Ninth Circuit: Herring Networks v. Maddow

 

As precedent compels that the state-law right to preemptive dismissal of spurious defamation claims be treated as a dismissal for not stating a claim if made on a matter of law and as a summary judgment if made on a fact-dependent determination, the court was powerless to look beyond the pleadings to the additional evidence provided by the non-movant when adjudicating it as a motion for preemptive dismissal on a matter of law.

A reasonable viewer would discern from the tenor of the show that the only fact being reported by the television host was the content of the news story being discussed, and that the rest was opinon and commentary.  By disclosing the specific factual basis of the statment, the host reveals the rest to be commentary and hyperbole.

No abuse of discretion in denying leave to amend, since it was never requested, and would have proved futile anyway.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-55579.pdf

Seventh Circuit: Next Technologies, Inc. v. Beyond the Office Door LLC

 

Court might have exercised a bit more Constitutional avoidance.  Few Lanham Act disparagement claims would succeed if the manufacturers were considered limited purpose public figures.

Although the state's law doesn't distinguish personal libel from trade libel, since there are few examples of the latter in the caselaw, it is reasonable to follow the Restatement rule requiring injurious falsehood -- false statements of specific unfavorable facts --  for trade libel, a standard which requires reckless disregard of the truth.

Next Technologies, Inc. v.  Beyond the Office Door LLC

DC Circuit: Christiana Tah v. Global Witness Publishing, Inc.

 

Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.

Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.

DISSENT:

Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts.  First consider the inherent plausibility, then consider counterarguments.

The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.

The facts cited in the denials were sufficient to cast doubt on the story.

Circuit split suggested.

NYT v. Sullivan should be overruled.

Christiana Tah v. Global Witness Publishing, Inc.

Second Circuit: Kinsey v. New York Times Co.

 

Under the state's conflicts rules, since the defamation plaintiff is domiciled in a state other than the district containing the city in which the speech occurred and in which the employment damages were sustained, the state with the strongest interest in the litigation was instead a third forum, the state in which the national newspaper is domiciled, and from which it emanated.

Since the context and structure of the quoted litigation affidavit established that the language was taken from a judicial proceeding, the state's statutory absolute privilege for reports of judicial proceedings applies.

Kinsey v. New York Times Co.

Seventh Circuit: Kevin Pack v. Middlebury Community Schools

 

The website statement preexisting the nondisparagement agreement that applied to prospective communication, statements, and conduct did not breach the agreement, since the statement was published to the website before the agreement.

Litigation affidavit enjoyed absolute immunity from the nondisparagement terms, since it was relevant and pertinent to the matter before the court.

Statements made to plaintiff's agents posing as prospective employers did not implicate the nondisparagement agreement's limitations on communications with potential employers.

Kevin Pack v. Middlebury Community Schools

Second Circuit: La Liberte v. Reid

Motion to strike pleading in Federal court based on state statute requiring an elevated pleading for defamation cases is not valid, as it conflicts with FRCP pleading and summary judgement rules.  As the statute awards fees only for its own process, dismissal under the Federal pleading rules does not automatically justify an award of fees.

Deft is not shielded by the CDA for independently authored social media posts that include information available elsewhere on social media.  Sole authorship of the post in question is sufficient material contribution to establish the poster as the sole information source for the purposes of a defamation claim.

Testifying at public meetings in addition to a lot of other public speech is insufficient to establish a person as a limited purpose public figure, since the designation was created to recognize that some figures had sufficient media clout to respond to attacks on their own.

A juxtaposition of an image of the plaintiff with an image of racist conduct was sufficiently clear, both in itself and within the frame of general knowledge, to establish libel per se by implication.

 La Liberte v. Reid

First Circuit: Lemelson v. Bloomberg L.P.

News organization's pre-publication fact checking and investigation did not justify a finding of actual malice, as comment was sought from the investigating agency, and the fact that the agency's investigation centered on a company and not the plaintiff didn't make it less likely that the plaintiff was under investigation.

http://media.ca1.uscourts.gov/pdf.opinions/17-1620P-01A.pdf