Famed attorney Alan Dershowitz sued CNN for defamation related to its coverage of his argument in the first Trump impeachment trial. He alleges that CNN misleadingly edited a clip of his statements to give a false impression about his argument… and then propagated that misperception by replaying the clip and repeating it through pundits who based their arguments on the inaccurate summary of his statement. CNN filed a motion to dismiss, arguing that his claim does not rise to the high level needed to show defamation against a public figure, among other things. The judge ruled that the claim does meet that burden, allowing the case to go forward, and scoring a huge win for Dershowitz.
One of the arguments made by CNN is that their coverage of Dershowitz’s arguments should be protected by the fair report privilege. The court agreed that verbatim statements in a public proceeding like an impeachment trial are generally protected when they are repeated verbatim, or are an “accurate or a fair abridgement.” But here, Dershowitz’s claim was that there was a deliberate scheme to defraud by playing the truncated clip, and then playing the pundits’ statements to present the comments in a defamatory matter. He will still have to prove it at trial, but Dershowitz’s allegations are sufficient to defeat the motion to dismiss. The court agreed with Dershowitz that “CNN presented an official proceeding in a misleading manner and the fair report privilege does not apply.”
This is bad for CNN. The court went on to explain that the abridgement of Dershowitz’s statement was inaccurate, in that it omitted a crucial qualification. The court said CNN could argue to a jury that Dershowitz’s statement was ambiguous and that CNN was reasonable in its belief about what Dershowitz argued. That’s a tough sell in light of the qualifying statements that CNN chose to redact from the clip. A failure to defeat a motion to dismiss is usually when media companies see the writing on the wall and look to settle. But beyond the liability for damages here, it’s bad for CNN because the judge essentially made a finding that CNN was presenting false reporting. The court said, “For the fair report privilege to apply, a defendant must have ‘presented a fair and accurate report of the source documents.’ The CNN broadcasts do not meet that standard.” [citation omitted].
Ouch. The “Most Trusted Name in News” just had a federal judge make a finding that it failed to present fair and accurate information.
This could also be bad for other media outlets, particularly those of the cable talk-show type. While it may feel good for them to dance a little over CNN’s misfortune, many other stations have used the format where they play a clip, and then have pundits attack the speaker. This ruling suggests than if they A: play a clip that is edited or redacted so as to be misleading, and B: then repeat it through pundits, even if those commentators couch their punditry as criticism. That’s been a common practice on many media outlets, and CNN has now shown that they can be called on that practice. This is an important ruling for defamation law.
I wrote yesterday how the Spacey defense team, led by attorney Alan Jackson, filed what initially appeared to be a rather unimpressive motion to preserve evidence. But, I soon realized that the reason the motion was filed was more about putting the defense theory on record: making their argument in formal court documents which then filtered to the press. Not only that, the arguments were made without having to give any statements, much less any sworn testimony, and it has already served to rebut the charges and spread doubt about the allegations, which already appears to have landed an impact with some of the year-round Nantucket residents that will constitute the potential jury pool.
The screencapture on the left is from the front page of CNN.com, which shows that the motion made pretty big news, and it stayed on the front page much of the next day. It also got a headline on The Drudge Report that indicated that Spacey claims the victim “lied about his age” and was flirting, which linked to the story on the NY Daily News. That’s some effective lawyering. The ongoing challenge for the defense team will to be to discourage the management team from releasing videos that fail to further the defense narrative the defense is building.
Actor Kevin Spacey has been charged with a felony count of indecent assault and battery in Nantucket, Massachusetts. He is accused of groping a then-18-year-old bus boy at a restaurant where the young man worked in 2016. Spacey has been accused of multiple allegations of sexual misconduct, but this is the only one that has yet resulted in criminal charges. The charges were only filed after publicity, including press conferences by the alleged victim and his mother, who is a former news anchor on Boston TV. The case is a problematic one, as the accuser lied about his age, returned to accept several drinks Spacey bought him, and even traded phone numbers with Spacey before the alleged unwanted advance. Prosecutors will have a very difficult time proving the charge beyond a reasonable doubt, a point that has been well explained elsewhere.
I write today to discuss an action that Spacey’s defense lawyers took this week that I think is clever. They filed a motion to ask the court to order preservation of records, specifically texts and other digital correspondence from the accuser in the case. Initially, I was surprised because a motion to preserve doesn’t have much effect on a criminal case: the government is bound to not only preserve evidence, but to turn it over to the defense in the discovery process. They even have to turn over evidence that is helpful to the defense, known as Brady material. So why would they bother filing such a motion.
Then, reading about the motion on CNN.com, it occurred to me that the thrust of the article was about the defense argument being put forth by the defense attorneys. The article lays out the arguments of the defense, then the State, and circles back around to reiterate the ‘highlights’ of the Defense motion. While the motion claims its primary purpose is to preserve the evidence, the real purpose of the motion was twofold: to rebut the filings of the State and start sharing facts positive to the defense in a public forum, and also to shift the discussion away from Spacey’s arraignment. The arraignment dominated the news cycle, but the most recent story, at least at CNN.com, counters the allegations and makes a cogent defense argument to the general public. A clever gambit by a defense team that is helping their client in the public forum as well as the legal forum.
Former SWFL Congressman Trey Radel, who has been keeping a low profile since stepping down form his elected position after a drug arrest, has recently stepped back into the spotlight for the specific purpose of addressing the harsh sentences for nonviolent drug charges, and especially minimum mandatory sentences. In his CNN article, Radel makes several points that we have expressed on Crimcourts before: that such sentences don’t treat the problem of drugs, and are wildly expensive burdens on tax payers. He makes some good points: it’s worth checking out.
Here’s some of our past articles on Minimum Mandatory sentences.
I’m glad they keep saying it, because maybe cops will stop arresting people who are exercising their First Amendment Rights. Earlier: CNN Wants to Remind You it is Legal to Record Officers This was our link a few months ago: https://crimcourts.wordpress.com/2014/11/20/cnn-wants-to-remind-you-it-is-legal-to-record-officers/
Screen Capture of Afroman Swinging at Fan
Afroman Mug shot
Joseph Foreman, best known as Afroman for his his “Because I Got High” was arrested in Biloxi, Mississippi this week for slugging a fan who climbed on stage. The young lady danced up behind him, and when she tried to rub on him, he abruptly turned and took a swing, as you can see on the video. He was later arrested for assault. He has apologized for his actions, saying he needs help for anxiety. And just yesterday, Vanilla Ice got arrested for Burglary.
Who’s next? Lou Bega gonna find the Mambo No. Five-Oh? Fiona Apple to be come a real Criminal? I hope Rico Suave doesn’t mess up his show! (Is that still on?) The edge on one-hit success here goes to Vanilla, who actually got his name in the headline. Poor Afroman is just referred to as “one-hit wonder” on Cnn.com. Oh look, CNN also wants to remind us again it is legal to film cops.
The Afroman video:
CNN did a decent story on an issue we have covered several times on Crimcourts. It’s worth checking out, be sure to check the video for the setup, in addition to the text story. The guys featured were legally carrying money for poker, and the cops grabbed it all. The Justice Department has been stepping back from participating in these civil asset forfeitures. There is a private company running seminars teaching cops how to do this… officers are literally planning to come up with ways to seize citizen property: that’s scary.
Thanks for sharing, Michael.