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The rise in cancel culture aided by online activity—and more recently by the national press—can result in significant harm to an individual’s or a company’s reputation. Speaking out on nearly any topic on an online platform has become increasingly risky because it takes no time for a profile or a post to move from virtual anonymity to notoriety. Join Libby Locke, a Partner at Clare Locke LLP, to discuss how individuals and companies can respond effectively to high-profile reputational attacks.
- Libby Locke, Partner, Clare Locke LLP
- Moderator: Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society’s practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Guy DeSanctis: Welcome to The Federalist Society’s webinar call. Today, June 29, we discuss navigating high-profile defamation. My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us our moderator, Honorable G. Barry Anderson, Associate Justice, Minnesota Supreme Court. Throughout the panel, if you have any questions, please submit them through the Question and Answer feature so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. The floor is yours.
Hon. G. Barry Anderson: Thank you, Guy, for that kind introduction. My name’s Barry Anderson. I’m an Associate Justice on the Minnesota Supreme Court, and I am thrilled to have the opportunity to introduce our panelist and speaker for this program today, Elizabeth Locke, Founding Partner and member of the firm of Clare Locke of Alexandria, Virginia. Elizabeth has told me that that’s the last time I’m allowed to use her first name. She is Libby Locke. And so henceforth, I will adopt that more informal nomenclature at her direction [Laughter].
She is a graduate of New York University, where she was a political science and economics major. She received her JD from the Georgetown Law Center, Clerked for the United States Court of Appeals for the Fifth Circuit, and then was a lawyer at Kirkland & Ellis for a number of years. She and her husband, and law partner, have a firm that specializes works in the area of defamation law, and that is not coincidentally the topic of our program today.
I should just say a few words about her background in that field. She is a successful litigator, is perhaps best known for securing a jury verdict in the Rolling Stone case involving a Virginia fraternity. Many of you will be familiar with that case but has also taken other defamation cases to a verdict, including a very substantial verdict of over $20 million.
Lawyers, of course, are not only well known for the cases that they litigate and litigate successfully — and we could talk at greater length about that with our speaker today — but they’re also known for keeping their clients out of the courtroom and negotiating successful settlements. Some of the defamation cases that you don’t hear about are sometimes the most successful cases for our practitioners and for Libby Locke and her law firm as well today. A number of major media sources have been involved in potential litigation cases that have been successfully negotiated by either withdrawing allegedly defamatory statements or by perhaps issuing corrections or taking other corrective action on behalf of her clients. Perhaps we’ll have an opportunity to talk a little bit about remedies for defamation today in the course of our program.
Much more could be said about our expert and our panelist today, but I think instead of talk about background and history, let’s talk a little bit about our subject matter which is managing the high-impact serious defamation cases. Libby, I’m delighted to be with you here today. If I’ve missed anything in the introduction that you think the — our viewers and listeners should hear today, feel free to add it.
But I thought we would start by maybe discussing a little bit about definitions and terms. What is defamation, and how does it come into your office? We’re going to talk a little bit about your background in a minute, but let’s start off with the substance issue — the substance of the issue. The floor is yours.
Libby Locke: Thank you so much, Justice Anderson, for that very kind introduction. And thank you to The Federalist Society for hosting this today. Let me start by answering the question pretty directly and giving a high-level 101 on defamation law. What are the elements? It’s been a long time since a lot of us were in law school. Defamation in torts class may have been a day, and so a lot of us hear about defamation, especially in today’s news cycle and media, but we don’t always understand exactly what the elements of defamation are.
So let me spend a little bit of time talking about defamation 101. So defamation is a false statement that is of and concerning the plaintiff that is made with the requisite mens rea, the requisite intent, that causes some kind of harm, whether that be reputational or economic harm. Now, there is a lot involved in that and a lot packed into that. And as you can imagine, in defamation law, under each of those elements, there’s a substantial body of case law that varies, sometimes state to state.
I think that’s an important distinction to remember is that defamation is a state law claim, and so Minnesota’s law of defamation may very well be different than Georgia’s law of defamation, which is different than Virginia. And there are nuances in each of those state laws. But at the bottom, it’s a false statement of and concerning the plaintiff made with the requisite mens rea, which is either negligence if you are a private figure, or actual malice — that constitutional actual malice standard that was originally set forth in New York Times v. Sullivan — if you are a public official, a public figure, or a limited purpose public figure that causes harm — that causes some kind of harm, reputational or economic harm.
Hon. G. Barry Anderson: So I want to remind our viewers and listeners that if they have questions, they should feel free to use the Q and A function on Zoom to send those questions to us. If your Moderator can manage the technology, this is an open question, but I think we’ll probably get there. I’ll try to fold in some of those questions as we go along with our program today, and we’ll try to get to those that we don’t get earlier in the program, hopefully at the end of the program. But feel free to send them via our Q and A function.
Maybe we could talk a little bit about the actual malice standard. And we’re going to spend a lot of time on that, I think, in this hour, because I think it is a really critical part of defamation law. Tell us about the actual malice standard and some of the complications associated with that, if you could.
Libby Locke: So there’s a lot to unpack, and the topic of the standard that was originally set forth in New York Times v. Sullivan has been the subject of a lot of controversy and a lot of discussion of late and of the past couple of years. But, again, coming back to first principles, what is actual malice? What does that mean? And a lot of people have misconceptions about what actual malice actually is. It’s very different than common law malice like we think of malice of forethought when we’re thinking about criminal — imposing criminal liability on somebody.
Actual malice defined in New York Times v. Sullivan is the subjective awareness that your statements are false or reckless disregard — the reckless disregard that your statements are true or false. And that reckless disregard standard means that you have a high degree of awareness of the probable falsity. And so actual malice is a subjective standard, and this is something that’s very important as we’re talking about navigating high profile reputational attacks because that subjective standard means that the publisher, the reporter, the speaker, has to subjectively know in his or her mind that what they were saying at the time of publication — that’s another critical element, at the time of publication — was false or had a high degree of awareness of the probable falsity — that’s that reckless disregard standard.
And so that creates a lot of challenges, as you can imagine from a pragmatic litigation nuts and bolts litigation setting. How do you prove that a speaker knew what they were saying was false at the time of publication? And the Supreme Court has recognized that it is very unlikely if you are in a defamation litigation setting that you’re going to call a reporter to the stand or a speaker to the stand, and they’re going to testify under oath, yes I knew what I was saying was false at the time that I said it, but I said it anyway. And so that kind of direct evidence of subjective awareness of falsity is highly unlikely to be uncovered in a defamation action.
And therefore, the Supreme Court and lower circuit courts and state courts have held that you can show actual malice and you can prove actual malice through circumstantial evidence and through different buckets and circumstantial evidence demonstrating that there is a likely subjective awareness of falsity. But I think before we kind of get into those buckets, and what they are, I think it’s helpful to understand what the Supreme Court and lower courts have said is not actual malice because the list is quite long, and in many cases, it’s quite surprising given the media environment that we live in.
For example, courts have said that a journalist’s total failure to investigate before publishing some kind of negative or harmful allegation in and of itself is not actual malice. Having a journalist who is biased, even having a journalist who hates the target of their story has biased, and ill will, and common law malice alone is not going to satisfy the actual malice standard. Having a political motive or a financial motive is not actual malice. A failure to reach out to the target of the story for comment before publication is also not going to satisfy the actual malice standard. A failure to follow your own journalistic ethics and standards — for example, The New York Times publishes its standards and ethics. If a journalist fails to follow — New York Times’ reporter fails to follow those standards, that is not going to be, alone, sufficient to establish actual malice.
The use of knowingly biased or even anonymous sources who may have an ax to grind, the target of a story, also not alone going to be — going to satisfy the actual malice standard. The Supreme Court and lower courts have said repeatedly that the actual malice standard is almost insurmountable. It is a high, high bar for a defamation plaintiff to overcome. And when we talk about actual malice, it’s also important not only to say what it is but also who it applies to. The list is — as long as the list is that — of what does not constitute actual malice, the people who have to satisfy that requirement is equally as long.
So we all know based on New York Times v. Sullivan that public officials, elected officials, are going to have to prove that the speaker had actual malice when publishing the falsehood. But lower courts have expanded this public official standard quite broadly, not only to public figures — which I think we could talk about it in a minute which I think is very interesting — but even in that public official category. So some case law examples: a taxi cab inspector for Charlotte, North Carolina in the Belk case was considered a public official who had to prove actual malice. A county engineer in Allen County, Ohio, was considered a public official. A social worker employed by the Alameda County Social Services Agency in California was considered a public official. And a municipal building inspector for a small city in Connecticut was also held to be a public official.
So basically, if you are a government employee and you have been targeted with — falsely, and been accused of something false that has harmed your reputation or has caused you economic harm, you are very likely going to be held to be a public official and are going to have to satisfy that actual malice standard. It also applies to public figures, and even more broadly, limited-purpose public figures in yet another expansion of the time standard. And a limited-purpose public figure, or a public figure, are people that the courts have decided have thrust themselves into some kind of controversy such that they have ejected themselves into a public debate.
Now, what I think is very ironic about this is that the First Amendment, which is obviously very robust and something that is so important to our democratic republic and something that is to be celebrated and something that separates our democratic republic from other countries where you could be thrown in jail for statements that criticize government officials or other people in power. Our First Amendment ideals encourage robust debate, encourages speech, but by virtue of this limited purpose public figure standard, you’re being penalized by engaging in those protected First Amendment activities. By engaging in speech and injecting yourself and having those conversations, whether it be on social media or other platforms, you are subjecting yourself to a higher standard of proof — that actual malice standard — for purposes of pursuing defamation claims. I think it’s actually counterintuitive and counterproductive to First Amendment principles.
But here’s some examples of how the courts have expanded that limited public figure analysis and who it applies to. A professional belly dancer in James v. Gannett County in New York in 1976 was considered a limited-purpose public figure because she welcomed publicity around her belly dancing performances. A Navy pilot — fighter pilot — the first female Navy fighter pilot was considered a limited-purpose public figure with respect to the controversy about women in combat because she chose to be a fighter pilot and a woman.
So these are some examples, and one that’s near and dear to my heart is Nicole Eramo and the Rolling Stone case. A mid-level dean at the University of Virginia was considered to be a limited-purpose public figure because she had once given one single interview to a student journalism class at — a student journalist project at UVA and that according to the court in the Western District of Virginia concluded that she was also a limited-purpose public figure.
So the takeaway is if you have any online social presence, if you have given an interview, if you have engaged in a robust public debate of any kind, or if you have even achieved some level of success in your career and some notoriety in your career, in your profession, you are going to have to satisfy and prove that actual malice standard if you are targeted falsely in the press. I think it’s that expansion has really given rise to a lot of controversy, and I think we are seeing — and I’m probably leading into your next question, I’m going to be quiet and let you ask your next question [Laughter].
Hon. G. Barry Anderson: So my next question is, this field looks like it’s rife for — it’s ripe for some — maybe some trimming back, and I’m wondering if we’re seeing some litigation in that area in terms of what is a limited public purpose figure and so forth.
Libby Locke: So there have been a lot of calls lately in the past couple of years to really pull back this New York Times v. Sullivan standard. Justice Thomas wrote a dissent from a denial of cert in a case involving Bill Cosby. That was two terms ago where he wrote a scathing dissent in this denial from cert where he said that the actual malice standard is made out of whole cloth, it’s not supported by the text, the structure, or the history of the First Amendment, and it — given the appropriate case that he would be open to reconsidering it. I know that Judge Silberman from the D.C. Circuit has also, just a couple of months ago, also called for reconsidering the actual malice standard.
And interestingly, there is a — currently, there is a petition for certiorari in front of the Supreme Court in a case Berisha v. Lawson that has now been relisted twice for the Court’s consideration that is a direct challenge to the application of the Sullivan standard to public figures as opposed to public officials — elected government officials to public figures. And I spent some time in the last day reading that cert petition and I would recommend it to everyone who’s interested in the subject matter. It is a very well-written cert petition. It makes a lot of compelling arguments. I think it very interesting that the Court has relisted for consideration that petition for certiorari twice now and has taken no action on it, just in the most recent conference. So Court watchers are probably eagerly awaiting to see what is going to happen with that petition for cert.
Hon. G. Barry Anderson: You know, we have a very practical question from one of our viewers, and that is about the availability — and this may be outside your area of expertise — but the availability of insurance for potential targets of the high profile defamation claim. And particularly given our current cancel culture atmosphere and so forth, is that insurance available? Is it practical? Those kinds of questions.
Libby Locke: Yeah, it’s a great question. And insurance certainly impacts the economic risks on both sides — both on the plaintiff’s and the defendant’s side in these cases. Media companies are, as widely known, are very well insured for defamation coverage. In my practice, and especially in federal court, you have initial disclosures. You’re entitled to see upfront and very early on in a case what insurance coverage is available to a media company. And we see policies in the range of 10 million to $50 million for defamation coverage with deductibles that range from as low as $10,000.00 all the way up to $500,000.00 for a deductible for each coverage — for each claim, I should say.
That creates the ability for very powerful media corporations to defend these — to defend defamation suits aggressively, often by — and this gets to the attendee’s question — often by a plaintiff who may not be insured against an attack or a defamation attack. And so there are policies that are available. If you are someone who is speaking out and engaging in First Amendment debates, and you think you’re going to be subjected to some kind of reputational attack, there is coverage. It is very expensive. The reason being is that attorney’s fees can be very expensive.
At each — insurers know — insurers who cover these kinds of claims know how hard it is to win a defamation action. And we can talk a little bit about at each stage of the litigation — not just the actual malice standard, that is an onerous and very high burden — but at each stage of the litigation proceeding, there is a thumb on the scale in favor of a defamation defendant. And from — before you ever file a complaint all the way through appeal, at each phase of a case, a defamation plaintiff faces substantial hurdles over and above the actual malice standard. And so these insurers know and recognize that these cases are incredibly difficult to win and so insurance coverage for these kinds of claims is very expensive.
Hong. G. Barry Anderson: Let’s go back to the actual malice standard. You’ve got to clear that standard to make your claim against a high-profile figure. I suppose if you’re defending it, you’ve got that going for you. But what do you look for in terms of evidence or a factual framework that tells you this is a case where you might be able to meet an actual malice standard?
Libby Locke: Well, I think — so the courts have said that — and I went through some of those buckets of points that the courts have said is not actual malice. The way the courts conclude that there is actual malice is either you have that direct evidence that is so hard to come by, which is sometimes — you get lucky, and a reporter or a publisher was a little bit loose with the lips and their Slack messages or their email or text communications. Sometimes you do get some of that direct evidence in their communications. But there are other buckets of evidence, that circumstantial evidence that I mentioned, that you can point to to show actual malice.
A failure to call for comment and a purposeful avoidance of an obvious source of information, so if you’re a target of a story and you don’t get a call for comment, that alone is not going to be — that alone is not going to satisfy the malice standard, but it is evidence that the reporter didn’t want to find out the truth and is evidence that the reporter may have doubted and may have questioned the veracity of the story and knew that if he or she called it was going to provide information that was counter to the narrative that he or she was intending to publish.
Likewise, a preconceived narrative — a great example of a preconceived narrative is — which, alone, again, is not going to be — satisfy that malice standard, but it can be considered as circumstantial evidence to support malice. So if you have a couple of different — of these buckets that you can amass together, they will support a finding of malice. But a preconceived narrative, an example of that is — a great example is Rolling Stone — the journalist in Rolling Stone, Sabrina Rubin Erdely, had prepared a pitch that she had offered to her editors to say here’s the story that I want to write about for Rolling Stone. And in that pitch — and I’m paraphrasing a bit here — she said I want to talk about how universities jerk their statistics on rape and rape culture on campus.
So before she had ever met our client, Nicole Eramo — before she had ever settled on the University of Virginia for her — as the school — it’s the topic of her story — she all ready had concluded that schools jerked their statistics and that there was, in fact, a rape culture on campus. And that pitch that she sent to her editors was very powerful evidence of a preconceived narrative that all she wanted to do was find the right person in the right school to fit into her narrative, notwithstanding all of the facts and evidence that she had in front of her before publication.
There’s also biased or ill will. Those, again, standing alone are not going to satisfy that standard, but if you can show that a reporter had a biased — a political biased or a financial motive or ill will — I just hate this guy, I’m going to be out to get him — that can be evidence of malice. A failure to follow journalistic standards — if you’re willing to not follow the rules then that is evidence that you may have known that the story you were going to publish was false at the time.
So again, you really have to come up with more than one of these buckets. You have to have multiple buckets. And one of — another bucket that we haven’t talked about, but I think it’s important because we’re talking about — as a pragmatic matter — how to avoid the pitfalls of defamation, is an effective retraction demand, or effective prepublication communications with the media. So if you’re able — if you find out that you are going to be the target of a story and that an investigative journalist or a reporter is saying, “Hey, I’m going to write this story. Let me know if you want to comment.” The most effective thing you can do to satisfy that actual malice standard is to engage with that reporter in a very meaningful and substantive way to say, “You have the story wrong.”
And it can’t just be a rope denial, no, I didn’t do what you’re telling — what you’re saying I did, but here are the people you need to talk to. Here are the documents. Here is the evidence to show that the story that you are getting ready to publish is wrong. You are about to get this wrong. And what that does — that prepublication engagement — is it puts the reporter and his or her editors and his or her legal department on notice of the truthful facts and information before the story goes to print. And then you have very good direct evidence that the reporter and the media outlet knew what they were writing was false at the time of publication.
And so that prepublication engagement is so incredibly important, and it goes highly contrary and counter to pretty traditional and typical PR advice, which is often don’t comment, say, “No comment.” The story will go away. It’ll be a new media cycle tomorrow, just weather this one. That can be very counterproductive if you’re trying to prevent a falsehood from being published in the first place.
Hon. G. Barry Anderson: Let’s talk a little bit about an area of defamation law that may interplay with the strategy that you may have, and that are these strategic litigation statutes, SLAPP statutes. I think it might be helpful to explain to our viewers what those are and why they’re a problem and how you deal with them.
Libby Locke: So this is another area of defamation law that potential plaintiffs have to be incredibly careful and mindful of. So SLAPP —
Hon. G. Barry Anderson: And I just want to say that I started practicing law in 1979, and I assure you that in 1979 nobody had heard of a SLAPP statute [Laughter]. So tell our viewers what they are.
Libby Locke: So SLAPP, S-L-A-P-P, stands for strategic lawsuits against public participation. They were statutes that were enacted — I think they began in California, but I could be wrong about that — but they were statutes that were really originally aimed at real estate developers who would bring claims against small-time activists who were protesting a development project. They have since been expanded to apply to a much broader cross-section of people.
These are state statutes. There’s not a federal SLAPP statute. And we can get to SLAPP statute’s application in federal court in just a minute. But they are state statutes, and about — slightly more than half of the states in the U.S. have a SLAPP statute. And what they do is they impose — generally speaking, they, again, vary a little bit state to state — but what they do is they impose what is effectively a summary judgment standard or an evidentiary burden at the pleading stage in order to bring and maintain a defamation action by a defamation plaintiff. And the way they work is that if you are unable to overcome a SLAPP challenge, there is a fee-shifting provision.
So if I’m a defamation plaintiff and I bring a claim, and I am not able to show and they impose what is like a preliminary injunction standard — so if I’m not able to show a likelihood of success on the merits of my defamation claim, my case will be dismissed, and there will be a fee-shifting provision that applies, and it requires me as the plaintiff to pay the defense costs associated with bringing the case and moving to dismiss it. So it’s a fee-shifting provision.
They also have — and again, that standard is a likelihood of success on the merits supported by evidence. And this is evidence before you have ever even gotten into the discovery phase. And as we have talked a little bit about actual malice and that subjective awareness of falsity, these SLAPP statutes can be particularly onerous because how are you supposed to prove at a pleading stage, before discovery, the subjective awareness in the mind of the speaker that’s exclusively in the possession of the defendant.
Now, some of these statutes do say, well, you’re allowed for limited discovery if it goes directly to the motion. For example, on the intent element, on the malice element, and you get some limited discovery on that issue — although, I’ve seen more often than not that those motions get denied, and the case just gets adjudicated on a different ground. But they can be very challenging statutes to overcome. And even if you do successfully overcome one — so, for example, I’m litigating a case right now. I represent Project Veritas in their lawsuit — their defamation lawsuit against The New York Times. And in that case, there is a SLAPP statute in New York that The New York Times relied upon.
I think it’s pretty ironic that a big media company like The New York Times — in the judge’s decision said a goliath — gets to take advantage of a SLAPP statute against a much smaller media entity — a media outlet who is armed with a cell phone camera. And The New York Times filed a SLAPP challenge in that case. Project Veritas and my firm successfully overcame that SLAPP challenge. The judge concluded based on the SLAPP — the New York SLAPP statute that we had shown a substantial basis in law and fact for our defamation claim. And now our reward is an interlocutory appeal up to the court of appeals, and The New York Times has moved to stay all discovery, notwithstanding our win in overcoming and satisfying a higher burden to move forward in the case.
And so these SLAPP statutes, they often have these interlocutory appeals where even if you win and overcome a SLAPP challenge, your case is stayed, and it reminds me of that old adage, “Justice delayed is justice denied.” Because memories fade and evidence gets lost, and documents are no longer available, and that’s what happens in these cases where you have a SLAPP statute that has that kind of interlocutory appeal is you have to go through the entire appellate process just to show that you have satisfied the SLAPP standard before you could even come back down and get discovery and move on with the merits of your case.
Hon. G. Barry Anderson: So we’re going to talk some more about some of the pitfalls that defamation cases might bring up. But we do have a question from a viewer who wants to know whether the limited public figure test could have been applied by the media in the Nicholas Sandmann case in which several media outlets have settled. The press made him a public figure, but did he become a public figure by his subsequent appearances on television?
Libby Locke: Yeah.
Hon. G. Barry Anderson: And I don’t know if you’re involved in that case or can’t answer it, but I’m going to ask the question anyway.
Libby Locke: I’m not involved in the Sandmann case. I’ve commented about it publicly before. The test — it’s a great question — so I’m not sure who asked it, but it’s a very good question. There is —
Hon. G. Barry Anderson: I take credit for all the great questions [Laughter]. The bad questions, they’re from the viewers. So go ahead.
Libby Locke: There is [inaudible 35:35] into a limited purpose public figure by focusing their attention on you. Now, that sounds great, but as a pragmatic matter, it doesn’t always get applied that way. The Sandmann cases are getting — some of them have been settled. I think some of them are still moving forward. But that is a case where — Nick Sandmann, a high school student who was on a class trip to Washington D.C. and who bought a MAGA hat that day. And that false video editing — that selective editing that only showed a small piece of video — that didn’t show the full context. I think that that is a case where he is clearly a private figure, and I just can’t imagine how the Court could say that he is a public figure, even with those media appearances after the fact.
Now, if I were advising Nick, and I’m not, but if I were advising Nick, I probably wouldn’t have him go on media and do TV just because of that risk, but that’s a really more of a pragmatic representation issue as opposed to what the cases say. But again, as litigators, we know that we are — that judges have different views and feelings about things, and they don’t necessarily always follow the law to a T, and that may rub a particular judge the wrong way. I don’t know in Nick’s case, and I’m not speaking particularly about that judge or Nick, but having that media appearance that may rub a judge the wrong way and say, hey, we’re going to imply this higher standard.
But again, it seems so counterintuitive to the whole point of the First Amendment and the Sullivan rationale, which is well, as a public figure, you have access to the media, and we want to engage in robust debate, and so if Nick is going on and engaging and trying to defend himself then to say well, as a result of the fact that you defended yourself, we’re now going to subject you to a higher burden strikes me as counterintuitive and really not very fair.
Hon. G. Barry Anderson: Let’s talk a little bit about some of the pitfalls that practitioners might run into in litigating some of these issues. These things — and I’m going to sort of list some of them, and you can respond to ones you think are appropriate, statutes of limitations, privileges — certainly there are discovery issues, and maybe we should spend a little time on things to — discovery mistakes that might possibly be made. Are these things issues? And if so, how do you deal with them?
Libby Locke: They are, and for an unwary defamation plaintiff who rushes into court and hails off and files a defamation claim, there are, as I mentioned, a variety of pitfalls at each stage of a case that if you’re not spending the time and — with discipline and looking at questions of venue and jurisdiction and choice of law and all of those very egg-headed federal court’s questions that we all learned about in Fed Courts, you —
Hon G. Barry Anderson: You know, in fact, I’m going to interrupt you because I think it ties back to the SLAPP statute — this question of federal and state jurisdiction may affect the SLAPP statute. And maybe you could — applicability, maybe you could spend just a couple of seconds talking about that.
Libby Locke: Yeah, absolutely. And so these SLAPP statutes at their — because they impose this higher burden and they do one other thing, they switch the burden of proof from — typically, when you move to dismiss a case, the movant bears the burden of proof showing entitlement to relief, that they are entitled to have the case dismissed. These SLAPP statutes put the burden on the plaintiff to show a likelihood of success on the merits. So because they impose a higher burden, they switch the burden, and they deny discovery or impose different discovery obligations and rules.
There is now a majority rule in the courts of appeals that they cannot apply in federal court because they conflict with the federal rules of civil procedure. They conflict with Rule 12 and the Supreme Court’s pronouncement in Iqbal and Twombly, which says to state a claim for relief, you just have to state a plausible claim for relief, not a probability of success like these statutes require. They also improperly conflict with Rule 56, the Summary Judgement Standard, and there’s also case law out there that they conflict in some ways with Rule 11, which imposes sanctions and fees for frivolous or meritless litigation by imposing mandatory fee-shifting in some of these — by some of these statutes.
And so there is a long list of circuits who have now held that these statutes do not apply in federal court. The leading — the sort of — the very first case is the Abbas case in the D.C. Circuit that was written by then-Judge Kavanaugh, now Justice Kavanaugh. And it was handed down after the Supreme Court issued its decision in Shady Grove in 2010, which set forth a new test and a new method — a method of analysis to how to decide whether a state rule or statute conflicts with the federal rules of civil procedure. Shady Grove involved class actions, but then-Judge Kavanaugh applied Shady Grove’s analysis to SLAPP statutes. And the question is basically, does the state rule and statute and the federal rule of civil procedure answer the same question?
In this case, what is the standard for stating a successful claim for — stating a claim for defamation that is allowed to proceed beyond the pleading stage? And the SLAPP statutes and Rule 12 answer that same question. And if they answer the same question, do they conflict? Abbas says yes, they do conflict because one requires a probability standard — the SLAPP statutes require probability standard whereas, Iqbal and Twombly only require a plausibility standard. And if they do conflict under the Rules Enabling Act — and I don’t mean to get too far into the weeds here — is the federal rule of civil procedure a valid rule? And inevitably, the federal rules are valid, and that question always gets answered, “Yes.”
And so with the Abbas decision, several circuits have followed suit. There is the Fifth Circuit in the Clock case, the Eleventh Circuit in the Carbone case, the Second Circuit in La Liberte v. Reid, have all held that various state SLAPP statutes are not available in federal court. And what that does is that often, in states that have SLAPP statutes — going back to the federal court’s question, lower F, lower C, the federal courts class that you take in your third year of law school, where do you bring a claim? Oftentimes, plaintiffs will choose to bring claims in federal court because the risk of being awarded attorney’s fees and having that fee-shifting provision and the possibility of an interlocutory appeal is much less in federal court than it is in the SLAPP statute’s state jurisdiction.
Hon. G. Barry Anderson: And I think — just very briefly, I think there’s a circuit split on this, so this may eventually get — it probably will eventually get to the U.S. Supreme Court.
Libby Locke: There is. There is. And it’s a direct circuit split between the Ninth Circuit and the Second Circuit involving California’s SLAPP statute. Sometimes — before La Liberte v. Reid, which is a Second Circuit case that held that California’s SLAPP statute cannot apply in federal court, there’s been a soft — what I call a soft circuit split that in the Eleventh Circuit, the Georgia SLAPP statute in Carbone can’t apply in federal court, but the Ninth Circuit said California’s SLAPP statute can. But the Georgia and the California SLAPP statute are slightly different, so it’s a little bit more of a soft circuit split. There’s now a direct circuit split based on California’s SLAPP statute after La Liberte v. Reid.
Hon. G. Barry Anderson: All right. Well, let’s climb out of the weeds and go back —
Libby Locke: Sorry —
Hon G. Barry Anderson: We’ll climb out of the weeds and back into the pitfalls that we were talking about earlier. Privileges — my recollection from law school is privileges can be a problem in defamation cases. Talk a little bit about that for a moment.
Libby Locke: There are a variety of privileges that apply in defamation actions. And this is where the devil is in the details in terms of what statements you — are false and defamatory and that have caused harm. And what — who made the statement, and what context was the statement made? There are litigation proceeding privileges that apply, and these privileges differ. They can be an absolute, or they can be a qualified privilege. And an absolute privilege cannot be overcome under any circumstance. You just absolutely cannot state a claim for defamation if there is an absolute privilege. And then there’s a qualified privilege which gives us–
Hon. G. Barry Anderson: If I go the floor of the Senate and make announcements about one of my —
Libby Locke: Exactly.
Hon. G. Barry Anderson: — fellow Senators, that would be an absolute privilege.
Libby Locke: Exactly — exactly. And then —
Hon. G. Barry Anderson: Assuming I’m a senator [Laughter].
Libby Locke: And then qualified privileges, which can be overcome with a showing of, again, that actual malice standard — that constitutional actual malice. But for example, litigation proceedings — so some — and these — again, privileges vary state to state. Some states have absolute. Some states have qualified, and they vary. And some states say, for example, statements made in litigation are generally speaking going to be privileged and absolutely privileged because the courts say the remedy for false statements is a malicious prosecution suit or sanctions by the court or certification — false certification of pleadings.
There’s remedies for the court to deal with that, and we’re not going to have defamation actions arising out of statements made in litigation. But courts have extended that to apply to statements made in anticipation of litigation or statements about litigation on the courthouse steps after you come out of the courthouse and you give a press conference, but jurisdictions vary on that.
There’s the fair report privilege. So statements made by a media organization or a citizen journalist reporting on litigation or reporting on adversarial proceedings or adjudicative governmental proceedings get a fair report privilege. There’s also — some states recognize a common interest privilege which is very vague and very ill-defined but basically, if you were making a false and defamatory statement to someone who has a common interest in knowing that false and defamatory information — it seems kind of counterintuitive — then that statement can be privileged from defamation liability.
Statements made by — this is surprising. We’ve actually had members of Congress and members of the Senate call us to see about potential claims against other members of Senate and Congress, which is kind of remarkable, but led us to do some research. Statements made by any federal employee in the course of his or her employment duties are going to be privileged. They’re actually — it’s not a privilege, it’s an immunity. It’s an immunity from suit under the Westfall Act because the Federal Tort Claims Act, which gives exceptions to claims that individuals can bring against the government, does not carve out defamation claims. So another area, just for potential plaintiffs to be aware of, is that privileges are something that you have to look at and consider very carefully.
Hon. G. Barry Anderson: You know, we’ve been talking a little bit about defamation generally. When we’re dealing with high-profile defamation, does that change the calculous any? I mean, are there particular issues that we’d be concerned about? For example, you touched on one earlier, which is in the Sandmann context, advising your client — maybe you’d want to not be publically — as publically as available as perhaps you might want to be. But are there other kinds of ways in which dealing with high-profile defamation claims — with me, it has an interest in the fact that some other person, some other media, has been sued — does that affect the way you handle the case at all?
Libby Locke: Yes, it does in so far as it affects our — how we moderate our arguments, how we present our case to a judge, how we craft a retraction demand. That’s another pitfall that potential plaintiffs should be aware of is that states have retraction demand statutes on the books. Again, they vary jurisdiction to jurisdiction, and they require, sometimes, magic words to be used to demand a retraction before you can bring a claim, or if you don’t, you are limited in the types of damages you can seek. But those retraction demand letters need to satisfy those standards, but they also have to be publically consumable, if you will. They need to be — you have to be cognizant that the media can and often do publish these retraction demand letters.
We’ve seen this by The New York Times, some very highly publicized retraction demands. President Trump sent a — his lawyer sent a retraction demand. Sean Hannity’s lawyer sent a retraction demand. And we saw The New York Times publishing these and making fun of the lawyers — I’m speaking a little colloquially here, but saying, “No, we’re not going to issue a retraction in this case.” And so you have to — in a high profile defamation case, you have to be mindful that your correspondence with opposing counsel could be published and so we counsel our clients to — when we write our retraction demand letters that this is your opportunity along with — if they elect to proceed with litigation, the complaint — your opportunity to tell your side of the story. Why were the statements false? And we have to assume that the public is going to see and that this is going to be an exhibit to a complaint or Exhibit 1 for the jury when the jury goes back to deliberate.
And so you — in a high-profile defamation case, you have to constantly be thinking about — from the very beginning of the case all the way through discovery and through jury arguments — how your arguments are going to be perceived by the public at large. Because you’re fighting back against a false narrative, but you can win the battle and lose the war from a public relations standpoint.
Hon. G. Barry Anderson: What about discovery issues? We talked a little bit about pitfalls. There are ways in which discovery can be problematic. Obviously, there are ways in which it’s essential to your claims. Talk a little bit about discovery issues in the defamation context involving high-profile cases.
Libby Locke: Yeah, it’s a great question, and it’s the area where I hear clients most say, well, I don’t want to do this because why would I allow my adversary to come in and see all of my communications. And discovery can be very asymmetric and very one-sided, especially if you’re suing a journalist or the media. There are shield statutes on the books. Again, they vary state by state. New York’s, for example, has a very onerous shield statute that prevents civil discovery from journalists unless you are able to overcome some very, very high hurdles. And so the media is allowed to get discovery against a plaintiff to prove the truth.
Again, the truth is in the defense. The statement has to be false. And so you’re putting the truth of the defamatory statement at issue. So there can be broad and invasive discovery into truth and also into reputation and finances — a plaintiff’s finances. That’s another area where proof of economic harm and economic loss can be very, very challenging. How do you say, and how do you prove what someone’s reputation is worth? That is a very hard calculation. And in many ways, it’s impossible to prove the specific value of a reputation.
In the corporate setting, it’s a little bit easier because you have corporate value, and stock prices, and enterprise value. But an individual’s reputation is much harder to value. So you have discovery issues, and it’s a constant — from the defense side — pressure point for defamation plaintiffs is, you haven’t given us a precise calculation of your damages. Where’s your proof of this? Where are your documents? Show me your receipts. Show me the loss transaction that you have. Show me your — the witnesses who are going to testify that they think less of you. And of course, your friends and your family don’t think less of you because someone lied about you. You have to go find the unnamed person who read this and said, “Oh, yeah, I read this, and I thought less of this person.” It’s very, very challenging. And so discovery issues are significant.
Hon. G. Barry Anderson: Do you run into situations where valuing the claim changes then as a result of the discovery context? I have to say that as somebody who used to — I did a fair amount of civil litigation, both plaintiff and defense, and when you’re on the plaintiff’s side, you’re trying to figure out what this case is worth. And you start the trial thinking it’s worth X, and you finish the trial thinking it’s either X plus Y or X minus Y. I’m wondering if that calculation affects the way you value defamation claims as well.
Libby Locke: It absolutely does. You mentioned statute of limitations, and I think this plays into it because defamation claims have one of the shortest statute of limitations on the books. In most states, it’s one year. In some states, it’s two years. I think there may be one state out there that has a three-year statute of limitations. But by and large, you should assume that you have one year from the date of publication to sue. If you are an individual, especially in today’s internet age, you often don’t know how much damage this falsehood is going to cause until after the statute of limitations has run. And so you — but you are obligated to bring your claim often before you have the full extent of knowledge.
And that discourages — that statute of limitation discourages defamation claims because — I’ve seen in my practice time and time again plaintiffs who say it’s really quieted down. It’s not that big of a deal. And the statute — and they elect not to bring a claim. And then the statute runs. And then, a year and a half later, a story is brought back up, and it goes viral for some reason, or there’s some new news cycle that makes a prior story or a prior defamation allegation relevant again. And then they’re out of luck for the claim. So how you value the claim is definitely a challenge in these cases.
And one other point to that is that defamation verdicts are taxable. And unlike other physical injuries, other torts that — claims that you can bring where you have physical injury, the IRS considers damage to reputation income under the Tax Code. And that also goes into defamation plaintiff’s calculation in thinking about okay, well, if I have to bring this claim, I have to consider that it’s going to be — I’ve got to pay lawyers to bring the claim, and I’ve got to consider that if I’m a high worth individual or someone who makes over a couple hundred thousand dollars a year that this award after state and federal income taxes is going to be cut down at least by a third, if not into half, depending on what tax bracket you’re in. And that’s a big haircut off of a defamation award. And so that also creates a disincentive for individuals to bring claims to protect their reputation.
Hon. G. Barry Anderson: Yeah, in the two or three minutes or so that we have left, we discussed earlier some possible developments in the area of — you add a limited public purpose might go to the Supreme Court. Are there other developments in the defamation law that are occurring — not even just at the United States Supreme Court, but elsewhere — that you are watching and that our viewers who are interested in this topic might also want to watch over the course of the next year or two?
Libby Locke: That’s a great question. I think the SLAPP statute issue is one to watch with the circuit split. And I think states are — I think that the — because there has been so much talk about the actual malice standard and whether it’s going to be upheld in the Supreme Court or whether it gets pulled back, you see states enacting SLAPP statutes that impose the actual malice standard on a broad cross-section of defamation — punitive defamation plaintiffs.
So New York’s SLAPP statute that was just passed a couple of months ago does this, and it imposes the actual malice standard quite broadly, even to private plaintiffs. And so I think that there’s a real intersection between the malice standard and these SLAPP statutes, and I think you’re seeing, increasingly, the states coming to step in, and I do see — I often — I’m amused by some of the commentary on what happens to the status of the media and journalists if the actual malice standard falls. It’s the sky is falling. And there’s going to be no speech whatsoever.
But I actually think it’s much less dramatic than that. I think that there is — you will see states step in to impose that malice standard at the state level but rather than as a constitutional decision that the Supreme Court — if it falls. I’m not convinced that it’s going to fall — the malice standard. But we will see.
Hon. G. Barry Anderson: All right. We have come to our pointed hour. I want to thank our expert, Elizabeth Locke — Libby Locke. Thank you for joining us today. It’s been an interesting and informative discussion on the subject of high-profile defamation. I want to thank our viewers for joining us. And I turn this back over to our Federalist Society host, who will send us out. Thank you very much.
Libby Locke: Thank you, Justice Anderson.
Guy DeSanctis: Thank you. On behalf of The Federalist Society, I want to thank our experts, Honorable G. Barry Anderson and Libby Locke, for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.