A DISCUSSION OF LAW AND JOURNALISM

Words Gone Wild

defamation

By Asher Hawkins

Joe Francis, creator of the internationally revered cinéma-vérité genre known as Girls Gone Wild, recently learned a hard lesson during his marathon legal mano-a-mano with Las Vegas casino mogul Steve Wynn: Make sure you understand the law if you want to rely on it to keep you out of trouble.

After a Los Angeles jury found that Mr. Francis had, during the course of a dispute over an alleged gambling debt, defamed Mr. Wynn (to the tune of damages ultimately totaling $40 million), Mr. Francis put out a statement that included these choice observations:

“Strictly from a legal standpoint, I believe the jury should have found in my favor for numerous reasons. Besides THE FACT THAT I AM TELLING THE TRUTH, statements that are made in a courtroom in this context are considered ‘privileged’, meaning without the fear of being sued.” [emphasis in original]

He’s right – kind of. Statements made in a courtroom are generally considered “privileged,” the term for the law’s ability to prevent certain types of communication from becoming the subject of defamation lawsuits. But that doesn’t mean the person making the statements in the courtroom won’t be found liable for defamation.

Hop on the LASIS tour bus and allow us to explain.

A bit of background: The finer points of defamation law, including the various privileges applied, can vary from state to state. But some principles prevail nationwide, the most important being that – regardless of whether or not the alleged defamer can rely on one of the privileges – truth is an absolute defense to a charge of defamation.

By definition, making a reputation-damaging statement about someone orally (which might be slander) or in print or via broadcast (which is potentially libelous) can only get you sued if what you said or wrote was false.

Think of truth as defamation’s kryptonite. To wit: Just last week a Manhattan judge dismissed the defamation claim of a Long Island rabbi who sued the New York Post over a story that detailed his ex-wife’s efforts to catch him cavorting with prostitutes. In ruling that the rabbi’s case was a dud, the judge noted that the rabbi had never disputed that he had engaged in sexual relations with at least one woman-not-his-wife inside a hotel room. (In contrast, the rabbi apparently had vehemently denied soliciting for sex on the Jewish Sabbath.) The story, the judge concluded, was “substantially true,” and therefore could not be the subject of a defamation action.

A select few situations create an “absolute” privilege for speakers and writers, while others result in only a “qualified” privilege, or in no privilege at all.

If you’re relaying reputation-damaging information about someone in a situation in which one of the privileges applies, even if the smack you talked (or wrote) is later proved to be false, you might still be fully protected from a defamation suit.

In many states, courts have long held that statements made in open court are absolutely privileged – so long as they are in some way pertinent to the case at hand, they can never be the basis for a defamation lawsuit. Statements made during legislative debate comprise another type of communication that has historically been protected by absolute privilege, with this form of the privilege being perhaps even broader in scope than the “open-court” absolute privilege. The “legislative-debate” privilege is provided in Article I, Section 6 of the U.S. Constitution and explicitly enshrined by most state constitutions.

In addition, absolute privilege has been extended to some quasi-governmental proceedings. In 2007, for example, New York’s highest appeals court ruled that absolute privilege applies to financial companies that include damaging tidbits about recently fired employees in official documents filed with the National Association of Securities Dealers.

The basic idea behind absolute privilege is that participants in official proceedings should be able to speak their minds without worrying about being sued for doing so.

A “qualified” privilege, as the name suggests, reflects the desire to give some protection to certain types of communications, but not automatically in every single instance. Under case law, in New York, so long as the statement at issue was “fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned,” the plaintiff alleging defamation can only succeed in court if he or she proves that the statements were made with “malice”.

New York courts have ruled that contacting the police about an alleged crime results in a qualified privilege. Outside of the statements-to-law-enforcement context, the Gotham State’s defamation defendants may try to prove that they’re eligible for a qualified privilege because they either had a moral or social duty to make the statements at issue, or were making the statements to someone with whom they shared a bona-fide common interest. New York courts apply these privileges on a case-by-case basis. In one recent defamation lawsuit, for example, a panel of federal judges interpreting New York case law ruled that both the “duties” privilege and the “common-interest” privilege protected a scientist at a Cornell University-affiliated research institute who’d told others in his field that a postdoctoral researcher in his lab had possibly fabricated research results.

While the privileges can be a source of comfort for alleged defamers, they can also disappoint Chatty Cathys who assume that a privilege applies when it quite possibly does not.

Back to our friends Messrs. Francis and Wynn. Their dispute began over an alleged seven-figure gambling debt owed by Mr. Francis to the Wynn casino empire. During an April 2010 debt-collection proceeding in a Los Angeles courtroom, Mr. Francis stated that Mr. Wynn had “threatened to kill” him and to “hit [him] in the back of the head with a shovel and bury [him] in the desert.” Mr. Francis then apparently repeated these Scorcese-esque statements to a TMZ reporter after the court proceeding. Within weeks, Mr. Wynn had filed a lawsuit against Mr. Francis, accusing him of slander.

Mr. Francis argued that the suit should be dismissed because California has a law on the books that seems to establish an absolute privilege not only for in-court statements, but also for “fair and true” out-of-court statements to media about what was said in court.

But the judge saw things differently. She found that California’s court-proceedings privilege did not necessarily protect either the defendant’s in-court statements or his subsequent exchange with the reporter. She first concluded that Mr. Francis’ in-court statements about the alleged threats had not been sufficiently relevant to the debt-related litigation, as required by the statute. Next, she declined to apply the privilege to the statements to the TMZ reporter because, she noted, he not only repeated what he’d said in court, but added to it by telling the reporter his in-court statements were “definitely…accurate” and that he was “[a]bsolutely serious” about his allegations that Mr. Wynn had threatened him. (If the judge’s logic sounds like semantic hair-splitting to you, dear reader, rest assured that such was our initial reaction, as well. While the judge didn’t cite any case law on this issue, it appears that courts in California tend to interpret the state’s “fair-and-true reporting” sub-privilege somewhat broadly when the defamation defendant is a magazine or newspaper, but rather narrowly when the defendant is a private individual accused of defaming the plaintiff during a media interview.)

When the trial ended last month, the jury awarded Mr. Wynn actual damages totaling $9 million for Mr. Francis’ in-court statements and his courthouse-steps comments to the TMZ reporter. (Another $11 million was awarded for statements Mr. Francis made on ABC‘s “Good Morning America” while the case was already well underway. A punitive damages verdict brought the full amount awarded to Mr. Wynn to a whopping $40 million – and that doesn’t include the bill from his attorneys).

A word to the wise: If you’re ever tempted to make a potentially reputation-damaging statement about someone in public, and you’re not certain whether what you say will be privileged – think of Joe Francis and count to ten. It could save you a bundle.

UPDATE, November 13, 2012: The award was reduced from $40 million to $19 million. Here’s why.

Comments

4 Comments »

4 Responses

  1. Charlie Stern says:

    Seems to me that Joe Francis may have been telling the truth. If he just would present less crazy, maybe someone would believe him.

  2. Mark Masic says:

    Charlie, why does it seem to you that he was telling the truth? What I read says that all the people that he said knew about the threat said he was lying. I think the conclusion you jump to is exactly why defamation is so damaging.

  3. Charlie says:

    Mark,

    Because I have friends who work in Vegas. To be honest I don’t know if Francis was telling the truth about personal threats but in general, I’m told the Wynn Brothers are actually really tough guys — you wouldn’t want to mess with them.

    Which is why my last name is not on this Comment. I don’t need a knock on my door threatening me. LOL.

  4. L. C. says:

    People in the adult industry are just scumbags.

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