Proof Positive that You Need a Good Defamation / Anti-SLAPP Attorney

Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of a defamation action, be sure you have a good defamation attorney.

Our first example is the case of Francis X. Cheney, II v. Daily News L.P. (Cheney).  In Cheney, The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to also use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.

Cheney sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.

Cheney appealed, and the Court of Appeals for the Third Circuit agreed with the conclusion of the trial court, and affirmed the dismissal of Cheney’s case. [But see the update at the end of this article!]

So, the rule of law appears to be that if a newspaper uses a stock photo of you in conjunction with a scandalous story, you cannot successfully sue for defamation unless you are referenced by name in the article.

Now we turn to the case of Leah Manzari v. Associated News Ltd. (Manzari).

In this case, an online newspaper called the Daily Mail Online published an article about the adult film industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” With the article, the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe. Manzari sued for defamation, stating that the article falsely implied that she tested positive for HIV.

The article never used Manzari’s real name or film name. So, under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right?

Wrong. This judge, and the Court of Appeal, both came to an entirely different conclusion, finding that the photograph could reasonably be interpreted to imply that Manzari is the positive-testing porn star in question.

The Court of Appeal had some fun with the newspaper’s claim that the photo created no such implication. The Ninth Circuit analogized this case to a newspaper running the headline: “High Profile Figure Accused of Murder” alongside a stock photograph of a mayor of a major city, or “Industry Shocked that Grocery Sprayed Veggies with Pesticide” alongside a stock photograph of a national-recognized grocery store name. Where such occurs, “the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.” The publication must be taken as a whole, including the headline and photos.

You need a good defamation attorney.

Too seemingly identical fact patterns, with completely different results, most likely turning on the presentation presented by counsel for plaintiffs.

Just today I received a call from a potential client, using the immortal words, “slam dunk case”. Just so you know, those words will almost always send an attorney running in the other direction, because “slam dunk cases” are as rare as the dodo, and referring to a case as such almost always means that the potential client has unrealistic expectations. I would have expected that a situation where someone’s photo is attached to a scandalous act, when the person has no connection to the scandal, would be about as close to a slam dunk case as you could get. But in the first case I would have been wrong, and in the second case I would have been right, and neither was a slam-dunk (as evidenced by the fact that even in the HIV case, the dispute went all the way to the 9th Circuit).

Attorneys who identify themselves primarily as “defamation” attorneys are equally rare. Defamation cases are very complex, given the overlays of free speech, privilege, and the anti-SLAPP statutes. If you decide to pursue a defamation action, be sure you have an experienced firm like Morris & Stone in your corner.

Internet Defamation Update
The attorney representing Leah Manzari, Steven L. Weinberg, was kind enough to write and let me know that the decision in Francis X. Cheney, II v. Daily News was reversed. Cheney is now free to go forward with his action.

I just picked these two cases because they were interesting to compare and contrast. But there was a connection between the two of which I was unaware. As it turns out, a firm called Levine, Sullivan, Koch & Schulz (“LSKS”) represented the defendants in both unsuccessful appeals. Being on the defense side in both cases led to an interesting turn of events.

After a firm files an appeal brief, if thereafter a relevant case is decided, the firm can notify the court of that new authority. (Federal Rule of Appellate Procedure 28 (j), if you are interested.) When LSKS first won on the Cheney appeal, it quite properly notified the Manzari court about the Cheney court’s opinion, finding that Cheney’s case was properly dismissed. But then the Cheney court reversed itself, so LSKS was duty bound to again notify the Manzari court of the Cheney court’s decision, this time finding that dismissal was improper. The Manzari Court agreed, and LSKS lost again based at least in part on authority it had pointed out to the court and was a part of creating. That had to hurt.

As stated above, the Third Circuit initially affirmed the District Court’s dismissal, but Cheney filed a petition for rehearing, which was granted. After oral argument, the Third Circuit vacated its own opinion and instead reversed the District Court.

The Daily News had brought a motion for dismissal under Rule 12(b)(6). What’s important to know about that Rule is that since, if granted, it deprives the plaintiff of his day in court, the standards for granting the motion are very strict. In considering the motion, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Some decisions have held that a Rule 12(b)(6) motion must be denied if the plaintiff’s claim is simply “plausible”.

So the trial and appellate courts were presented with a scenario whereby Cheney’s photo was inserted into an article about a sex scandal, and they concluded that as a matter of law, it was not even PLAUSIBLE that a reader might think Cheney was part of the sex scandal, even when accepting all factual allegations as true, and construing the complaint in the light most favorable to the plaintiff? Are you kidding me?

Thankfully the Third Circuit was willing to concede its error. The court was apparently most persuaded by Cheney’s allegation that “he was flooded with messages from his colleagues, family, and friends after the story was published.” Even then, however, while reinstating the defamation and false light causes of action, the court upheld the dismissal of Cheney’s claim for infliction of emotional distress. Apparently Pennsylvania has a really tough standard for infliction of emotional distress claims. The conduct in question “must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” As stated in the Cheney opinion, “Pennsylvania courts have found extreme and outrageous conduct only in the most egregious of situations, such as mishandling of a corpse, reckless diagnosis of a fatal disease, and having sexual contact with young children.”

The Daily News reported that the sex scandal “investigation implicates dozens of city employees including paramedics, firefighters and the department’s supervisors, who could face charges related to unbecoming conduct.” Apparently under Philadelphia law, being falsely accused of wasting tax payer dollars by engaging in sex while on the clock – conduct that could get you disciplined – does not cause emotional distress.

In the end, losing the emotional distress claim won’t matter, because emotional distress damages are recoverable under the remaining claims.

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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