Libel

"Shitty Media Men" List Libel Lawsuit Can Go Forward

Plaintiff had sufficiently alleged that the defendant didn't just create the list as a platform for others, but herself posted material about him -- though whether plaintiff ultimately prevails will depend on what discovery reveals.

|The Volokh Conspiracy |

From Tuesday's decision by Judge LaShann DeArcy Hall in Elliott v. Donegan:

On or about October 11, 2017, [Plaintiff Stephen Elliott's] name was published on a shared Google spreadsheet entitled "Shitty Media Men" (the "List"). He was identified as a "Freelance writer/novelist." Under the heading "ALLEGED MISCONDUCT," Plaintiff's entry initially stated, "rape accusations, sexual harassment."  On or about and between October 11 and October 12, 2017, the entry regarding Plaintiff was revised to read "rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???" According to the complaint, Defendant, together with certain Jane Does, outlined Plaintiff's entry in red, signaling that Plaintiff was accused of physical sexual violence by multiple women. Likewise, the column headed "NOTES" indicated that "multiple women allege misconduct." Although the entry for Plaintiff initially appeared at row 13, it was subsequently moved to row 12. Plaintiff complains that the allegations about him included in the List are false.

Defendant [Moira] Donegan is alleged to have created the List. She, along with Jane Does, circulated the List to numerous women in the media industry via email and other electronic means. The purpose of the List was to "encourag[e] women to anonymously publish allegations of sexual misconduct by men" in the media sector. According to Plaintiff, participants were encouraged to publish allegations of misconduct, whether or not they had personal knowledge of the conduct or evidence to corroborate the allegations. Defendant, together with Jane Does, actively edited, removed, organized, published, highlighted, and added to the list. Defendant is alleged to have added heading names to the columns, including, "NAME, AFFILIATION, ALLEGED MISCONDCUT and NOTES." Defendant also added a header to the top of the List that read, "Men accused of physical sexual violence by multiple women are highlighted in red."

On October 12, 2017, Buzzfeed published an article about the existence of the List, and various other news outlets reported on it. At this point, more than 70 men had been named on the List. By Defendant's own characterization, the List had gone "viral" and she took the List offline after about 12 hours.

In January 2018, Defendant published an article in New York Magazine's online division, "The Cut," identifying herself as the creator of the List.  In the article, Defendant described her perspective on the List's susceptibility to falsehoods as follows:

"There were pitfalls. The document was indeed vulnerable to false accusations, a concern I took seriously. I added a disclaimer at the top of the spreadsheet: 'This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.'"

Later in the article, Defendant went on to comment about the veracity of the claims: "Some have expressed doubts about the veracity of the claims in the document, but it's impossible to deny the extent and severity of the sexual harassment problem in media if you believe even a quarter of the claims that were made on the spreadsheet. For my part, I believe significantly more than that." …

The court first had to consider whether Elliott was a "limited-purpose public figure," which is to say someone who had voluntarily injected himself into a public controversy. If he were, then he'd have to show that any statements by Donegan knew that any statements she made about him in the context of that controversy were false or at least likely false. If he weren't a limited-purpose public figure, then he'd have to show that Donegan was negligent about the statements' falsehood. (I oversimplify here, but let's go with that.)

The court concluded that the relevant public controversy was "sexual assault, sexual harassment, and consent in the workplace," and Elliott's past writings about sex and sex crimes weren't sufficiently related to that controversy (because they weren't focused on the workplace.

The court then concluded that Elliott's lawsuit wasn't barred by 47 U.S.C. § 230, which generally immunizes online site operators from liability for third parties' online speech on their sites: Elliott, the court stressed, had alleged that Donegan had herself written or added to some of the material about him on the List. (Presumably that will be determined through further discovery.)

Plaintiff alleges that Defendant published the allegedly defamatory accusations in the List as relayed to her by another person.  Defendant argues that, if true, she is shielded by § 230 because she did not materially contribute to their allegedly defamatory meaning, and did not change the meaning and purpose of the content. However, this argument assumes a key fact not known to the Court at this juncture—whether Plaintiff materially contributed to the allegedly defamatory meaning—which is the very fact on which CDA immunity turns. That Plaintiff did not explicitly plead that Defendant materially contributed to the unlawful statements she inputted in the list on someone else's behalf is of no consequence. Defendant may not "rel[y] upon the absence of facts not pled in the complaint" to secure CDA immunity on a motion to dismiss.

Furthermore, Plaintiff also rightly points out that if Defendant inputted information into the List that was not provided to Defendant for use on the Internet, she would not qualify for CDA immunity. "The structure and purpose of § 230(c)(1) indicate that the immunity applies only with regard to third-party information provided for use on the Internet or another interactive computer service." Thus, if Defendant wrote the allegedly defamatory statements in the List that had been relayed to her by a third party—and the third party never intended that communication "be placed on an interactive computer service for public viewing"—CDA immunity would not attach…. [I]f "an individual who happens to operate a website receives a defamatory 'snail mail' letter from an old friend, the website operator cannot be said to have been 'provided' the information in his capacity as a website service." …

But the court rejected Elliott's alternative theory that Donegan had "'specifically encourage[d]' the posting of unlawful content" and was thus ineligible for § 230 immunity:

Plaintiff directs the Court to the disclaimer at the top of the List, which described it as "only a collection of allegations and rumors" that should be taken "with a grain of salt." Plaintiff argues that "[t]his statement alone could reasonably have been interpreted by the List's recipients as encouraging them to post their own 'rumors'" and "[n]owhere did the List advise users that they were only to post about their own experiences." …

Roommates.Com [a leading 2008 Ninth Circuit precedent] provides a helpful illustration as to when the design of a website can be found to have encouraged unlawful content. Roommates operated a website designed to match individuals seeking roommates. As part of the online registration form for the service, Roommates required subscribers to answer questions about their sex, sexual orientation and familial status, and their roommate preferences along these same criteria. The potential answers to these questions were pre-set by Roommates. ("Subscribers who are seeking housing must make a selection from a drop-down menu, again provided by Roommates, to indicate whether they are willing to live with "Straight or gay" males, only with "Straight" males, only with "Gay" males or with "No males.") Roommates used the responses to these questions to populate a subscriber's profile page. The Ninth Circuit found that Roommates' website, by design, "force[d] subscribers to divulge protected characteristics and discriminatory preferences, and to match those who have rooms with those who are looking for rooms based on criteria that appear to be prohibited by the FHA [Fair Housing Act]." Thus, Roommates was not entitled to CDA immunity on this aspect of the registration form. ("By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not 'creat[e] or develop[ ]' the information 'in whole or in part.'" Nothing about the registration form's pre-set answers is analogous to the List.

Rather, the List, which was circulated in a Google spreadsheet, is akin to the comment boxes in Roommates.Com. Roommates also presented subscribers with a blank text box and prompted subscribers to "tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate." Subscribers could write as much or as little as desired, and the responses were visible to other paying subscribers. Id. Certain subscribers took the opportunity to write discriminatory comments such as, "NOT looking for [B]lack [M]uslims." The Ninth Circuit found that the CDA protected Roommates with respect to these comment boxes. The court reasoned that because "Roommate[s] publishes these comments as written," "[i]t does not provide any specific guidance as to what the essay should contain," and it does not "urge subscribers to input discriminatory preferences," Roommates was not responsible for the development of this content.

As with Roommates' comment box, the possibility that someone may have entered defamatory content into the List does not mean that Defendant specifically encouraged unlawful content. That the Defendant added the disclaimer that the document consisted of "a collection of misconduct allegations and rumors" does not change the Court's conclusion.  Neither this header nor the design of the spreadsheet urges or requires users to input defamatory statements—or otherwise unlawful content—to view or contribute to the List. In other words, based on the design of the List, that Defendant circulated the List, without more, does not constitute specific encouragement of unlawful content.

That is not to say that Plaintiff's complaint has foreclosed the possibility that Defendant encouraged the posting of unlawful content. The full contours of Defendant's conduct during the approximately 12 hour period during which her Google spreadsheet was online are unknown at this juncture. Accordingly, Plaintiff is entitled to discovery on whether Defendant specifically encouraged the posting of unlawful content on the List….

And the court concluded that the highlighting in red and annotation of plaintiff's entry wouldn't themselves be creation or development of information:

Defendant is correct that "visually aggregating or classifying user content does not constitute 'creation or development' under Section 230(f)(3)." The implementation of categorization features "constitute[s] quintessential neutral assistance." [C]ategorizing information, without more, "does not transform [a defendant] into a developer of the underlying misinformation."

Here, Plaintiff's entry included "rape accusations," in the plural form.  In highlighting Plaintiff's entry in red, denoting that Plaintiff was "accused of physical sexual violence by multiple women," Defendant provided neutral assistance or generally augmented the content…. See Seldon v. Magedson (S.D.N.Y. 2012) (dismissing the case on other grounds but noting that the defendant's act of adding the heading "Sexual Pervert" to a post that detailed how the plaintiff had allegedly kept "all kinds of perverted photos on his computer" did not alter the substance, meaning, or purpose of the content for the purposes of the CDA"). Therefore, Defendant's categorization of Plaintiff's entry in the List through text or highlighting does not bring her outside of the protection of the CDA.

Finally, the court provided that "the parties shall proceed without delay to narrowly tailored discovery to address factual issues related to Defendant's CDA immunity defense….. Once such discovery is completed, the parties may move for summary judgment on CDA immunity in accordance with this Court's Individual Practices."

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  1. If he weren’t a limited-purpose public figure, then he’d have to show that Donegan was negligent about the statements’ falsehood. (I oversimplify here, but let’s go with that.)

    For a legal layman who has been frustrated for years about unaddressed distinctions in threads like this one, please explain why the standard laid down in NYT v. Sullivan does not make demonstrating a defendant’s negligence about a statement’s falsehood a proof of reckless disregard of the truth. It will help me greatly if any explanation does not in turn rely on asserting that “reckless,” disregard is different than plain old disregard, because, “reckless,” disregard is all but tantamount to knowledge of falsity. I am unable to understand why two essentially equivalent standards would have been laid down repetitively in NYT v. Sullivan. That is what I need clarified.

    1. I’m not sure I understand your question, or what is meant by “plain old disregard.” But the Supreme Court has made clear that the New York Times v. Sullivan standard is not satisfied by a showing of negligence; see, e.g., St. Amant v. Thompson (1968):

      In New York Times, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. Louisiana, 379 U. S. 64 (1964), … the opinion emphasized the necessity for a showing that a false publication was made with a “high degree of awareness of … probable falsity.” Mr. Justice Harlan’s opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 153 (1967), stated that evidence of either deliberate falsification or reckless publication “despite the publisher’s awareness of probable falsity” was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.”

      Now you may disapprove of this standard, and think negligence is the better approach. But if you’re looking for an explanation of what “reckless disregard” means in the First Amendment libel cases, here it is.

      1. EV, thank you for that. It does help to see cases cited.

        However, the cites did little to clear this layman’s mind regarding what fine distinction might rest between “a high degree of awareness of . . . probable falsity,” and, “knowledge that a statement is false.” In the cases mentioned, whatever the distinction, it seems the reader must at least suppose the later cases notably narrowed the standard for finding actual malice which was enunciated in NYT v. Sullivan.

        For instance, it strikes me as incongruous to suppose a reasonable publisher would find no distinction between Harlan’s “deliberate falsification,” and NYT v. Sullivan’s, “the statement was made with . . . knowledge that it was false . . .” Harlan’s, “deliberate falsification,” seems to describe a defamation of which the publisher is both the author and the publisher, and for which the publisher is unambiguously to blame.

        By contrast, merely false statements arise from outside sources (all the time). They typically become falsified after attempts to verify them turn up contrary evidence instead of confirmation. That latter process sometimes leads to equivocal decision-making, in which keeping track of the truth is harder than publishing the falsehood, for whatever reason. Because such errors may be as damaging (and perhaps even as maliciously inspired) as deliberate falsehoods made up on purpose by the publisher, that latter kind of carelessness also needs to be disciplined legally. I suggest that NYT v. Sullivan’s standard does usefully discipline that kind of equivocation, as it ought to, but that Harlan’s, “deliberate falsification,” standard does not.

        Likewise, for the distinction between “reckless disregard,” and, “high degree of awareness of … probable falsity.” If anything, that latter post- NYT v. Sullivan change is more pernicious than the other. For a publisher bent on targeting and damaging a victim, it creates an incentive to avoid attempts to verify allegedly true but damaging allegations. With no digging for facts, there is essentially zero likelihood of incurring a legally dangerous, “high degree of awareness of … probable falsity.” So don’t check, just publish-and-don’t-be-damned becomes a perverse rule to delight and convenience irresponsible publishers—to the detriment of the targeted victims and news quality alike.

        By contrast, NYT v. Sullivan’s “reckless disregard,” has always been most naturally read to mean publication of potentially defamatory material without appropriate efforts to verify it. Treating it that way offered a triple benefit. It gave publishers an easily-met and easily-verified standard for staying in the clear regarding libel suits. It also improved the quality of the news that got published. And it had little or no chilling effect on any speech except actual defamation.

        I don’t offer these remarks to suggest Professor Volokh is wrong on the law as it stands. I am sure he is correct. What bothers me is that in so many of the discussions I see on this subject, there have been—and continue to be—almost reverential references to NYT v. Sullivan. But it seems the rules for privileged publishing that case announced have in fact mostly been superseded by cases EV cited—very much to the detriment of defamation victims, news consumers, and press freedom.

        That seems a consequential change, worth more mention than it gets. To reduce confusion, maybe lawyers ought to stop citing NYT v. Sullivan, and refer instead to St. Amant v. Thompson.

        1. NYT v. Sullivan’s “reckless disregard,” has always been most naturally read to mean publication of potentially defamatory material without appropriate efforts to verify it.

          You are describing negligence. Negligence can result from simple error or incompetence. The same is not true for reckless disregard.

          1. Voize of Reazon, try to remember that when NYT v. Sullivan was decided, there was no internet, and almost no such thing as non-professional publishing. Publishers at that time always understood that publishing potentially defamatory material without first getting stand-up-in-court evidence was the very definition of recklessness. That is the context in which the decision was handed down.

            1. Stephen, in Harte-Hanks Communications, Inc. v. Connaughton, 491 US 657 (1989) involving a public figure the Sixth Circuit had applied a test for “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” and was corrected by the Supreme Court. Even so, there was no suggestion this test was implied by or consistent with NYT v. Sullivan‘s actual malice, it was clearly a separate lower standard.

        2. Shorter Lathrop: “I fundamentally misunderstood NYT v. Sullivan from the outset, but I can’t acknowledge that, so I’m going to accuse everyone else of changing it.”

        3. Likewise, for the distinction between “reckless disregard,” and, “high degree of awareness of … probable falsity.”

          There is no distinction. Those two standards mean the same thing.

          1. Noscitur, I thought I showed how they work differently in my comment. Perhaps I was unclear. Please try to read it again, and if you still think I have not shown a difference, I will try to explain.

            1. Your comment shows how you think the terms work differently, because you don’t understand the (venerable, extremely well-established, and non-controversial) legal meaning of the terms. Indeed, at this point I have to question the extent to which you’re actually trying to understand, but I’ll give it one more shot.

              In this context, “reckless disregard” means “high degree of awareness of … probable falsity.”

              Now, if you want to claim that geriatric newspaper editors used the phrase “reckless disregard” to mean something akin to what lawyers would call negligence, I’m not going to fight you on that. And if you want to argue that a negligence standard is more appropriate, feel free. But you’ll probably have an easier time making your case (or at least making your argument comprehensible) if you use the standard terminology instead of trying to quietly redefine them while insulting the people who try to offer an explanation.

    2. Are you asking what the difference is between recklessness and negligence?

      To show recklessness (or reckless disregard), you would need to show that the defendant was actually subjectively aware of a substantial and unjustifiable risk (in the defamation context, a risk that the statement at issue was false). If the defendant can show that they were not actually aware of the risk, you have not established recklessness, regardless of how obvious the risk was (although of course the more obvious the risk, the less plausible the finder of fact is likely to view the defendant’s claims not to have seen it.)

      To show negligence, on the other hand, you simply have to show that under the circumstances, a reasonable person would have seen the risk: it’s irrelevant whether or not the defendant actually did.

      1. Noscitur, I insist that any publisher who is on the verge of publishing a potential libel, and who is aware he has no credible source to verify the information, must be regarded as behaving recklessly if he publishes. To know it is libel if false, and to know you have no notion whether it is true or false? What could be more conclusive proof of subjective unjustifiable risk?

        1. Noscitur, I insist that any publisher who is on the verge of publishing a potential libel, and who is aware he has no credible source to verify the information, must be regarded as behaving recklessly if he publishes.

          Stephen, until you get appointed to SCOTUS. why do you think your insistence as to a constitutional issue matters? You’re sounding like Brett. We can (and do) all have opinions about how the constitution should be interpreted. But to stomp one’s foot and say, “I insist that this is what it means” is rather pointless.

          The recklessness standard is not “subjective unjustifiable risk.” It’s substantial unjustifiable risk. More than ordinary risk. The mere possibility that it isn’t true before speaking is not recklessness. If you have good reason to believe it isn’t true, and say it anyway, that’s recklessness.

          This isn’t about professional ethics, or best practices in running a newspaper. This is whether the government can punish you for publishing something.

          1. “If you have good reason to believe it isn’t true, and say it anyway, that’s recklessness.”

            What if you have no reason to believe that it is true?

            Generally we have good reason to believe that serious allegations against public people by internet randos aren’t true. If I were to post a comment that said, “Elizabeth Warren is a rapist!” and someone were to publish it outside of a section 230 context, I suspect that that would qualify as reckless.

          2. Stephen, until you get appointed to SCOTUS. why do you think your insistence as to a constitutional issue matters?

            Nieporent, you put me in mind of a software engineer called upon to automate a major university research library. He thinks he is looking at a database, from which he can extract information relevant to retrieving books, then throw the rest away, or ship it to some remote retrieval warehouse, to save floor space and expense for his client.

            The university archivist sees the card catalogue as an extraordinary research product in itself, cumulating more than a century of scholarship, by hundreds of specialist contributors. The engineer sees in the archivist an old-fashioned obstructionist—one who knows nothing about benefits engineering expertise can deliver. So the engineer goes to the archivist’s business-trained boss (who is clueless about both software and librarianship, but keen to be thought a cutting-edge administrator), to get the archivist replaced with some youngster with business training.

            The card catalogue gets junked, the books go off-site, and the books take the scholarly serendipity of the stacks with them into the darkness of the warehouses. The university builds offices for more business-trained administrators in space freed up by crippling its library.

            In general, that is the kind of thing that happens when folks with one kind of expertise get ascendancy in fields for which they lack training and experience. Lawyers led the way, being the first, and still the most successful, at telling specialists to run their specialties according to rules the lawyers prescribe, instead of according to specialists’ own rules, which the lawyers can’t be bothered to learn or understand.

            Which brings us to:

            The recklessness standard is not “subjective unjustifiable risk.” It’s substantial unjustifiable risk. More than ordinary risk. The mere possibility that it isn’t true before speaking is not recklessness. If you have good reason to believe it isn’t true, and say it anyway, that’s recklessness.

            Sure, if you are a lawyer.

            But if you tell that to an experienced publisher, while insisting that to publish potential defamation is okay, even with no prior attempt to verify its truth, then you are trying to run a publisher’s business according to lawyers’ rules. That is unwise.

            In the case of publishing and defamation, your impulse to use legal power to govern specialized activity you neither experience nor understand will lead you to a factual error. A bad one. Because it is absolutely certain that any news publisher who practiced even briefly the standards you insist upon, would very soon inflict damaging defamations. If that publisher persisted, it would happen again and again. It is not remotely possible to publish accurately without confirming specific facts prior to publication.

            The risk is never, “mere possibility,” the risk is ever-present—and opportunities to go wrong are commonplace. So commonplace that they completely satisfy your suggested criterion: “If you have good reason to believe it isn’t true, . . .”

            Except for truisms (the opposite of news, of course), every story, at its outset, satisfies that criterion. A publisher always has good reason to suppose a newly presented story isn’t true, because experience will have taught that so many stories aren’t. And that would be experience with what you get from trained reporters working conscientiously to the best of their abilities. With self-taught reporters, practically nothing will be accurate enough to publish, unless first vetted and corrected.

            Even in high-end news publishing, controversial stories which turn out to be founded on reliable information are probably less common than the others, which can’t be proved, or which can be proved false. Both those latter categories are routinely discarded, with a result that the public vastly under-estimates the magnitude of the effort used to build an imposing scrap heap the public never sees.

            Thus, a publisher ignoring ever-present risk of doing serious harm is reckless. Maybe not to a lawyer. Maybe not to you. But if so, that only shows you don’t know enough to insist on rules for others who have experience to know more. With every news story, the likelihood of inaccuracy is so high, that publishing potentially defamatory allegations without first verifying them is indeed reckless, every time.

            1. Sure, if you are a lawyer.

              Defamation is a legal doctrine.

              But if you tell that to an experienced publisher, while insisting that to publish potential defamation is okay, even with no prior attempt to verify its truth, then you are trying to run a publisher’s business according to lawyers’ rules. That is unwise.

              You ignored what I wrote above: “This isn’t about professional ethics, or best practices in running a newspaper. This is whether the government can punish you for publishing something.”

              Thus, a publisher ignoring ever-present risk of doing serious harm is reckless. Maybe not to a lawyer.

              Just as defamation is a legal doctrine, recklessness in the context of defamation is a legal term. You are free to call the conduct, or any other, reckless, but it’s no different than calling it irresponsible, or stupid, or mean: a personal opinion, not a legal argument.

        2. You can insist all you like. And if you want to colloquially refers to that as reckless, that’s your prerogative. For all I know, journalists in the 60s would indeed of called that behavior reckless themselves. But as a legal term of art, what you’re describing would generally be negligence, not recklessness.

          That’s not an endorsement of failing to verify information before publishing, of course: people shouldn’t generally act negligently either. And you can certainly argue that you don’t think that the recklessness requirement is appropriately justified. But I don’t think there’s much ambiguity about what the standard actually is.

          1. Noscitur, I am not saying what you say I am saying. I am saying that, “high degree of awareness of … probable falsity,” describes exactly the state of mind of a typical newspaper publisher whenever he confronts a potentially defamatory allegation, but has not yet taken steps to verify its truth. So if that formulation is what defines recklessness, then every time a publisher goes ahead and publishes without verification, he acts recklessly according to your own description of the legal standard.

            You and Nieporent seem to want to make the entire question of recklessness depend on a legal definition of reckless conduct in general, without reference to facts. Two points:

            1. The standard in NYT v. Sullivan did not stop at, “reckless.” It introduced complexity, by, “reckless disregard of the truth.” And then it added more complexity, when it distinguished “reckless disregard,” from knowledge of falsity. That distinguishing sets NYT v. Sullivan’s, “reckless disregard,” apart from a more general legal concept of reckless conduct. You and Nieporent seem to want to set the value of that distinction at near zero. That raises a question why NYT v. Sullivan, if it intended only a minuscule, almost-imperceptible distinction, did not say so, instead of inviting a stronger interpretation, as it did with its forthright, “or.”

            2. The reformulation of NYT v. Sullivan’s “reckless disregard,” upon which you rely, does not invoke only legal definition, it also invokes a matter of fact. Once again:

            In this context, “reckless disregard” means “high degree of awareness of … probable falsity.”

            That “awareness,” is of course the publisher’s awareness, which I discussed above in this comment, and more extensively in a previous comment. I do not see how you can ignore what publishers are aware of, or insist the content of a legal definition takes care of the factual part, the awareness, as well as the law part, the definition.

            As for the question of what the standard actually is, I conceded in my second comment on this thread that EV set that standard out, and I do not question him on it. But I was able to note, because EV cited cases, that the source of the standard EV and you guys now invoke seems not actually to be the language in NYT v. Sulllivan, but instead language from subsequent cases. I still do not understand why lawyers now seem so reluctant to concede what seems obvious—that subsequent cases eroded NYT v. Sullivan’s concept of reckless disregard to the point where it has become almost an equivalent of knowledge of actual falsity, from which it had previously been distinguished.

            1. the source of the standard EV and you guys now invoke seems not actually to be the language in NYT v. Sulllivan, but instead language from subsequent cases

              Except that NYT v. Sullivan didn’t only define the standard, it applied it too, and in a way consistent with those later cases. There was evidence that Times staffers relied on the reputations of the sources (actual and purported) of the advertisement instead of independently verifying its content. They didn’t even check in the paper’s own files for stories that would have exposed the ad’s statements as false. I expect you would call that recklessly unprofessional, but the Court said

              We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.

              Justice Brennan would not have written this if his conception of reckless disregard had agreed with yours.

    3. Your first question appears to be asking how and why negligence and recklessness are not the same thing. While these terms cannot be defined with mathematical precision, it is not like they were invented in this case. They are used all the time in all aspects of both civil and criminal law. One is a much higher standard of wrongdoing than the other.

      Your second question was a bit harder to parse, but seems to contradict your first, in that it appears to acknowledge the very high standard that recklessness constitutes, but then complains that such a standard is too close to an intentional standard. But that’s not an error; it’s the point: it has to be knowing, or very close to it. It’s not redundant; if they didn’t include the recklessness standard, then a speaker could escape liability every time merely by saying, “Well, I didn’t know with 100% certainty that it was false.” The court was closing that escape hatch. But it wasn’t trying to create liability merely for failing to do a good job.

  2. Back in the early 1990’s, a group of rabid feminists at some otherwise-reputable university printed lists of random male students under the heading of “potential rapists.”

    I never understood why they didn’t get hit with a libel suit.

    1. University of Maryland — not bad for 27 years, if I do say so myself.

      https://www.baltimoresun.com/news/bs-xpm-1993-05-08-1993128032-story.html

      “Women in a feminist art class here apparently believe so. About 10 of them plastered the campus with fliers last week listing the names of virtually every male student under the heading, “NOTICE: THESE MEN ARE POTENTIAL RAPISTS.””

    2. probably because it was a statement of opinion (“potential”), not fact (they are rapists). . Also clearly hyperbole – e.g. “all replublicans are idiots” is not libellous even if you feel personally offended.

      1. But they didn’t just say “all male students are potential rapists” and leave it at that; they included specific names. I don’t think anyone sued so we can’t know how it would have gone, but it was rather scummy either way.

      2. opinion implying knowledge of undisclosed defamatory facts

      3. And the all republicans are idiots thing is a horrendous analogy when you are plastering a specific person’s picture above the rapist caption.

        Maybe they could use ‘potential’ to weasel out of it but that would make avoiding defamation liability all to easy

        1. Isnt that the sort of tactic that Trump uses all the time “Someone told me…” or ” I have heard…”

          1. I don’t think words of that sort afford him any legal protection against a liable action.

      4. Yes, but what if one of the defamed men, figuring that all was lost, decided to slice the throat of one of these women “expressing an opinion”?

        Society is like a canoe, and people somehow expect it to not roll over….

        1. Your fantasies are getting more and more disturbing. You need to seek professional help.

          1. Why the lack of civility? Dr. Ed seems a standard-issue disaffected conservative.

          2. They are not fantasies, they are taken from actual crime reports.
            People do snap if pushed enough.

            1. Find your safe space, Dr. Ed!

  3. I wish the court hadn’t used the past tense verb ‘inputted’. I checked my dictionary, and, yes, it is accepted, though the simple ‘input’ might be preferable. If it was nudged into the hole using a club, that might be ‘inputted’.
    ‘Input’ as a verb is of much more recent origin than ‘input’ as a noun; as verb it comes across as jargon, and could usually be better avoided by using a different verb, such as ‘enter. But I grant that the court as focusing on the technical aspect of the question, who put in the input? Perhaps it’s the best verb for the situation. But i would still have used ‘input’ as its own past tense.

  4. The school probably has a right to fire the dean for any reason or no reason.

    But prospective deans with strong credentials might seriously want to consider applying elsewhere. Why would you want to work for a school that fires good people arbitrarily and capriciously, not even having enough respect for its employs to bother to deny rumors that the firings were due to some twitter mob or other?

    Who would want to work for such a school?

    1. Because ALL schools are like that today.

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