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Are defamation laws keeping up with the evolution of the Internet? Judges weigh in—How to Legal

Marinka Peschmann's How to Legal: Are defamation laws keeping up with the Internet?
United States Supreme Court Justices Neil Gorsuch and Thomas Clarence and Appeals Court Judge Laurence Silberman weigh in.

Welcome back to How to Legal, where we (it’s just me) use the good side of the Internet to combat the dark side. In this installment, we’ll learn about some of the judges who have been advancing the argument that today’s defamation laws may not be keeping up in this Internet era of fake news, misinformation, and defamation, where anyone can publish anything.

This topic has been under scrutiny and the spotlight in Sarah Palin v New York Times. It is also under consideration given the real world consequences caused by people who peddle conspiracies, like Pizzagate, which according to the FBI fuels domestic terrorism.

You can read the court filings and follow along this case at Courtlistener to get up to speed. See: Palin v. The New York Times Company (1:17-cv-04853). Palin v NYT is being heard in the Southern District of New York with Judge Jed Saul Rakoff presiding.

Thanks for coming back to How to Legal to be a part of the solution to the online information crisis.

Okay, let’s do this.

Are Defamation Laws keeping up with the evolution of the Internet?

How to Legal: Are Defamation laws keeping up with the Internet Sarah Palin  v New York Times
Are defamation laws keeping up with the Internet?

Among the justices voicing concerns that defamation laws are not keeping up with the times is Supreme Court Justice, Neil Gorsuch. Justice Gorsuch moved this subject forward in Shkelzen Berisha v. Guy Lawson, et al,

Read the difference between misinformation and disinformation at dictionary.com … in a nutshell it’s about the intent.

In this case, Shkelzen Berisha is the plaintiff. Guy Lawson is the defendant.

Below is a summary of this defamation case.

In 2015, Guy Lawson published a book detailing the “true story” of how three Miami youngsters became international arms dealers. 973 F. 3d 1304, 1306 (CA11 2020). A central plot point involves the protagonists’ travels to Albania and subsequent run-ins with the “Albanian mafia,” a key figure of which, the book claims, is petitioner Shkelzen Berisha. The book performed well, and Lawson eventually sold the movie rights to Warner Bros., which made the feature film War Dogs.

Unhappy with his portrayal, Berisha sued Lawson for defamation under Florida law. According to Berisha, he is not associated with the Albanian mafia—or any dangerous group—and Lawson recklessly relied on flimsy sources to contend that he was.

Shkelzen Berisha v. Guy Lawson et al,

Justice Gorsuch wrote in part:

In New York Times Co. v. Sullivan376 U. S. 254 (1964), this Court declared that public officials could no longer recover for defamation as everyone had for centuries. Now, public officials could prevail only by showing that an injurious falsehood was published with “ ‘actual malice.’ ” Id., at 279–280. Three years later, the Court extended its actual malice standard from “public officials” in government to “public figures” outside government. See generally Curtis Publishing Co. v. Butts388 U. S. 130 (1967).

Later still, the Court cast the net even wider, applying its new standard to those who have achieved “pervasive fame or notoriety” and those “limited” public figures who “voluntarily injec[t]” themselves or are “drawn into a particular public controversy.” Gertz, 418  U. S., at 351. The Court viewed these innovations “overturning 200 years of libel law” as “necessary to implement the First Amendment interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.472 U. S. 749, 766 (1985) (White, J., concurring in judgment).  

Since 1964, however, our Nation’s media landscape has shifted in ways few could have foreseen. Back then, building printing presses and amassing newspaper distribution networks demanded significant investment and expertise. See Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 Ohio St. L. J. 759, 794 (2020) (Logan). Broadcasting required licenses for limited airwaves and access to highly specialized equipment. See ibid. Comparatively large companies dominated the press, often employing legions of investigative reporters, editors, and fact-checkers. See id., at 794–795. But “[t]he liberty of the press” has never been “confined to newspapers and periodicals”; it has always “comprehend[ed] every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin303 U. S. 444, 452 (1938); see also Sentelle, Freedom of the Press: A Liberty for All or a Privilege for a Few? 2013 Cato S. Ct. Rev. 15, 30–34.

And thanks to revolutions in technology, today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world. Logan 803 (noting there are 4 billion active social media users worldwide). The effect of these technological changes on our Nation’s media may be hard to overstate…

The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. See id., at 778–779. Under the actual malice regime as it has evolved, “ignorance is bliss.” Id., at 778. Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth. See ibid.

Supreme Court Justice Neil Gorsuch, Shkelzen Berisha v. Guy Lawson, et al
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There are problems on both sides of the political aisle and real problems that need to be fixed. Acting on fake news creates more problems that need to be fixed.

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Fake news and defamation 

Pizzagate gunman
Pizzagate gunman sentenced to 4 years

As protocol reported, Supreme Court Justice Gorsuch was not alone in his opinion about defamation laws, “Gorsuch’s conservative colleague, Clarence Thomas, “has suggested treating social media as utilities bound to carry all political speech and ending tech’s prized legal shield, cited Pizzagate in his writing on why he would have taken the case.”

Supreme Court Justice Clarence Thomas and Pizzagate

Indeed. Pizzagate. Remember officers of the court take an oath to be loyal to the United States Constitution.

According to Nolo, an excellent legal resource anyone can use when they How to Legal, the following is the definition of an officer of the court:

Officer of the Court

Any person who has an obligation to promote justice and uphold the law, including judges, clerks, court personnel, police officers, and attorneys (who must be truthful in court and obey court rules).

(underline mine)

Nolo

This is important given according to the Federal Bureau of Investigations (FBI) Pizzagate is one of the conspiracies that fuels domestic terrorism.

When officers of the court take an oath to the U.S. Constitution those oaths includes protecting the United States from enemies both foreign and domestic. As such, all judges, clerks, court personnel, police officers, and attorneys must be truthful about what they know about Pizzagate and/or other conspiracies cited in the FBI threat assessment, in the event, they know something, right?

Article VI of the Constitution requires Officials to take an oath “to support this Constitution.” Today, 5 U.S.C. 3331 specifies the language of the oath for federal officials. According to this statute, officials must “solemnly swear (or affirm)” that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic” and that they “will bear true faith and allegiance to the same.”

Orin Kerr, “You promised to “defend the Constitution” against “all enemies, foreign and domestic.” Now what?” Washington Post, January 12, 2015.
5 U.S. Code § 3331 – Oath of office

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Cornell Law School Legal Information Institute

See also: How to Legal: Freedom of Speech. What’s slander? What’s libel? and the United States v. Gonzalez.

How to Legal: Conspiracy Fake News. Don't act on fake news. You might end up in prison.
People who have acted on fake news peddled by conspiracy peddlers have ended up in prison.

Recall how the ‘Pizzagate’ Gunman was sentenced to 4 years In prison, in June of 2017, and how Pizzagate culminated into QAnon.

See: Michael E Miller, “Pizzagate’s violent legacy: The gunman who terrorized a D.C. pizzeria is out of prison. The QAnon conspiracy theories he helped unleash are out of control. Washington Post, February 16, 2021.

See also: Steven Monacelli,”The Fringe QAnon ‘Cult’ Is Still Waiting for a JFK Jr. Miracle in Dallas: The group, led by conspiracy theorist Michael Protzman, are trafficking in fascistic ideas that are far more concerning than they are kooky,” Rolling Stone Magazine, December 1, 2021.

See also: Olivia Rubin, Lucien Bruggeman, and Will Steakin, “QAnon emerges as recurring theme of criminal cases tied to US Capitol siege: Some of the most prominent and violent offenders were supporters, officials say:” ABC News, January 19, 2021.

See also: Kevin T. Dugan, “QAnon’s Deadly Price: Church-loving surf instructor Matthew Taylor Coleman fell into online conspiracy theories, then allegedly admitted to killing his kids to save the world. How did no one see it coming?” Rolling Stone Magazine, October 9, 2021.

What’s “Tech’s prized legal shield?”

“Tech’s prized legal shield,” Justice Thomas is referring to in his opinion is § Section 230 of the Communications Decency Act.

For over two decades plaintiffs, lawyers and judges have warned about the dangers of a misused and abused 47 U.S. Code § 230, and how it’s harming people to no avail. Some parties might have been trashed by a court for trying to hold a digital corp accountable as we saw in the Wall Street Journal investigation exposing judicial misconduct at the federal level — a plaintiff pro se.

See also for e.g., Ryan J.P. Dyer, The Communication Decency Act Gone Wild: A Case for Renewing the Presumption Against Preemption, 37 SEATTLE U. L. REV. 837 (2014).

As demonstrated above there are whistleblowers and people who have sounding alarms for decades, who tried to obtain justice, and prevent others from being harmed, and then there are oath-breakers. Officers of the court, oath-breakers, who could have done something but choose not too for whatever reason.

Read the decision at Shkelzen Berisha v. Guy Lawson, et al.

On the Appeals Level

It’s not only Justices at the Supreme Court who are questioning whether or not defamation laws are keeping up with the Internet era, on the appeals level, another judge, Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, has also questioned the landmark case (New York Times Co. v. Sullivan). He questioned how it shaped defamation laws with the current times.

In a blistering dissent essentially directed at the liberal media, in Tah and McClain v Global Witness Publishing, Inc., Judge Silberman wrote in part:

It should be borne in mind that the first step taken by
any potential authoritarian or dictatorial regime is to gain
control of communications, particularly the delivery of news.
It is fair to conclude, therefore, that one-party control of the
press and media is a threat to a viable democracy. It may even
give rise to countervailing extremism. The First Amendment
guarantees a free press to foster a vibrant trade in ideas. But a
biased press can distort the marketplace. And when the media
has proven its willingness—if not eagerness—to so distort, it is
a profound mistake to stand by unjustified legal rules that serve
only to enhance the press’ power.

Tah and McClain v Global Witness Publishing, Inc.

Erik Wemple of Washington Post weighed in:

What do you think? Are the current defamation laws keeping up with the Internet era?

Click: Take the poll.

Let’s wrap this up.

Thanks for stopping by How to Legal and choosing to use the good side of the Internet to combat the dark side.

As always, the more you learn about the justice system the more you will appreciate, respect, and admire the oath-following officers of the court who cannot be bought off in some way, and who hold their oath-breaking colleagues accountable.

Oath-breakers undermine the integrity of the justice system and chip away at democracy.

I think, whether or not you are in the legal system, it is fair to say that everyone can feel the fall out caused by oath-breakers misconduct.

See: Are judges supposed to cover up misconduct and potential crimes? —How to Legal

Be sure to check out more on this topic, including:

  1. Freedom of Speech: What’s slander? What’s Libel? —How to Legal
  2. Pleadings, defamation complaints, and altered exhibits —How to Legal
  3. The docket, and following proper procedures in a defamation case —How to Legal
  4. What’s a Table of Authorities? Lawyer submits case law that’s not applicable in a Defamation case. Dirty Tricks? Oops?—How to Legal

Signing off now for a music break before moving on to the next installment. For me, it’s The Buggles’ 1979 hit, “Video Killed the Radio Star.” See Trevor Horn’s website.

What about you?

Next up: Do judges who throw cases know their bad case law undermines the legal system and harms others? —How to Legal

Update: A big and I think an important win for a public figure in a defamation case in Georgia.

“Cardi B [real name Belcalis Almánzar] wins $1.25 million + defamation lawsuit against YouTuber,” Yahoo, January 25, 2022.

Congratulations!

Read the court filings here at Courtlistener: Case: Almanzar v. Kebe (1:19-cv-01301)

Since we are always learning here at How to Legal, here are the elements for defamation in Georgia.

Georgia Defamation Elements

In order to succeed in a defamation claim in the state of Georgia, plaintiffs must prove:

There was a false statement about the plaintiff;

The false statement was communicated to a third-party, and in the absence of a special privilege to do so;

There was fault on behalf of the defendant, amounting to at least negligence; &

The plaintiff suffered harm, unless the statement in question amounted to defamation per se. Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008).

Minc Law

Here again, as the Cardi B case confirms, during proper defamation proceedings with judges who follow their oaths, the provable, true, false statements (read in context with applicable case law) were defamatory.

Judges who follow their oaths do not ignore or misrepresent evidence

Right? Right. Here we see Cardi B’s Federal District Court Judge, the Hon. William M Ray did not ignore or misrepresent the evidence she submitted which supported her claims. See for e.g. Document #180. As such, he is not a judge who can be seen as being in the tank with one party over the other, in violation of his oath and judicial canons.

Let’s wrap this up again.

Keep learning about defamation law and proper judicial procedures so you won’t be deceived by fake news or oath, law-breaking officers of the court, like attorney Sidney Powell. See also: Michael Berens and John Shiffman, “Thousands of U.S. judges who broke laws or oaths remained on the bench,” Reuters, June 30, 2020, and James V. GrimaldiCoulter Jones, and Joe Palazzolo, “131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest: ” Wall Street Journal, September 28, 2021.

Don’t defame and don’t be deceived when you can How to Legal.

Update: Cardi B Speaks Out After Being Awarded Additional $3 Million in Slander Lawsuit Against YouTuber: “I thought I would never be heard or vindicated and I felt completely helpless and vulnerable,” Cardi said in a statement shared with PEOPLE,

See Charmaine Patterson’s story at People, January 25, 2022.

To learn more about punitive damages go to How to Legal: Identifying real problems in the U.S. legal system to combat fake news and misinformation, and scroll down.

Update: “Judge to dismiss Sarah Palin case against N.Y. Times regardless of jury verdict,” Reuters, February 14, 2022. Uh oh … to think like a judge is supposed to think – impartial… whether you like the plaintiff or the defendant for political or whatever reason is irrelevant, it’s about the law and evidence.

Mitigating damages

Here, in Sarah Palin v New York Times, the New York Times quickly retracted and apologized to Sarah Palin. By doing so they arguably reduced damages. Conversely, if a party does not retract and apologize the damages can be higher. See: How to Legal: Judges & Lawyers Oaths, Codes & Rules

See for e.g.: New York Consolidated Laws, Civil Rights Law – CVR § 78. Mitigating circumstances in action for libel or slander

In an action for libel or slander the defendant may prove mitigating circumstances, including the sources of his information and the grounds for his belief, whether or not he has pleaded or attempted to prove any defense.  A defendant in default for want of an answer may prove such mitigating circumstances upon a reference or inquiry to ascertain the amount of the plaintiff’s damages.  Matter tending only to mitigate or reduce damages is a partial defense and may be set forth in the answer.

Findlaw

See also: The Relationship of Retraction to Malice in Defamation Cases

If the plaintiff requests and is refused a retraction, the refusal can be pleaded as malice and go to a jury to recover punitive damages. Conversely, if the plaintiff does request and receives a retraction before filing suit, this is not a bar to a defamation suit, since retraction is not legal exoneration. But the retraction can substantially ameliorate the sting of a defamation, and thereby mitigate actual and thus compensatory damages, and can possibly eliminate the category of punitive damages as a remedy for reputational harm.

LA Lubin Austermuehle

Update: “New York Times found not liable in Palin defamation case,” The Hill, February 15, 2022.

Update: Deanna Paul, “Jurors in Sarah Palin’s Defamation Suit Against New York Times Knew Judge Planned to Dismiss Her Claims: Judge said some jurors involuntarily received smartphone push notifications ‘that contained the bottom-line of the ruling,’” Wall Street Journal, February 16, 2022.

While I’m not a lawyer, it looks like this judge handed Sarah Palin grounds for appeal and/or mistrial. Time will tell.

Update: Bob Van Voris, “Sarah Palin to Request New Trial in N.Y. Times Defamation Case,” Bloomberg News, February 23, 2022.

None of the information on this website is legal advice.  While I have litigated as a pro se plaintiff when Reuters and Wall Street Journal’s reporting exposed judicial misconduct, I am not a lawyer. This information is for educational purposes. If you need legal advice, please consult with a licensed professional in your area.

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ARE YOU STUCK IN A MEDIA ECHO-CHAMBER, or know someone who is, and needs help breaking free? Take The Break Free from Media Echo-Chambers 30-Day Challenge. There are problems on both sides of the political aisle and real problems that need to be fixed. Acting on fake news creates more problems that need to be fixed.

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