An Amusing Article Spawns a Laughable Libel Suit
By Trevor Timm
Dan Snyder, billionaire owner of the Washington Redskins, is used to making headlines for signing questionable players to hundred million dollar contacts, firing coaches after his team’s perennial losing seasons, and being generally unpopular with his team’s fans. But on February 2, Mr. Snyder’s judgment was questioned not by sports columnists, but by legal analysts, after he sued the Washington City Paper, a small alternative weekly in the DC area, for libel.
On November 19, Washington City Paper printed “The Cranky Redskins Guide to Dan Snyder,” a comprehensive list of Mr. Snyder’s failings, containing an amusing but negative anecdote for every letter of the alphabet. The article was topped off with a defaced picture of Mr. Snyder with devil’s horns. Mr. Snyder sued the paper for four of the statements, saying they contained falsehoods that damaged his reputation.
The New York Times ran an article headlined “Dan Snyder’s Odd Case Against the Washington City Paper” which said that libel suits by public figures in the US “are notoriously difficult to win.” But the Times didn’t explain why libel suits are difficult to win, and why the chances of Mr. Snyder’s case succeeding—based on case law—are slim to none.
The 1963 landmark Supreme Court case New York Times v. Sullivan established the modern libel rules for statements made against public officials. The Court held that in such cases, the plaintiff must prove that that the statement was false, but also that the defendant acted with “actual malice”. As the Supreme Court explained in a later case, “Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.” In the libel cases, “actual malice” means the defendant printed the article knowing the information was false, or acted with reckless disregard for the truth.
The 1967 case Curtis Publishing Co. v. Butts extended the actual malice standard to all public figures, which Dan Snyder, as the high profile owner of one of America’s most recognized sports teams, conceded he is in court documents.
In his complaint (which can be read here), Mr. Snyder’s lawyer identified four statements he considers libelous:
[T]hat ‘Dan Snyder…got caught forging names as a telemarketer with Snyder Communications;’ that Mr. Snyder caused Agent Orange to be used to destroy trees ‘protected by the National Park Service’ and ‘federally protected lands,’ a matter about which previously published reports had been publicly corrected; that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; that Snyder was ‘tossed off’ the Six Flags’ board of directors.
In response to the suit, the Washington City Paper said, “This story is very much at the core of what we do. It is well-reported, factually correct and extremely relevant to the people who live in and around the Washington area.”
They have a point. The Washington DC-based website TBD did a comprehensive analysis of each of the four claims and found that the statements by Washington City Paper are well documented. The quip about cancer patients was based on an extended quote from Mr. Snyder. The article never claimed Snyder used Agent Orange, it just used the toxic chemical as a metaphor, saying “[Snyder was] going all Agent Orange” by destroying the environment. And the claim that he get “booted off” the board of Six flags was supported by not only a Wall Street Journal article, but by the company’s own SEC filings.
Without detailing how any of paper’s statements were unfounded and libelous, Mr. Snyder spends much of his complaint trying to prove that the Washington City Paper is biased against him personally. His lawyer says the paper has an “ongoing campaign against Mr. Snyder to smear his business and personal reputation. Washington City Paper has published (online or print) over fifty columns in which Mr. Snyder (or, in a few instances, those who simply had associations with him) was the subject of derision, ridicule, and/or vilification.
Documenting Washington City Paper’s supposed bias will not further Mr. Synder’s case. He filed suit in New York (the hedge fund that owns Washington City Paper is based in New York City), and in the 2001 case Scientology v. Behar, the Second Circuit Court of Appeals explained that “alleged bias would [only] be relevant to show a purposeful avoidance of the truth if it were coupled with evidence of an extreme departure from standard investigative techniques.” Because each statement made by the paper about Mr. Snyder is supported by underlying quotes and documents (as stated above), the paper’s alleged bias does not help Mr. Snyder prove actual malice.
In fact, Washington City Paper’s bias may work in favor of the paper because as the district court explained in Scientology, the “speaker’s belief in his statements, even his exaggerations, enhances, rather than diminishes, the likelihood that they are protected from libel attack by the First Amendment. Only where the speaker himself lacks this conviction, where the speaker entertains serious doubt as to the veracity of his statements, is the false statement actionable.”
As TBD pointed out, because Mr. Snyder is already a DC media punching bag, “it’s just as easy to argue that his reputation as a business owner in this region is so bad that there’s no way to make it any worse.” While TDB may have been joking, in fact, a plaintiff can be held to be “libel-proof.”
In the 1972 case Cardillo v. Doubleday & Co, a mobster sued a publisher for libel and the the court ruled the plaintiff’s reputation was so damaged by previous publicity and criminal convictions that he should be barred as a matter of law from winning a libel decision for anything. While courts have stated that the libel-proof plaintiff doctrine should be “sparingly applied” and Mr. Snyder’s reputation doesn’t rise (or sink) to the level of a mobster’s, he could be barred from suing for libel by the “incremental libel-proof doctrine.” If an article “contains highly damaging statements, but the plaintiff challenges only a minor assertion in the communication as false and defamatory,” the plaintiff cannot maintain a libel claim.
Given that Mr. Snyder has been so derided in the past (as his lawyer admits more than fifty times in Washington City Paper alone) and only four minor claims about his character were challenged in the detailed offending article, the paper may be protected from liability even if their statements would generally be found to be libelous.
It’s curious that Mr. Snyder sued at all. Washington City Paper is just a small local paper, and he should have known the statements made in the article would be covered by the national media—and read by far more people—solely because of the lawsuit. It seems Mr. Snyder hoped to bury the paper in legal costs and destroy it for good; his lawyer sent the paper a threatening letter before suing, saying, “the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” And yet when the paper offered to meet with Mr. Snyder to hear his side of the story and publish an apology if he could provide evidence they were wrong, he refused.
Washington City Paper says it will vigorously defend its article in court. It is entirely possible in the next few months Dan Snyder will be the laughingstock of not only a small alternative weekly paper in his hometown, but New York state case law as well.
UPDATE: Attorney Paul Levy argues that Mr. Snyder filed his suit in New York instead of DC to avoid DC’s tough “anti-SLAPP” law, which guards against the exact type “of deliberate intimidation of speech through costly litigation” that Mr. Snyder seems to be engaging in.
Note: A previous version of this article incorrectly stated Mr. Snyder’s suit was filed in federal court. It was filed in New York state court.