The Volokh Conspiracy
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Plaintiff Frederick Theodore Rall III, a political cartoonist and blogger, sued [The Los Angeles Times] after it published a "note to readers" and a later more detailed report questioning the accuracy of a blog post plaintiff wrote for The Times. The Times told its readers that it had serious questions about the accuracy of the blog post; that the piece should not have been published; and that plaintiff's future work would not appear in The Times. Plaintiff sued … alleging causes of action for defamation and for wrongful termination in violation of public policy, among other claims….
In May 2015, the LAPD was enforcing the city's laws against jaywalking, and The Times reported on the effects of costly jaywalking fines on poor and working class Angelenos. After that report, plaintiff submitted and The Times published a cartoon mocking the LAPD for its jaywalking policy ("LAPD's Crosswalk Crackdown; Don't Police Have Something Better to Do?"), along with a May 11, 2015 blog post that described plaintiff's own arrest for jaywalking in 2001.
In the blog post, plaintiff wrote that he had crossed the street properly ("I was innocent of even jaywalking") when a motorcycle officer "zoomed over, threw me up against the wall, slapped on the cuffs, roughed me up and wrote me a ticket. It was an ugly scene, and in broad daylight it must have looked like one, because within minutes there were a couple of dozen passersby shouting at the cop. [¶] Another motorcycle officer appeared, asked the colleague what the heck he was thinking and ordered him to let me go, which he did. But not before he threw my driver's license into the sewer." Plaintiff's blog also stated he had filed a formal complaint with the LAPD, and when he called a few months later, he was told the complaint had been dismissed, and "[t]hey had never notified me." …
On July 28, 2015, The Times published, in its opinion section, an "Editor's Note[:] A note to readers." The note to readers described plaintiff's May 11, 2015 blog post, and then described records that the LAPD provided to The Times about the incident plaintiff had recounted in his blog post. These included the complaint plaintiff filed at the time, and "[a]n audiotape of the encounter recorded by the police officer."
The note to readers stated the audiotape "does not back up [plaintiff's] assertions; it gives no indication that there was physical violence of any sort by the policeman or that [plaintiff's] license was thrown into the sewer or that he was handcuffed. Nor is there any evidence on the recording of a crowd of shouting onlookers." The note to readers continued:
"In [plaintiff's] initial complaint to the LAPD, he describes the incident without mentioning any physical violence or handcuffing but says that the police officer was 'belligerent and hostile' and that he threw [plaintiff's] license into the 'gutter.' The tape depicts a polite interaction. [¶] In addition, [plaintiff] wrote in his blog post that the LAPD dismissed his complaint without ever contacting him. Department records show that internal affairs investigators made repeated attempts to contact [plaintiff], without success. [¶] Asked to explain these inconsistencies, [plaintiff] said he stands by his blog post. [¶] As to why he didn't mention any physical abuse in his letter to the LAPD in 2001, [plaintiff] said he didn't want to make an enemy of the department, in part because he hosted a local radio talk show at the time. After listening to the tape, [plaintiff] noted that it was of poor quality and contained inaudible segments."
The note to readers concluded: "However, the recording and other evidence provided by the LAPD raise serious questions about the accuracy of [plaintiff's] blog post. Based on this, the piece should not have been published. [¶] [Plaintiff's] future work will not appear in The Times. [¶] The Los Angeles Times is a trusted source of news because of the quality and integrity of the work its journalists do. This is a reminder of the need to remain vigilant about what we publish." …
On August 19, 2015, in response to questions from readers, The Times published a piece that provided "a detailed look at the matter by Times editors" (the Times report). After describing the blog post and its note to readers, the Times report stated that plaintiff had "complained that The Times acted unjustly, based on flawed evidence," and "demanded that the paper retract its note to readers and reinstate him as a contributor. [¶] In response, The Times has reexamined the evidence and found no basis to change its decision."
The decision is long, but basically concludes:
[1.] Rall's libel claim loses, because of the "fair report" defense—under that defense, fair and accurate reports of official proceedings, including police investigations, are categorically immune from libel liability. (This is a state-law defense, though in one form or another it exists in all the states; the California version is especially broad.) Any additional statements by the Times beyond their account of the police report were either closely linked to the report, or couldn't be libelous because they did not "imply a provably false factual assertion":
The allegedly false statements not directly related to the LAPD investigation, along with plaintiff's assertions about them, are: (1) "[t]hat the Times interviewed [plaintiff] about discrepancies between the LAPD records, the tape and his blog post." (Plaintiff says this is false because there were no discrepancies, but clearly there were.) (2) "That Officer Durr had never handcuffed anyone for jaywalking." (Plaintiff asserts Officer Durr has handcuffed a suspect for illegal street racing.) (3) "That the LAPD told the Times that the audio has no indication that the tape was spliced or altered." (Plaintiff says there was no way to determine that because the audio was digital and not the original tape.) (4) "That Rall has offered changing versions of the 2001 detention over time and those changes are 'significant.' " (Plaintiff says there are no changing versions, just "different levels of detail.") (5) "That no version of the recording of the 2001 detention … supports the allegation that Durr was violent, hostile, rude and belligerent." (Plaintiff cites as evidence of falsity his declaration describing what he heard a radio talk show host say (which is inadmissible hearsay), and what he heard on his enhanced recording. Both plaintiff's and The Times's statements are subjective conclusions about what could and could not be heard.)
[2.] Rall's "blacklisting" statutory claim, brought under a California statute bans any employer from "by any misrepresentation prevent[ing] or attempt[ing] to prevent [a discharged] employee from obtaining employment," loses for the same reason as his libel claim. "[A]side from any other defects, plaintiff's blacklisting claim arises from the same source as his defamation claims—the Times articles—and is subject to the same limitations. (See Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1043 ["the various limitations rooted in the First Amendment are applicable to all injurious falsehood claims and not solely to those labeled 'defamation' "].) As we have found, the Times articles were absolutely privileged. This eliminates plaintiff's blacklisting claims along with his defamation claims."
[3.] Rall's wrongful discharge claim loses, because there's no law forbidding a newspaper from firing employees (or contractors) based on things they say in their published material, or even based on their having offended government officials. "[E]ven if The Times had fired plaintiff 'in retaliation for offending the police chief'—a claim that is belied by plaintiff's own evidence that The Times published many of plaintiff's cartoons criticizing the LAPD and Chief Beck—plaintiff has identified no constitutional, statutory or regulatory provision that would have been violated."