Saturday, April 30, 2022

Ted Rall: In Defense of Defamation Lawsuits

  "He that filches from me my good name robs me of that which not enriches him, and makes me poor indeed," Iago tells Othello in William Shakespeare's play. The belief that defamation is serious, and that the perpetrator of libel or slander deserves to be punished, is a standard trope in popular culture.

        The Hollywood screenwriter falsely accused of communist sympathies struggles to clear his name in the 1950s. The journalist breaks a big story only to be smeared by the rich and powerful men whose crimes he exposed. The narrative of the innocent person sent to prison for a crime he didn't commit relies on dual tragedies, the injustice of undeserved suffering as well as a conviction that results in society wrongly believing that the condemned is an evildoer.

        In the real world, however, there is little sympathy for a person whose reputation has been damaged by a falsehood spread by a malicious enemy. One example is actor Johnny Depp's $50 million defamation lawsuit against his ex-wife Amber Heard, who has countersued him for $100 million. Both parties accuse each other of physical and emotional abuse.

        Much of the public commentary in response to Depp's trial, currently underway in Virginia, is of the eye-rolling "they both deserve each other" variety. This happens a lot.

        I've learned from personal experience as the plaintiff in two defamation cases that it's often hard for society to separate the victim from his or her victimizer. Some suspect that the victim somehow brought the libel down on himself or herself. Others think that whatever was said wasn't that serious, and that the target of slander ought to brush it off and move on. Sometimes the libeler benefits from high social status that prompts outside observers to sympathize with them; the media elites who sided with snide Gawker over downscale Hulk Hogan in the sex-tape case come to mind. Many people simply don't like lawsuits or those who file them.

        Americans' bias against defamation plaintiffs has created a lopsided judicial landscape in which it is nearly impossible for even the most meritorious defamation claims to make it to a jury trial, much less result in a substantial damage award.

        In 1999, I wrote a cover story for The Village Voice that criticized graphic novelist Art Spiegelman for, among other things, deploying disproportionate power within New York's publishing world. As if to prove my point, the artist's allies and colleagues went after me with threats of violence. One of Spiegelman's buddies, a pornographic illustrator whose name I won't mention here because it would only further his desire to aggrandize himself at my expense, decided to teach me a lesson -- via identity theft. He wrote an obnoxious email, signed my name to it, and sent it to my colleagues and employers. My editor at the New York Times op-ed page believed it was from me and fired me.

        As if that wasn't bad enough, the creep sent out more messages under my name. 

        My lawyer hired a proto-cyberdetective to identify him, costing me thousands of dollars. After we tracked him down, we sent several cease-and-desist letters, which he ignored. To the contrary, he replied that he had done nothing wrong and would feel free to use my name in the future however he pleased.

        I sued. New York case law is clear: Impersonation of a journalist or "man of letters" is libel per se, or an act of written defamation so extreme that it is necessary only to prove that it happened, not to prove specific lost business opportunities. At a pretrial hearing, a judge commented that the defendant "couldn't have done more harm to Mr. Rall if he had walked up behind him in the street and shot him in the head."

        Because Spiegelman's avenger didn't have a defense, he filed for one delay after another. Online, he characterized me as a humorless jerk who was angry that he had made fun of me. Both tactics worked. My lawyer eventually died of brain cancer; my case is still technically pending on the court docket 23 years later. And many people in the cartooning community think that the two of us deserve each other, or that he's a free-speech martyr. Never mind that I had never done anything to the guy, met him or even heard of him before he tried to destroy my career.

        I know I was right. The law was on my side. But those things didn't matter.

        The last two decades have seen a flurry of legislation that has made justice even more elusive for defamation plaintiffs. The most pernicious are "anti-SLAPP" laws, which stop discovery, dismiss cases and force plaintiffs to pay defendants' legal fees. Because anti-SLAPP laws have been sold to state legislators and the public as a tool for small individual defendants to fight off big corporate plaintiffs in frivolous liable claims, they are popular with Republicans and Democrats alike: the ACLU, former Labor Secretary Robert Reich and TV host John Oliver are all fans of anti-SLAPP laws.

        Actually, anti-SLAPP laws solve a problem that doesn't exist. If a plaintiff lashes out at you with a libel lawsuit, the first thing your lawyer will do is file something called a "motion for summary judgment." If the lawsuit is baseless, the judge will throw it out right at the start, and you'll walk away paying zero to nominal legal fees.

        Because there is no distinction under U.S. law between rich and poor plaintiffs and defendants, anti-SLAPP laws perversely protect some of the worst people in the world against their victims. Donald Trump used anti-SLAPP against Stormy Daniels after she sued him for calling her a con woman; her case was tossed, and she was ordered to pay Trump's $300,000 legal fees. Trump also used anti-SLAPP to further bankrupt a victim of his Trump University scam. He's currently using anti-SLAPP against Jean Carroll, who says the former president raped her in a dressing room.

        Libel-loving newspapers have been having a field day with anti-SLAPP. There is no question that the New York Times gleefully and intentionally smeared Sarah Palin as inspiring a mass shooter, yet wants the ex-Alaska governor to pay their fees -- even though New York's anti-SLAPP law was enacted after she sued. The National Enquirer knew that Richard Simmons wasn't transitioning from male to female yet Photoshopped images of him wearing women's clothes on its cover story to that effect. He was right; they were wrong; he sued; they hit him with anti-SLAPP; the victim was ordered to pay his attacker  $130,000. My readers are well aware of how the Los Angeles Times, then owned by the Los Angeles Police Department pension fund, intentionally smeared me and went after me with anti-SLAPP as well.

        From the Scarlet Letter to people's tendency to turn away from the homeless and physically disabled to the observation by moviemakers that audiences tend to lose affection for a character after he suffers a wound, the psychology of our reptilian brain often causes us to feel revulsion for fellow humans visibly suffering from an injury. The plaintiff often notices the glint of contempt in the eyes of the judge in a defamation case: Why can't you just stop whining and go away? 

        But the proper way to consider someone sleeping on the street is to think that there but for the grace of God go you. And the same thing is true when you look at a defamation case. Depp might just be a wuss lying about getting beaten up by his younger wife. But it's far more likely that he thinks he was destroyed by ruinous lies, and that he has no choice but to sue in order to set the record straight. It's a serious claim, one that anyone in his position should have the right to explore before a judge and jury.

        Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of a new graphic novel about a journalist gone bad, "The Stringer." Order one today. You can support Ted's hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.


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2 comments:

Anonymous said...

sorry ted but free speech has been so broadened by the united states supreme court that a defamation suit is as extinct at the passenger pidgeon.
nowadays you just got to sit there and take it, and you have no remedy against people who slander or defame your professional reputation.

Anonymous said...

A grocery store in Ohio just won $44 million against a liberal college (Oberlin) that said the grocery store was racist.

The good guys won a major lawsuit.


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Trollfest '07 was such a success that Jackson Jambalaya will once again host Trollfest '09. Catch this great event which will leave NE Jackson & Fondren in flames. Othor Cain and his band, The Black Power Structure headline the night while Sonjay Poontang returns for an encore performance. Former Frank Melton bodyguard Marcus Wright makes his premier appearance at Trollfest singing "I'm a Sweet Transvestite" from "The Rocky Horror Picture Show." Kamikaze will sing his new hit, “How I sold out to da Man.” Robbie Bell again performs: “Mamas, don't let your babies grow up to be Bells” and “Any friend of Ed Peters is a friend of mine”. After the show, Ms. Bell will autograph copies of her mug shot photos. In a salute to “Dancing with the Stars”, Ms. Bell and Hinds County District Attorney Robert Smith will dance the Wango Tango.

Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).


Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.

Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".

In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.


In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.

Trollfest '09 is a pet-friendly event as well. Feel free to bring your dog with you and do not worry if your pet gets hungry, as employees of the Jackson Zoo will be on hand to provide some of their animals as food when it gets to be feeding time for your little loved one.

Relax at the Fox News Tent. Since there are only three blonde reporters in Jackson (being blonde is a requirement for working at Fox News), Megan and Kathryn from WAPT and Wendy from WLBT will be on loan to Fox. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both and a torn-up Obama yard sign will entitle you to free drinks served by Megan, Wendy, and Kathryn. Get your tickets now. Since this is an event for trolls, no ID is required. Just bring the hate. Bring the family, Trollfest '09 is for EVERYONE!!!

This is definitely a Beaver production.


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Trollfest '07

Jackson Jambalaya is the home of Trollfest '07. Catch this great event which promises to leave NE Jackson & Fondren in flames. Sonjay Poontang and his band headline the night with a special steel cage, no time limit "loser must leave town" bout between Alan Lange and "Big Cat"Donna Ladd following afterwards. Kamikaze will perform his new song F*** Bush, he's still a _____. Did I mention there was no referee? Dr. Heddy Matthias and Lori Gregory will face off in the undercard dueling with dangling participles and other um, devices. Robbie Bell will perform Her two latest songs: My Best Friends are in the Media and Mama's, Don't Let Your Babies Grow up to be George Bell. Sid Salter of The Clarion-Ledger will host "Pin the Tail on the Trial Lawyer", sponsored by State Farm.

There will be a hugging booth where in exchange for your young son, Frank Melton will give you a loooong hug. Trollfest will have a dunking booth where Muhammed the terrorist will curse you to Allah as you try to hit a target that will drop him into a vat of pig grease. However, in the true spirit of Separate But Equal, Don Imus and someone from NE Jackson will also sit in the dunking booth for an equal amount of time. Tom Head will give a reading for two hours on why he can't figure out who the hell he is. Cliff Cargill will give lessons with his .80 caliber desert eagle, using Frank Melton photos as targets. Tackleberry will be on hand for an autograph session. KIM Waaaaaade will be passing out free titles and deeds to crackhouses formerly owned by The Wood Street Players.

If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!

This is definitely a Beaver production.

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