*Update*- There are indications on the internet that the article I cited as a good explainer was plagiarized from an earlier Tweet-thread by Natalie Whittingham Burrell: @natlawyerchic on Twitter. Ms. Whittingham Burrell’s thread predates the ATL article – she posted on June 2, per Twitter. ATL indicates in an Ed note that they received the draft article on June 3. So, while the language is different, the issues raised, the discrepancies cited and even case law references are the same. I’m going to leave my post which references the Warshow article on ATL, but I’m going to add links to the Whittingham-Burrell thread, which, even if it was not plagiarized, had the scoop on ATL. Also, Ms. Whittingham-Burrell included some photographs in her thread that are very useful for context.
I was only able to watch small fractions of the trial, and edited posts on social media often don’t shed much light on the subject, so I’m happy to share a more thorough analysis. Out-of-context clips can give one a lopsided view of a trial, when it needs to be seen in totality to truly understand the verdict. I found an excellent explainer from Diana Warshow on Above the Law that really digs into the allegations and the evidence presented to the jury. This is about the most comprehensive one I’ve seen, and it addresses many of the questions I’ve heard about why the jury found in favor of Depp, despite Heard claiming evidence of injuries.
One issue this article doesn’t get into is the likability of witnesses, which goes heavily to their credibility. Johnny Depp is a huge movie star whose testimony was generally well-received by outside observers, judging by the social media reaction. Amber Heard, while being a move star in her own right, is not as well known or successful as Depp has been, and her testimony was not apparently as well-received by the general public as indicated on social media. In light of the verdict, one suspects that the perception of the testimony, both from a likability standpoint, and in light of contradictions pointed out in the ATL article, the jury certainly found Mr. Depp’s testimony more credible.
I’m not taking sides on Team Depp or Team Heard, but the jury who listened to weeks of testimony had a clear winner in awarding millions more to Mr. Depp.
Again, Twitter commentator Natalie Whittingham-Burrell had an excellent tweet-thread with some reasons why Depp won.
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.
Former Bengal Cheerleader Sarah Jones
Former Ben-Gal Sarah Jones successfully sued theDirty.com publisher Nik Richie for rumors posted on his website. She was awarded over $300,000 by a Kentucky jury on the civil suit. The case will be heard today by the Federal Appellate court in Cincinnati. What’s at issue, and why the case is being watched by internet publishers everywhere, is the liability of the website for content that was not posted by theDirty, rather by internet commentors. The appellate decision will have far-reaching implications for internet publisher’s potential liability for third-party contributors. A decision probably won’t be handed down for several months.
Jones also made news for her relationship with a student for whom she was a teacher. She was convicted of a related misdemeanor in that case. Crimcourts has had extensive coverage of the Jones cases: https://crimcourts.wordpress.com/category/ohio/sarah-jones/
UPDATE: Cincinnati.com has more on the 1st Amendment implications of the court’s decision on this case.
Posted in Civil, Criminal Law, Federal, First Amendment, Ohio, Sarah Jones
Tagged bengals, cheerleader, cincinnati, defamation, kentucky, nik richie, sarah jones, sexcrime, thedirty
Former Ben-Gal, Sarah Jones, is going back to court in her defamation suit against thedirty.com. The case went to trial several months ago, and ended in a hung jury. The second trial starts over from scratch, and promises to ratchet up the excitement. Among Ms. Jones’ witnesses are former Bengal kicker Shayne Graham, while thedirty has listed her ex-husband and the detective who investigated her criminal case. Additionally, her attorney Eric Deters is fighting a suspension for unrelated sanctions by the bar. Since he is challenging the suspension, he is still able to practice law and try the case. It’s got everything: sex, pro sports, and betrayal. Jones’ attorney is asking for a judgment large enough to shut down the website, but has the substantial task of proving harm to the reputation of his client, whose reputation has suffered major public setbacks. It should be fun to follow.
Former Ben-Gal Sarah Jones
The jury deadlocked after their second day of deliberation in the former Bengal cheerleader Sarah Jones’ defamation case against TheDirty.com and it’s owner, Nik Richie. According to wcpo.com, the jury was 9-1 in Jones’ favor, though this would only indicate liability, not what amount would be awarded. I have previously speculated that even if TheDirty is found liable, the 11 million dollars requested seems exhorbitant. Jones’ attorney, Eric Deters, has previoiusly indicated he would try the case again if the jury deadlocked. The results of this trial will have little to no bearing on any retrial of the case.
The jury is now deliberating whether TheDirty.com is liable for defamation for the posts about her. She is seeking $11 million in damages. The jury could be back this afternoon, or it could continue late this evening or even another day.
UPDATE: The jury has not reached a verdict today, and has broken for the night. They will be back to deliberate tomrrow:
Former Ben-Gal Sarah Jones
TheDirty.com blogger known as Nik Richie testified today, as did Ms. Jones. Regardless whether he is liable for the comments of others, Ms. Jones will have a difficult time proving damages, as today she testified that she did not lose either job after the post was made. She is almost certainly a public figure, providing Mr. Richie more leeway for commentary, and a higher burden on her to prove her case. Also, she could come across as greedy for asking for 11 million dollars. She may be entitled to some money for the harm to her reputation, but not 11 million dollars. This case is essentially unrelated to her criminal case for sleeping with her student.
George Zimmerman has sued NBC for defamation, going back to the story they did where they selectively edited the recording of the 911 call. NBC cut out when the dispatcher asked what race was the young man who Mr. Zimmerman was subscribing. In doing so, it made it look like he volunteered the race himself, right after saying the individual was up to no good. It gave a clear impression of racism that played into one of the major issues of the case. NBC previously published a correction and apology, saying the edit was an error. I am skeptical of their claim of an error. #standyourground