight days before his first show, Kid Rock has updated the name of his tour on his website. What once was The Greatest Show On Earth Tour is now the American Rock N Roll Tour, named after another one of his songs from his most recent record Sweet Southern Sugar.

Rock submitted a sworn declaration to the court, saying, “While I firmly believe that I am entitled under the First Amendment to name my Tour after my song. I have changed the Tour name because I do not want this lawsuit to distract me or my fans from focusing on what is important in my upcoming Tour—my music.

According to Amplify, Kid Rock’s attorney, Kenneth G. Turkel, defended his wanting to use the title of his song “Greatest Show On Earth” as the name of his tour, saying it “boasts about Kid Rock’s ability to perform the greatest fu**cking show on Earth.

Even though Rock changed the name of his tour, Feld Entertainment says they are still going through with the lawsuit. “The song and video may not violate the trademark because it falls into a different class of goods and services,” a Feld Entertainment representative said, but they will continue with the suit for damages and lawyer fees.


Warner Bros. Can’t Evade ‘War Dogs’ Lawsuit

Warner Bros. can’t escape Incarcerated Entertainment’s lawsuit that claims ‘War Dogs’ was marketed as a true story when it isn’t one.

Cast and crew saying or implying that War Dogsis a “true story” is enough to keep a false advertisement lawsuit against Warner Bros. alive, a Florida federal judge ruled Wednesday.

Efraim Diveroli, a former arms dealer portrayed by Jonah Hill in the 2016 film, is suing Warners for false advertising and unfair competition, among other claims.

Instead of optioning Diveroli’s manuscript, Once a Gun Runner, Warner Bros. enlisted Guy Lawson, a Rolling Stone writer who had interviewed him in prison and written a magazine feature that was expanded into a book. The ex-con takes issue with how he was portrayed and how the film was promoted.

“The gravamen of the Amended Complaint is that Warner grossed more than $85 million by promoting War Dogs as Diveroli’s ‘true story’ when it was not the true story,” writes U.S. District Judge Mary Scriven. “The Amended Complaint identifies a number of allegedly false advertisements, including statements in movie trailers, social media posts, and promotional interviews with War Dogs’ director, Todd Phillips, screenwriter Stephen Chin, and stars Jonah Hill, Miles Teller, and Bradley Cooper.”

Warners, meanwhile, argued that the statements regarding the truth of the story aren’t actionable because they’re protected by the First Amendment.

Scriven found that Diveroli plausibly alleged in his amended complaint that the comments are “commercial speech” and therefore subject to the Lanham Act, which prohibits false advertising in connection with commercial advertising or promotion. The judge found that the statements were promotional, referred to a specific product and that Warners had an economic motivation for making them.

“Warner knew that representing the story as ‘true’ would induce consumers to see War Dogs,” writes Scriven. “Although movies are works of artistic expression and must be protected, ‘they are also sold in the commercial marketplace like other more utilitarian products, making the danger of consumer deception a legitimate concern that warrants some government regulation.’”

The studio also argued that Diveroli failed to allege facts necessary to state a false advertising claim, but Scriven disagrees, noting that, while Warner Bros. is right to insist the statements be considered in their full context, the argument is not well-suited to a motion to dismiss.

“[A]part from advancing that argument, Warner neglects to address the relevant question: whether the statements, read in their full context, falsely or misleadingly portray War Dogs as a true story,” writes Scriven. “Warner implies that they do not, but that conclusion calls for a fact-intensive inquiry and that the Court draw inferences in Warner’s favor, neither of which is appropriate on a motion to dismiss.”

The decision isn’t a total loss for the studio, though. The judge found that allegations involving the War Dogs website and Facebook page and comments Lawson made while promoting his own book “are not, in and of themselves, actionable.” (The full order.)


Former USF football player sues university after rape charges dropped

A University of South Florida football player kicked off the team after he was accused of rape has filed a federal discrimination suit against the university.

Charges against Kevaughn Dingle, 22, were dropped by the Hillsborough State Attorney’s Office. But Dingle said in the lawsuit that his arrest by campus police in November 2017, his expulsion and the resulting news coverage “destroyed” his life.

According to the suit, filed Dec. 8 in U.S. District Court in Tampa, USF “rushed to a judgment” in the case for a number of reasons — the emergence at the time of the “Me Too” women’s rights movement, mistrust toward Black men, flawed investigative and judicial processes, internal bias in favor of female accusers and embarrassment over a prior USF assault case.

“White students accused of the same conduct violations as (Dingle) were provided less severe sanctions, subject to more thorough and time-intensive investigations, and provided due process during the investigation and hearing process,” the lawsuit stated.

Dingle insisted to investigators that his sexual encounter with another student, identified in the lawsuit as Jane Roe, was consensual, the lawsuit said. There were “outrageous inconsistencies” in the version of events she gave investigators, the lawsuit said.

Police said they had “developed sufficient cause” to arrest Dingle on a charge of sexual battery. But the State Attorney’s Office disagreed, deciding not to pursue charges against Dingle because of a lack of criminal evidence, the lawsuit said.

The office could not be reached for comment Tuesday.
USF never issued a statement after the charges were dropped, the lawsuit said. The university will have no comment on the pending litigation, spokesperson Althea Johnson said Tuesday.

Neither Dingle nor his attorneys, Kenneth G. Turkel and Anthony J. Severino of Tampa, could be reached for comment Tuesday.
The Pembroke Pines native released a statement on Twitter in 2018 maintaining his innocence and criticizing USF.

“False accusations hurt the real victims of sex crimes,” Dingle wrote. “The accused deserves to have an unbiased investigation and a real chance to defend himself. The State Attorney’s Office gave me both of those things, but USF did not.”

Dingle and Roe got together at USF’s on-campus Holly Apartments on Nov. 17, 2017, after having a number of conversations about having sex, the lawsuit said. Earlier in the week, they had met, exchanged Snapchat usernames and decided to meet at Dingle’s dorm room after Roe got out of class one day.
Dingle, 18 at the time, was arrested the same day and an internal investigation was launched by the university. It concluded Dec. 17 with the determination that Dingle broke USF rules and would be expelled.

Still, Dingle was forced to pay for on-campus housing — even after the criminal charges were dropped — in order to have his transcripts released to other universities, the lawsuit said. Up until the arrest, his housing costs had been paid through a football scholarship, the lawsuit said.

Dingle didn’t land another Division I college football scholarship even though he had been widely recruited while playing in high school in South Florida, the lawsuit said.

He went on to play football with Garden City Community College in Kansas and with Mississippi Valley State University, according to the schools’ social media pages.

Million Dollar Verdicts Reputation and Privacy Trial

CVN Florida Plaintiff’s Attorneys of 2016: Lawyers Whose $140M Verdict Broke Media Giant

Posted by Courtroom View Network on Dec 22, 2016 10:56:49 AM | Read Original Article

Billions of dollars were at stake in CVN-covered trials throughout Florida in 2016. However, the two lawyers who earn this year’s title as CVN Florida Plaintiff’s Attorneys of the Year spearheaded a win in a landmark trial over celebrity privacy that ultimately toppled a media giant.

CVN Florida Plaintiff’s Attorneys of 2016

Kenneth Turkel and Shane Vogt

The trial: Bollea v. Gawker Media

The verdict: Jurors awarded Terry Bollea $140.1 million, including $25 million in punitives, in his invasion of privacy suit against Gawker Media, its founder, and its former editor.

The details: Terry Bollea, better known as wrestling superstar Hulk Hogan, sued online media empire Gawker Media, claiming the company invaded his privacy and damaged his reputation when it published a clip of a sex video taken without Bollea’s knowledge by a friend of the wrestler’s. Gawker, which received the tape from an anonymous source and which it published with commentary by editor A.J. Daulerio, claimed the video was newsworthy based on Bollea’s celebrity status and his public discussion of his sex life.

The trial focused on standards of journalism and Gawker’s own business goals, with Vogt portraying Gawker founder Nick Denton as a mogul obsessed with driving viewers to his sites at any cost. “They knew it was wrong, they knew it was an invasion of privacy, they told other people and they did it anyway,” Vogt said. “We will prove they crossed the line.”

In closing statements of the punitive phase, Turkel told jurors the trial would serve as notice to other media sites regarding the limits of their coverage. “You send a message, you make a statement; that statement is ‘We’re going to draw the line,’” Turkel said. “Literally, you draw the line at the publication, without consent, of a private act accorded in a private bedroom.”

The trial and its stunning verdict made headlines nationwide and ultimately forced Gawker into bankruptcy. The case launched discussions on journalistic ethics, celebrity rights to privacy, and, when it was discovered PayPal co-founder Peter Thiel bankrolled the suit after Gawker allegedly outed him in a publication, the role the wealthy play in shaping media coverage.

But the landmark verdict itself was driven by the courtroom work of Turkel and Vogt. Their win in one of the country’s biggest trials of 2016 earns them Florida Plaintiff’s Attorney of the Year honors.

FL Plaintiff Atty of the Year_Turkel.pngFL Plaintiff Atty of the Year_Vogt.png

Million Dollar Verdicts Reputation and Privacy Trial

Hulk Hogan, Gawker Brace for Jury Verdict at Sex Tape Trial

“Do you think the media can do whatever they want?” asked Hogan’s attorney in closing arguments.

The time has nearly come for a verdict in the first-ever trial pitting a celebrity against a media organization for the posting of a sex tape. The proceedings represent a probing of newsworthiness and whether the press can be held to maintain a standard of decency. More than three and a half years since Gawker published a post titled, “Even For A Minute, Watching Hulk Hogan Have Sex In A Canopy Bed Is Not Safe For Work But Watch It Anyway,” jury deliberations began after Hogan and Gawker gave a six-member jury in a Florida courtroom their closing arguments. These jurors began deliberations without having yet seen the sex tape in question.

Hogan (real name: Terry Bollea) contends that a less-than-two-minute excerpt of a 30-minute video, showing the famous wrestler sleeping with Heather Cole, then the wife of his best friend Bubba the Love Sponge (a radio host born Todd Clem), was an invasion of privacy, illegal wiretapping, a violation of the right of publicity and inflicted emotional distress. In weighing Hogan’s claims, the jury has been instructed to consider whether the video was highly offensive and was outside the bounds of human decency, causing (purposely or by reckless disregard) Hogan to experience shame and embarrassment. The jury will also consider whether Hogan had a reasonable expectation of privacy and whether Hogan’s name and likeness was used in a commercial purpose. If Hogan has proven the elements of his claims, the jury will also take up Gawker‘s defense — that the publishing of the video is protected by the First Amendment because it related to a public concern, meaning it was “newsworthy.”

Before closing arguments began, Pinellas County Judge Pamela Campbell noted the line between free speech and unfair intrusion, telling the jury they’d have to consider what “ceases to be the giving of legitimate information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake.”

Ken Turkel gave Hogan’s summary of the case.

Million Dollar Verdicts Reputation and Privacy Trial

How Kenneth Turkel’s Voir Dire Questions Set the Stage for $140M Verdict

Effectively addressing damages is critical during voir dire. And during jury selection of a headline-grabbing trial against Gawker Media, Kenneth Turkel’s questioning helped select a jury that delivered him a blockbuster verdict.

Terry Bollea, better known as wrestler Hulk Hogan, sued Gawker when the company’s celebrity gossip site posted a clip from a sex video involving Bollea and the one-time wife of a local radio personality.

Jury selection in the 2016 trial stretched across three days. By the time Turkel, of Tampa’s  Bajo | Cuva | Cohen | Turkel turned in earnest to the issue of damages, he’d spent more than three hours questioning jurors on matters ranging from their opinions on marriage to their radio listening habits. 

Importantly, during that time, Turkel had worked to build a strong rapport with the jury pool, through humor and a conversational style that encouraged prospective jurors to be forthcoming and candid in their answers. 

And when jurors weren’t immediately forthcoming, as when Turkel initially turned to the issue of damages issue, he drew on that rapport to press them. 

Turkel opened on the damages issue by asking if anyone in the pool heard about a civil lawsuit they thought was frivolous. 

When no one in the jury raised their hands, Turkel became clearly incredulous. “Nobody’s ever heard anything in the news, and they’ve never looked at it and said ‘Oh my God, can you believe so-and-so recovered that amount?”

At that, hands began to raise. “All right, yeah,” Turkel said, smiling. “I figured.”

That kind of back-and-forth encouraged prospective jurors to open up on their opinions, with some recalling their shock at the famous multi-million-dollar McDonald’s “hot coffee” verdict. And one prospective juror mentioned her surprise at hearing about a claim involving a woman who had allegedly died after being startled by a snake. 

“Could’ve been  a really, really scary snake,” Turkel deadpanned, as the jury pool erupted in laughter. 

As other jurors shared their views, Turkel drew them out with follow-up questions, while also turning to quieter jurors whose body language may have signaled concern. 

“Number 3, you look very pensive right now,” Turkel said to one prospective juror who had been quiet on the issue. “Do you have an opinion? You were, like, in hard-core thinker pose right there.”

Throughout the questioning, Turkel walked a line of drawing out jurors who may be against awarding a large verdict while highlighting a vocal consensus among the pool that they would consider the case on its merits. 

And Turkel’s masterful voir dire helped select a jury that ultimately found for Bollea and awarded him $140 million.

Original article on Courtroom View Network