Matthew Couloute Jr.

Calling Someone a Liar is Defamatory, Judge

Defamation on the Internet Calling Someone a Liar
I run into this attitude from judges occasionally. Thankfully, I’ve always been able to turn them around, but when I read about it, it still raises my hackles a little.

The attitude of which I speak was most recently illustrated by a New York judge named Harold Baer. The case involved a couple of former girlfriends of Matthew Couloute Jr., a New York Lawyer. The women went to the website LiarsCheatersRUs.com and allegedly posted bad comments about Couloute. (One denies making the posts, the other says they were truthful.)

If the comments had been limited to statements about how he was a cheap date or a lousy kisser, I would defend to the death their right to say such things. But as is often the case, someone who is mad enough to go to such a hate site is someone who wants to inflict pain, so they stray far afield. One of the women allegedly posted the comment, “He is very, very manipulating, he’s an attorney so he’s great at lying and covering it up without batting an eye.”

Stating someone is a liar in not automatically defamatory. As with all defamation cases, context is everything.  It usually comes down to whether the statement, in context, conveys a factual imputation of specific dishonest conduct capable of being proved false (see generally Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18–20), and may be actionable depending on the tenor and context of the statement (Weller v. American Broadcasting Cos., Inc., supra, 232 Cal.App.3d at pp. 1000–1001).

In Milkovich, for example, the plaintiff could maintain a defamation action for a newspaper opinion column branding him as a liar because the article implied that he had committed perjury in a particular case, and the alleged falsity of the charge could be determined “on a core of objective evidence.” (Id. at p. 21, 110 S.Ct. 2695.) However, “ ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of … contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.)

Thus, calling someone a liar was not actionable in Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 280, where the statement was made in a heated oral exchange during a chance encounter of opponents in a political campaign. In those circumstances, the charge was one that “no reasonable person would [have] take[n] literally,” and was “the type of loose, figurative, or hyperbolic language that is constitutionally protected.” (Ibid.) Similarly, in Standing Committee v. Yagman (9th Cir.1995) 55 F.3d 1430, 1440, an attorney could not be disciplined for calling a judge “dishonest” because the word was only “one in a string of colorful adjectives” used in a letter that “together … convey[ed] nothing more substantive than [the attorney’s] contempt” In context, the word could not “reasonably be construed as suggesting that [the judge] had committed specific illegal acts,” and was thus mere “rhetorical hyperbole, incapable of being proved true or false.” (Ibid; Carver v. Bonds, 135 Cal. App. 4th 328, 346 (2005).)

Back to the statements made about Couloute.

The statement “great at lying” states not only that he has lied, but that he had lied on multiple occasions to the point that he is great at it. The “without batting an eye” comment means that he has no compunction against lying, so that is a slam on his ethics.

I would have argued that the statements are specific enough to be provably false. Indeed, I had this specific circumstance where the defendant stated that my client “lies to all his customers.” I simply put the defendant on the stand and asked him to identify every customer to whom my client had lied. He was unable to identify a single customer, so the statement was verifiably false, and the court found in our favor.

In this case, I think the same approach would have carried the day. The defendants posted, “he’s an attorney so he’s great at lying and covering it up without batting an eye.” It is the attack on his professionalism that makes the difference. I would have put them on the stand and asked them to identify every instance of a lie that he has covered up.

But here was the judge’s reasoning for throwing out this case out of New York:

“The average reader would know that the comments are ’emotionally charged rhetoric’ and the ‘opinions of disappointed lovers.'”

With all due respect Judge (Judges hate it when you say that), that does not make the comments non-defamatory. Yes, the circumstances of a statement can dictate whether the statement was meant to be taken as true, but you don’t get to call someone a liar and get a pass because the reader knows you were mad when you said it. The circumstance that allows you to get away with calling someone a liar is if the reader would know that you simply don’t have sufficient knowledge to know whether someone is a liar, as illustrated by another case I wrote about.

Now, again, context is everything. If in the full article they were going on about how he was dating multiple women and lying to all of them about being exclusive, that could well move the language into the realm of being hyperbolic and not verifiably false. And in the judge’s defense, Couloute made the huge mistake of not hiring Morris & Stone to prosecute the action, and as a result it appears the law firm he did hire failed to properly plead the case. According to this article, the judge “also refused to let Couloute revise his suit to include charges of defamation.” Thus it appears that Couloute’s attorney was trying to prosecute the case under an interference with prospective economic advantage claim. That is supported by another statement in the article, that the judge said “Couloute failed to prove the women were using their words to poison clients against him.”

The moral of the story? Know that when you sue for defamation, depending on the judge, you can run into some very provincial attitudes.

Aaron Morris

Morris & Stone, LLP

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Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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