Most people attacked by corporatist-media are known as a “public figure” or a “limited purpose public figure.” For one of these people to hold the media to account for misrepresentations and false reporting, they must prove that the reporter made a statement that was defamatory and that it was made with “actual malice.”  This is generally defined as “an evil intent or motive arising from spite or ill will; or culpable recklessness or willful and wanton disregard of the rights and interests of the person defamed.” This is hard to prove, because reporters often do just enough work to pretend they acted in good faith. There are, however, ways to attack corporatist-media when the reporters write hit pieces instead of news. 

When a reporter relies on biased or anonymous sources, issues threats or other negative statements, demonstrates ill will or hostility, or is a rival, such conduct may support a claim of actual malice.  A reporter’s bias might also support an allegation of actual malice. For example, if a reporter has a business relationship with one party and then writes a hit piece on that party’s business competitor, the business competitor can point to the reporter’s bias to prove actual malice.  By these standards, many hit pieces may be actionable. 

So, what is to be done? We need more suits against corporatist-media that engages in writing hit-pieces.  These efforts might expand the law to make the chances of success in such litigation more likely.  Justice Clarence Thomas has suggested that the law is ripe for change.  As well, if they know they will be sued for their actions, they might be more careful about what they write.  The problem is the time and expense of pursuing litigation.  Most people cannot afford to pay an attorney by the hour and most attorneys can only handle so many contingency fee cases, especially ones that present the unique challenges of defamation litigation. 

What is needed is a public interest law firm.  Such a firm is a private firm, like any other, but it is focused on representing a particular cause.  It is not profit-oriented but is instead issue-oriented.  Such a firm would rely upon outside funding to operate, as its cases would not necessarily make money.  Perhaps billionaires such as Palihapitiya can spare a little change to empower a public interest law firm dedicated to taking on the corporatist media.  This effort could rebalance the relationship between corporatist-media and those it attacks. 

The post The Defamation Lawsuit is Essential to Our Future appeared first on Todd McMurtry.

Ms. Carano, who is well known for articulate conservative social media posts, made the following post on or about February 9, 2021:

“Jews were beaten in the streets, not by Nazi soldiers but by their neighbors… even by children.
Because history is edited, most people don’t realize that to get to the point where Nazi soldiers could easily roundup thousands of Jews, the government first made their neighbors hate them simply for being Jews. How is that any different for simply hating someone because of their political views?”

This post’s gist is that to hate a person based upon religious affiliation is little different from the hate a person based upon political views. (Trust me, I know this because some of my family members have openly expressed a deep hatred for me because I am a Republican). To hate a person for being a Republican is no different from hating a person for being a Jew. Both Jews and Republicans have sets of beliefs, but on the exterior appear no different than anyone else. To put this another way, to hate someone for being a Jew or a Republican is not to hate them for their skin color, but to hate them for their beliefs.

In retaliation for making a truthful statement on social media, Ms. Carano’s employer, Lucasfilm, Ltd., terminated her employment on the Mandalorian television series and issued a public statement that read in part:
“Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable.”

The problem with this statement is that no reasonable interpretation of what Ms. Carano said could conclude that she denigrated anyone based upon cultural or religious identity—unless you are a Nazi.

Two legal issues immediately present themselves:

(1) if her contract permits Lucasfilm to terminate her for cause, does her truthful statement amount to cause; and (2) is Lucasfilm’s statement defamatory? Let’s consider these two issues.

First, I do not think making a truthful statement on social media can constitute “cause” under any contract unless the contract specifically addresses social media commentary. Such an agreement might state that a person who makes a comment on social media that harms her employer can be terminated. The complexity here is that there is no reason why a truthful statement would have a negative impact on an employer.
(Remember how I said things were when I was in high school).

Only in a society dominated by cancel culture is it possible that the truth can be interpreted negatively. This means that there are certain circumstances where one cannot speak the truth. All contracts have an implied duty of good faith and fair dealing regarding performance of the terms of the contract. That means if you agree to do A, then you must exercise good faith when performing your contractual duty. Again, it is illogical to suggest that making a statement of fact would somehow violate Ms. Carano’s duties of good faith under her agreement. So, I suspect she has a good breach of contract claim against Lucasfilm. (I would need to read her contract to be sure).

As for defamation, clearly what Lucasfilm said was defamatory. The Lucasfilm statement is absolutely false because nothing that Ms. Carano said can reasonably be construed to denigrate anyone based upon their cultural and religious identities. Instead, what Ms. Carano did is compare canceled culture to what occurred in Germany in the 1930s. What happened there is that over time, society was trained to hate the Jews.

Today, with the nonstop attacks on conservatives and Republicans, people, like members of my own family, are being trained to hate others based only upon their political ideology.

The real reason behind the Carano #cancellation is an effort by the Left to frighten people into submission. The Left wants to scare people so badly that no one will comment on anything for fear of what will happen. This means that the First Amendment will no longer have the powerful and positive force it historically has had. Instead of people standing up for their views and debating other’s opinions, we confront a culture where only one opinion, ever-changing, is allowed.

Todd McMurtry is a nationally known attorney. His practice focuses on defamation, social media law, professional malpractice, and business disputes. You can follow him on Twitter, GAB and Parler (hopefully again soon!): @ToddMcMurtry.

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So, what is a person to do? The first and best policy is to avoid statements that lend themselves to misinterpretation. As a part of this strategy, you should get off social media entirely. Close your Facebook and become anonymous on Twitter. Even the most carefully cultivated social media posts, reinterpreted five years from now, can be condemned for saying the “wrong thing.”

At work, you must learn that you do not have any friends whom you can trust. You can never let down your guard. You can never trust that your coworkers, partners, or those whom you teach will not misinterpret something you said. The risks are too high.

However, if someone calls you a racist or bigot despite the best efforts, I have learned that the only effective response is to fight back with everything you have. I also recommend that first, you hire an attorney to advise you about your circumstances before you do anything. Each state has different laws on these issues, so you need a competent professional familiar with your state’s laws to help.

If a coworker is calling you a bigot and will not retract after you confront them, you need to have your attorney contact them. If a person establishes a change.org petition calling you a racist, you need to send that person a letter and force them to take the petition down immediately or face the consequences. In today’s electronic society, these things do not go away. When you apply for college, for graduate school, for your first job, for your 2nd job, and on and on, the record of the false allegation will live forever.

As our society moves more and more in the direction of cancellation for people who fail to abide by prevailing opinions, they run a severe risk of losing their economic livelihood or suffering hundreds of thousands of dollars of damages to their ability to earn an income. Again, I am not exaggerating when I say that people call me and tell me how they were fired or how their businesses were destroyed over racism and bigotry allegations.

So, is there hope? I have always believed that truth wins out in the end. Unfortunately, right now, we are at a point in our history that does not tolerate dissent. I am sure in time, as has happened in the past, things will balance out. Until then, be very careful. A parting thought is that you personally do not need to fight this fight. There are many people out there who have already been canceled and can speak truth to power. Let them do their job, and maybe in time, things will get better. 

Be safe.

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Doxxing is distinguishable from defamation, which is the publication of false information about a person or entity. The danger from doxxing is that the information released is true but sensitive. Unfortunately, there is a wealth of data that can be legally obtained online by clever searchers.

Fortunately, there are ways to help prevent hackers from finding the information they want. Cyber security professionals recommend the following actions:

• Provide digital security training for employees — Create standard protocols for Internet activity and teach information-protection practices to employees. This helps prevent the release of information that should remain private.
• Limit what is shared on social media — People with bad intentions can latch onto one detail your employee posts online and use it to uncover much more about the person’s life. Changing social media privacy settings can limit access to identifying data points — like addresses, employers, schools and email addresses — making it harder to track you on other platforms.
• Use encryption tools — A hacker who accesses someone’s computer system may obtain important data and metadata from documents like Word, Excel and Powerpoint files. Documents and communications should be encrypted to keep their contents virtually inaccessible to anyone except the intended recipient.
• Use strong passwords and vary them — Passwords are the keys to your data online, yet many users favor simple passwords that are easy to remember and, worse, include identifying information. Security experts recommend long passwords with a mix of numbers, symbols and upper- and lower-case letters. Also, use different ones for different accounts.
• Update computer security — Internet firewall and antivirus software should be frequently updated. New versions are issued frequently to keep ahead of hackers that learn to exploit security weaknesses and mine hard drives for data.

Doxxing may warrant civil legal action or criminal charges, depending on the type of information released, the means used to acquire the information, the intent of the publisher and the reputation damage or other harm inflicted.

If you or your company has been doxxed, you should consult with an attorney to see what can be done to limit the damage to your reputation and hold the bad guys responsible.  But it is far better to avoid the problem in the first place by being careful about your online activities and how you or your business share information with others. 

Todd V. McMurtry is a Member at Hemmer DeFrank Wessels, PLLC.  He is a commercial trial attorney and Harvard trained mediator.  You can reach him at (859) 344-1188 or tmcmurtry@hemmerlaw.com. 

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In my opinion, our modern discourse allows for the trashing of reputations with reckless abandon.  Shaming, attacking, and defaming are the new norm.  Today, our laws offer too little protection from attacks on a person’s reputation, while allowing news outlets to grab attention though “click bait” headlines.

A recent decision by the Sixth Circuit Court of Appeals involved an article in the New York Times highlights this point. The person in question, Dr. Carlo Croce, is an Ohio State University based cancer researcher.  The case, Croce vs. The New York Times Company, discusses a Times’ headline that read:

Years of Ethics Charges,
but Star Cancer Researcher Gets a Pass.

Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from his grants.  Now, he faces new whistle-blower accusations.

The gist of this article is that Dr. Croce is a bad doctor whom Ohio State protects from ethics charges so it can “reap millions” in grant monies.  In essence, both Ohio State and Croce were co-conspirators in unethical research.

The appellate court ruled that the context of the entire article had to be considered when trying to determine if the statement was defamatory. The entire article! Since the article’s author noted that Dr. Croce had never been found responsible for misconduct, it was therefore “balanced”. This is often referred to, in Ohio Law, as the “Reasonable reader” standard.

To further complicate matters, the court found that in light of the entire article, the headline could be read as either defamatory or non-defamatory. Under current law, when something can have two meanings, the court must attribute to it the less harmful one. Almost like: Assuming the best, or giving it the benefit of the doubt.

While I don’t agree with the court, I do understand its reasoning. However, it creates a big problem as the net effect is that when you are a well-known public figure, you are no longer safe from a newspaper:

• saying terrible things about you
• insinuating that you are an unethical person without actually proving the truth of the charges

All in the name of journalism! To me, the court has now offered too much protection to news outlets.  This protection allows a news organization like the New York Times to make headline grabbing accusations that are totally unfair so long as the article offers a counter-point. This might be great for making sure it grabs attention on Drudge Report, but it is unfair to the subject of the article.

We need better discourse in America.  Re-balancing the right to protect your reputation, with the need for a vital free press, will create a national discourse that is both effective AND respectful.

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In response to the complaint, Facebook is likely to file a motion to dismiss citing the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), which states that a provider of an interactive computer service shall not be “treated as the publisher or speaker of any information provided by another information content provider,” nor shall it be held liable on account of “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  Assuming Ms. Loomer can overcome this broad hurdle, the question will become whether Ms. Loomer has plead a prima facie case for defamation or defamation by implication, which is likely to be decided on the issue of what constitutes an actionable “opinion.”  The implications this case could have for what constitutes an actionable opinion are perhaps the most interesting.

Of note, Facebook did not state the basis for its opinion.  Thus, a reader is left to presume that Facebook’s investigation was thorough, based upon true facts, and accurate in its conclusions.

The complaint quotes a spokesman for Facebook who published comments describing factors considered to determine whether to ban a person.  The factors center around “whether the person or organization has ever called for violence against individuals based on race, ethnicity, or national origin [or] . . . whether such person has been identified with a hateful ideology.”  In her complaint, Ms. Loomer vehemently denies any such conduct.

Instead, she describes her reportage as opposed to people who promote “anti-Semitism, Islamic terrorism, political violence, and violence against homosexuals . . .”  Ms. Loomer asserts that it is true Rep. Omar supports Sharia law, and further that describing aspects of that law is truthful and proper reporting.  Obviously, Facebook disagreed.

The gist of Ms. Loomer’s complaint is that by banning her for reasons that are false, that are defamatory (subjecting her to hatred, ridicule and contempt), and are made with actual malice, Facebook is subject to a suit for defamation. 

Can she win?  In general, an “opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.”  Milkovich v. Lorain Journal 497 U.S. 1, 20 (1990).  It is Facebook’s opinion that Ms. Loomer engages in hate speech.  Ms. Loomer will undoubtedly attempt to state that her factual comments and reporting cannot be hate speech.  Facebook will defend by stating that as a private company, it has the right to suppress speech about another religion that might incite hatred or violence.

More importantly, Ms. Loomer will respond by stating that notwithstanding Facebook’s decision to ban her, its claim that she called for violence against others connotes a false statement of fact that is verifiably false.  Thus, Facebook’s opinions may contain a provably false factual connotation to be actionable under Milkovich.  If so, Facebook may be liable for defaming her, provided the CDA’s immunity is rendered inapplicable. 

This will be a very interesting case to watch.  If she can overcome the CDA, I think Ms. Loomer has a fighting chance.

Todd McMurtry is a nationally recognized trial lawyer, Harvard trained mediator, and advocate for the underdog.  You can learn more about his work at https://toddmcmurtrylaw.com/.

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