Why defamation law protects opinion

“Wouldn’t that make for an entertaining factual inquiry: ‘The court finds as a matter of fact that the supermodel is/is not “a skank”‘” (Planet Kauai, Jan. 7). Underlying story:

Canadian model Liskula Cohen has sued Google for a number of snarky remarks that were made by a blogger using the company’s Blogger service. The NY Daily News reports that the former Vogue cover girl has been called ‘skanky’ and ‘an old hag’ by an anonymous blogger on a website called Skanks in NYC (could be deemed NSFW).

(Robin Wauters, TechCrunch/Washington Post, Jan. 7). It should be noted that the site seems to have little purpose but to engage in vitriolic attacks on Cohen, not all of which are as obviously grounded in “opinion” as those quoted. More: ArsTechnica, Bayard/Citizen Media Law.

January 8 roundup

  • “You’ve got to be alive to be inconvenienced”: some thoughts on the withdrawal of an emergency battlefield therapy [GruntDoc]
  • Yes, let’s all have a nice scare over “third-hand” tobacco smoke, or actually let’s not [Sullum, Siegel, Greenfield] And you knew they were coming: “smokeasies” [Tuccille, Examiner]
  • “We are fully cooperating with the government in its investigations” (Hey, I never said “we” included my client) [WSJ Law Blog on Madoff case]
  • Speech so precious it must be rationed: Yale Law Journal author proposes “Tort Liability on Websites for Cyber-Harassment” [via TortsProf]
  • Rick Hills on Richardson probe: federally criminalizing state-level pay-to-play is a bad idea [Prawfs]
  • Paul Alan Levy: Martin Luther King Jr. estate, much criticized for its aggressive trademark assertions in the past, deserves due credit for its handling of a case where free speech was implicated [CL&P]
  • Lawyers on Craigslist: “If you practice as well as you spell, we’re golden” [Nicole Black, Legal Antics]
  • Yes, I’m overhauling Overlawyered’s look and feel with the aid of Thesis, a powerful “theme” (way of changing presentation) for WordPress. Expect my tinkering to go on for a while.

Difficult divorces dept.

The divorce between Dr. Richard Batista of Ronkonkoma, Long Island, New York, and his wife Dawn has taken an unfortunate turn with Dr. Batista’s demand that she return his left kidney, which he had donated to her in a transplant operation. (Or at least its fair market value) Experts predict that the court will be less than sympathetic to his request [SSFC; Sally Satel, Daily Beast] And in Nebraska, the essential level of trust and goodwill that one would hope to see in a divorce has been undercut by William Lewton’s discovery of a secret recording device concealed in his four year old daughter’s teddy bear [WSJ Law Blog]

ABA publishes flattering book as part of lawsuit settlement

Kudos to Law Librarian Blog (via Ambrogi) for this astonishing story: longtime readers may remember the bizarre defamation case filed by Philadelphia lawyer Richard Sprague against the American Bar Association over an article in which Terry Carter, a respected veteran of legal journalism, had described Sprague as “perhaps the most powerful lawyer-cum-fixer” in the state of Pennsylvania. Although the word “fixer” is long established in its meaning of “political wheeler-dealer and problem-solver”, a sense which cannot be said to imply any illegality, Sprague argued that in this instance it implied that he “fixed” legal cases. When the settlement was announced, its terms were disclosed only in part: Shannon P. Duffy of the Legal Intelligencer quoted Sprague’s lawyer, the very powerful James Beasley Jr., as saying it was a “damned good settlement.” Pennsylvania and Philadelphia in particular, as I’ve had occasion to note in the past, have a local tradition of plaintiff-friendly jurisprudence for public figures that is almost enough to make you wonder whether they exist as part of the same country as the rest of us who publish under the Times v. Sullivan regime.

But I never anticipated what was to emerge next from the ABA/Sprague entanglement. Here’s the first paragraph of Robert Ambrogi’s blog entry:

The American Bar Association’s book division recently published Fearless: The Richard A. Sprague Story. The ABA calls the biography the chronicle of “the significant events of a renowned Philadelphia lawyer” and the “compelling story of a man who wasn’t afraid to risk everything to fight for his fellow man.” Amidst all this praise for the book, the ABA never mentions that it agreed to publish it only as part of a settlement of Sprague’s libel lawsuit against it.

Sprague long represented Pennsylvania State Sen. Vincent Fumo but eventually fell out with him; he makes a cameo appearance in this vignette which itself tells much about the, um, vigorous way some figures in the Philadelphia political establishment deal with their critics. Fumo is now the defendant in a spectacular trial on corruption charges that itself deserves much more national attention than it has received. More: Philadelphia Daily News.

More from Ken at Popehat: “I’ve seen many things exchanged in aid of settlement — money, real property, personal property, apologies, handshakes, and a wide variety of promises. … However, before now, I had never seen a litigant promise to act as a vanity press.” And attorney/blogger Max Kennerly of the Beasley Firm also has a comment giving further background on the controversies, as well as on the Fumo trial, which he’s been blogging.

Thomas Geoghegan runs for Congress

Left-leaning author, lawyer and union advocate Thomas Geoghegan is running for Rahm Emanuel’s House seat in Chicago. I’ve often in the past recommended Geoghegan’s first book on labor unions Which Side Are You On?, because of its force and originality, despite my (pretty much diametric) opposition to most of his ideas policy-wise.

His most recent book See You in Court: How the Right Made America a Lawsuit Nation (2007, New Press, and out in paperback this month) showed independence of mind and a willingness to rethink received ideas, as usual, but disappointed in other respects. For one thing, Geoghegan seemed more interested in blowing off steam against conservatives and litigation reformers than in trying to understand what they actually think about the issues he raised. The result was that some of his shots fell very wide of the mark, while he missed other points that might have advanced his case. Ted wrote a much more extended critique of the book that is linked here.

Note, however, that commenter “Vail Beach” stopped by the other day to offer a more positive assessment of “Lawsuit Nation” that is worth giving thought to. The House race, at any rate, should be fun to watch. More: Kaus.

Break in “Scruggs II” Mississippi scandal?

Ed Peters, the former Hinds County (Jackson) prosecutor who’s been a central figure in the still up-in-the-air Peters-DeLaughter branch of the Scruggs scandals, has turned in his law license (via) amid much Mississippi speculation that he is cooperating with prosecutors and that other developments are imminent. NMC at Folo tries to sort things out. And, just in time to be helpful, Alan Lange of YallPolitics has an article summarizing the scandal as it’s developed thus far.

Lowering the Bar “Best of 2008”

The legal humor site has nominated its favorite stories of 2008. Among them: