Defamation on Facebook: Why a New York Court Dismissed a Recent Suit, Part One in a Two-Part Series of Columns FindLaw By JULIE HILDEN Tuesday, August 17, 2010
On July 22, a New York state-court judge dismissed a defamation case based on comments that were posted by a group of teenagers to their private Facebook group. (The Citizen Media Law Project has collected together the documents relating to the case.)
...The group's prior, jokey practice and the way it labeled itself are both relevant here, because past comments can influence the way in which group members interpret later comments, and thus can affect whether later comments are taken seriously. And a comment that is not taken seriously by anyone who reads it cannot inflict reputational damage, and thus cannot support a defamation claim.
To put the point another way, defamation precedent insists that statements be read in context, and here, the group's practice of posting comments that were meant to be jokes seems to have been part of the context in which everything that was posted was read.
Thus, invoking the First-Amendment-driven defamation exceptions for "rhetorical hyperbole" and "vigorous epithets," the court dismissed the case -- essentially on the ground that no one in the group could have believed that the statements at issue were true statements of fact...
Dan Shinoff thinks he can make false accusations and get away with it, but that he can stop this blogger from telling the truth about him. With Superior Court judges like Judith Hayes, he might be right.
A letter from Dale Gronemeier, attorney for former Del Mar Union School District Superintendent Sharon McClain, to DMUSD Board of Trustees attorney Daniel Shinoff offered responses to a number of Shinoff's comments made in an interview published on DelMarTimes.net.
The letter, dated April 26, was "a demand on behalf of Dr. Sharon McClain" that Shinoff retract four "false and defamatory statements" made in that interview.
The first issue concerns the $16,000 payment the district was to make to California's State Teachers' Retirement System on behalf of McClain, and the ensuing dispute over a change in the language of this section of her contract.
Gronemeier objected to Shinoff's statement in the interview that "there is no paperwork to support a change in her contract."
"As you well know because [you] have received the document on multiple occasions, the Board of Education agreed on June 17, 2009 to the change proposed by Dr. McClain - but then after it hired you, the board's majority and you refused to acknowledge the board's action," Gronemeier wrote.
Gronemeier attached to his letter a copy of the minutes of the DMUSD's June 17, 2009, special board meeting that included item #5 which read: "Motion to approve revisions to contract between the Board of Trustees of the Del Mar Union School District and Sharon McClain, Ed.D." The motion was made by Katherine White, seconded by Comischell Rodriguez and passed unanimously. The contents and exact wording of the revision were not revealed in the minutes.
Related to the STRS issue, Gronemeier said Shinoff, by innuendo, blamed McClain "for the breakdown in settlement negotiations."
"As you well know," Gronemeier wrote, "settlement negotiations were sabotaged by the board majority because Dr. McClain made a settlement proposal and proposed a mediator to try to get the matter settled, but the board declined to even respond or further negotiate in response to her last settlement offer."
Gronemeier said these statements "have a defamatory sting because they attribute to Dr. McClain the conduct of demanding that the board do something it had not agreed to do."
Holding an open meeting
Gronemeier's second concern was Shinoff's statement that McClain "chose not to have those [charges against her] heard in open session despite the fact that she asked for an open session." This referred to the school board meeting on March 31 when she was fired.
But Gronemeier said McClain did ask for an open session in order to hear the charges against her. "The interactions which you attempt to mischaracterize as Dr. McClain choosing not to have the cause(s) heard in public arose from sneaky conduct on your part to which Dr. McClain objected," he wrote.
Gronemeier said Shinoff told McClain just before the meeting began that each party should be allowed to speak for 20 minutes. "A fair-minded person would have communicated this expectation in advance rather than trying to disadvantage his adversary by communicated [sic] it at the 11th hour," Gronemeier wrote.
Gronemeier said McClain had expected to speak for five minutes, a time limit to which Shinoff agreed just before the meeting began, at McClain's urging. But McClain's attorney said McClain still expected the charges to be delivered against her, in those five minutes, and was prepared "to respond to whatever you or the board majority had dreamed up. But Dr. McClain is not long-winded, and she knows that there is no valid cause to terminate her contract. So she would have had a short message if you had articulated the purported cause(s)."
He said this "has a defamatory sting" because it suggests "that Dr. McClain has something to hide and did not want the purported cause(s) part of the public record." It also relieves "the board majority and you of the responsibility of articulating them."
Cause for termination
Thirdly, Gronemeier said Shinoff implied that McClain "is lying about knowing the cause(s) for termination of her contract." McClain has responded "to every potential 'cause' to terminate her contract that you have drafted for the board majority ... by rebutting what was false in such documents and by remediating where there was even arguably anything to remediate," he wrote.
Gronemeier said she "was and is mystified as to what purported cause(s)" exist for terminating her. He said this "has a defamatory sting because it asserts that Dr. McClain is lying to the community" as to what her knowledge of the cause(s) may be.
Releasing invoices
Gronemeier's fourth point challenges Shinoff's statement that McClain's action to release Shinoff's invoices last December was a violation of the law.
In the April 15 interview, Shinoff said, "How could she who had retained a lawyer go through attorney-client communications and decide what she was going to release? She couldn't do that. She's not a lawyer."
Gronemeier said this comment was objectionable because McClain did not release the invoices on her own but had an attorney redact the invoice descriptions.
"Your invoices are a public record; the public is entitled to know the fees that are being paid to you," he wrote. "The invoices have no legend indicating that they are protected by the attorney-client privilege (nor are they nor would that insulate them from public disclosure)."
He said the invoices were available to Dr. McClain "in the ordinary course of her duties" and that "it is simply untrue that Dr. McClain violated any law by disclosing those invoices."
This too "has a defamatory sting because it asserts that Dr. McClain is breaking the law," Gronemeier wrote.
Damages
In conclusion, Gronemeier demanded retractions of Shinoff's statements. "They create liability for slander and conspiracy to libel for your client, for you and for your law firm," he wrote, adding that a retraction would not necessarily eliminate legal harm to McClain but that McClain "would prefer to avoid litigating these issues and would forego suing for the defamations if they are appropriately retracted."
The letter was sent to Shinoff, with copies to the five DMUSD board members, McClain and Marsha Sutton, who conducted the April 15 interview.
The complete letter, all eight pages, was posted on Facebook and a Del Mar blogspot site on April 27. McClain acknowledged she released the letter to a parent in the district.
Shinoff response
In response to Gronemeier's letter, Shinoff replied within one hour with the following terse message: "I have reviewed your letter of April 26, 2010, demanding that I retract statements that I made to the reporter for the Del Mar Times. The reporter correctly reported what I said and I am confident that I can prove the truth of every statement that I made to her.
"I do not believe that you can show falsity in any statement, even by innuendo or implication. Further, I believe that a court would determine that Dr. McClain is a public figure and the discussion is of interest to the public, so you would have a very difficult time with a defamation action, even if there had been a factual misstatement. Finally, you would be subject to dismissal under the anti-SLAPP (strategic lawsuit against public participation) statute if you did proceed with litigation over the alleged defamation.
"I will not agree to retract anything that I said to the press. I stand by both the words I said, and the gist of the words."
UPDATE: The San Diego Reader came out with a story today about Stutz client San Diego County Office of Education--SDCOE. In the Rodger Hartnett case, SDCOE has disobeyed court orders. Surely Stutz believes Superintendent Randolph Ward belongs in jail, or does Stutz simply think that its clients and itself are above the law, and only its opponents in civil law suits should be jailed (see below)?
UPDATE: REPLY TO STUTZ LAW FIRM
Richard E. Romero, Esq. Stutz Artiano Shinoff & Holtz, APC Dear Mr. Romero:
I am aghast at your message, sent by a public entity law firm.
Stutz Artiano Shinoff & Holtz isn't interested in getting a determination of constitutionality before asking that an opponent in a civil case be jailed for 5 days?
And at the same time Stutz has demanded that I not be allowed to say that Stutz law firm has a habit of using the threat of jail against opponents in civil cases!
Have you no respect for the Constitution? Or for your obligation as an officer of the court not to use the justice system for your personal benefit?
Maura Larkins
UPDATE: STUTZ LAW FIRM REPLIES:
To: Maura Larkins Feb 3, 2010 RE: Meet and confer: Would your client object to a stay of proceedings in Stutz v. Larkins?
We object. -- Richard
Richard E. Romero, Esq.
ORIGINAL POST:
To: Richard Romero Feb 2, 2010 Meet and confer: Would your client object to a stay of proceedings in Stutz v. Larkins?
Hi Richard; I'm writing to find out if Stutz law firm objects to a stay of proceedings while I petition the Court of Appeal for a Writ of Prohibition/Mandate/Review.
Particularly since you are asking for sanctions including jail time, fines of $2500.00, a daily fee, and attorney's fees of over $$6500.00, it is an urgent matter to have the permanent injunction, which contains prior restraints that are tremendously broad in addition to having been interpreted by the court as extremely flexible and vague, submitted for examination by Court of Appeal.
I am planning to file an ex parte application asking for a stay of this proceeding while I appeal the constitutionality of the judge's rulings.
Former French prime minister Dominique de Villepin has been acquitted on charges of orchestrating a smear campaign against President Nicolas Sarkozy. The verdict opens the path for Mr. de Villepin's political return.
In a statement following the verdict, Mr. de Villepin saluted the Paris court that delivered the judgment for its courage in allowing justice to prevail over politics.
...Several other defendants were convicted on a variety of charges and another was acquitted.
...Mr. de Villepin was accused of complicity in slander and forgery in a tangled case involving bogus kickback accounts. The fake accounts were part of a larger campaign to smear the image of French President Nicolas Sarkozy and other top political figures...
