Definitely loving all of this. And right up front (just in case the defendant thinks she can rob Peter Techdirt to pay Paul Eric Posey), I’ll make it clear this post will be filled with colorful expression, hyperbole, highly opinionated takes on the lawsuit, and… possibly… archaic slang.

A lot of people (especially the most awful ones) think libel laws in this country are too restrictive. They claim it’s almost impossible to rifle through someone’s wallet via court order because someone said something about them they didn’t like. In most cases, those people are like the defendant here — someone who probably thought it was impossible to get successfully sued for libel in the United States.

You know these people. They’re the ones who cry libel every time one of their own is insulted but say dumb shit like “facts don’t care about your feelings” when other people complain about the garbage flowing out their social media accounts.

The saddest thing about this case is that this person continued to do the libel even after she knew what she was saying on social media was definitively not true. (h/t Volokh Conspiracy)

A jury has awarded more than $1.1 million in damages to the drag performer who sued a blogger for defamation.

The unanimous verdict was returned Friday. The jury found that blogger Summer Bushnell defamed Post Falls resident Eric Posey when she accused him of exposing himself to the crowd while he performed in drag at the Coeur d’Alene City Park bandshell in June 2022.

That’s hilarious. Not so much for Eric Posey, who was falsely accused of exposing himself. He sued the blogger in 2022 for claiming something had happened that actually hadn’t happened.

And, of course, the posting Posey sued Bushnell over was motivated by her own bigotry. It was also an attempt to rouse a rabble that rarely needs an excuse to be roused.

The day of Posey’s performance, June 11, 2022, Bushnell posted a video of herself discussing the mass arrest of Patriot Front members near City Park, as well as footage from Posey’s performance.

“Why did no one arrest the man in a dress who flashed his genitalia to minors and people in the crowd?” she said in the video. “No one said anything about it and there’s video. I’m going to put up a blurred video to prove it.”

Yes, this is the kind of person who thinks posting an edited video can “prove” anything. However, it did prove this: there are plenty of suckers in Idaho and some of them wear government-issued uniforms. After racking up a few thousand views on social media, the edited video generated national news coverage as well as a local police investigation. Fortunately, the criminal charges were dropped after prosecutors took a look at the unedited video.

City prosecutors ultimately declined to file charges and stated publicly that the unedited video showed no exposure.

Here’s what Bushnell posted, as included in Posey’s lawsuit [PDF] against the blogger:

Here’s the same shot in unedited form:

After being sued by the drag performer, the blogger claimed this was all just an unfortunate misunderstanding. The video had been passed on to her by another person who had blurred the crotch area and Bushnell was just passing along this information.

But that excuse only lasted until she was called to the stand to testify.

Wendy J. Olsen, legal counsel for Posey, questioned Bushnell about Facebook messages she sent to multiple friends, including ones in which she references being able to see Posey’s genitals in an unedited video.

“And you knew at the time it was false,” Olsen said.

“It was not accurate,” Bushnell replied.

“You knew that at the time,” Olsen said.

“Correct,” Bushnell said.

That’s libel, folks. That’s fully admitted defamation by the defamer on the record in court during a jury trial. That can’t be undone. That’s how you lose a libel case in the United States. You say something defamatory, knowing it’s not true.

Bushnell’s lawyer, despite the $1.1 million damages award and despite his client’s own admission she had lied to people about the drag performer, continues to engage in self-delusion of his own.

Attorney Colton Boyles, who represents Bushnell, told jurors that his client’s allegations were “close to the line” but did not cross the line into defamation. He maintained that Bushnell’s “honest belief” is that Posey exposed himself, though she admitted on the witness stand that she never saw the “fully exposed genitals” she described to others.

“That remains her steadfast testimony to this day,” Boyles said.

There’s a very good reason Colton Boyles would represent someone like Bushnell. And it’s not because he’s such a great litigator. No, this is all ideological. Colton’s decision to take this case was likely motivated by his own personal animus against people like drag performer Eric Posey.

Boyles, whose full name is Dennis Colton Boyles, was recently retained by the Community Library Network – the group of Kootenai County libraries outside of Coeur d’Alene – whose board members have ambitions of restricting books and services.

He defended former Idaho Lt. Gov. Janice McGeachin when she lost a public records lawsuit to the Idaho Press Club.

Boyles pleaded guilty to a driving under the influence misdemeanor late last year and is on unsupervised probation until Dec. 12.

He has appeared as a guest on far-right internet shows, such as “The Pete Santilli Show.” Pete Santilli was a vocal supporter of anti-government activist Ammon Bundy during the armed occupation of the Malheur National Wildlife Refuge.

Ammon Bundy’s governor campaign paid Boyles’ firm $5,000 in 2022 for legal advice.

In an Epoch Times documentary, Boyles pushed deep state conspiracy theories about Child Protective Services.

“I would say it is a state- and federal-funded kidnapping system,” Boyles said.

[…]

In 2021, Boyles donated $500 to Post Falls School Board candidate David Reilly, a former radio host who has expressed antisemitic views and attended the 2017 white supremacist Unite the Right rally in Charlottesville, Virginia.

With competent representation, the blogger may have been able to secure a settlement in the low thousands. She might have been able to walk away with nothing more than a public apology. But she chose to retain a showboating rube. I hope he can explain to Bushnell how he just cost her hundreds of thousands of dollars and makes it clear that no matter how many libs the two have collectively “owned,” being stupid on social media can’t really be considered a stable revenue stream.

The article is here; the Abstract:

Speech damages someone's reputation when it leads others to believe that that person has done something that reflects poorly on their character. When that belief is also false the reputational damage is undeserved, and it is the point of American defamation law to protect individuals from suffering such undeserved reputational damage.

It is easy to understand why individuals would need protection from false and derogatory claims made about them in works of nonfiction, such as journalism, documentaries, and biographies. But it is not immediately clear why individuals would also need protection from fiction. Although authors of fiction often base their fictional characters on real people, they do not typically make real people characters in their stories. Even when they do put real people in their stories and depict them as doing bad things, the audience is still usually meant only to imagine the real people doing those bad things.

Nevertheless, some works of fiction are not only about real people but also do real and undeserved damage to their reputations. It may not be true, as has often been alleged, that Aristophanes's comedy The Clouds gave Socrates the reputation for rejecting the gods and corrupting the young that later led to his execution. But readers of parodies of news articles published on sites like The Onion and The Babylon Bee are sometimes duped, especially when they are already inclined to think poorly of the public figure that is being ridiculed.

Of course parodies are believed only when they are not recognized as parodies. But there are other genres of fiction that mix facts into the story, such as biofiction, biopics, and docudramas, and it is not always easy for audiences to distinguish what the author is making up from what the author is, or ought to be, trying to get right.

The biographical drama Amadeus suggested that Salieri poisoned Mozart, re-popularizing an old rumor about Salieri that the filmmakers must have at least strongly suspected was false. Salieri, being dead, is in no position to bring a lawsuit. But the villain of the docudrama When They See Us, Linda Fairstein, is alive and is suing Netflix and Ava DuVernay, the director, for defamation.

Fairstein was chief of Sex Crimes Prosecution during the investigation and prosecution of the "Central Park Five," five Black and Latino teenagers who were convicted of the beating and rape of a jogger in Central Park but who were exonerated years later after a serial rapist whose DNA was found at the scene confessed to the crime and said that he had acted alone. Fairstein alleges that she was defamed in several scenes in the docudrama, including in a scene where she is depicted as concealing potentially exculpatory evidence from the defense and a scene where she is depicted as instructing officers to use harsh interrogation techniques. As a result of her depiction in When They See Us, Fairstein's publishing contract was canceled (she had become a best-selling mystery writer since leaving the DA's office), her literary agents dropped her, #cancellindafairstein trended on Twitter, and Glamour magazine expressed regret they had named her Woman of the Year in 1993.

As the docudrama When They See Us makes clear, fiction about real people can do serious damage to their reputations. It is another question whether it is ever appropriate to hold an author of fiction legally liable for that damage. One aim of defamation law may be to reflect our pre-legal moral duties of care to avoid damaging others' reputations. If so, one important consideration for determining how defamation law should handle fiction is whether and when an author of fiction would count, morally speaking, as having wrongfully damaged someone's reputation.

But defamation law is also answerable to another moral value, namely, freedom of speech, that may be in tension with these pre-legal duties of care. Even when it is plausible that an author of fiction has wrongfully damaged someone's reputation, there might still be a reason of freedom of speech, even an overriding reason, to shield such an author from liability.

This Article will address the question of what limits, if any, freedom of speech would place on holding authors liable for the reputational damage they cause with fiction. By "freedom of speech" I will not be referring to the First Amendment but rather to one conception of the moral idea underlying it. According to this conception, the limits that freedom of speech places on the scope of authors' liability for causing false and defamatory beliefs are whatever limits are necessary to adequately protect our interests as potential authors and audiences, and whose costs are acceptable in terms of other interests. To apply this conception, it will be necessary to identify our interests as potential authors of and audiences for fiction about real people, and to assess how these interests would be affected by different limits.

Ultimately, I will argue that freedom of speech is consistent with holding authors liable for reputational damage caused by their violations of fiction's "veracity rules" and for reputational damage caused by mistakes that their target audience would be expected to make. But liability for beliefs that are traceable to mistakes that only an author's incidental audience would be expected to make is, I will argue, prohibited by freedom of speech, so long as the costs of that protection remain acceptable.

The post Journal of Free Speech Law: "Fiction, Defamation, and Freedom of Speech," by Prof. Collin O'Neil appeared first on Reason.com.

The article is here; the Abstract:

Until the late 18th century, defamation was often treated as an actionable wrong even when the defamer's claims were undeniably true (indeed, sometimes especially when true, as reflected in the slogan, "the greater the truth, the greater the libel"). In the following centuries, however, truth became a complete defense to defamation lawsuits. Even outside the law, falsity became an essential element of the common understanding of "defamation," to the point that today most English dictionaries and many extralegal discussions of the defamatory treat it as necessarily untrue.

Here I challenge the new understanding of the wrong of defamation that took flight under the law's wing, arguing that it is unduly narrow. Accurate defamation is a serious wrong and current understandings—and tort practice, in particular—harmfully hide this fact. Privacy law, moreover, does not provide adequate redress for it either, for reasons I set out.

The post Journal of Free Speech Law: "True Defamation," by Prof. Jeffrey S. Helmreich appeared first on Reason.com.

From Edokobi v. Smith, decided yesterday by the Appellate Court of Maryland (Judges Kathryn Grill Graeff, Kevin Arthur, and James Eyler):

In the light most favorable to Edokobi, the complaint alleged, generally, three claims: first, during an argument in front of two of Edokobi's employees about payment for work Smith had performed, Smith called Edokobi "a piece of garbage." Second, after Edokobi's employees left, Smith cast "evil curses" upon Edokobi's life and business. And third, in private text messages between the parties, Smith called Edokobi "stupid," "evil," and "foolish," and threatened to remove Edokobi's industrial equipment from his warehouse.

Edokobi's second and third claims cannot satisfy the [publication] element of defamation. Even if the alleged statements were defamatory, they were not made to, or in front of, a third person….

Although [the first] statement was made in front of third persons, as a matter of law, it was not defamatory. "A defamatory statement is one [that] tends to expose a person to public scorn, hatred, contempt, or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person." "The test is whether the words, taken in their common and ordinary meaning, in the sense in which they are generally used, are capable of defamatory construction."

What is more, "statements that cannot reasonably be interpreted as stating actual facts" cannot be defamatory. For example, "rhetorical statements employing loose, figurative, or hyperbolic language[,]" unless coupled with verifiably false statements of fact, as a matter of law, are not defamatory….

To be sure, … a statement in the form of an opinion may still be actionable "if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." A statement does not rise to the level of defamation, however, "simply because the subject of the [statement] finds [it] annoying, offensive, or embarrassing." See also, e.g., Meier v. Novak, 338 N.W.2d 631, 635 (N.D. 1983) (holding that it is not defamatory to call someone an "asshole"); Cowan v. Time Inc., 245 N.Y.S.2d 723, 725–26 (1963) (holding that it is not defamatory to call someone an "idiot"). "The common law has always differentiated sharply between genuinely defamatory communications [and] obscenities, vulgarities, insults, epithets, name-calling, [or] other verbal abuse." "No matter how obnoxious, insulting, or tasteless such name-calling [may be], it is regarded as a part of life for which the law of defamation affords no remedy." So too here.

Smith's statement calling Edokobi "a piece of garbage" is not capable of defamatory construction. Taken in their common and ordinary meaning, these words can be understood only as a metaphor through which the speaker—Smith—is expressing an unfavorable opinion of the subject—Edokobi. The statement cannot reasonably be interpreted as stating actual facts and, by itself, does not imply the allegation of undisclosed defamatory facts as the basis for the opinion. It is not a statement that "tends to expose [the subject] to public scorn, hatred, contempt, or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person."

Put simply: Edokobi may have been insulted by Smith's statement, but, as a matter of law, he was not defamed by it. Consequently, Edokobi's complaint failed to state a claim for defamation, and the circuit court did not err in dismissing it.

 

The post "After Edokobi's Employees Left, Smith Cast 'Evil Curses' upon Edokobi's Life and Business"—But Not Libelous Ones appeared first on Reason.com.

From today's opinion in Trump Media & Technology Group Corp. v. WP Co. LLC, decided by Judge Tom Barber (M.D. Fla.):

This lawsuit for defamation by Plaintiff Trump Media & Technology Group Corp. ("TMTG") against Defendant WP Company LLC (the "Post") arises from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023, and circulated on Twitter (now known as "X") by Post personnel. The article described events related to a contemplated merger between TMTG and Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.

The article noted there had been a delay in obtaining SEC approval for the merger, which supporters of former President Donald Trump and TMTG attributed to political bias. The article offered an alternative explanation: concerns over a loan or loans obtained by TMTG, the identities of the lenders, and whether those loans had been properly disclosed by DWAC in its public filings. The article cited various sources for its story, including "internal documents a company whistleblower has shared with federal investigators and [the Post]" and statements expressly attributed to the whistleblower, former TMTG officer Will Wilkerson.

The article related that in late 2021, with the proposed merger "frozen" and TMTG concerned about paying its bills, DWAC president Patrick Orlando announced he had arranged for $8 million in loans from an entity known as "ES Family Trust." According to the article, the loans were part of a deal in which TMTG would receive the loans, and in exchange, ES Family Trust would acquire an equity interest in the public entity to be formed from the merger of TMTG and DWAC. This loan-for-stock deal was reflected, according to the article, in a convertible promissory note, although the article acknowledged that the only copy of the note the Post had been able to locate was unsigned. The article also reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry. Also, according to the article, TMTG paid a finder's fee of $240,000 in connection with the loans to Entoro Securities, a Texas entity of which Orlando was a managing director.

The article stated that neither the loan-for-stock deal nor the finder's fee had been disclosed to shareholders of DWAC or the SEC, and that New York University law professor Michael Ohlrogge opined that these matters could affect the value of the shares and should have been disclosed. The article also noted that the British journal The Guardian had earlier reported that federal prosecutors in New York were investigating whether TMTG violated money laundering statutes in connection with these loans, and that TMTG Chief Executive Officer Devin Nunes filed a lawsuit against Wilkerson and others (including The Guardian) asserting that the Guardian story was "fabricated."

TMTG sued for libel, but the court concluded that it hadn't adequately alleged knowing or reckless falsehood (so-called "actual malice"), though it concluded that the matter was close as to some allegations, and allowed plaintiff to file an amended complaint that could provide such allegations (assuming there was a plausible basis for them).

The court also discussed the Post's "neutral reporting privilege" argument, and partly accepted it but partly rejected it:

As an alternative ground for dismissal, the Post asserts the entire article is protected by the "neutral reporting privilege," a qualified privilege under Florida law for "disinterested" and "neutral" reporting on "matters of public concern." The few Florida cases on this issue contain seemingly very broad statements of this privilege. However, this broad language cannot be taken out of the factual context in which the courts have applied the privilege. The privilege has been applied in situations in which a media defendant has republished a defamatory statement made by another person, where the making of the statement itself was a newsworthy event.

The Post tries to bring itself within these cases, relying principally on Rendon v. Bloomberg, L.P. (S.D. Fla 2019). In Rendon, the defendant published an article relating the statements of a hacker who claimed he was hired by a political consultant to engage in cyber-attacks against political opponents. The consultant sued the publisher of the article. The district court dismissed the complaint, noting that the article consistently made it clear that the matters reported did not reflect the reporters' opinions but those of their source, the hacker. The court also noted that the article reported that the plaintiff denied the hacker's allegations, and that it reported that emails the hacker had provided were "fake." …

The Court agrees with TMTG that the neutral reporting privilege does not apply, at least not to the entire article or all the challenged statements. The article does not simply republish statements made by Wilkerson or relate his point of view. It attributes only certain specific statements to Wilkerson, and the challenged statements are not among them. Instead, the challenged statements are presented as the Post's own conclusions or inferences based on its review of admittedly "inconclusive" documents, the statements expressly attributed to Wilkerson, and whatever other evidence the Post may have gathered from Wilkerson or other sources. TMTG is correct that the article appears to "take sides" to that extent.

The exception to the foregoing would appear to be the Investigation Statement, which recites The Guardian's report of a money laundering investigation. The Guardian has been described as a "well respected, left-of-center, nationally circulated newspaper generally regarded as being among the top three or four newspapers in Great Britain." The Guardian's report and Nunes's denial in the lawsuit he filed, particularly in the context of public discussion of the reason for the SEC's delay in approving the merger, are independently newsworthy and touch on an area of public interest. In the Investigation Statement, the Post merely recited the opposing positions of both sides on this narrow issue. This aspect of the article appears to fit squarely within the type of reporting to which the neutral reporting privilege has been applied.

The parties agree that the neutral reporting privilege is a qualified privilege. Even if the privilege would otherwise apply, it may be defeated where the defendant abused the privilege by acting with express malice, that is, with the primary motive of injuring the plaintiff. TMTG argues that the Post abused any privilege because it published the statements "maliciously and excessively" and that it intended to injure TMTG. Under the Twombly/Iqbal standard, TMTG must plead facts to plausibly suggest the Post acted with a primary intent or motive to injure TMTG in order to negate the privilege, but it does not do so in its current complaint….

The court concluded:

Defamation is a highly technical and often confusing area of the law, and case law imposes unusual obstacles on a public figure plaintiff suing a media defendant. TMTG, however, may file an amended complaint to attempt to surmount those obstacles. In any amended complaint, as to each challenged statement, TMTG should clearly allege what aspect of the statement is false, what documents or other information demonstrate the specific aspect was false, and how the Post was aware of the documents or information.

The post Trump Media Libel Lawsuit Against Washington Post Dismissed, but Might Be Refiled With More Detailed "Actual Malice" Allegations appeared first on Reason.com.

For the price of $77 to $224, Pennsylvania residents can get a personalized license plate that "contain[s] a combination of up to seven letters and/or numbers," per the state's Department of Transportation (PennDOT). 

That is unless your application for a vanity plate is among the 2,872 rejected over the years.

The department keeps a "Do Not Issue" list, effectively banning thousands of "unacceptable configurations" that they interpret as euphemisms, epithets, or obstructions to law enforcement.

These restrictions are backed by PennDot's loosely defined list of 16 criteria, which the department's staff strictly adheres to, using internet slang dictionaries to check if the acronyms pass.

To be fair, it's not the entire list that raises eyebrows. Restrictions on libel or slander—as well as text that meddles with the license plates' primary purpose "to provide a State-issued, visible, and unique alpha-numeric identification mark for display in a uniform manner"—make sense.

But then you have "words which inflict injury or tend to incite an immediate breach of the peace." What does that include, exactly? It includes what the department staff says it includes. 

Also not allowed are acronyms that suggest sexual innuendo, like BLOWME, or contain profane or obscene intent, like DZZNUTZ. Don't even think about references to excretory functions.

Pennsylvania is far from the only state that has banned acronyms from vanity plates. New York doesn't allow NOTPOLCE or, for whatever reason, AY000000. Tennessee banned ILVTOFU back in 2014 for a vegan application. In 2017, Georgia banned Donald Trump's infamous COVFEFE gaffe. Kentucky said no to KARMA.

The examples don't end there; a list of banned personalized plates is commonplace across the U.S. But the constitutionality of the matter is not necessarily settled.

In 2015, a Texas nonprofit argued that displaying the Confederate flag on the organization's special license plate was their First Amendment right. In a 5-4 vote, the court disagreed. 

"In our view, specialty license plates issued pursuant to Texas's statutory scheme convey government speech," former Justice Stephen Breyer wrote for the majority. "Were the Free Speech Clause interpreted otherwise, government would not work."

The dissent argued that most people do not recognize speech on a license plate as government policy. "The Court's decision passes off private speech as government speech," wrote Justice Samuel Alito, "and, in doing so, establishes a precedent that threatens private speech that government finds displeasing." 

The Court's ruling, however, applied to special plates with names and logos, not personalized plates. There is thus no official ruling at a national level as to whether vanity plates are private or government speech. This leaves plenty of room for state officials to interpret the propriety of applications for approval, and even to rescind vanity plates to address complaints.

Without an official distinction, however, there have been many instances of successful lawsuits to reverse rejections, from striking down Kentucky's rejection of IM GOD to stopping California's crackdown against messages "offensive to good taste and decency."

Eugene Volokh, a professor of law at the University of California Los Angeles School of Law, wrote that lower courts, upon petition, have typically recognized the design of the plate as government speech, but not the text itself. But until there's an official distinction by the Supreme Court, rejected applicants who are upset can try suing. Otherwise, the next-best option is taking it up to the department.

And though PennDOT is willing to discuss rejections with applicants, they have a disclaimer: "PennDOT reserves the right to limit or reject certain requests."

The post Your Local DMV May Have No Sense of Humor appeared first on Reason.com.

From Polk County Pub. Co. v. Coleman, decided Friday by the Texas Supreme Court, in an opinion by Justice Jimmy Blacklock:

In June 2020, a small newspaper in Polk County ran a story criticizing a local assistant district attorney named Tommy Coleman. Most of the article criticized the Williamson County District Attorney's office, where Coleman previously worked, for its involvement in the infamous wrongful conviction of Michael Morton.

Among the article's claims about Coleman was the statement that he "assisted with the prosecution of Michael Morton" while a prosecutor in Williamson County. The 1987 conviction of Michael Morton, which involved prosecutorial misconduct in the handling of evidence, happened long before Coleman started practicing law. Morton was exonerated in 2011 after spending nearly 25 years in prison.

Coleman sued for defamation, claiming that the article's statement that he "assisted with the prosecution of Michael Morton" was false and defamatory. At this stage of the proceedings, he does not challenge the accuracy of anything else in the article. The article described an episode in which Coleman, while a prosecutor for Williamson County, was heard in the courtroom during a post-conviction hearing mocking requests by Morton's attorneys for DNA testing of the piece of evidence that eventually exonerated Morton: "'Ewww! Bloody bandana! Bloody bandana,' Coleman is reported as saying in a demeaning tone during a hearing in September 2011." This regrettable episode, the veracity of which Coleman does not contest at this stage of the case, was the only factual detail the article offered to describe the way in which Coleman "assisted with the prosecution of Michael Morton."

The defendants now contend, among other arguments, that the challenged statement is not actionably false. As explained in more detail below, we do not determine the truth or falsity of the article's statement that Coleman "assisted with the prosecution of Michael Morton" by asking whether the statement is a legally precise characterization of the role Coleman played as an attorney in the sad saga of Michael Morton's prosecution and exoneration.

Instead, this Court's precedent requires that we judge the truth or falsity of an allegedly defamatory statement by identifying the "gist" of what the statement conveys about the plaintiff to a reasonable reader of the entire article. If the gist of the challenged statement, within the context of the article as a whole, is true, then the statement is considered substantially true and therefore not actionable—even if the statement errs in the details.

As explained below, we conclude that, in its context, the article's claim that Coleman "assisted with the prosecution of Michael Morton" was substantially true given Coleman's public involvement in his office's efforts to keep Morton behind bars by resisting DNA testing of the "bloody bandana." The statement is therefore not actionably defamatory, and Coleman's claims should be dismissed.

An excerpt from the court's legal analysis:

Coleman's principal complaint concerns the earlier phase of the Morton case. In his view, the article falsely communicates that he participated in the notoriously flawed initial prosecution and conviction of Morton in the 1980s.

We begin, therefore, by asking what a reasonable reader would understand the article, as a whole, to convey about Coleman's involvement in Morton's initial prosecution and conviction in the 1980s. The answer is nothing. For the following reasons, the gist of the article does not communicate to the reasonable reader that Coleman participated in the initial prosecution of Michael Morton in the 1980s.

The entirety of the article recounts the 25-year history of the Michael Morton "case." Absent from the article is any sense of the procedural distinction between the "prosecution" phase and the "post-conviction" phase of Michael Morton's decades-long "case." The article is written from a non-lawyer perspective that does not approach the story in terms of the distinction between these two procedural postures and, instead, simply sees one long, sad Michael Morton "case." This is an eminently reasonable perspective, although a legally imprecise one.² Indeed, even lawyers keenly aware of the procedural distinctions might colloquially call the entire episode—from arrest, to conviction, to exoneration, to remuneration—"the Michael Morton case." In these colloquial terms—terms surely more familiar to the ordinary reader than criminal-procedure terminology—one side in the decades-long "case" is Morton, and the other side of the "case" is the Williamson County prosecutors, i.e., the "prosecution."

{Unlike the article, the correction published by the Enterprise acknowledges the procedural distinction between prosecution and post-conviction proceedings and therefore the technical inaccuracy of the article's use of the word "prosecution": "The proceedings that took place between 2005 and 2011 should not have been referred to as 'prosecution.' We regret the error." While the Enterprise's decision to publish the correction may amount to the paper's admission that its story "erred in the details," such a correction is not an admission that the article lacked substantial truth. }

When referencing the entire history of the Morton "case," many reasonable non-lawyers—and even some lawyers—might very well refer to the Williamson County DA's decades-long effort to put Morton in prison and keep him there as the "prosecution" of Michael Morton. Again, the author appears to have employed the legal terms "prosecution" and "case" in this imprecise but not unreasonable way.

Nothing in the article suggests to the reasonable reader that, in the article's re-telling of the case's entire history, a procedural distinction is contemplated between the 1980s "prosecution" and the 2010–11 post-conviction proceedings. Because the article gives no indication that it is speaking with this procedural distinction in mind, its statement that Coleman "assisted with the prosecution of Michael Morton" does not convey to the reasonable reader that Coleman assisted in any particular aspect of the 25-year effort by Williamson County prosecutors to obtain and maintain Morton's imprisonment.

The article thus treats the entire regrettable Morton episode as one "case," in which anyone who participated on the Williamson County side "assisted with the prosecution" of Michael Morton. The reasonable reader who is unfamiliar with the procedural distinctions would have no reason to assume from what the article says about Coleman that he was involved in the initial prosecutorial misconduct in the 1980s. The only detail of Coleman's "assistance" recounted in the article is his snide courtroom comment in 2011, a detail which gives the reader no reason to assume that Coleman also participated 25 years earlier in the long-past history of the case.

Of course, many reasonable readers are familiar with the relevant procedural distinctions. Such readers would pick up on, as do we, the non-lawyer author's conflation of the various procedural phases of the Morton saga. The only detail provided about Coleman's "assistance" is his mocking statement during the post-conviction proceedings 25 years later, and nothing in the article suggests he had any earlier involvement in the case—other than, perhaps, the disputed word "prosecution."

But even the reasonable reader who understands the procedural significance of that word would not necessarily assume that the author of this news article is using the word in a legally precise sense. In fact, anyone who appreciates lawyerly precision has probably read plenty of news stories about legal affairs that gloss over lawyerly distinctions or contain inadvertent mischaracterizations of legal or procedural concepts. These journalistic imprecisions are not to be applauded, and they certainly can mislead the average reader in some cases. But errors of law by those reporting on the law are not automatically actionable as defamation. If it were otherwise, the "freedom … of the press" would be hard-pressed indeed.

As always, the question is whether the gist of the article, as a whole, communicates defamatory falsehoods about the plaintiff to the reasonable reader. Here, a reader who is sensitive to the procedural distinctions with which Coleman is concerned would be the first to understand that the article itself is not concerned with those distinctions. In fact, the more procedurally sensitive reader would be the most likely to understand the lengthy procedural timeline—under which Coleman's courtroom comments came 25 years after Morton's conviction—and would therefore be very unlikely to assume from Coleman's involvement in 2011 that he was also involved in the 1980s….

Coleman nevertheless contends that, even if we restrict the timeframe to the 2010–11 post-conviction proceedings, the article's claim that he "assisted" with those proceedings is actionably false. He maintains that he never appeared as counsel, signed court filings, discussed case strategy, argued in court, or gave any public statements or interviews in Morton's post-conviction proceedings. He does not deny, at least at this stage, that he made light of the "bloody bandana" audibly in the courtroom in a mocking and demeaning way during those very post-conviction proceedings.

As with his argument about the word "prosecution," Coleman's argument about the 2010–11 post-conviction proceedings hinges on a rather technical understanding of what it means for a lawyer to "assist" in his office's courtroom efforts. Even if Coleman did not provide formal support as a lawyer for his office's efforts to keep Morton behind bars, he does not contest that he provided moral support in a public way in the courtroom. The unflattering and uncontested account of his courtroom statements provides the factual support for the gist of what the article claims about Coleman—that he "assisted," in a regrettable way, in the 2010–11 phase of the Michael Morton case as a Williamson County prosecutor….

Finally, even if we agreed with Coleman that the article conveys falsehoods about his involvement in Morton's post-conviction proceedings, we would still need to ask "whether the alleged defamatory statement was more damaging to [Coleman's] reputation, in the mind of the average [reader], than a truthful statement would have been." Assuming the challenged statement falsely characterizes Coleman's involvement in the post-conviction proceedings, a precisely true version … would be something like: "Coleman publicly supported his office's decades-long efforts to keep an innocent man behind bars by audibly mocking—in the courtroom—Michael Morton's requests for DNA testing of the very piece of evidence that would ultimately exonerate Morton after 25 years of wrongful imprisonment."

Nothing in the Enterprise article would be more damaging to Coleman's reputation, in the eyes of the average reader, than this undisputedly true account of Coleman's participation in Morton's post-conviction proceedings….

As to the Corvette,

Needless to say, the article did not please Coleman. He posted the article to his Facebook page with the statement, "I think someone just bought me a new Corvette today. I will be sure to put their names on the personalized plates."

The Texas Citizens Participation Act, which is Texas's anti-SLAPP statute, generally provides that prevailing defendants in these sorts of libel cases can recover attorney fees (though this decision didn't deal with that question). It may be that this Corvette will be driving in reverse.

Britton B. Harris, Brett J. Sileo, K. Susie Adams, Peter Steffensen, Thomas S. Leatherbury, and Ryan Withington Gertz, Beaumont represent the newspaper and the reporter.

The post Don't Pick Out That Corvette Yet: Prosecutor Loses Libel Lawsuit Against Newspaper appeared first on Reason.com.