Tagged: Defamation

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FAN 160.1 (First Amendment News) Ballard Spahr and Levine Sullivan Koch & Schulz to Merge

Press ReleaseAm Law 100 firm Ballard Spahr and Levine Sullivan Koch & Schulz (LSKS)—the preeminent First Amendment and media law boutique in the United States—announced today that they have agreed to merge effective October 1, 2017. The powerhouse combination, which will retain the name Ballard Spahr, brings together two nationally renowned media law practices and creates a team that represents the biggest and most prominent names in the industry.

All 25 of LSKS’s lawyers, including all four of its name partners—Lee Levine, Michael D. Sullivan, Elizabeth C. Koch, and David A. Schulz—will join Ballard Spahr in its Washington, D.C., New York, Philadelphia, and Denver offices. LSKS is well known for its deep bench of top-tier First Amendment attorneys. Its lawyers, including Mr. Levine—who has been described in Chambers USA as “the greatest First Amendment attorney in the United States”—have argued landmark cases before the U.S. Supreme Court and in state and federal courts across the country.

Mark S. Stewart (Ballard Spahr) 

“We have made one outstanding addition after another to our Media and Entertainment Law Group—including Practice Leaders David Bodney and Chuck Tobin, who are recognized as among the very best in the business,” said Ballard Spahr Chair Mark Stewart. “With the arrival of LSKS, we will have one of the largest practices of its kind in the country. The LSKS lawyers are terrific people whose dedication to this critically important work mirrors ours. It is an exciting development for both firms.”

Media attorneys at Ballard Spahr and LSKS represent and counsel clients across platforms and industry sectors—news, entertainment, sports, publishing, advertising, and advocacy. They defend media clients in defamation, privacy, and First Amendment litigation; prosecute actions to secure open government and public access; defend journalists against civil, criminal, and grand jury subpoenas; advise reporters in their newsgathering; provide prepublication and prebroadcast counseling to a wide array of media; and help clients protect their intellectual property rights.

Jay Ward Brown (LSKS)

LSKS has been at the vanguard in representing the media in many of its most significant and consequential First Amendment cases in recent years. Last month, the firm achieved dismissal in federal court of a defamation suit brought against The New York Times by former vice presidential candidate Sarah Palin. LSKS also helped the Associated Press obtain the release of sealed documents in the Bill Cosby sexual assault cases; successfully defended NBCUniversal in a defamation suit brought by George Zimmerman, the man acquitted in the fatal shooting of Trayvon Martin; and succeeded in reversing a jury verdict against the estate of famed Navy SEAL Chris Kyle in a case brought by Jesse Ventura following the publication of Kyle’s best-selling book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.

“We are more committed than ever to providing our clients with the strongest, most comprehensive representation possible,” said LSKS Managing Partner Jay Ward Brown. “We saw that same commitment in Ballard Spahr, and we knew that Ballard—with its practice depth and national platform —would support and strengthen our work. We share many of the same clients, and those clients have the highest regard for Ballard Spahr. Together, this team is second to none.”

‡ ‡ ‡ ‡  

 As with Levine Sullivan Koch & Schulz, Ballard Spahr will continue to host and support The First Amendment Salon.

‡ ‡ ‡ ‡ 

Ballard Spahr welcomes the following attorneys from LSKS:

  • Lee Levine
  • Michael D. Sullivan
  • Elizabeth C. Koch
  • David A. Schulz
  • Thomas B. Kelley
  • Celeste Phillips
  • Robert Penchina
  • Seth D. Berlin
  • Jay Ward Brown
  • Steven D. Zansberg
  • Michael Berry
  • Chad R. Bowman
  • Cameron Stracher
  • Ashley I. Kissinger
  • Alia L. Smith
  • Paul J. Safier
  • Elizabeth Seidlin Bernstein
  • Mara J. Gassmann
  • Dana R. Green
  • Matthew E. Kelley
  • Jeremy A. Kutner
  • Max Mishkin
  • Thomas B. Sullivan
  • Al-Amyn Sumar
  • Alexander I. Ziccardi

The LSKS merger is the second to be announced by Ballard Spahr. Last week, Ballard Spahr announced that it will join with Lindquist & Vennum—a Minneapolis-based law firm known as a leader in middle-market M&A and private equity dealmaking—effective January 1, 2018. The combination will extend Ballard Spahr’s national footprint into the Midwest, giving the firm offices in Minneapolis and Sioux Falls, SD, and an expanded presence in Denver. When the mergers are completed, Ballard Spahr will have more than 675 lawyers in 15 offices across the country.

About Ballard SpahrBallard Spahr LLP, an Am Law 100 law firm with more than 500 lawyers in 13 offices in the United States, provides a range of services in litigation, business and finance, real estate, intellectual property, and public finance. Our clients include Fortune 500 companies, financial institutions, life sciences and technology companies, health systems, investors and developers, government agencies, media companies, educational institutions, and nonprofit organizations. The firm combines a national scope of practice with strong regional market knowledge. For more information, please visit www.ballardspahr.com.

About LSKSLevine Sullivan Koch & Schulz is a national law firm dedicated to serving the legal needs of creators and providers of virtually every type of content in virtually every kind of media, both traditional and new. Its practice focuses exclusively on the field of media law, specializing in First Amendment, entertainment, and intellectual property law. With offices in Washington, D.C., New York, Philadelphia, and Denver, the firm provides counsel nationwide on defamation and privacy, access and freedom of information, content regulation, subpoena matters, and intellectual property rights.


 

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FAN 129 (First Amendment News) A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press

In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”

Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)

“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York TimesThe Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”

Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”

“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]

Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump) 

The threat of litigation by “well-funded plaintiffs” 

Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”

“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”

Countersuits: Suing Trump for Defamation? 

Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016

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In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.

___________________

Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

October 23, 2016: Donald Trumps threatens to sue sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”

Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”

Pro Bono Offers to Defend Against Defamation Suits Read More

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FAN 128.1 (First Amendment News) Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits

It is about time that the use of lawsuit threats by a bully, like Trump, should be met, and met strongly. — Laurence Tribe 

Theodore Boutrous, Jr.

Theodore Boutrous, Jr.

It all began with Theodore Boutrous, Jr. According to Law Newz, “on October 13, Boutrous sent out a tweet promising to a pro bono defense to the Palm Beach Post newspaper after it published a story from one of Trump’s alleged accusers.” And then on October 22, he tweeted: “I repeat: I will represent pro bono anyone  sues for exercising their free speech rights. Many other lawyers have offered to join me.”

Shortly afterwards one of those who offered to form pro bono phalanx to defend against Trump’s threatened defamation lawsuits was  Harvard Professor Laurence Tribe.

Professor Laurence Tribe

Professor Laurence Tribe

Last evening Professor Tribe appeared on The Last Word with Lawrence O’Donnell (MSNBC). Tribe was on the program to talk about recent threats by Donald Trump to sue his sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

Here are some transcribed excerpts from Professor Tribe’s comments in response to that threat:

Offer of pro bono assistance

“Ted Boutrous and Ben Wittes, and many other leading lawyers, have [offered to represent pro bono those alleging sexual misconduct against Donald Trump]. And I did it because it is about time that the use of lawsuit threats by a bully, like Trump, should be met – and met strongly – because a lot of people, a lot of women, might be deterred by his threats even though he often doesn’t carry them out. They might be afraid to come forward; it’s not only them, it’s all kinds of groups. A group that I am also ready to defend pro bono, although it may sound a little bit strange, is the American Bar Association, which was frightened into suppressing its own report by a free-speech watchdog group, which concluded that Trump used the threats of libel suits to bully people into submission. And they ended up censoring themselves because they were afraid of being sued.” [See Adam Liptak, Fearing Trump, Bar Association Stifles Report Calling Him a ‘Libel Bully’, New York Times, Oct. 24, 2016; see also Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center, Oct. 21, 2016]

“It’s really about time that people who know what they are talking about in the law tell this guy what an idiot he is and how unfair it is for him to use his power. . . . He says that he can just sue the hell out of anybody. [But] he’s gonna learn better than that when he tries. . . . “

“[T]he women who are afraid to come forward should know that lawyers like me are going to be willing to defend them and the journalists who reported their stories without charge. . . .”

Possible defamation suits against Trump

“All of the people [Trump] threatens to sue, without any real ground and in the face of the First Amendment, have strong grounds to sue him for deliberately and falsely labeling them as liars and as people who simply want – I think he called it — their ten minutes of fame . . . .”

Course of action if Trump wins

“Justice Brennan in a case called Garrison, pointed out that the way the Nazis, early in their rise to power, silenced their enemies and their opposition was to threating to use defamation lawsuits against them. But I do want to want to add, quite apart from these lawsuits, if Trump loses (as I hope he will) we won’t have to take the next step. But if he should happen to win (heaven forbid!) . . . then lawyers around the country, who are joining me in this effort, are going to do all we can, pro bono, to prevent him from abusing executive power by violating the First Amendment and much else in the Constitution. Because if he wins, he’s likely to take a Congress with him; he’s not likely to have the usual checks-and-balances. So, the legal profession has a challenge that I hope it can meet. I think that people who are lawyers . . . , in the best sense of the word, need to step up and call this tyrant for what he is.”

Coming: Tomorrow’s FAN post is titled: “A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press”

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FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

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Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

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According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More

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FAN 117.1 (First Amendment News) Martin Garbus Files Defamation Suit on Behalf of Pete Rose

WHEREFORE Plaintiff Peter Rose demands a money judgment against Defendant John Dowd for the amounts described herein and an award of punitive damages, together with costs and expenses, including attorneys’ fees, of this action, and such other and further relief as the Court deems just and proper. — Martin Garbus (pro hac vice pending)

Martin Garbus, a lawyer who has done his share of First Amendment defense work, now finds himself on the other side of the constitutional divide.  According to an ESPN news story, Mr. Garbus is representing Pete Rose in a federal defamation suit against “John Dowd, who oversaw the investigation that led to Rose’s ban from baseball, for claims Dowd made last summer that Rose had underage girls delivered to him at spring training and that he committed statutory rape.”

Martin Garbus

Martin Garbus

“The complaint,” says the ESPN story, “was filed today in U.S. District Court in Pennsylvania. It cites a radio interview last summer with a station in West Chester, Pennsylvania, in which Dowd said, ‘Michael Bertolini, you know, told us that he not only ran bets but ran young girls down at spring training, ages 12 to 14. Isn’t that lovely? So that’s statutory rape every time you do that.’ . . . “

“The lawsuit also cites an interview with CBS Radio in which Dowd said, ‘He has Bertolini running young women down in Florida for his satisfaction, so you know he’s just not worthy of consideration or to be part of the game. This is not what we want to be in the game of baseball.'”

“Rose denied Dowd’s accusations. Bertolini has said he never made such claims. Former commissioner Fay Vincent, who was deputy commissioner at the time of Rose’s ban, has said that he did not remember such allegations. .  . .”

Rose v. Dowd complaint here. The three claims for relief set out in the complaint are: (1) “Defamation per se“, (2) “Defamation”, and (3) “Tortious Interference with Existing or Prospective Contractual Relationship.”

 Additional News Stories:

  1. Randy Miller, Pete Rose suing John Dowd for statutory rape accusations,” NJ.com, July 6, 2016;
  2. Debra Cassens Weiss, Pete Rose sues former Akin Gump partner for radio show comments, ABA Journal, July 7, 2016;
  3. Brian Baxter, Pete Rose (and Marty Garbus) Sue Ex-Akin Gump Partner, Law.com, July 6, 2016; and
  4. Greg Noble, Pete Rose sues John Dowd over allegations he had sex with underage girls, WCPO9, July 6, 2016.

Biographical Snapshot:  Ever the maverick, Mr. Garbus has represented everyone from:

  • the ribald comedian Lenny Bruce (Garbus was co-coounsel with Ephraim London in People v. Bruce),
  • to a woman in a libel case brought against a Daily News columnist for allegedly claiming she faked a rape).
  • He was on the brief for the Appellant in Jacobellis v. Ohio (1964) and was counsel for Viking Press in the Appellate Division of the New York Supreme Court in which the court dismissed a libel suit against a novelist (see New York Times, December 16, 1982).

See generally:

  • Nat Hentoff, “First Amendment Lawyer Punished,” Nevada Daily Mail, April 11, 1996 (“Garbus . . . followed his conscience to help someone he believed had been terribly wronged by a columnist and his newspaper. Let this be a lesson to law school students with a conscience.”)
  • John Sullivan, “Columnist Wins a Suit On Articles About Rape,” New York Times, February 7, 1997 (“The woman’s lawyer, Martin Garbus, said that the judge’s conclusions were wrong and that the ruling could provide an opportunity for a successful appeal, though his client had not decided whether to pursue the case.” — The case was dismissed and no appeal was taken.)
  • Martin Garbus & Richard Kurnit, “Defamation in Fiction: Libel Claims Based on Fiction Should be Lightly Dismissed,” Brooklyn Law Review (1985)