Are News Reports Offered as Factual Assertions?
Sacramento Kings center Richaun Holmes is suing his ex-wife, Allexis Holmes, the Sacramento Bee, and one of its opinion writers, Robin Epley, for defamation. In the course of a custody battle, Allexis made allegations of abuse against Richaun, which were reported and opined on by the Sacramento Bee. Richaun claims the publication damaged his reputation.
The case illustrates an important aspect of defamation claims. Namely, when a newspaper reports what someone else has said, is it liable if the statements are false?
Let’s begin our analysis with the elements of defamation:
The elements of defamation are “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)
Sanchez v. Bezos, 80 Cal. App. 5th 750, 763 (2022).
“We apply a ‘totality of the circumstances’ test to determine whether a statement is fact or opinion, and whether a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” (Ibid.) Under this test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense …. Next, the context in which the statement was made must be considered.” Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” Balla v. Hall, 59 Cal. App. 5th 652, 678 (2021).
In my never to be humble opinion, a report by a news outlet almost never implies the truth of the statements it is making. Unless the reporter is reporting something he or she saw, how could anyone take the statements as anything other than hearsay?
The format of a news story is usually the same. The opening paragraph will set forth the accusation of criminal conduct, and end with, “authorities said.” The next paragraph will throw in additional details about the time, place, and location. In the next paragraph, it’s back to the disclaimers, ending with something like, “police said” or “court documents allege.” Some paragraphs may not contain a disclaimer, but that does not make the article defamatory since the disclaimers in the other paragraphs make clear that the news item is based on third-party statements.
I have not read all the articles, but it would generally be the case that a reader could not reasonably take the statements as factual assertions. Presumably, the paper just reported what Allexis was claiming.
That said, the same argument the Sacramento Bee is using as a defense, could be its downfall. They claim the articles were opinion pieces, and in most all instances an opinion is not actionable. But within that context, they make statements such as:
“Regardless of the outcome in the courts, victims of abuse likely see shades of their own experiences in Allexis Holmes’ struggle to protect her 6-year-old son and get a fresh start.”
“The latest ruling granting Richaun full custody underscores how hard it is for domestic violence victims to find justice in the court system, and the desperate lengths they will go to get the outcome they seek.”
Similarly, why is the fact that Richaun was granted custody proof that it is hard for domestic violence victims to find justice? That sure sounds like you are saying Richaun committed domestic violence.
“Though mere opinions are generally not actionable,” a “statement that implies a false assertion of fact is actionable.” Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [“simply couching such statements in terms of opinion does not dispel these false, defamatory implications”]. Balla v. Hall, 59 Cal. App. 5th 652, 677–78 (2021).
Richaun is a public figure, making it more difficult to prove defamation, since he must also show malice. In other words, he not only needs to show that the statements were false, but that they were made with malice. One way to prove malice is by showing that the defendant acted with reckless disregard for the truth. Given that a court reviewed all the evidence and found that Richaun should be awarded custody (and denied Allexis’ request for a restraining order), wasn’t it rather reckless to offer these “opinions”?
Defamation can come from an implication that the speaker is aware of undisclosed facts that support his opinion. I have discussed here before the case of Joe the alcoholic. As stated in the Restatement (Second) of Torts, if Bill simply states that Joe is an alcoholic, with no additional facts, Joe can successfully sue for defamation if he can prove that he is not an alcoholic. The defamation comes from the assumption that Bill would not have made such a claim if he did not have facts to back it up.
But if Bill says that he formed that opinion based on the fact that every night he sees Joe sitting is his backyard, holding a beer, while watching the sunset, then he has provided the facts upon which he based his opinion. So long as the facts are true, Joe cannot successfully sue for defamation, because the listener or reader knows the basis for the opinion, and can make their own determination as to whether that would make Joe an alcoholic.
The statements set forth above arguably fall under the first scenario. In spite of all court findings, after interviewing Allexis, the Bee made statements that only make sense if they have concluded that Allexis was a victim of domestic abuse. A reader could infer that the Bee possesses information that refutes the findings of the court.
I will be following this case with great interest, to see how it all plays out.
Some details of the case reported here were taken from an excellent article written by Michael McCann for Sportico.
Should You Sue Family Members for Defamation?
If one is asking whether they should sue family members for defamation, I have to wonder what Thanksgiving dinners are like with these families. I get these calls often, and they are very sad because they show an estranged family. In this article, I will discuss whether it ever makes sense to sue a family member.
Common scenarios.
Family disputes arise from a few common scenarios. The one I see most often arises from disputes over property, when a family member feels cheated. For example, Joe moves in with mom to take care of her, and his brother Bill is not happy with the care Joe is providing. Additionally, Bill becomes convinced that Joe’s new found compassion is really about convincing mom to sign over the house. Bill goes to court to seek a conservatorship, and to bolster that claim, he contacts Adult Protective Services, claiming Joe is abusing dear old Mom. Joe wants to sue for defamation for what Bill put in the court documents, and for what he said to the police.
Another common scenario involves a family member with mental issues and/or a drug problem. The family is showing a little tough love in an effort to get the person back on the path, but he takes it as a personal attack. He wants to sue family members for things they have said to doctors and social workers.
And yet another common scenario, the one we’ll use for today’s discussion, involves a wife who is relatively new to the family. Apparently following the reasoning that “no woman is good enough for my ________” (son, brother, nephew, cousin – fill in the blank), a split has formed, with half the family attacking the new bride, and the other half defending her. She has had enough, and calls me, wanting to sue the family ringleader who is saying bad things about her.
Should she sue? Continue reading
A Statement is Not Defamatory Just Because it is False
I received a call today involving this important point of law, but when I went to forward the caller an article on the topic, I found that I have apparently never written one. I hereby correct that omission.
Here is the simple concept.
Whether a statement is defamatory will be controlled by the context provided.
But before I expand further on that, let’s take one step back. You must first understand that a statement is not defamatory, just because it is false. I would think that would be self evident, but I have the following conversation with callers at least three times a week (obviously with varying fact patterns):
“I want to sue the Los Angeles Times. The paper mentioned me in an article, and claimed that I graduated from the Arizona State University. That’s a lie. I graduated from the University of Arizona.”
“I’m sorry, but I must be missing something. How is it defamatory to claim you graduated from Arizona State University?”
“Because it’s a lie. I did not graduate from ASU.”
“Yes, I get that, but a statement is not defamatory just because it is false. If I state you drive a red car, but you really drive a blue car, I have told a lie about you, but I’m sure you will agree that you would not be able to sue me for defamation, because there is nothing wrong with driving a red car.”
“I don’t agree with that at all. It’s a lie. You told a lie. You can’t just tell lies about me and get away with it. And there is something wrong with graduating from ASU. The University of Arizona is a much better school.”
“But even if that is true – that one school is better than the other – is there some context in the article that would make that important? Such as, they are attacking your credibility based on attendance at lesser university?”
“No, it’s just wrong, and I don’t want people thinking I graduated from ASU. This could destroy my ability to find a job.”
Sorry caller, it doesn’t work that way. Despite your school loyalty, saying you graduated from ASU will not support a defamation action, even though it is false. A statement must be false to be defamatory, but a statement is not defamatory just because it is false.
Now that you know that basic rule, we can return to the important concept. Continue reading
Can you use the Terms of Service of Twitter, Facebook, YouTube, TikTok, or Instagram to get Defamatory Content Removed?
Today’s article idea was generated by a call from a potential client. Someone caught him on video, doing something he should not have been doing, and posted it to YouTube. The video had gone viral, and was ruining the caller’s life. He wanted to sue to get the video removed from YouTube.
I launched into a discussion of the elements of defamation, and how he would probably not be able to successfully sue the person who posted the video for defamation, given what he had told me thus far. To that he responded that he had no interest in suing the individual. He wanted to sue YouTube for violation of its own Terms of Service. He had taken the time to review YouTube’s Terms of Service, and right there in black and white they state:
“YouTube reserves the right to suspend or terminate your Google account or your access to all or part of the Service if (a) you materially or repeatedly breach this Agreement; (b) we are required to do so to comply with a legal requirement or a court order; or (c) we reasonably believe that there has been conduct that creates (or could create) liability or harm to any user, other third party, YouTube or our Affiliates.“
From the caller’s point of view, the video was causing him harm, yet YouTube had refused to take it down even though he demanded that it do so. That was a clear violation of the Terms of Service, and he wanted to sue for breach of contract.
I get asked this question often, so I decided it was time for an article I can direct callers to when they are considering such an action. I’ll state the precise question so we can take a deep dive into the legal analysis.
Can you sue a social media site when it fails to comply with its own Terms of Service (sometimes called Terms of Use)?
No. Thank you. Come again. Be sure to tip your server.
Is it Defamatory to Call Someone “Racist”?
In today’s political climate, “racist” is the go-to pejorative in most every conversation. The moment one person feels that they are losing the argument, they call the other a racist. In fact, the use of the term is so common that one court has held that the term has become “meaningless.”
“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The word has been watered down by overuse, becoming common coin in political discourse.” Kimura v. Vandenberg.
Even outside of politics, “racist” is frequently employed to add extra sting to any criticism. I frequently see Yelp reviews where there is no apparently context for the use of the word, but it is used nonetheless, almost as an afterthought. “He did a terrible job cutting my hair. Oh, and he is a racist too.”
So, the question presented by this article:
Is it defamatory to call someone “racist”?
As always, we must begin with the elements of the claim. The elements of defamation are: “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Price v. Operating Engineers Local Union No. 3.
However, the second element, falsity, is subject to further clarification.The false statement must be verifiably false. Overstock.com, Inc. v. Gradient Analytics, Inc. It is for this reason that cases have routinely held that calling someone a racist is not defamatory, because it is not verifiably false. There is no measure we can use to determine the truth or falsity of the statement, because it will always be a matter of opinion.
Some callers will offer all the ways they can prove that they are not a racist, including a spouse and children who belong to the race in question, years of fighting for the rights of that race, a Nobel Peace Prize for the work they have performed fighting for equal rights, and thousands of friends belonging to the race. (I obviously exaggerate to make the point.)
None of that defeats a claim of racism, at least as to the person making the claim. If that person claims the Barista at the Starbucks is a racist because they misspelled their name on the cup, who is to say that is not true?
“But I just misheard your name.”
“Then you’re a racist for not asking me to repeat it or asking for the proper spelling.”
“But the point is just so the person knows which cup is theirs; it’s not about the spelling.”
“So you don’t care how minorities spell their names? Racist.”
Ultimately, whether or not someone is a racist is always a matter of opinion, and the cases have so held. But there is a way a claim of racism can be actionable, as explained in the case of Overhill Farms, Inc. v. Lopez.
This Changes Everything – You Can Now Be Sued for Calling the Police
California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate the terrible consequences of California’s new take on what speech is privileged.
The criminal across the street.
You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. (This is a real phenomenon, with some people believing they own the street in front of their home.) During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guests’ cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.
Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.
He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”
Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.
The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.
Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”
P.S. I hadn’t noticed this point until I listened to the trailer for this article. He’s talking to his daughter, and she says, “Oh my God, they got Amanda.” He then gives the above speech to the bad guy. What I hadn’t focused on was the line, “If you let my daughter go now, that will be the end of it.” No mention of Amanda. He knew about Amanda, but apparently was willing to let the kidnappers keep her if they let his daughter go. Very dark.
WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS
Since free speech and internet defamation are our primary practice areas, and since it is a rather niche practice, we get many calls and emails from businesses that have been defamed by a false Yelp review. We also get may calls from those who have posted Yelp reviews and have been threatened with legal action, but that is an article for another day. For purposes of his article, I will discuss . . .
WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS
I wrote a similar article two years ago, but I want to update and expand on what I said previously, attempting to provide a more all encompassing review of your options when dealing with a false Yelp review.
This only applies to verifiably false and defamatory reviews.
I repeat this message over and over again on this blog, but so as to make this a standalone article, let me express again that if someone writes a critical but honest Yelp review about your business, I won’t help you to get rid of it. Nothing to see here. Move along. The marketplace of ideas is not promoted with defamatory speech, but neither is it promoted with censorship.
Note also that a review isn’t actionable just because it is false. If someone says you graduated from Arizona State University, but you really graduated from the University of Arizona, they have told a lie about you, but it isn’t defamatory because the lie doesn’t (necessarily) cast you in a bad light. Further, the statement must be verifiably false, and can’t be an opinion. If a patient writes that a doctor has a “terrible bedside manner”, that term is too imprecise to ever prove that it is false. It is a matter of opinion.
But a significant percentage of Yelp reviews are false and defamatory. We have rooted out businesses with employees who are tasked with the job of writing false reviews about competitors. Even down to the individual level, it is often the case that someone will have an honest beef with a business, but when it comes time to sit down and write the review, they feel compelled to embellish.
Being a member of a group won’t necessarily give you standing for a defamation claim
Another story illustrating the point I make here over and over, namely, that a statement must accuse you of something bad before it is defamatory.
Today a Federal Court in New York threw out defamation action against Rolling Stone Magazine. Rolling Stone had published an article about a coed named “Jackie” who contended that she had been raped by seven men at the Phi Kappa Psi fraternity house in September 2012.
Three members of that fraternity — George Elias IV, Stephen Hadford and Ross Fowler — sued for defamation, claiming that the article implied that there was an initiation ritual that required new members to rape a coed. The plaintiffs were not named or identified in the article, but since they were members of the fraternity, they alleged that was enough to cause them humiliation and emotional distress.
When the police later investigated, they could find no support for Jackie’s story, and Rolling Stone eventually retracted the story.
Claims of this sort are often too attenuated. In the first place, the judge concluded that “Viewed in the overall context of the article, the quotes cannot reasonably be construed to state or imply that the fraternity enforced a rape requirement as part of an initiation ritual or a pre-condition for membership.” But equally problematic, if the article does not mention any of the plaintiffs by name, then how can they claim that it accuses them of rape? Even it the article left no doubt that the fraternity has such a requirement, perhaps these individuals refused to participate.
The fraternity itself might have a good claim, and if the membership is small enough that a reasonable argument could be made that it damaged the reputation of these three members, then they could have a claim as well.
By way of example, I once received a call from a police officer, wanting to sue for defamation based on what a newspaper had said about the police officers in his community. He was fed up with all the cop bashing, and he never commits the acts that the article attributes to all police, so he wanted to sue.
Context is everything. If the article stated that “every police officer on the Springfield police department is guilty of using excess force,” then the argument could be made that it is directed at this individual officer. But if the article stated that “more police officers on the Springfield police department are guilty of using excess force than any other department,” then it can’t reasonably be argued that the statement identifies any particular officers. Simply stated, your membership in a group won’t be sufficient basis to support a defamation claim, unless the publication specifically states or implies that you committed the acts. Absent extraordinary circumstances, being a member of a group won’t give you standing for a defamation claim.
Ironically and tragically, the frat members probably caused far more damage to themselves than the Rolling Stone article ever would have. The attorney for these fraternity members should have explained what would result from this action. Had the members done nothing, then at worst, in the future when they mentioned that they were former members of this fraternity, they might on very rare occasions have been met with the question, “Isn’t that the frat that has a rape ritual?” They could have answered, “Rolling Stone published a crazy story about that, but it was false, and the magazine later apologized.” Now, they have forever attached their names to this story, and future prospective employers who do an internet search for their names will be presented with this rape story.
[UPDATE – June 13, 2017] Rolling Stone agreed to settle an action brought by the fraternity for $1.65 million. The frat has originally demanded $25 million, but settled for this lesser amount, giving “a significant portion” of the proceeds to charities related to fighting sexual assault.
[UPDATE – September 19, 2017] The 2nd U.S. Circuit Court of Appeals reversed the dismissal of the action brought by fraternity members George Elias IV, Ross Fowler, and Stephen Hadford, finding that, given the small membership of the fraternity, they may be able to successfully show that the Rolling Stone article individually damaged their reputations.
You CAN Remove False, Defamatory Reviews from Yelp
A false Yelp review can be devastating to a business. There are a number of factors that vary the impact of a false review, including of course the nature of the false review, and the number of honest, positive reviews to offset it. But a recent study determined that a single false Yelp review can cut a business’s gross income by 20%. I personally have seen situations involving businesses with few reviews are put out of business by false reviews.
Unfortunately, Yelp thrives on negative reviews. A big part of Yelp’s income comes from businesses that pay to subscribe to Yelp’s business services. Most of the incentive for wanting to pay Yelp comes from a desire to set forward a better image on Yelp, and for that Yelp needs negative reviews. A business with nothing but positive Yelp reviews is less incentivized to pay Yelp.
It is NOT true that paying Yelp will allow removal of negative reviews, or that failing to pay Yelp results in removal of all positive reviews, at least not directly. I don’t believe that there is a secret manual within Yelp, instructing its salespeople to retaliate against businesses that refuse to sign up for Yelp’s services, but I have received too many calls from potential clients, complaining that is just what happened, to believe that it is mere coincidence.
The story is always the same. The business was going along, singing a song, with nothing but positive Yelp reviews. Then, out of the blue, two or more negative reviews appear, usually blatantly fake in nature, because the “reviewers” complain about some product or service the business does not even offer. In one instance, the caller to our office received two fake reviews in two days, both using names of famous athletes.
Yelp undoubtedly has a mechanism that notifies its salespeople when a business has received negative reviews, because shortly after these fake reviews appear, the business receives a call from Yelp’s sales department, noting the negative reviews, and explaining that while paying $500 per month to Yelp will not enable the business to remove these negative reviews, it will give the business more control over its “Yelp presence”, including the elimination of ads from competing businesses on that business’s home page.
If the business respectfully declines, it is then that the business’s positive reviews are filtered, or so has been reported to us over and over and over.
My theory, giving Yelp the benefit of the doubt, is not that Yelp is retaliating, but that this sales process brings a human being into the equation, instead of just Yelp’s algorithm. Under Yelp’s “rules”, reviews are supposed to be entirely organic, and not the result of improper encouragement from the business. Perhaps in looking at all those positive reviews, said human being notices that many were posted in the same week, possibly indicating that there was some incentive provided that week for Yelp reviews. Or perhaps it is noticed that many of the reviews refer to the owners by name. Would so many people eating at a restaurant really know the owners’ names? Perhaps these raise red flags, and legitimate or not, it is decided that these positive reviews should be filtered.
It is because of this sequence of events that so many people believe that Yelp is somehow responsible for the negative reviews, and that the removal of positive reviews is done to punish business that don’t subscribe.
But whatever the reality may be, the undeniable fact is that fake reviews are posted on Yelp. We have repeatedly uncovered “fake review mills”, ranging from disgruntled former employees to full time staff members, hired to post negative reviews about competitors.
Only false reviews need apply.
