AAN Files Amicus Briefs in Two Cases

june 2, 2016  03:00 pm
AAN Files Amicus Briefs in Two Cases
Derek Potter
Two different cases from different parts of the country. About all the have in common is that they are both defamation cases, but technically different issues. But each important enough to merit AAN’s participation as amicus curiae because of the impact these cases could have on our members’ ability to report on issues of public concern.

The first case is Von Kahl v. Bureau of National Affairs. The plaintiff, Yorie Von Kahl, was convicted in 1983 of killing two United States Marshals. He is serving a life sentence. Yet, he has filed a defamation lawsuit against BNA Bloomberg based on a BNA news digest which reported on his petition for writ of mandamus to the U.S. Supreme Court. That news digest wrote that, at Von Kahl’s sentencing hearing, the sentencing judge said that Von Kahl “showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in the course of their duties were justified by religious and philosophical beliefs.” In fact, it was not the sentencing judge who said this but the prosecutor. BNA Bloomberg got this wrong because sentencing transcript excerpts that Von Kahl had included in the appendix to his writ of mandamus did not identify the speaker. In other words, BNA Bloomberg relied on a court document that didn’t identify the speaker of the key sentence, but it didn’t intentionally try to create an implication that the judge had said this.

A judge in the United States District Court for the District of Columbia held that Von Kahl was a limited purpose public figure, meaning he would have to show actual malice on the part of BNA Bloomberg (among other things) in order to win his case. However, that same District Court judge denied BNA Bloomberg’s motion for summary judgment. It said that the existence of discrepancies between what Von Kahl’s mandamus petition says “are sufficient to create a genuine dispute of material fact regarding whether BNA acted with reckless disregard with respect to the truth or falsity of the statements in its summary.”

BNA Bloomberg has filed an “interlocutory appeal” of the denial of its motion for summary judgment with the United States Court of Appeals for the District of Columbia. A key issue on appeal will be application of the actual malice test at summary judgment. The only purported evidence of actual malice is a comparison of the challenged publication with an ambiguous source document, and an assertion by the plaintiff that BNA should have done more research before publishing.

Our brief reminds the court of the “breathing space” needed to protect the press from liability for good faith mistakes, especially when writing about public officials or public figures. There is no “strict liability” where defamation is involved, no matter how much damage a mistake may cause. This breathing space is increasingly important in the digital age is involved where (unfortunately) innocent mistakes do happen. While a thorough investigation of the reporter’s mindset for actual malice purposes is still likely to result in victory for the defense in most of these cases, early disposition through the granting of a motion to dismiss is important in terms of protecting the press’ First Amendment rights. If plaintiffs are allowed to press their cases to trial, the press will increasingly self-censor.

We felt the need to join this brief because the District Court’s decision threatens to undermine decades of favorable precedent on the proper application of the actual malice standard and a defamation plaintiff’s burden to offer concrete, affirmative evidence that would allow a reasonable jury to conclude with convincing clarity that a defendant entertained serious doubts about the truth of the statements in suit. The court’s ruling thus raises substantial concerns for media defendants in public figure defamation actions. On a more practical level, like it or not, these kinds of errors are commonplace at every media outlet, all the more so with the widespread use of Twitter and the fast pace of the Internet, and are exactly what courts should continue to recognize as protected by the First Amendment’s “breathing space.”

The other case is Tobinick v. Novella. In this one, the defendant, a doctor named Steven Novella, published two articles on a medical blog entitled “Science-Based Medicine” which disputed work done by another doctor named Edward Tobinick. Specifically, Dr. Tobinick had claimed to have achieved success in treating Alzheimers and strokes through the use of a drug called Embrel; Dr. Tobinick sued Dr. Novella for defamation, unfair competition and violations of the Lanham Act (a federal statute dealing with commercial speech).

The claims were filed in a United States District Court for the Southern District of Florida. However, based on various technicalities, California law was applied. Thus, Novella filed a motion to dismiss under the California Anti-SLAPP statute. The District Court judge ruled for Novella after deciding that the 9th Circuit clearly allows the application of a state Anti-SLAPP law in federal court. Obviously, that's a holding we'd like to see upheld by the 11th Cir – in language strong enough that the 11th Circuit would make it clear they’d do the same with regard to a case applying the Florida or Georgia Anti-SLAPP statutes (Alabama does not have one).

We were one of 25 companies and organizations who signed this brief. Our main argument is that the application of a state Anti-SLAPP law in a federal court case is consistent with the First Amendment. It also comports with “Erie Doctrine” (created by the 1938 Supreme Court case of Erie R.R. v. Tompkins) which mandates that a federal court sitting in “diversity jurisdiction” (where the parties are from different states and the amount in question is above a certain minimum threshold) must apply the relevant state law. In deciding whether a state law applies in a federal court sitting in diversity, courts first ask if there is a conflict between a state law and federal rule, determining whether there is a “direct collision” between the state law and federal rule that “leave[s] no room for the operation of [the state] law.”

We also note that the California Anti-SLAPP law is “substantive” rather than “procedural” in nature. That’s an important distinction because a “procedural” law will only apply in state court and would be preempted by the Federal Rules of Civil Procedure when a defendant tries to invoke it in federal court. Acknowledging that Anti-SLAPP is a substantive law, on the other hand, requires an understanding that Anti-SLAPP is fundamentally based in the First Amendment. The California Anti-SLAPP law (and others) are substantive because they are designed to protect various First Amendment rights including the constitutional rights of freedom of speech and petition for redress of grievances. Holding otherwise would allow defamation (and other) plaintiffs to engage in “forum shopping” – making a decision to file their case simply based on whether an Anti-SLAPP law applies.

The brief then discusses the impact on the media in the event that a state Anti-SLAPP law is not applied in federal court. There would be a distinct chilling effect on the media as “Some speakers would be silent to avoid the risk of expensive and time-consuming litigation: ‘Persons who have been outspoken on issues of public importance targeted in such [SLAPP] suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.’” The brief cites the recent Knight Foundation survey of editors around the country which found that media outlets simply don’t have the resources to defend themselves like they used to. As the brief succinctly notes: “A disparity in constitutional safeguards between state and federal courts would not only encourage such forum shopping, it would contradict our nation’s history of robust protections for speech and a free press.”

As many of you are already aware, AAN is actively pushing for the strengthening of Anti-SLAPP laws around the country and the passage of such laws in states that don’t have them – and by the federal government. There is a distinct split among the various circuits as to whether those state laws that do exist can be used when someone is sued in federal court. This case will be crucial to our efforts to protect AAN members sued (or threatened with suit) in state or federal courts around the country.