The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Longtime readers of this blog may recall Todd Levitt, the self-described "Badass Lawyer" from Mt. Pleasant, Michigan. Levitt promoted himself this way to students at Central Michigan University, where he also taught a class; his persona unsurprisingly led to some pushback, including a parody Twitter feed by CMU student Zachery Felton called "Todd Levitt 2.0." Levitt then sued Felton for libel, losing at trial and then again on appeal; the courts accepted Felton's parody defense. (My students and I filed an amicus brief supporting Felton.)
A local newspaper then faulted Levitt for creating a "College Lawyer of the Year" prize, which his hand-picked selection committee promptly awarded to him; Levitt claimed the newspaper libeled him by mischaracterizing the matter in some measure, and this time the trial court let the case go forward. But Levitt lost on appeal, because the appellate court concluded that the headline was substantially accurate:
In this case, although it is technically true that plaintiff did not "admit" that the College Lawyer of the Year award was "fake" or admit in a court document that he "awarded" the "'top college lawyer' recognition … to himself," we conclude that these inaccuracies do not alter the complexion of the affair and would have no different effect on the mind of the reader than would the literal truth. The facts of this case demonstrate that plaintiff admitted that he commissioned the topcollegelawyers.com website and created the College Lawyer of the Year award to generate profits. He further conceded that he established the criteria for the award, chose the persons who comprised the committee that selected the award recipient, won the award, and then broadcast this as an accomplishment on a marketing website. Although the article contained slight inaccuracies, we conclude that the sting of the article's headline would not have a different effect on a reader than the literal truth.
Then Levitt sued Gordon Bloem -- one of Zachery Felton's lawyers in the earlier case -- and Felton's parents and others for yet another set of supposedly defamatory (and otherwise tortious) statements. Tuesday, Levitt lost yet again, in trial court. The court concluded that some of the supposedly defamatory statements were largely accurate, and others weren't actionable for various other reasons. No word yet on whether there is another appeal in the cards, but here's an excerpt from the trial court decision (Levitt v. Bloem):
In 2014, Zachery Felton created a parody Twitter account called "Todd Levitt 2.0." As a result, plaintiff sued Zachery Felton, who was represented in that lawsuit by Gordon Bloem. Said lawsuit was dismissed by this court after a finding that the parody account was protected free speech under the First Amendment to the United States Constitution. The Court of Appeals upheld this court's dismissal.
Soon after plaintiff filed the lawsuit against Zachery Felton, in June 2014, there was an incident outside plaintiff's CMU campus law office. Defendants James Felton and Kenneth Sanney walked past plaintiff and a verbal altercation occurred. Defendants allege that, as they walked past plaintiff, plaintiff took a few steps toward them, began glaring at them, and leaned toward them in a threatening way. Mr. Sanney muttered under his breath, "What a clown." Plaintiff then began shouting obscenities at Mr. Felton and Mr. Sanney. A few minutes into the exchange, Mr. Felton began recording the incident with his phone.
Defendants subsequently made a police report and gave a copy of the audio recording to Officer Browne with the Mt. Pleasant City Police Department. Mr. Felton also gave a copy of the recording to his wife, defendant Angela Felton, as well as others who approached him and asked for a copy. Mr. Felton estimates that he gave the recording to about 10 to 12 people. Mr. Sanney also got a copy of the audio recording that he then gave to an employee at CMU. On June II, 20I4, a copy of the audio recording was posted to the website SoundCloud and a link to the SoundCloud file was posted on the website Reddit. When Mr. Sanney and Mr. Felton became aware of these postings, Mr. Sanney contacted both websites and informed then that James Felton, the owner of the audio file, did not consent to the audio file being shared online. Both websites removed it. The defendants deny editing the audio recording or posting the audio recording online, and defendants further deny having any knowledge of who did post the audio recording.
Defendant Angela Felton denies distributing the audio recording in any way. Ms. Felton admits to going to the police with concerns for the safety of her son, Zachery Felton, after Mr. Levitt directed tweets at Zachery that Ms. Felton believed were threatening. Ms. Felton was afraid that someone would act on these allegedly threatening tweets and cause harm to her son. Ms. Felton provided law enforcement with copies of Mr. Levitt's tweets, as well as a copy of a Google search of how many parody Twitter accounts are in existence and a few copies of other parody accounts. However, Ms. Felton was concerned that she was not being taken seriously by law enforcement, and so she also provided a copy of these documents to the campus newspaper CM Life.
The Morning Sun published an article on February 19, 2015 about this court's dismissal of plaintiff's claims against Zachery Felton. Defendant Gordon Bloem, who had represented Zachery Felton in that matter, is quoted as saying, "We are glad to see the judge found what we knew all along, that this is protected free speech." The article further stated:
Bloem said Felton's legal team will be talking to their client and discussing next steps. Bloem said they feel some of the media techniques Levitt has used to market himself, including creating a top lawyer prize he then awarded to himself, are unethical according to the guidelines that govern the legal profession. It's possible they may pursue those issues with the attorney grievance committee.
Plaintiff alleges claims of libel and slander, false light, civil conspiracy, and intentional infliction of emotional distress against defendants Bloem, Sanney, James Felton, and Angela Felton….
[In the earlier Levitt v. Felton case, t]his court found that Zachery Felton's parody Twitter account was protected free speech, and this finding was affirmed by the Michigan Court of Appeals. Therefore, defendant's statement, "We are glad to see the judge found what we knew all along, that this is protected free speech," is clearly not defamatory because it is true.
The article also stated that Mr. Bloem had a concern that some of Mr. Levitt's media techniques may be unethical and was considering pursuing this with the Attorney Grievance Commission. The article stated that Mr. Bloem's concerns stemmed from Levitt's creation of a top lawyer prize he then awarded to himself. Plaintiff's previous claims against the Morning Sun Defendants in this case were based upon this February 19, 2015 article. The Michigan Court of Appeals found that … [the article's claim] was substantially true. Subsequently, as he stated to the Morning Sun, Mr. Bloem did file a grievance against Mr. Levitt with the Attorney Grievance Commission.
Because all of Mr. Bloem's statements reported in the February 19, 2015 Morning Sun article are true, these statements are not defamatory….
Plaintiff alleges that Mr. Bloem publicized a claim from a CMU student that Mr. Levitt was giving out extra credit to his students who followed him on Twitter without knowing whether it was true. In his deposition, Mr. Bloem testified that a student complained to him about Mr. Levitt's extra credit practices. In 2013, in the hallways of the courthouse, Mr. Bloem was conversing with prosecuting attorney Stuart Black and attorney William Shirley about the "allegation that had been made." Mr. Bloem testified that he did not know whether the allegation was true, and that he was seeking to find out the truth when he asked Mr. Levitt about the allegation at the same time he was discussing it with the other attorneys…. Because this allegation was not made as a factual statement, it is privileged.
Plaintiff also alleges that Mr. Bloem reported to Mr. Felton that plaintiff did not keep his students in class long enough based solely on a comment from William Shirley without verification as to its truth. However, the cited lines from Mr. Bloem's deposition transcript … do not show that Mr. Bloem repeated this claim to anyone other than Mr. Levitt himself. Mr. Bloem testified,… There is no evidence that this statement was communicated to a third party, which is one of the elements plaintiff must prove in an action for defamation.
Plaintiff also alleges that Mr. Bloem told Mr. Felton that plaintiff gave extra credit to his students to follow him on Twitter and agreed to cancel class if he got a certain number of followers on Twitter. Plaintiff attached an email from Mr. Bloem to Mr. Felton listing these two allegations as "rumors" that Mr. Bloem was "in the process of trying to confirm." Again, … [t]he email to Mr. Felton cannot be reasonably interpreted as stating actual facts about the plaintiff because Mr. Bloem clearly indicated that he did not know whether these allegations were true and that he was in the process of trying to confirm them. Therefore, the statements in the email are privileged.
Plaintiff also alleges that Mr. Bloem responded to Mr. Sanney being "fine with the prosecutor just dropping everything" about the audiotaped incident with Mr. Levitt in an email by stating, "Yea, but I am not dammit …" … However, this is a statement about Mr . Bloem's feelings about a case being dropped. This is not a false and defamatory statement concerning plaintiff.
Plaintiff also alleges that Mr. Bloem gave out copies of the audio recording of the incident between Mr. Felton, Mr. Sanney, and Mr. Levitt. Mr. Bloem testified that he gave copies to "some people" because "people were curious."
The audio recording features plaintiff speaking and shouting obscenities at Mr. Felton and Mr. Sanney. Plaintiff alleges that the recording was edited, but has failed to provide any documentary evidence in support of this claim. Further, plaintiff has failed to provide any documentary evidence showing anything false or defamatory about this recording. In fact, when asked at his deposition, Mr. Levitt himself could not explain why the audio was defamatory, stating, "I can't answer that right now. I don't know. I have to think about that for a minute." Because the audio was a recording of plaintiff speaking, it is not false or defamatory, and so Mr. Bloem's distribution of the recording cannot be defamatory….
Finally, plaintiff alleges that it was defamatory when Mr. Bloem provided the Attorney Grievance Commission with a copy of a YouTube video of a skit plaintiff participated in. It is unclear what the nature of this skit is. However, plaintiff admits that he participated in the skit, which was publicly available on YouTube. It is unclear how distributing a publicly available video of a skit in which plaintiff participated could be construed as false or defamatory….
Plaintiff has also brought a claim of intentional infliction of emotional distress against Mr. Bloem. In order to maintain an action for intentional infliction of emotional distress, a plaintiff must show the following elements: (1) extreme and outrageous conduct, (2) intent or recklessness by the defendant , (3) causation, and (4) severe emotional distress…. The allegedly extreme and outrageous conduct on the part of Mr. Bloem is the same conduct that plaintiff alleged was defamatory in Count I. However, this court found that Mr. Bloem's statements and the distribution of the audio recording of Mr. Levitt were not actionable as libel and slander. Mr. Bloem made several statements about Mr. Levitt that were not defamatory, were not published to third parties, or were protected by the First Amendment. Such conduct does not satisfy the extreme standard set forth by the Michigan Court of Appeals….
Plaintiff also brought a claim of false light against Mr. Bloem. In order to maintain an action for false light, a plaintiff must show that the defendant broadcast to the public in general , or to a large number of people, information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position. The only statements made by Mr. Bloem that were broadcast to either the public in general or a large number of people were his statements which were included in the February 19, 2015 Morning Sun article. As held by the Michigan Court of Appeals, this article was substantially true. Therefore, Mr. Bloem's statements did not attribute to Mr. Levitt characteristics, conduct, or beliefs that were false or place Mr. Levitt in a false position…..
Plaintiff claims that Mr. Sanney and Mr. Felton interfered with his business by distributing the audio recording of the altercation that occurred between the three of them during which plaintiff shouted obscenities at the defendants…. When the conduct allegedly causing business interference is a defendant's utterance of negative statements concerning a plaintiff, privileged speech is a defense….