defamation – Techdirt (original) (raw)

Justin Baldoni’s Defamation Suit Against Lively, Reynolds, NY Times Has Been Dismissed

from the clean-sweep dept

While the Justin Baldoni legal fight with Blake Lively is still going on, one half of the dispute has been thrown in the dumpster… for now. If you’re not up on the case, here is the TL;DR version. Baldoni and Lively costarred in the movie It Ends With Us. Lively filed a claim of workplace harassment for inappropriate behavior on set by Baldoni, leading to an explosive public feud between the two. Eventually, Lively sued Baldoni over the claims, with Baldoni countersuing her and her husband, Ryan Reynolds, for defamation and other claims. He also sued the New York Times for its reporting on the dispute. Baldoni’s legal team engaged in some fairly silly behavior on top of all of that. We said at the time that the suit against the New York Times in particular appeared destined for the aforementioned dumpster when the judge paused discovery to consider the Times’ motion to dismiss.

Well, it seems I was more correct there than I had intended to be. The judge has not only dismissed the suit against the New York Times, but Baldoni’s suit against Lively and Reynolds as well. As to his claims of defamation and that Lively stole the movie out from under him and his company, the judge had this to say.

Baldoni’s lawsuit centred on two claims: that Lively “stole the film” from him and his company Wayfarer by threatening not to promote it, and that she and others promoted a false narrative that Baldoni sexually assaulted her and launched a smear campaign against her, Judge Liman explained in his opinion.

But Baldoni and his production company “have not adequately alleged that Lively’s threats were wrongful extortion rather than legally permissible hard bargaining or renegotiation of working conditions”, he wrote.

Additionally, the judge wrote, Baldoni and his company had not proved defamation because the “Wayfarer Parties have not alleged that Lively is responsible for any statements other than the statements” in her lawsuit, which are privileged.

Defamation is notoriously hard to prove in court in America — for good reason. Of course, it gets all the more difficult when you can’t be bothered to make such a claim about specific statements other than those in the actual lawsuit itself. The lack of valid claims against Reynolds and others likewise resulted those suits being dismissed as well.

And, really, attempting to sue over the time-honored Hollywood tradition of wrestling for creative control over a movie is more than a bit laughable.

As for the New York Times, the court essentially told Baldoni that he can’t sue the media just because he doesn’t like their good faith reporting.

The judge also determined that evidence did not show that the New York Times “acted with actual malice” in publishing their story, dismissing that $250m suit as well.

“The alleged facts indicate that the Times reviewed the available evidence and reported, perhaps in a dramatized manner, what it believed to have happened,” he wrote. “The Times had no obvious motive to favor Lively’s version of events.”

Now, you can read the entire judgment below for yourself, if you choose. It is quite long and, frankly, filled with content in the early pages that is not particularly flattering to Lively and Reynolds. That’s only important insofar as the court appears to have looked at the facts in a clear-eyed manner before pivoting to what the actual law says about the various claims Baldoni made, which ended up lacking merit.

Now, while the court did give Baldoni leave to refile some of his claims, but only those that revolve around contract interference. And here’s where I’d like to remind you that we started covering this whole celebrity fiasco as a Streisand Effect story. Baldoni could have attempted to manage what is admittedly a difficult situation for him, self-made or otherwise, in a quiet and respectful matter. Instead, he went legal and very, very public with this whole dispute and, as a result, the dismissal of his claims is equally public.

It’s not a good look. At this point, hard as it may be, the best course would probably be to not file some amended suit or appeal the decision. Given how Baldoni’s side has behaved thus far, however, I doubt they’ll take that course.

Filed Under: blake lively, defamation, justin baldoni, ryan reynolds
Companies: ny times

The Baldoni/Lively Case Is Still Going And Getting Much, Much Sillier

from the so-much-drama dept

We talked about the celebrity fight du jour between actors Justin Baldoni and Blake Lively when it started, as it seemed for all the world like your typical Streisand Effect story. What began as a workplace harassment complaint of sorts, with Lively initially alleging several instances of inappropriate workplace behavior by Baldoni, has now exploded into a Hollywood court case with competing lawsuits from both parties. While I tend to shy away from the idea of parties purposefully employing the Streisand Effect for wanted attention, as opposed to inadvertently generating unwanted visibility, that sure looks like this is a case of the former. Baldoni and his legal team have taken every step possible to make every bit of this as public as possible, while Lively has done the opposite.

Now, I want to make clear that I don’t really have much of a take as to the merits of the case on either side. I just don’t know enough to have an opinion on the legal drama itself. That is what trials are for, after all.

But that doesn’t mean there isn’t some silliness to talk about as an update here. And when it comes to the status of the trial and what’s happening within it, there are several things going on.

First, like the New York Times before him, Ryan Reynolds has been attempting to exit this whole thing. Lively’s husband was sued alongside his wife for defamation and for interfering in Baldoni’s business relationships. Unfortunately, it appears that Baldoni’s suit may not have met some pretty basic threshholds for making such claims.

“The entirety of Mr. Baldoni’s case appears to be based on Mr. Reynolds allegedly privately calling Mr. Baldoni a ‘predator,’ but here is the problem, that is not defamation unless they can show that Mr. Reynolds did not believe that statement to be true,” Reynolds’ attorneys Mike Gottlieb and Esra Hudson told Us in a statement. “The complaint doesn’t allege that, and just the opposite, the allegations in the complaint suggest that Mr. Reynolds genuinely believes Mr. Baldoni is a predator.”

The statement continued: “Mr. Reynolds’ wife has accused Mr. Baldoni — privately and in multiple complaints — of sexual harassment and retaliation, and as pointed out by Mr. Reynolds’ motion, Mr. Baldoni has also openly spoken about his past of mistreating women and pushing the boundaries of consent. Mr. Reynolds has a First Amendment right to express his opinion of Mr. Baldoni, which should be comforting to a group of people who have repeatedly called Ms. Lively and Mr. Reynolds ‘bullies’ and other names over the past year.”

This is the “actual malice” requirement for defamation at work. Baldoni’s lawyers would need to prove not that Reynolds made the statements they claim he made about Baldoni, but rather that he made them knowing they were false in order to prove defamation. And that is notoriously difficult to prove. Save any smoking gun evidence of Reynolds openly admitting he was spreading lies, it’s very unlikely the defamation claims are going anywhere.

And, to that effect, Reynolds’ lawyers are going after legal fees as a result.

“Earlier today we moved for sanctions against the lawyers and parties responsible for the utterly frivolous claims brought against Ryan Reynolds,” Reynolds’ legal team said in a statement to Us Weekly on Tuesday, May 20. “Justin Baldoni’s lawyer and his clients filed a preposterous lawsuit falsely claiming that Ryan Reynolds extorted people he had never met, that he allegedly interfered with business relationships that do not exist, and somehow defamed people he never said a word about based on unspecified statements that do not appear anywhere in their 391-paragraph complaint. These are not serious claims—they are a desperate ploy for clickbait headlines that have no place in federal court.”

“Mr. Reynolds provided the Rule 11 Plaintiffs and their counsel an opportunity to save face, explaining these claims’ glaring and fundamental defects and urging that they be withdrawn more than 21 days ago,” the docs read. “Unfortunately, the Rule 11 Plaintiffs and their counsel unequivocally refused to do so, offering no response on these defects except to argue that these issues are appropriately resolved by motion to dismiss and may later be supported by discovery. But these claims’ fundamental failings are not about the parties’ dispute as to the legal arguments relating to their claims, or the facts, or even that all of their claims are weak and meritless (which, they are).”

If Baldoni’s real aim in all of this was to make all of this as public and publicity-driven as possible, well, it all kind of tracks from there.

And that’s further backed up by some truly absurd claims that Baldoni’s legal team have made about how to conduct Lively’s deposition. One lawyer said, I suppose perhaps in jest, that Lively’s deposition should be an event the public can attend or see for a fee.

“Since Ms. Lively is open to testifying, let’s make it count,” Baldoni’s attorney Bryan Freedman tells PEOPLE. “Hold the deposition at MSG, sell tickets or stream it, and donate every dollar to organizations helping victims of domestic abuse.”

Here again we see the legal team from one side behaving in a serious way, while the other is not. Whatever the truth of their competing claims against the other, it is certainly not a good look for one side coming off as professional and the other, well, not.

And, frankly, recent news about how Baldoni is stressed over the public legal drama seems quite odd coming from the person who made this very, very public in a way it hadn’t been previously. As entertaining as this all might be, there must certainly be a better way this all could have been handled than whatever this fiasco has turned into.

Filed Under: actual malice, blake lively, defamation, justin baldoni, ryan reynolds, slapp
Companies: ny times

Supreme Court Not Ready to Blow Up Free Speech… Yet

from the taking-the-small-victories-where-we-can-find-them dept

We came a bit too close to losing one of the most important First Amendment protections in American history — but at least for now we have a tiny bit of good news. Billionaire Steve Wynn, joining a growing chorus of the wealthy and powerful who want to make it easier to sue critics into silence, asked the Supreme Court to gut NY Times v. Sullivan’s vital “actual malice” standard. But last month, the Court turned him down, quietly listing his cert petition among the denied without comment.

While a simple cert denial may seem unremarkable, in today’s environment where foundational speech protections face relentless attack, keeping Sullivan’s protections intact represents a crucial firewall against wealthy interests weaponizing defamation law to silence critics.

The Sullivan standard exists for a very specific and crucial reason: to prevent the wealthy and powerful from using defamation lawsuits to bully critics into silence. The Court rightly recognized that if every minor mistake or inaccuracy about a public figure could trigger ruinous litigation, meaningful public discourse would become impossible. The “actual malice” standard (a confusingly named term that has nothing to do with “malice,” actual or not) requires plaintiffs to prove that false statements were made with knowledge of their falsity, or at least a strong suspicion that the statements were false.

Without this protection, billionaires like Wynn could bankrupt media outlets and critics simply by threatening expensive litigation over any perceived slight or minor factual error. The chilling effect would be devastating — who would risk reporting on corruption or misconduct if a single mistake could lead to financial ruin?

The “actual malice” standard has been so key to American free speech for over half a century that stripping it away would be a disaster of epic proportions.

Over the past decade, we’ve watched a coordinated campaign emerge to dismantle this vital protection. It started with Donald Trump’s calls to “open up” libel laws, but quickly evolved into a sophisticated infrastructure of MAGA-crafted nonsense legal scholarship and judicial skepticism. Federalist Society lawyers who once defended Sullivan began portraying it, practically overnight, as constitutional overreach (giving you a clear suggestion of just how “principled” some of those lawyers really are).

Basically, once Donald Trump said “jump” regarding defamation law, the MAGA legal infrastructure quickly began figuring out just how they should jump.

Most worryingly, two Supreme Court justices have explicitly called for overturning Sullivan. Justice Thomas led the charge (conveniently forgetting his own support for the standard during his confirmation hearings), followed by Justice Gorsuch, who was so eager to attack the standard that he relied on a deeply flawed law review article and had to quietly revise his dissent after its errors were exposed. We covered this disturbing evolution in detail in our recent podcast with “Murder the Truth” author David Enrich.

This cert denial suggests that, at least for now, there aren’t four justices ready to revisit Sullivan. We know Thomas and Gorsuch want to overturn it, and Alito likely agrees (he rarely strays from Thomas on such matters). But they needed a fourth vote to grant cert, and apparently couldn’t find one.

While it’s somewhat reassuring that two-thirds of the Court seems unwilling to demolish this crucial First Amendment protection, the fact that three justices appear eager to do so remains deeply concerning. The coordinated campaign against Sullivan isn’t going away — if anything, it’s gaining momentum. This cert denial bought us some time, but the next wealthy plaintiff with a grudge is surely already preparing their petition.

For now though, this firewall against frivolous defamation suits by the powerful remains intact. And in an era where free speech faces unprecedented challenges from all directions, we’ll take what small, but important, victories we can get.

Filed Under: 1st amendment, actual malice, clarence thomas, defamation, neil gorsuch, nyt v. sullivan, steve wynn, supreme court

Justin Baldoni’s Lawsuit Against The NY Times Appears Destined For Dismissal

from the inevitable dept

As we’ve been following along to some degree with the whole Blake Lively versus Justin Baldoni legal mess, the more recent stories have been about Baldoni’s attempt to go after protected creative speech in a Deadpool movie, the choice of waging a PR war before the trial even starts, and the Streisand Effect nature to his actions. While the salacious accusations from each side towards the other aren’t really something we cover here at Techdirt, the online shenanigans and speech implications absolutely are.

Which is why I am going to remind you that the first lawsuit Baldoni filed wasn’t against Lively, Ryan Reynolds, Marvel, or Disney. It was against the New York Times, which Baldoni’s suit argued was liable for defamation and fraud because the news organization reported on the news.

We said at the time that the suit against the paper would almost certainly not get very far. And now we have our first inclination that it might get dismissed in fairly short order, given the judge has put a pause on the discovery phase of the trial pending the Times’ motion to dismiss.

In an order issued Tuesday and obtained by USA TODAY Wednesday, U.S. District Court Judge Lewis Liman approved the Times’ motion for a stay of discovery — evidence-gathering among the case’s parties — pending his review of the company’s motion to be dismissed as a defendant in the case.

“The NY Times’s motion presents ‘substantial grounds for dismissal’ and the NY Times has made a strong showing that its motion to dismiss is likely to succeed on the merits,” Liman wrote.

The court might has well have put its intentions in big shining lights. This is a suit that never should have been filed and the idea that Baldoni’s team can go on a fishing expedition, potentially to find more personal communications to display to or leak to the public, is silly. The Times has robust First Amendment protections on its reporting. The bar for fraud and defamation is quite high.

In other words, Baldoni’s team probably would be better off cutting its losses and dropping the suit itself.

In its dismissal motion last week, the Times said it merely engaged in newsgathering with its publication of the viral article, adding that plaintiffs did not show the outlet acted with malice. The newspaper also said the sole alleged defamatory statement in the article — that the plaintiffs orchestrated a “smear campaign” in retaliation for Lively complaining about sexual harassment — was protected opinion.

“We appreciate the court’s decision today, which recognizes the important First Amendment values at stake,” Times spokesperson Danielle Rhoades Ha said in a statement to Reuters. “The court has stopped Mr. Baldoni from burdening The Times with discovery requests in a case that should never have been brought.”

At this point, the suit against the New York Times is probably most useful as a betting mechanism, in which we set an over/under on the date that the court will dismiss the case. Anything else would come as a complete surprise to this writer.

Filed Under: blake lively, defamation, justin baldoni
Companies: ny times

Techdirt Podcast Episode 410: Murder The Truth

from the slapped-around dept

At long last, we’ve got a fresh new original episode for you! This week, Mike is joined by David Enrich, business investigations editor for the New York Times, to discuss his new book Murder The Truth, all about the abuse of defamation laws to silence journalists and discourage critical reporting of the rich and powerful.

You can also download this episode directly in MP3 format.

Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: david enrich, defamation, first amendment, free speech, libel, podcast, slapp

Trump “Brings Back Free Speech” By [Checks Notes] Threatening To Imprison Protestors And Expose Journalist Sources

from the pretty-sure-that's-not-how-this-works dept

It is almost difficult to believe this is a real thing that happened with the President of the United States, but here’s what actually happened on Tuesday. In the morning, Donald Trump threatened to imprison protesters and defund any university that allows certain protests. Then, that same evening, he stood before Congress and declared — with apparently zero irony — that he had “stopped all government censorship and brought back free speech in America.”

You might think this whiplash-inducing contrast is just standard political hypocrisy. But it’s actually something much more terrifying: it’s part of a calculated strategy to redefine “free speech” as “speech I like” while using government power to punish speech I don’t like. The crazy part isn’t just that he’s doing it — it’s that he’s doing it so blatantly, while the very same backers who claimed they supported him for his views on “free speech” cheer this on.

Once again, we need to be explicit and direct here, because it’s all that matters. Donald Trump has not “stopped all government censorship,” because there really was no real government censorship. Instead, he has repeatedly engaged in and encouraged his administration to engage in one of the most aggressive and problematic campaigns of suppressing and chilling speech this country has ever seen.

Let’s go through this bit by bit.

Trump’s claim stems from his executive order on “restoring freedom of speech and ending federal censorship” — a solution to a problem that never existed. How do we know? Because Trump’s own Supreme Court appointee, Amy Coney Barrett, thoroughly demolished these claims of government censorship just last year.

While MAGA supporters had convinced themselves that the Biden administration was secretly ordering social media companies to censor conservative views, the Supreme Court took one look at the actual evidence and exposed it as pure fantasy.

Reading the ruling is like watching Justice Barrett swat down conspiracy theories like flies at a picnic. “No evidence” appears so frequently it could be the ruling’s catchphrase. No evidence of CDC-influenced censorship. No evidence of White House pressure. No evidence of FBI interference. No evidence that Facebook changed policies on government orders:

There is therefore no evidence to support the States’ allegation that Facebook restricted the state representative pursuant to the CDC-influenced policy….

But neither the timing nor the platforms line up (nor, in Dr. Kheriarty’s case, does the content), so the plaintiffs cannot show that these restrictions were traceable to the White House officials. In fact, there is no record evidence that White House officials ever communicated at all…

This evidence does not support the conclusion that Hoft’s past injuries are likely traceable to the FBI or CISA….

There is no evidence that the White House asked Facebook to censor every user who reposts a member of the disinformation dozen, nor did Facebook change its policies to do so.

There’s more, but you get the idea.

So Trump’s executive order “stopped” imaginary censorship while enabling very real suppression of speech. His FCC chief Brendan Carr now routinely threatens media organizations over their editorial choices.

But Trump’s real innovations in censorship are just getting started. His administration has launched a systematic campaign to eliminate discussions of diversity and inclusion, reaching far beyond government into private business. And last week, he announced plans to “create some NICE NEW LAW!!!” specifically designed to sue authors and publishers who dare to criticize him using anonymous sources.

If you can’t see that, it’s a Truth Social post saying:

As a President who is being given credit for having the Best Opening Month of any President in history, quite naturally, here come the Fake books and stories with the so-called “anonymous,” or “off the record,” quotes. At some point I am going to sue some of these dishonest authors and book publishers, or even media in general, to find out whether or not these “anonymous sources” even exist, which they largely do not. They are made up, defamatory fiction, and a big price should be paid for this blatant dishonesty. I’ll do it as a service to our Country. Who knows, maybe we will create some NICE NEW LAW!!!

Let’s be clear about what this means: Trump wants to create legal tools that would let him force journalists to reveal their sources or face ruinous lawsuits. This isn’t just about suppressing critical books — it’s about making sure no insider ever dares speak to the press about his actions again. The chilling effect would be immediate and devastating — precisely what Trump and those in his orbit want.

The MAGA faithful love to pretend that “anonymous sources” means “made up quotes.” But any journalist knows that fabricating sources is a career-ending offense — just ask Stephen Glass or Jayson Blair, whose names are now synonymous with journalistic fraud. The ability to protect legitimate anonymous sources isn’t just a nicety — it’s fundamental to investigative journalism and government accountability.

Trump knows this. His proposed law isn’t about preventing fake quotes — it’s about ensuring that anyone who might expose his actions faces not just legal harassment, but the very real threat of retaliation from his most rabid supporters. It’s a calculated attempt to ensure that the next Watergate-style revelation never sees daylight.

But Trump wasn’t done. Just hours before he claimed to Congress that he had “brought back free speech,” he had threatened to imprison and deport protestors while promising to strip federal funding from any university that allows protests:

If you can’t see that, it’s a post from Trump saying:

All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. American students will be permanently expelled or, depending on on the crime, arrested. NO MASKS! Thank you for your attention to this matter.

This threat manages to violate multiple constitutional principles at once. But the sheer levels of nonsense here require so much effort to peel back each layer of madness.

First, the Constitution gives Congress, not the President, control over federal spending. This isn’t obscure legal theory — it’s basic separation of powers that even high school civics students understand.

More fundamentally, this is a direct assault on core First Amendment rights of expression and assembly. When Trump says “illegal protests,” he means protests he doesn’t like — whether they’re pro-Palestine demonstrations or (more likely) the anti-Trump protests he knows are coming. The “illegal” framing is just cover for targeting specific viewpoints — exactly what the First Amendment prohibits.

Now here is where you might expect that all the people who were so concerned about “free speech on campus” to speak up. Remember all those self-proclaimed “free speech warriors” who spent the last few years writing endless think pieces about how a student protest against a conservative speaker represented The Death Of Campus Free Speech™?

Funny story: they seem absolutely delighted by actual government censorship of campus speech. Take Bari Weiss’s The Free Press, which has built an entire media empire on breathless warnings about campus censorship. Their take on Trump’s threat to literally imprison protesters? An “exclusive” gleefully reporting that the GSA is already implementing Trump’s threats, preparing to strip Columbia of $5 billion in funding unless it shuts down protests they deem “antisemitic.”

It’s almost like they never actually cared about free speech on campus at all. They just cared about which speech was being challenged.

The strategy by Trump here is bone-chillingly clear: threaten universities’ survival through financial blackmail while simultaneously threatening students with life-altering punishments for exercising their constitutional rights. It’s a two-pronged attack designed to make universities preemptively shut down protests and make students too afraid to speak out.

This is what actual government censorship looks like. Not imaginary pressure on social media companies that even Trump’s own Supreme Court appointee dismissed, but real threats of imprisonment, deportation, and financial ruin for engaging in constitutionally protected political speech.

So when Trump stood before Congress mere hours after issuing these threats and claimed he “stopped all government censorship and brought back free speech,” he wasn’t just lying — he was executing a deliberate strategy to destroy the very concept of truth itself. By boldly claiming the exact opposite of reality, he’s trying to make people give up on the idea that facts matter at all.

And that’s the real threat here. Not just the actual censorship (though that’s bad enough), but the attempt to make reality itself negotiable. Because once truth becomes whatever the person in power says it is, actual free speech becomes impossible.

The traditional ending here would be something like “we can’t let him get away with it.” But that’s not quite right. The point isn’t just to stop him — it’s to preserve our ability to recognize and speak truth at all. Even when — especially when — the most powerful people in the country are trying to convince us that up is down, black is white, and censorship is freedom.

Filed Under: 1st amendment, anonymity, anonymous sources, defamation, donald trump, free speech, protests

Lawyer Who Doesn’t Understand Defamation Law Sends C&D To Newspaper For Reporting On Court Documents

from the ignorance-of-the-law-pays-$450-an-hour dept

It really doesn’t seem like too much to ask that legal representatives who are specifically trained to handle legal work actually know what the fuck they’re doing when they engage in legal representation. While I understand that not every lawyer’s competence will be equal, I don’t believe we should be expected to put up with litigation hijinks from highly paid “professionals” who seem no better informed than the average Hacker News commenter.

And, yet, here we are, dealing with this sort of ridiculousness. To be clear, we at Techdirt aren’t directly affected by this. But we are reporting on it. Those directly affected work for the Boston Herald, which has been hit with a ridiculous, uninformed cease-and-desist demand from a lawyer who should know better on behalf of a client who should probably try to find a better lawyer.

An attorney for the Boston Water and Sewer Commission’s suspended HR Director Marie Theodat has demanded the Herald “cease and desist” all reporting on her client on grounds that this paper’s lawyer has deemed frivolous and lacking legal standing.

Lana Sullivan, an attorney who represents Theodat in at least one of several civil lawsuits filed in Suffolk Superior Court, sent a cease-and-desist letter to the Herald. The letter seeks to prevent further reporting on her client on the grounds that she is a “private” rather than a “public” figure.

The paper’s lawyers are completely in the right. And it doesn’t matter how histrionic the C&D is. What happened here isn’t defamation and the (now-suspended) head of a quasi-public utility commission isn’t exactly a “private” figure — at least not in terms of the issues covered by the Herald’s reporting.

Nonetheless, this is what Lana Sullivan asserted in her letter on behalf of her under-served client:

“As you know, the Boston Herald has published a number of false and defamatory statements purporting to connect the involvement of Ms. Theodat, a private citizen who is not a public figure, in personal civil litigation that is of no legitimate public concern, with her job performance at Boston Water and Sewer Commission,” Sullivan wrote.

The C&D is pretty vague about what is actually “false and defamatory” because it has to be. There’s nothing false or defamatory here because the sources utilized by the Herald were public records: court documents and publicly accessible records generated by Theodat’s employer.

The paper simply reported the established facts: Theodat had been given several pay increases (61% in total since 2019) while she was named as the defendant in multiple civil lawsuits and the subject of several fraud allegations. One case involves her alleged defrauding of her uncle, “swindling” him out of his home while taking advantage of his increasing dementia. In another case, Theodat was found liable for refusing to repay a $75,000 mortgage loan.

The commission she works for also took action, demanding the utility commission open an investigation into her alleged malfeasance.

All of this comes from court records and publicly available data. And nothing in the C&D says otherwise, even though it tries to insinuate the paper did something wrong without actually specifying what Theodat and her lawyer believe the paper did wrong.

That resulted in this solid rebuttal from the paper, which exposes the C&D to be the weakest of sauces:

[Y]ou appear to complain, although you do not identify what it is that you claim is actionable in any way, about the Herald’s reporting on public proceedings. You do not identify any statement that it made which was false, but as you also know, any such reporting is encompassed by the Fair Report Privilege…

That’s how you know the desist demand is bullshit. If the lawyer and potential plaintiff can’t actually provide a direct quote of the article being agitated about, it’s readily apparent this isn’t about any possibly actionable legal issue, but rather an attempt to bluster someone into a retraction or silence. But the paper knows the law. And its lawyers are far too kind to Theodat’s legal rep when they suggest that this lawyer “knows” this kind of reporting is covered by the Fair Report Privilege. Even if the lawyer knows this, she still wrote the C&D and signed her name to it.

This won’t go anywhere after this. I mean, I would hope. But hope springs equally eternal in pissed-off subjects of critical reporting and those billing them hundreds of dollars an hour in an attempt to make their client’s fantasies a briefly viable reality.

Filed Under: 1st amendment, defamation, free speech, lana sullivan, libel, marie theodat, slapp
Companies: boston herald, boston water and sewer commission

Steve Wynn Asks Supreme Court To Gut Key First Amendment Standard

from the the-attack-on-speech-continues dept

Billionaires are already deleting parts of our government, as well as various safety mechanisms on the internet that sought to minimize hate and abuse. Do we also want them to be able to rewrite our understanding of the First Amendment?

Steve Wynn’s latest Supreme Court petition represents a dangerous escalation in the ongoing assault on press freedom and the First Amendment. While self-proclaimed free speech warriors claim to champion unfettered expression, their actions reveal a different agenda: securing immunity from criticism while maintaining the power to silence their critics through legal intimidation.

The weapon of choice? Dismantling New York Times v. Sullivan, the Supreme Court decision that has protected robust public debate for sixty years.

This attack on Sullivan is just one prong of a broader assault on free speech. The same powerful figures who demand unrestricted platforms to spread misinformation and bigotry are simultaneously working to silence their critics through legal intimidation. Their strategy is clear: reshape social media and communication platforms to amplify their preferred speech while using litigation to crush dissenting voices.

The goal isn’t free speech — it’s controlled speech.

For decades, NY Times v. Sullivan has stood as the primary bulwark against wealthy individuals using defamation lawsuits to silence their critics. Decided in 1964, it represents the Supreme Court’s most important attempt to resolve a fundamental tension: It is that case where the Supreme Court had to finally confront the inherent conflict between the First Amendment’s prohibition on any law that inhibits speech, against the long-standing tradition of defamation laws that that… inhibit speech.

The Court’s solution was elegant but hinged on an unfortunately named concept: “actual malice.” Despite its inflammatory name, the standard has nothing to do with ill will or hatred. Instead, it creates a simple test: public figures can only win defamation cases if they prove the speaker either knew their statement was false or showed “reckless disregard” for its truth.

This high bar serves a crucial purpose. Minor factual errors, differences of interpretation, or even heated rhetoric about public figures aren’t enough to trigger liability. Only deliberate lies or statements made while willfully ignoring clear evidence of falsity can qualify as defamation. And plaintiffs have the burden of proving that the defendant knew that it was a lie when they published or spoke.

This has been a cornerstone of US free speech for sixty years. It makes tremendous sense once you understand it, as it means that defamation of a public figure can really only stand if the speaker was deliberately seeking to lie about the target of the defamation.

Without that, you would get the kind of case that NYT v. Sullivan was about in the first place: one where minor factual errors, or even disagreements of interpretation, might lead to full-blown (costly) defamation cases that would not just be ruinous to defendants, but would create massive chilling effects that lead them to silence concerns and choose not to speak up about the rich and the powerful, who can file frivolous lawsuits with wild abandon.

This is precisely why the wealthy and powerful are now gunning for Sullivan. The ruling stands between them and their ability to weaponize defamation law against critics. And billionaire Steve Wynn’s latest Supreme Court petition represents their most direct attack yet.

The case emerged from Wynn’s attempts to silence reporting about his alleged misconduct going back decades. In 2018, as a prominent casino magnate and Republican megadonor, Wynn faced serious accusations. The WSJ had a big expose accusing him of a wide variety of harassment and sexual abuse. A few months later both the Las Vegas Review-Journal and Reuters reported on police files in Las Vegas, in which there were claims of sexual assault by Wynn dating back to the 1970s.

Rather than address the substance of these reports, Wynn turned to the courts, suing the Associated Press and reporter Regina Garcia Cano for defamation.

Wynn’s legal strategy revealed exactly why Sullivan is so crucial. His entire case hung on a single text message where Cano called one of the police reports “crazy” — which Wynn claimed proved she doubted its truth. But as the Nevada Supreme Court recognized in two separate rulings, calling something “crazy” doesn’t prove the reporter thought it was false — it might simply reflect the shocking nature of the allegations.

The case was dismissed under Nevada’s anti-SLAPP law, with the court delivering a forceful defense of both Sullivan and anti-SLAPP protections:

In designing its anti-SLAPP statutes, Nevada recognized the essential role of the First Amendment rights to petition the government for a redress of grievances and to free speech, and the danger posed by civil claims aimed at chilling the valid exercise of those rights. 1997 Nev. Stat., ch. 387, at 1363-64 (preamble to bill enacting anti-SLAPP statutes). To limit that chilling effect, the statutes provide defendants with an opportunity —through a special motion to dismiss— to obtain an early and expeditious resolution of a meritless claim for relief that is based on protected activity

The court systematically dismantled Wynn’s arguments, explaining that neither the “implausibility” of allegations nor a reporter’s desire to publish quickly amounts to “actual malice.” Most importantly, it recognized that allowing such weak evidence to support defamation claims would effectively gut press freedom.

Wynn argues that the Chicago complaint was implausible and points to the failure by AP Respondents to investigate further before publishing as evidence of actual malice. Again, while the complaint contained unusual elements, that does not mean that the gist of the allegations reported by AP Respondents—that Wynn sexually assaulted a woman in Chicago in the 1970s—was untrue or that AP Respondents should have held serious doubt about those allegations. As explained, because all identifying information in the complaint was redacted, it was not possible to meaningfully investigate further as long as that information was unknown. Wynn again points to Garcia Cano’s text describing the complaint as “crazy” to establish her subjective doubt. But calling the complaint “crazy” is not clear and convincing evidence that Garcia Cano believed it to be false or that she recklessly disregarded whether it was true. Wynn also attempts to establish reckless disregard by highlighting AP Respondents’ motivation to publish the story quickly. But news organizations often have a motivation to publish stories before their competitors, and in the absence of serious doubt regarding the veracity of the statement, such a desire does not establish a reckless disregard for the truth

Having lost in state court, Wynn has now made his real objective clear: He wants the Supreme Court to just wipe out NYT v. Sullivan entirely:

In New York Times Co. v. Sullivan, this Court “overturn[ed] 200 years of libel law” to constitutionalize an actual-malice standard for public-official defamation plaintiffs. This Court extended this actual-malice innovation to public figures in Curtis Publishing Co. v. Butts.

Compelled by this Court’s constitutional decisions in Sullivan and Curtis Publishing Co., States, like Nevada, have incorporated the actual-malice standard into their anti-SLAPP statutes. As a result, those States require public figure plaintiffs to prove the merits of their case— including actual malice—before any discovery occurs (or with only “limited” discovery). State courts are split over the application of the actual-malice standard’s clear and convincing evidence burden to public figure plaintiffs in anti-SLAPP cases and whether it violates a plaintiff’s right to a civil jury trial.

These are the questions presented:

Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures.

Should this Court decline to overturn or otherwise cabin Sullivan and Curtis Publishing Co., whether the Seventh Amendment’s right to a civil jury trial is incorporated against the States and, if yes, whether the application of the clear-and-convincing actual-malice standard at the early anti-SLAPP stage of litigation violates a plaintiff’s Seventh Amendment right to a civil jury trial.

Wynn’s petition represents the most direct assault yet on press freedom in America. If successful, it would demolish the constitutional guardrails that have protected journalism for six decades. But the timing isn’t accidental.

Several current Supreme Court justices have been laying the groundwork for this moment. Justice Clarence Thomas has repeatedly signaled his hostility to Sullivan, repeatedly using Supreme Court orders lists as a personal blog to argue for Sullivan’s demise. Justice Gorsuch has joined this chorus at times, and all signs suggest Justice Alito would be sympathetic to their position.

The other issue is that this particular Supreme Court has been way more willing to (1) completely upend “settled” Supreme Court precedents, and (2) increasingly willing to cherry pick out-of-context arguments as ignorant amateur historians, to pretend that they can justify some barbaric practice as consistent with how things were at the time the Constitution was written.

Hell, given that duels were still common at the time of the First Amendment, I half expect the Court to argue that duels are a perfectly acceptable response to impudent language.

Normally, such a case would be a non-starter. This is widely settled law. While Justice Scalia had whined about the NYT v. Sullivan for years, there was no sense that anyone would legitimately try to overturn it.

While it’s unclear whether four justices will vote to hear the case, or whether five would vote to overturn Sullivan, the mere possibility should alarm anyone who values investigative journalism and robust public debate. A victory for Wynn would hand the wealthy and powerful their ultimate weapon: the ability to silence critics through ruinous litigation, regardless of the truth of their reporting.

The attack on Sullivan isn’t just about one billionaire’s grudge. It’s part of a broader campaign to reshape the First Amendment into a tool for protecting power rather than speaking truth to it.

Filed Under: 1st amendment, actual malice, anti-slapp, clarence thomas, defamation, free speech, nevada, nyt v. sullivan, steve wynn, supreme court

The Faux Free Speech Warriors Attacking Free Speech

from the don't-let-them-get-away-with-it dept

There’s a particularly insidious and cynical form of censorship gaining prominence in America: the weaponization of “free speech” rhetoric, combined with abuses of the judicial system and executive power, to actually suppress speech. It’s a strategy that turns the First Amendment’s principles inside out, using the language of liberty to justify silencing critics and opponents.

Consider Brendan Carr pretending to be a free speech warrior while demanding censorship and seeking to punish those who speak against Trump. Or Jim Jordan, who was supposedly tasked with investigating the “weaponization” of the government against speech, but used that position to weaponize his government committee to suppress speech.

Perhaps the most brazen practitioners of this strategy are those with the resources to weaponize the legal system itself. Take Elon Musk, who wraps himself in the mantle of “free speech absolutism” while filing censorial lawsuits against his critics. Or Donald Trump, who portrays himself as a free speech champion while maintaining a relentless campaign of legal intimidation—suing media properties for critical coverage, attacking CBS over 60 Minutes for a Harris interview he didn’t like, and even targeting pollster Ann Selzer for publishing unfavorable poll predictions.

This censorship strategy has evolved to exploit every available pressure point in our system. Government officials like Carr and Jordan weaponize regulatory and investigative powers, while wealthy private actors like Musk and Trump deploy their vast resources to overwhelm critics with legal costs. The tactics are different, but the playbook is the same.

The success of this strategy relies on a peculiar form of doublespeak: while actively working to silence critics through legal and political pressure, these figures present themselves as defenders of free expression. More troubling still is how effectively this framing has been accepted by mainstream media and, by extension, the public.

Andy Craig, from the Institute for Humane Studies, has a great op-ed exploring how the MAGA world is famous for abusing vexatious lawsuits to silence speech. It’s the classic story of the SLAPP suit:

Defamation law, ostensibly meant to protect reputations against malicious falsehoods, is being twisted into a bludgeon to silence criticism and accountability — where even the threat of a defamation suit can serve to chill free speech. And in some cases, SLAPPs abuse other areas of law to target speech in order to evade the high First Amendment bar for defamation under Supreme Court precedents.

Elon Musk’s lawsuit against Media Matters, for example, epitomizes this trend. Media Matters reported on ads for major brands running next to neo-Nazi content on Musk’s X platform, formerly Twitter. Instead of addressing the substance of the report, Musk retaliated with a lawsuit, in this case based not on defamation as such but an even more outlandish “consumer fraud” theory. By allegedly presenting misleading examples, even though they were undeniably real and similar ones are easy to come by, the theory is this somehow falls under defrauding people into not using or buying ads on X. And as Musk frequently does, the case was filed in the Northern District of Texas to engage in blatant “judge shopping.” It paid off, with Judge Reed O’Connor, long known for his solicitousness toward conservative political efforts, allowing the case to proceed to trial despite its flawed premise.

The message was unmistakable: Critics calling out extremist content on his platform could come at a steep personal cost. It is not unrelated that Media Matters, faced with massive legal fees in fighting the wealthiest man in the world, was recently forced to resort to mass layoffs.

Craig’s analysis cuts to the heart of the matter: these aren’t just isolated incidents of powerful figures attempting to silence critics. Rather, it’s a calculated strategy that corrupts both legal processes and public discourse. By wrapping censorship in the language of free speech protection, these actors have found a way to make their suppression efforts appear legitimate—and much of the media has struggled to effectively challenge this framing.

What makes these actions particularly perverse is how they are often cloaked in the language of defending free speech. Musk’s rhetoric about combating the “woke mind virus” and DeSantis’ attacks on so-called woke corporations both claim to champion free expression while doing the opposite. This weaponization of free speech rhetoric is both cynical and dangerous, undermining the very principle it purports to defend, while seeking to rob their opponents of the language needed to accurately describe it.

The real-world impact of this legal intimidation strategy became starkly apparent in the media’s timid coverage of Elon Musk’s gesture at Trump’s inauguration. While the movement clearly resembled a Nazi salute (and literal Nazis took it that way), American media outlets tied themselves in knots to avoid saying so directly:

Consider, too, how U.S. media hesitated to report on Elon Musk’s apparent Nazi salute at a post-inauguration rally for Trump. German and Israeli outlets did not shy away from describing the incident as it appeared, yet many of their American counterparts tread more carefully. No matter how baseless, a lawsuit from Musk can cost millions of dollars to defend. The culture of risk aversion, compounded by legal threats and official intimidation, has narrowed the bounds of permissible discourse here, in the nation that is supposed to have the strongest free speech protections in the world.

The contrast is telling: media outlets in countries with stricter speech laws but stronger protections against frivolous lawsuits felt free to describe what they saw. Meanwhile, American journalists—operating in a country with supposedly the strongest free speech protections in the world—engaged in elaborate verbal gymnastics to avoid potential legal liability.

Musk’s subsequent threat to sue Minnesota Governor Tim Walz for describing the gesture as a Nazi salute only underscores the pattern: using litigation threats to chill speech while claiming to champion free expression. The strategy works precisely because defending against even a baseless lawsuit can be ruinously expensive.

Addressing this coordinated assault on free speech requires a multi-pronged approach. At the legal level, we need two parallel reforms: comprehensive anti-SLAPP protections to counter wealthy actors’ abuse of the courts, and stronger legislative guardrails against government officials using their investigative and regulatory powers to harass critics. The first priority is clear:

What’s urgently needed are robust anti-SLAPP laws, both at the federal level and in states where protections are still weak or nonexistent. Anti-SLAPP laws allow defendants to quickly dismiss lawsuits that are filed with the primary intent of suppressing speech, with legal fees automatically awarded (often with some multiplier) to the defendants. Crucially, they shift the burden of costs onto the plaintiff, deterring frivolous lawsuits and protecting critics from devastating expenses.

Equally crucial is defending existing First Amendment protections against efforts to weaken them. Some powerful figures, including those on the Supreme Court, are actively working to lower the barriers that currently help protect robust public discourse:

The broader legal context also underscores the stakes. Some figures, including Justice Clarence Thomas, have expressed interest in revisiting New York Times Co. v. Sullivan, the landmark Supreme Court case that established strong protections for speech about public figures. Undermining Sullivan would open the floodgates to even more defamation claims, further chilling speech. Anti-SLAPP laws are a critical counterweight to these trends, ensuring that free expression remains protected even as legal challenges multiply.

Perhaps most fundamentally, we need to develop stronger cultural antibodies against this form of censorship. That starts with consistently calling out these tactics for what they are: coordinated attempts to silence criticism through intimidation, even — or especially — when wrapped in the rhetoric of free speech protection:

But legal reforms alone are not enough. We must also recognize and call out these attacks for what they are: a coordinated censorship campaign. Whether through SLAPPs, state retaliation or regulatory threats, these actions aim to undermine the First Amendment by making the cost of speaking out intolerably high. They are not isolated incidents but part of a broader war on free speech, waged in the name of consolidating unchallenged political power.

The free speech crisis hiding in plain sight isn’t about whether individuals can ever criticize powerful figures — it’s about whether institutions can withstand the pressure to self-censor in the face of legal and political intimidation. Without robust protections like anti-SLAPP laws and a renewed cultural commitment to defending open discourse, the chilling effect will only grow stronger, leaving what’s left of American democracy poorer for it.

There’s a lot more good stuff in the piece, so go check it out.

Filed Under: 1st amendment, anti-slapp, brendan carr, defamation, donald trump, elon musk, free speech, jim jordan, slapp suits, weaponization

Nunes’s SLAPP Suit Over Forgotten Esquire Farm Story Crashes (Again)

from the stop-the-slapps dept

You may recall a few years back that then Rep. Devin Nunes went on a SLAPPtastic suing spree, filing a bunch of highly questionable defamation lawsuits against a variety of people, including someone pretending to be a cow owned by Nunes.

The lawsuits, generally, have not gone well. One of the dumber lawsuits was the one he filed in 2019 against Hearst Magazine (publisher of Esquire Magazine) and reporter Ryan Lizza, over a 2018 story that Nunes absolutely doesn’t want you to read about his family’s farm: Devin Nunes’s Family Farm Is Hiding A Politically Explosive Secret.

If Nunes had just left it alone, basically everyone would have forgotten about the article. Instead, because he sued over it (and then, later, got his family to sue over it as well, which was eventually merged into a single case), the story has been in the news for more than six years now, providing a textbook example of the Streisand Effect.

We’ve covered many of the ins-and-outs and absolute nuttiness associated with the case for years, which got new life in 2021 when the Eighth Circuit rejuvenated the case that had been otherwise dead in the water. The rejuvenation was short-lived, though, as the case was a clunker from the start. All it really did was waste a lot more time and money for everyone involved to get to this point underscoring the need for stronger anti-SLAPP protections.

Because now, the Eighth Circuit has upheld the lower court’s ruling that this case is back to being totally dead on arrival. There could be many reasons why, but the appeals court went with the basics. Nunes can’t show any actual damages from the article. And, because of the terrible handling of the case by his then lawyer, Steven Biss, Nunes was backed into a corner such that he had to show special damages:

The district court correctly concluded that Nunes is eligible, at most, to recover only special damages. Nunes failed to follow California’s notice and demand statute for the recovery of general and exemplary damages. The article was published on September 30, 2018. Nunes sent a demand to Lizza and Hearst almost a year later, and there is no showing that he first discovered the article within twenty days before the demand. See id. § 48a(a). Therefore, Nunes may not recover general or exemplary damages, and the case turns on whether he suffered special damages.

And, there is not just no evidence that he suffered special damages, there’s no evidence of damages at all:

Nunes prevailed in his re-election campaign of 2018 and thus has not shown damage to his ability to secure re-election. He also has not presented sufficient evidence that his ability to raise funds was diminished as a result of the article. While he claims that two to three dozen companies declined to give money to his campaign, he produced no evidence to support this assertion—not even the names of the alleged companies. Instead, the evidence showed that Nunes’s campaign funding steadily increased each election cycle. From 2014 to 2016, Nunes received over 2millioninfunding.From2016to2018,heaccumulatednearly2 million in funding. From 2016 to 2018, he accumulated nearly 2millioninfunding.From2016to2018,heaccumulatednearly13 million. And from 2018 to 2020, he collected over $26 million. Nunes therefore did not produce evidence of his diminished ability to raise campaign funds.

Nunes also failed to present sufficient evidence that the article impaired his prospects for employment. He states that he should have enjoyed more employment opportunities as a former Member of Congress with attendant experience. But general allegations of loss of prospective employment are insufficient to prove special damages. Pridonoff, 228 P.2d at 8. Nunes did not produce evidence that he sought any particular position or present evidence of employment opportunities that were available to other former Members of Congress who were similarly situated. See id. The only evidence regarding Nunes’s employment shows that after he retired from Congress, he became the chief executive officer of Trump Media & Technology Group, Corp., with a starting salary of $750,000. The job, Nunes admits, was secured “based on the strength of Congressman Nunes’s reputation.” Nunes thus did not produce evidence to support his allegation that he suffered economic loss as a result of the article.

These guys are always the sorest of winners. By becoming a very Trumpy culture warrior, he was able to massively increase his campaign funds and then secure a sweet salaried job running Trump’s laughably terrible social media platform. The article and its allegations (which aren’t even particularly shocking) didn’t seem to do one bit of damage to him. At the very least, he failed to convince the court of any damages. These kinds of lawsuits are often more about intimidation and chilling speech than any real harm.

As for the Nunes family, represented as “NuStar,” their part of the case was under Iowa defamation law, but they also failed to show any damage:

The NuStar plaintiffs argue that their business suffered economic harm after the article was published. They claim that one person stopped doing business with NuStar Farms as a result of the article. But the NuStar plaintiffs failed to produce evidence that the suggested business relationship existed, let alone that the other party discontinued the association. This bare assertion of lost business is insufficient to establish a cognizable injury.

To counter the claim of injury, Lizza and Hearst produced evidence that NuStar’s revenues and profits increased after the article’s publication. Lizza and Hearst also produced an expert who determined that the NuStar plaintiffs did not suffer lost profits or diminution of business value. The NuStar plaintiffs respond that other factors contributed to the increases in revenues and profits. Once Lizza and Hearst produced evidence to support their motion, however, the NuStar plaintiffs were required to set forth specific facts to establish a genuine dispute for trial. Fed. R. Civ. P. 56(c)(1). They failed to do so, and the record is insufficient to support a finding that the NuStar plaintiffs suffered economic harm.

You see, in court, you’re supposed to present actual evidence that goes beyond “waaah, the coastal elite reporter was, like, really, really mean!”

NuStar also tried to claim “reputational” damage since they couldn’t show economic damages. But, there, they failed to show that they had much of a reputation at all:

To prove injury to reputation, however, a plaintiff must show that the plaintiff had a particular reputation before the article and that people thought worse of the plaintiff after reading the article….

…. the NuStar plaintiffs did not produce evidence of a good reputation before the article was published. While they presented testimony and documents showing that unidentified callers and social media users read the article and thought ill of NuStar, they did not present evidence that the company or its leaders enjoyed any particular reputation before the article was published. Because they presented no evidence of a preexisting good reputation that could have been damaged by the article, the NuStar plaintiffs failed to create a genuine dispute for trial about whether they suffered a cognizable injury

Again, all of this just goes to show how SLAPPy the lawsuit was in the first place, and it’s why the Eighth Circuit’s earlier ruling was so frustrating. Courts should dump frivolous lawsuits quickly, before they drag on and drag down defendants in costly and time-intensive efforts. The appeals process here wasted years and untold sums, all over a meritless case that never should have gotten this far.

This is why (yet again) we need better anti-SLAPP laws in every state, along with a federal anti-SLAPP law. Such laws would get cases like this dismissed quickly and might have even shifted the fees, such that Nunes would be covering the defendants’ legal fees. Stronger anti-SLAPP protections are essential to prevent the weaponization of the courts to attack and silence journalists, critics, and really anyone exercising their First Amendment rights. Cases like this show the real-world damage caused by the lack of robust anti-SLAPP laws nationwide.

Filed Under: 8th circuit, anti-slapp, damages, defamation, devin nunes, ryan lizza, slapp suit
Companies: hearst