Free Speech

Libel Case Can't Be Litigated with the Alleged Libel Sealed, Says Federal Court

"Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case."


From Friday's opinion in Parson v. Farley, 2018 WL 5779570 (N.D. Okla.), the background:

Sometime prior to April 16, 2016, Plaintiff Carl Parson … served as administrator of the estate of Defendant Don Farley's … brother and sued Farley to recover property allegedly taken by Farley from his brother's estate. On April 16, 2016, Farley allegedly sent a letter containing false and defamatory statements about Parson to the Inola Chamber of Commerce …. When the Letter was sent, Parson was a candidate for the Oklahoma House of Representatives. [He lost, but then ran and lost again in 2018.-EV] On May 23, 2016, Parson filed a Petition in Rogers County, Oklahoma, asserting claims against Farley for libel and false light invasion of privacy, seeking money damages, along with temporary and permanent injunctive relief. Parson alleges that Farley published the Letter to the Inola Chamber of Commerce out of "hatred, ill will, malice, and only with the desire to intentionally injury [Parson] as a business owner."

When filing the Petition, Plaintiff moved to file the Letter under seal pursuant to Oklahoma law governing sealed court records. On May 23, 2016, the state court entered an Order to Seal a Portion of the Record with Findings of Fact and Conclusions of Law …. The court found in relevant part: (1) the Letter contains words that "without hearing on the merits tend to be actionable by themselves or are opprobrious and that the Letter clearly refers to the Plaintiff"; (2) "additional publication by filing in the public record of the Letter … would only serve to further harm the Plaintiff's right to privacy"; and (3) "an order can be narrowly tailored … to keep that portion of the record sealed and prevent irreparable harm to the Plaintiff … until such time as the matter can be heard on its merits or further order of this Court." …

When I learned about the case, I moved to intervene and unseal, arguing that the public had a First Amendment and common-law right to see the allegedly defamatory letter and some related documents, so as to better understand what the case was all about. Friday, Magistrate Judge Jodi F. Jayne (to whom the district judge referred the case) agreed, applying the common-law right of access; she held that there was no need to decided whether there was also a First Amendment right of access. The letter and the documents were presumptively public documents:

The Letter … is at the center of the controversy and forms the basis of both legal claims; the public cannot understand this litigation without access to the Letter…. The Letter is also now attached to a dispositive motion, which renders it highly relevant to the adjudicative process…. The other requested documents—the 7/28/16 Motion to Dismiss, the 1/12/18 Dispositive Motion, and Parson's affidavit—are dispositive motions or an attachment to a dispositive motion. Without question, these records are relevant to adjudicating the parties' rights; are relevant to the performance of judicial functions; and will assist Volokh and the public in understanding the reasons for the Court's substantive decisions. Therefore, the requested documents are judicial documents to which a presumption of public access attaches….

[T]he sealed Letter, and the sealed dispositive briefs and their attached exhibits, are central to adjudication of the controversy. By asking to maintain the Letter under seal throughout the lawsuit, Parson is essentially asking the Court to shield the entire litigation from the public. Without the Letter and dispositive motions discussing the Letter's contents, the public lacks any meaningful access to the proceedings. Therefore, although the district court has yet to expressly rule on dispositive motions, the Court finds the sealed materials are the type of "judicial documents" entitled to a "strong presumption" of public access….

And Parson's interest in preventing the allegations in the letter from being learned by the public wasn't enough to rebut this presumption of openness:

The common-law right of access to judicial records recognized by the Tenth Circuit "is not absolute." The presumption can be rebutted when "countervailing interests heavily outweigh the public interests in access." To satisfy this standard, the party seeking to maintain documents under seal "must articulate a real and substantial interest that justifies depriving the public of access to the records that inform [the] decision-making process."

Parson argues that the Letter should remain sealed because it is false, libelous, injures his business reputation, and contains private information that will subject him to "suffering and embarrassment." Parson argues his privacy interests are substantial due to the "outrageousness" of the allegations and his strong likelihood of success….

Upon weighing Parson's interests in maintaining the privacy of the disputed judicial documents against the public's interest in access to the adjudicative process, the Court concludes public access must prevail. The Letter accuses Parson of scurrilous behavior, calls him names, and essentially seeks to dissuade others from supporting Parson in his candidacy for state representative. It is less than one page long and written in the form of a bulletin or flyer. If believed, the Letter could potentially damage Parson's reputation, business, and political ambitions.

However, the Letter does not reference Parson's sensitive or private information, such as bank account records, social security numbers, or family members' names. Nor does it reference or name any third parties or their sensitive information.

This is a garden-variety libel case involving a few allegedly false statements about an individual running for office that are embarrassing and potentially injurious to his reputation and business dealings. Parson has failed to articulate any privacy interests that "heavily outweigh" public access and warrant the drastic remedy of preventing the public from understanding the nature of his lawsuit. Courts have held that injury to one's reputation and potential embarrassment generally do not outweigh the strong presumption of public access attaching to judicial documents. See Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (embarrassment flowing to plaintiff based on allegations in her own complaint regarding ongoing feud with family and disclosure of Alzheimer's diagnosis was not "sufficiently critical" to outweigh strong presumption in favor of public access); In re Se. Milk Antitrust Litig., 666 F. Supp. 2d 908, 915 (E.D. Tenn. 2009) (noting that "harm to reputation" is generally not sufficient to overcome presumption in favor of public access); Hillsboro Feed Co. v. Biro, No. 2:13-cv-405- PJK-LAM, 2013 WL 12329129, at *1 (D.N.M. Sept. 17, 2013) (declining to seal judicial records that included "highly-personal, unflattering details" about personal relationships and allegations about a party's mental health); cf. Giuffre v. Maxwell, 325 F. Supp. 3d 428, 446 (S.D.N.Y. 2018) (finding strong presumption of public access to summary judgment records was outweighed by privacy interests of "dozens of non-parties who provided highly confidential information relating to their own stories … in reliance" on a protective order, and where pleadings contained sensitive information about sexual abuse of minors).

Further, the Court finds Parson's privacy interests in the Letter particularly uncompelling, because Parson was running for public office when the Letter was written and the Letter expressly references his candidacy.

Parson seems to assert that the Court should test Farley's defenses and, presumably, deny the motion to unseal if Parson is likely to succeed on the merits of his libel or false light invasion of privacy claims. This argument misses the point. If Parson succeeds at summary judgment or trial, the Letter's contents will be the focal point of that adjudicatory process. If the Letter and its contents remain sealed, future court proceedings would need to remain sealed, and the public would be excluded from the process.

The public would be unable to determine whether and to what extent a candidate for public office successfully prosecuted a libel claim and obtained compensatory and/or injunctive relief. Volokh, the proposed intervenor, wants to review, understand, and comment on these legal proceedings both due to his interest in First Amendment jurisprudence and to assist the public in checking the integrity of the judicial branch. These are proper and laudable purposes.

Although Parson appears to believe his lawsuit is a private matter, he is mistaken. By seeking money damages and injunctive relief in a court of law, he subjected himself to public court proceedings, including any consequences of further public disclosure of the Letter…. "Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case." ….

Parson has until Nov. 16 to decide whether to appeal; if he doesn't, the documents will be unsealed.

NEXT: On "Shadowy Billionaires," Conspiracy Theories, and Lies

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  1. I’ve never been a litigant in my life and don’t plan to be (and have been enough of a rare lifelong boyscout type to not have anything particularly embarrassing in my background). But that could change tomorrow. I only need one, suitably determined individual to fancy himself my enemy and put me in the defendant’s chair for anything but a SLAPP. Then they can fish for damn near any intimate detail of my life they feel like, and the whole discovery becomes either public record or something they can release to the public. Nowadays all depositions are taped, and mine might even go on YouTube.

    In this case I agree with the unsealing. Plaintiff is an elected official, and the public interest is overwhelming. Also, among the reparative goals of libel law, I think, cannot reasonably be construed as aiming to disappear libelous statements already made, or to try to minimize future public access to their content in any way. That cannot be how it is supposed to work. Rather, it should aim at material compensation for the victim, deterrence, and ameliorating injury from the libel to the plaintiff’s public reputation not through making its contents inaccessible, but by adding to them the fact of record that they have been judged libelous.

    1. …That said, I hope that the trend becomes to weigh the common-law right to public access to litigation as meagerly as possible, and the potential for embarrassment to a litigant or witness as generously as possible. Again, the rules of discovery allow damn near any personal details your enemy desires to obtain to become public record; and with technology redefining “public record” by essentially destroying any practical limitations to access, we have to think about the society we want to live in. Privacy is not just something to be protected directly against government–something libertarians often seem a bit blinkered about. Sunshine sometimes has its price too.

    2. Courts have and enforce the power to enter protective orders to prevent discovery abuse and to prohibit disclosure of deposition videos, and in appropriate circumstances to prohibit disclosure of discovery material to the press, the public, and other lawyers and staff.

    3. While publicizing all discovery is obviously a bad idea, the fact that it is the core of a libel case makes it all the more compelling to publicize.

      After all, if it’s true, then it cannot be libelous, so it must be a vicious lie. That makes it all the more compelling to release it, listed as a lie. How can we know what sort of slander it is unless we see it?

    4. I guess we’re all going to pretend that we haven’t heard of the Streisand effect?

  2. Courts have more value than just due process. They are public fora, public so the government cannot scurrilously get away with stuff.

    It sucks this guy is libeled, but if he wants to take advantage of this system, dragging it out into the public is the name of the game.

    Just like the First Amendment isn’t about the inherent value of every last bit of terrible speech, but rather about the value of blanket forbidding government the power of censorship. There are more powerful principles at work.

    1. Who is this “the government” you’re talking about? The government isn’t a party to a defamation suit.

      Also, it seems to have escaped your attention that libels aren’t protected speech.

      1. 1. The government that is being asked to impose liability on the defendant, and indeed to enjoin the defendant’s speech.

        2. Libel is not protected speech, because “there is no constitutional value in false statements of fact” (in the words of the Gertz majority). But there is value in reporting court proceedings, and in having access to those court proceedings — even when some of the statements quoted (or made) in those proceedings are libelous. Certainly the common law recognizes this (both under the fair report privilege for reports of what happens in court and the common-law right of access). Constitutional law also recognizes this in the First Amendment right of access, recognized by nearly all appellate courts that have considered it; I’m inclined to say that the First Amendment would also require recognition of the fair report privilege, but I don’t know of any definitive precedent on that.

    2. Was he libeled? We haven’t even gotten around to figuring that out . . .

      From the description, I’m skeptical anyway — he was candidate for public office, the bar for libel on public figures is quite high. And the ‘harm to business’ line is so common that, while it may be true occasionally, is usually a laugh line.

  3. Let me see if I got this straight: under traditional common law anyone who repeats a libel – up to and including the printer – is themselves guilty of libel. But somehow the court is not only allowed to repeat the libel, which would make sense since court proceedings generally attract absolute privilege, but is in fact required to repeat the libel? That’s weird enough as a conclusion based on 1st amendment law, but seems particularly odd as a matter of common law.

    1. And yet that is precisely the common-law rule, which this decision vindicates: Court proceedings and court records are, under the common-law right of access, open to the public. And the reason is that vindicating people’s reputations — whether it’s the reputation of libel plaintiffs, or of criminal defendants, or of civil defendants accused of fraud and other misdeeds — must yield to the public’s interest in monitoring what the government (the courts that are being asked to resolve the dispute) is doing. That may not always be so (grand jury proceedings are a classic exception), but the common law has recognized that it’s so for virtually all judicial proceedings.

    2. under traditional common law anyone who repeats a libel – up to and including the printer – is themselves guilty of libel.

      Wait seriously? So a newspaper who prints “Famous actress accuses powerful studio boss of sexual misconduct” is guilty of libel (false statement of fact) for making a 100% factually true statement? That can’t possibly be right.

      I think maybe we are fundamentally at odds at what it means to ‘repeat a libel’. The sentence “Party X claims Y” is not the same as stating Y as if they both are equivalent representations of the truth of Y.

      Would it matter if we turned the object of the sentence into a dispute over the facts? “Actress and studio boss dispute whether sexual misconduct occurred” or “Studio boss disputes actress’s claim of sexual misconduct”? Surely those are both well outside the normal meaning of false statements of fact . . .

  4. This discussion moved me to post more about the republishing-defamatory-allegations question; see this post.

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