The Volokh Conspiracy
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Todd Levitt, "Badass Lawyer," Loses a Third Libel-Related Appeal (with an Emotional Distress Claim)
"In this day and age, one must accept the possibility that one might be recorded in public. That possibility heightens when one chooses to engage in vitriolic behavior."
Longtime readers of the blog may recall Todd Levitt, the self-described "Badass Lawyer." As I wrote back in 2016, Levitt's main client pool was apparently students from Central Michigan University, so he tried to cultivate an edgy image (hence the "Badass" title), and promoted it through YouTube videos and a Twitter feed. This led to three lawsuits:
1. In the first, he sued a CMU student who created a parody of his Twitter feed; a trial court threw out Levitt's libel lawsuit, and the Michigan Court of Appeals affirmed, concluding that the feed was indeed a parody and thus not libelous. (I argued in the case on behalf of amici, with the help of my invaluable local counsel Michael F. Smith.)
2. In the second, he sued local media outlets for reporting on an award that he had "won," in the context of reporting on the first case:
In August 2014, The Morning Sun … published an article discussing Levitt I with the headline, "[L]awyer suing student admits to fake award[.]" … The article stated that plaintiff created the website "topcollegelawyers.com," and that the website announced plaintiff as the winner of a College Lawyer of the Year award.
It's rarely a good sign for a libel plaintiff when part of the Court of Appeals opinion in his case begins with:
Substantial truth is an absolute defense to a defamation claim.
The court went on:
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….
[P]laintiff 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.
3. But wait, there's more, don't answer yet, just look at what else you get: Levitt then sued various people for their supposed misconduct stemming from the first two incidents. On Tuesday, the Michigan Court of Appeals rejected those claims as well; here's a sample of the analysis:
The heart of Levitt's [intentional infliction of emotional distress] claim appears to be the audio recording of the incident with [Kenneth] Sanney. Specifically, plaintiff objects to [Gordon] Bloem submitting the recording with [Bloem's] Request for Investigation to the Attorney Grievance Commission. Similarly, plaintiff argues that it was egregious for James Felton [the father of the student whom Levitt sued in the first case] to share the recording with "anybody who wanted it."
However, the circumstances under which the video was taken were anything but private. Plaintiff's altercation with Sanney took place on a public sidewalk. And although Sanney may have instigated the incident by calling plaintiff a "clown," it is clear from the transcript of the recording that plaintiff escalated the confrontation by verbally berating Sanney.
Given those circumstances, James Felton's decision to audiorecord the incident6and subsequently share it others was not extreme and outrageous. [Footnote: We note that although plaintiff claimed to not be aware that the incident was being recorded, James Felton testified that he removed his phone from his pocket during the incident to begin recording and held his phone by his side thereafter. Thus, while plaintiff may have been distracted by Sanney, there were indications that the incident was being recorded.]
In this day and age, one must accept the possibility that one might be recorded in public. That possibility heightens when one chooses to engage in vitriolic behavior. There is a concomitant possibility that such recordings will be shared with others and posted to the Internet. In sum, we conclude that the recording and sharing of a rant on a public sidewalk cannot reasonably be regarded as extreme and outrageous behavior. [Footnote: We do not mean to suggest that third-party posting or publishing of private statements or activities cannot give rise to a viable action for IIED.]
Similarly, we fail to see how the sharing of materials already published on the Internet supports an IIED claim. For instance, plaintiff takes issue with Angela Felton sharing plaintiff's Tweets with campus police and CM Life. Plaintiff also relies on Bloem's decision to send the Attorney Grievance Commission a YouTube skit that plaintiff appeared in. However, that content was freely available to anyone online, having been published by plaintiff or with his consent. Under those circumstances, a reasonable jury could not conclude that sharing plaintiff's content with others constitutes extreme and outrageous behavior.
There are other claims, and a return visit of our old friend "The substantial truth of a statement, however, is an absolute defense to a defamation claim." And it helps understand what makes Levitt's ass so bad: The skin on it is a bit on the thin side.
