A Real Life View of Defamation Law

Here are some facts from a recent case out of the Supreme Court of Illionois. Its a defamation case, and arises from two competitors in the men's clothing business. One shop - Imperial - was owned by folks of Jewish descent. The other - Cosmos's - was run by folks of Italian descent. Cosmo's prides itself on being home of the original 3-for-1 sale. After making an allegedly objective comparison between what Cosmo's offered in its 3-for-1 promotion, Imperial decided that its 1-for-1 prices were really lower than the combined prices at Cosmo's and tried to exploit this price advantage by offering its own 3-for-1 promotion. Cosmo responded with a big ad in the paper that included the following language (quoted from the Court opinion):

We all know, there is only one "America" in the world and only one "3 for 1" in the Midwest...and in both cases it was the original thinking of an Italian that made them famous. So to the shameless owners of Empire rags center, east Eden and south of quality, we say..."Start being kosher...Stop openly copying and coveting your neighbor's concepts or a hail storm of frozen matzo balls shall deluge your "flea market style warehouse".

It is laugable how with all the integrity of the "Iraq Information Minister", they brazenly attempt pulling polyester over your eyes by conjuring up a low rent 3 for imitation that has the transparency of a hooker come on...but no matter how they inflate prices and compromise quality, much to their dismay, Cy and his son Paul the plagiarist still remain light years away from delivering anything close to our "3 for 1" values.

I assume you get the idea, even though the ad is more extensive. The Court opinion is 17 pages of recital and analysis of the law, the end result of which is this -- no reasonable reader would construe these things as statements of fact, and they are not, therefore, actionable. I bring the case up because I think that the general populace has the idea that you are not permitted to print advertisements with racial slurs and general denigration of a competitor's product. In Illinois, that's not the case. The Court said, "No matter how distasteful they may be, ephithets aimed at ethnic or religious groups fall within the protection of the first amendment....No circumstances are alleged in this case that would strip the language used in the ad here of that protection."

Given the likelihood that the "speech" here is commercial, and the minimal value of this kind of sppech in contributing to the commercial purpose, I wonder whether the Constitution really protects this type of ad. I have no information that indicates that the case might go to the Supreme Court, but it would not surprise me if it did.

Oregon Supreme Court Won't Change its Mind on Punitive Damages

Two weeks ago, the Oregon Supreme Court affirmed a punitive damage award of $80 million against Philip Morris. Now that case is the one where the United States Supreme Court expressly told the Oregon court that a punitive damage award is not allowed when the jury is allowed to base its award on harm that was suffered by persons other than the Plaintiff.

This is the third time that the case has been heard by the Oregon Court. And, it sets up an argument that the Oregon court is actually thumbing its judicial nose at the Supreme Court. This time, the Oregon court recognized that the Supreme Court said that the award was constitutionally infirm - because it violated the due process clause. But, the Oregon judges now say that they need not follow the Supreme Court's ruling because there were state law procedural defects in raising this issue. Specifically, Philip Morris did not make a valid objection to the jury instructions, and Philip Morris did not submit a jury instruction that was valid under State law.

The obvious tactic of the Oregon court is to do whatever is necessary to punish the evil tobacco company, now by basing its decision affirming the award on an "independent state ground". The United States Supreme Court clearly has said that a punitive damage award cannot stand if it is a multiple of more than 10 times the actual damages. In short, it is fairly clear that the award is wrong under the due process clause, and it will be interesting to see if Philip Morris appeals back to the United States Supreme Court to make sure that the "multiple of actual damages" rule is expressly applied to this case.

Breaking News: Congress Wasting Time!

Today, Congress is holding hearings involving the use of steroids - including the testimony of Roger Clemens and Brian McNamee. The hearing started with statements by the Congressman - a predictably boring beginning. In fact, as I write, we have more than 30 minutes of statements, and not a single question to anyone.

Now, what is the purpose of this? The initial statements tell you why. The Congressmen are there to keep their friend, George Mitchell, from having his long-winded report criticized.

The bottom line is that if Roger Clemens or Brian McNamee have done anything wrong, they should be arrested, charged and tried in a court. Putting either of them in a spot where they have few, if any, of the trial protections that Americans routinely enjoy would seem to be wrong-headed on many levels. Republican Tom Davis as much said so - saying that although this was not a court of law - "that's OK". He claimed that the purpose of the hearing was to "save lives".

I'll leave it to the reader as to whether this is a waste of time, and provide you a picture of the Committee Chair - Henry Waxman - who, in this photo, is rockin' his 70's porn stache. As I am watching, I wonder why the Republicans are for Clemens (in large degree), and the Democrats are against him. What political ideology is behind that?

Apparently, the resolution of the matter will depend on the marks on Roger's Rear End. This is getting silly.

Election Update

Thurbert Baker - who describes himself as "Tough as Nails" is won re-election as the Attorney General for the State of Georgia last November. Mr. Baker is the prosecutor who insisted that Genarlow Wilson serve 10 years in jail for a consensual sex act committed with an underage partner. I reported on Genarlow Wilson's release here.

I don't know whether to believe that people approve of a rather two-faced approach to a very difficult situation, whether they thought that Mr. Baker did the best he could in a bad situation, or whether they have forgotten what happened here.

I would not have forgotten that after a Judge said that the punishment was far out of line, the prosecuting authority insisted on contesting that ruling, and insisting that Genarlow serve the entire sentence. On the other hand, I don't know what the option was -- who was opposing Mr. Baker.

State of Texas Steals Dirt from Landowner

It's a nice headline, but the conclusion comes from a case just decided by the 14th Court of Appeals in Houston. It seems that the State (surprisingly) decided to improve a highway, and needed land to build a detention pond. A detention pond catches all the water that runs off the concrete, that might otherwise be soaked into the land. The State tried to condemn land to do this, but eventually negotiated a permanent easement with the landowner allowing the State to have its pond.

The State then built the pond, but in the course of doing so, carted off some 87,500 cubic feet of dirt. It then hauled the dirt to its other construction projects and used it. Although it paid for the easement, it didn't pay for the dirt. When the landowner found out that the State had taken the dirt and used it for another purpose, they sued. The State claimed that the dirt was part of the deal, even though the dirt was never mentioned in the negotiated agreement. The State countered that use of the dirt was implied.

The Court of Appeals adroitly noted:

The State, no novice to construction projects, knows the value of dirt. It is also quite likely, though this case has not progressed to the point of determining the value of the dirt removed, that it exceeds the $55,000.00 paid ... for the permanent easement.

In this case the State actively negotiated and procured an easement for the single purpose of building a water detention facility, but then proceeded to remove thousands of cubic meters of soil from that location for a purpose unrelated to the construction of the detention facility. While it may be "reasonably necessary" for the state to displace the soil to dig the detention facility, the state provided no testimony or other evidence that it was reasonably necessary for it to cart off an enormous amount of soil to another location ... and use it for its own purposes.

I assume that if the shoe was on the other foot, the State would insist on being paid for dirt. I'm glad to see the landowners did here.

Note: I don't know who the little kid on the big pile of dirt is in the picture for this post, but that is a very big pile...maybe 87,500 cubic feet?

Goodbye to Professor Horner

My contracts professor passed this week. And, although more and more close to me are passing through the years, I feel this loss because Professor Ed Horner was so exceedingly smart, yet so kind and unassuming. Long after I had left school, I saw him at school, and around town, and he never failed to have a kind word, and he was always ready to talk - about anything I might bring up. He had the heart of a servant - to his students, to his church and to his profession that set an example for everyone. I am a better person because I knew Professor Horner. And, there are likely thousands like me.

If I told Professor Horner that this was one of my favorite Hymns, he would have just smiled at me, and said it was his favorite too (whether it was or not). So, I'm going to print it here, to affirm that Professor Horner's hard work is over.

When my life work is ended, and I cross the swelling tide,
When the bright and glorious morning I shall see;
I shall know my Redeemer when I reach the other side,
And His smile will be the first to welcome me.

I shall know Him, I shall know Him,
And redeemed by His side I shall stand,
I shall know Him, I shall know Him,
By the print of the nails in His hand.

Oh, the soul thrilling rapture when I view His blessèd face,
And the luster of His kindly beaming eye;
How my full heart will praise Him for the mercy, love and grace,
That prepare for me a mansion in the sky.

Oh, the dear ones in glory, how they beckon me to come,
And our parting at the river I recall;
To the sweet vales of Eden they will sing my welcome home;
But I long to meet my Savior first of all.

Through the gates to the city in a robe of spotless white,
He will lead me where no tears will ever fall;
In the glad song of ages I shall mingle with delight;
But I long to meet my Savior first of all.

I shall know Him, I shall know Him,
And redeemed by His side I shall stand,
I shall know Him, I shall know Him,
By the print of the nails in His hand.

Words by Fanny J. Crosby

What Can You NOT say to Jurors

The Texas Supreme Court has taken a renewed interest in what kinds of lawyer arguments are improper. The basic premise behind the law relating to improper jury argument is that silver-tongued lawyers are able to appeal to the prejudices or sympathies of jurors to such an extent that the reasoning of the jurors is overwhelmed and the final verdict cannot be trusted.

With the general populace as skeptical about lawyers as they are today, I'm not sure that this premise can be voiced with a straight face. If the talk radio people can call the President a Nazi, is there really a belief that jurors can't separate vitriolic hyperbole from the role they are asked to undertake.

Recently, the Court said that lawyers can't refer to Nazis in their closing arguments to jurors. And, the lawyer in the Nazi case clearly went over the line of good taste and decorum. However, I want to believe that you can pick 12 people at random, and still be reasonably assured that they are not going to believe what the lawyer said just because he or she is so mesmerizing. The next case up involves these nefarious statements:

For years, in this conservative community, juries have been very liberal with the doctors, very liberal. What I mean is, their verdicts didn't send much of a message at all....physicians in this community have been able to count on the fact that juries are going to be liberal with them, and where has that gotten us? How do you send a message in this kind of case? It is with the amount of the verdict. And that is what I am talking about when I say the juries in Lubbock have been very liberal with doctors in the past, because juries' verdict haven't gotten anybody's attention, and that is what we are asking for here.

I'm not much persuaded that this case turns out differently if these words, or anything like it is said or is not said. But, I wouldn't bet money that the doctors don't get a reversal.

Gay & Lesbian Studies in Kindergarten

Massachusetts has a statute that provides that parents must be given notice, and an opportunity to exempt their children from public school curriculum which primarily involves human sexual education or human sexuality issues. But, in Lexington schools, the school system doesn't think that book that depict gay marriage involve sexuality issues. So, kindergarten students and first grade students are given books and materials that talk about gay marriage, and same sex parents - and the student's parents have no say in whether their own children are required to be a part of these "lessons". According to the school, its a topic of non-discrimination, not sexuality. So, even the youngest of students needs to be taught these lessons at public schools. Apparently, parents cannot be trusted in Massachusetts with these issues.

Two families challenged the schools in Lexington, not over the decision to make the books part of the curriculum, but for not allowing the parents to have notice of what is being taught, and an opportunity to "opt out".

A Federal District Court favored the schools. Although the District Court acknowldeged that parent have a constitutuional right to direct the education of their children, parents don't have a right to say "how" their children will be educated. The Court found that the school is not compelling these very young kids to believe anything, or to hold beliefs contrary to their parent's upbringing and guidance. Nor are the parents prohibited from teaching a contrary message at home. Part of the Court's reasoning here is that Massachusetts permits gay marriage. In the end, the parents get no say in what their kids are taught, and cannot refuse to have their kids participate in lessons that are fundamentally at odds with the parents desire for their kids.

I might agree with the Court if the kids at issue were older - capable of discerning the source of the conflicting messages, and capable of deciding which of them they choose to believe or respect. But, 5 and 6 year old kids don't have this discernment as a general rule. If you live in Massachusetts, your kids better grow up quick...there's no time for them to learn about primary colors, animals, shapes or letters. They need to be getting into politically correct thinking before the schools deal with education.

Watch Where You Pay Your Taxes

The Texas Supreme Court recently decided that if a taxpayer pays his property taxes in the wrong county because of a boundary dispute between two different counties, the taxing entity who was supposed to get the tax dollars can't sue to recover the erroneous payments collected by another county.

Now, the opinion says that the Counties can't fight it out in court under the doctrine of sovereign immunity. One county can't sue the other. What is not decided is whether the taxpayer has to pay twice - once to the County that didn't deserve the taxes, and once to the County who did deserve the taxes, but can't collect them from the other county.

Double Taxation sounds wrong on quite a few levels, but when the taxpayer gets sued, I'm not sure his receipt for payment from another county amounts to any defense at all. If you pay in error, you might be entitled to a refund, but I wouldn't bet on it.

If you think this is a weird and unusual situation, you ought to look at the map for school districts and other taxing entities in Texas. If you think that you don't live near a boundary line, you might find that you do, and that this problem is more real than you thought.

The New Jersey Nets are a "Public Use"

Just this week, the 2nd Circuit handed down an opinion about a development project in Brooklyn, New York - the site of the new home for the wickedly important New Jersey Nets. Apparently, there are 15 homes and businesses in the area where the arena is supposed to be built that are in the way of this project. The homeowners and business owners do not want to sell, so they are going to be forcibly removed by the power of eminent domain.

Now, the project is not just a basketball arena, but a group of 16 high-rise apartment buildings, and several office towers. The man behind the dream is the owner of the New Jersey Nets - Bruce Ratner - who not only gets the arena with public money, but help with his other real estate projects (the apartment buildings and the office towers).

The 2nd Circuit acknowledged that the power of eminent domain is a "fundamental and necessary attribute of sovereignty" but didn't really bother to explain how Mr. Ratner became the sovereign. The Court finally held that the federal courts couldn't be bothered with disputes over such things, and that if the private owners didn't like this, they should vote someone into office that would protect their interests. The Court carefully notes that the "government" has designated this area of Brooklyn as "blighted", and that many of the buildings there are vacant or underutilized. Some of the property is in irregularly shaped lots, and there is crumbling brick and flaking paint on others. In addition, the project may someday include affordable housing (on the order of 5% of the total units).

So, that's public use. When the people in America finally get tired of being run over by their government, I don't think that the change is going to be very pretty.

The US Supreme Court better hurry up

Late last week, the 11th Circuit decided that an Alabama inmate who had challenged the lethal injection protocol in Alabama waited too long to file suit. The State of Alabama changed to lethal injection back in July of 2002. When it adopted a lethal injection protocol, the State allowed inmates the option to be executed by electrocution or by injection. Willie McNair abstained, and lethal injection was the default method.

When Mr. McNair's appeals and habeas corpus options expired, he filed a suit to challenge the lethal injection that he was destined to suffer. Too late for you, said the 11th Circuit. Mr. McNair should have complained about the procedure in 2002 or at least by 2004 (two years after the change in the procedure).

So, the saga of courts refusing to recognize that the Supreme Court is actually going to decide this issue, and that going through with an execution might be determined to be a violation of the Constitution continues. Why the 11th Circuit felt compelled to decide this case - to make any decision - while the real issue is before the US Supreme Court is a mystery to me. All they had to do was wait - until perhaps June - and they would have a guide for their decision in this case. Apparently, it is really important that Mr. McNair die.

Fallout from the "Bong Hits for Jesus"

The public school in Saginaw, Michigan has a school project that they call "Classroom City". Students are assigned the task of developing a product for sale, and the school then becomes a small "city" where these products are offered, and the kids are competing for the "class room city" dollars that are the medium of exchange. Of course, the administrators have to approve of the product being sold. That all sounds like an interesting exercise in economics and such.

Joel Curry, a 5th grader at the Handley School wanted to sell candy cane tree ornaments made of pipe-cleaners, and wanted to attach a card to the product explaining why the candy cane was representative of a variety of Christian messages. The school banned the explanatory card. Joel brought suit, and lost in Curry v. Saginaw City School District.

The 6th Circuit held that the principal's decision to prohibit the Christian message on the product was within the principal's discretion. The principal thought that other students and parents might be offended by the product. Moreover, the principal thought that because the product was being sold at the Classroom City project, others might conclude that the candy cane ornaments and the accompanying card had the express approval of the school, and that the school favored Christianity over other religions.

Now, I'm not sure that I can fault the 6th Circuit's analysis of the Constitutional problems presented by Joel's candy cane and card. But, I do wonder when the populace got so sensitive to a 5th grader's class project that they thought lives would be ruined if the kid put a message on his product that inspired him, if no one else. The Classroom City project was designed to simulate the marketplace...so if the marketplace was offended or didn't like the product, I guess that young Joel would have learned that business and religion don't mix well. What Joel learned, though, is that freedom is a bit illusory in Saginaw, Michigan, and that the heavy hand of government falls on 5th graders just like it does on everyone else.

Say Thank You to Amazon.com

Last summer, a grand jury in Wisconsin sent a subpoena to Amazon.com asking it to disclose the identity of used book buyers who supposedly bought books from a guy that the government was investigating for tax evasion. According to the opinion just recently unsealed (In Re: Grand Jury Subpoena to Amazon.com dated August 7, 2006, 2007 U.S. Dist. Lexis 86563), one of the prolific used book dealers on Amazon was a fellow who sold 24,000 books onlineand didn't report the income. None of the buyers (Amazon's on-line customers) was suspected of any wrongdoing. Nor was Amazon accused of doing anything wrong. The government wanted to talk to the customers to build their case against the used bookseller.

Amazon fought the subpoena, contending that the disclosure of the reading habits or preferences of anyone was simply none of the government's business. And, the Magistrate Judge agreed. The subpoena, he said, "...permits the government to peek into the reading habits of specific individuals without their prior knowledge or permitssion". And, "it is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else."

United States Magistrate Judge Stephen L. Crocker, of the Western District of Wisconsin deserves praise for this opinion, and decision. And, I applaud Amazon.com for sticking up for its customers - which it clearly did not have to do. I can certainly envision an on-line vendor quietly supplying lists like this, and letting customers wonder how the feds got the information. Not Amazon -- they stood up for their customers.

The 5th Circuit Affirms Punitive Damages without any Compensatory Damages

In Abner v. The Kansas City Southern Railroad Co., the 5th Circuit reviewed a case under Title VII for employment discrimination. The facts are pretty bad for the Railroad...lots of "n-word" references in the evidence, along with KKK references and pictures of a noose. The jury found that the Plaintiffs were subjected to a "hostile working environment", but did not award any compensatory damages. In other words, the Plaintiffs didn't lose a job, lose a raise or promotion, or fail to receive some other benefit because of the color of their skin. But, the jury was outraged by the conduct (apparently) because it awarded each Plaintiff $125,000 in punitive damages.

The general reaction from lawyers about such an award would be that it could not stand. Punitive damages, generally, are not permissible unless there are compensatory damages. But, to my surprise, the 5th Circuit followed other circuits that have held that Title VII permits punitive damages without compensatory damages. The only prerequisite is that there be a Constitutional violation.

The reason this is permitted is two-fold. First, there is a high threshold for liability (a plaintiff must show "malice" or "conscious indifference"). Second, there is a cap on punitive damages - a system that insures that the punitive award won't be so high as to implicate due process concerns. From a plaintiff's viewpoint, this is a welcome reading of the law -- but one that I believe is highly influenced by the horrible facts. Less egregious actions in the workplace would probably not be so convincing to the 5th Circuit. From a defense standpoint, it is probably a case that is limited to its facts. I don't see any of the Circuits as likely to "binge" on punitive damages just because of this case.

Don Imus on the Golf Channel?

I was more than a little surprised to learn that an "anchor-person" on the Golf Channel was recently suspended for making untoward remarks during a golf match. KellyTilghman (who I've never heard of) was working with a more famous golfer (Nick Faldo) at the Mercedes-Benz Championship. Faldo said something about whether any of the younger players were capable of challenging Tiger Woods as the World's Number 1 player in golf. Faldo then suggested that maybe they shoudl just "gang up for a while". At which point Tilghman said, "Lynch him in a back alley". That's the only context that is reported in the news now, and I didn't see the broadcast.

One surprising thing is the Kelly is a female golfer, and my stereotype for racist remarks does not usually include females at all. The other surprising thing is that the amount of press for this remark does not seem to resemble the public outcry when Don Imus make a very tacky remark about a girl's basketball team.

Tiger Woods almost immediately remarked (through his people) that the remark "unequivocally" had no "ill intent". Al Sharpton felt otherwise, and has made his feelings known. But, other than a few remote comments on the Web, this one has been under the radar. I would have thought that golf and women's basketball were on about the same plane of public interest, but I guess not. Or maybe racist and feminine-phobic is worse than just racist.

Steroids and Alger Hiss

Your Congress has fallen back into the very bad habit of calling people before them to testify...the sole purpose of which is to HOPE that they lie so that they can be charged with perjury. Ask your father or grandfather who Alger Hiss is. He was a rock-star political guy during the Red Scare, and a not-too-well-known writer/reporter said that Alger Hiss was a communist. There was no crime that he could be charged with, so he was called before Congress to say, under oath, whether he was a Communist or not. The end result of his emphatic denial before Congress was two trials for perjury (one hung jury and one conviction). Now, all this kept the media not only employed, but very busy. In the end, though, the public got nothin'.

So it goes with Roger Clemens and Andy Petitte, and probably a later string of players. The whole point of Congressional hearings can only be to have these fellows hopefully lie before Congress so that they can be charged with perjury. The public hearings will allow the Congresspeople put on their indignant faces and publicly wonder how a baseball player could have ever made more money and received more public attention than an elected representative. The later trial will diminish these athletes in the public eye, I'm sure. But, I wonder whether the marketplace will do that by itself -- without the horrendous expenditure of public funds and energy.

If I've made myself clear in this post, it is apparent that these are not the only times that this method has been used to puff up the collective congressional chest. Other examples?