Libel

Avenatti v. Fox News Getting Funner (at Least for Law Geeks Like Me)

Third Circuit Judge Stephanos Bibas has been appointed to hear the case.

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I blogged in November about this case:

Michael Avenatti sued Fox News and various Fox News personalities Thursday for libel, stemming from Fox's coverage of Avenatti's Nov. 2018 arrest for domestic violence. Much of the Complaint consists of general condemnations of Fox News, but on p. 23 the Complaint finally comes to the particular allegations about how Fox had supposedly defamed Avenatti in particular. (Ken White [Popehat] has more.) Here are some quick thoughts on why the lawsuit is likely going nowhere.

Since then, the case has been removed by defendants to federal district court on the grounds that the plaintiffs and defendants are citizens of different states; Avenatti, though, is trying to get it sent back to Delaware state court, by joining a defendant who is a California citizen, like Avenatti. You can see the motions linked here.

Of course, motions to remand are almost never the funner part. But just this morning, the court announced that Third Circuit Judge Stephanos Bibas has been appointed to sit by designation on the case. (Circuit Judges sometimes sit by designation in district court, which is often viewed as an interesting and useful break from their normal tasks, one that gives them more of a perspective on the district judges whose decisions they have to review.)

Judge Bibas is a former Supreme Court clerk, federal prosecutor, and University of Pennsylvania law professor, indeed one of the leading conservative criminal procedure scholars of his generation. His opinions thus tend to be unusually scholarly; not everyone likes opinions like that, but I certainly do. He is also an excellent writer; so unless the case is promptly remanded, I would expect especially interesting opinions now that he's at the helm. (Indeed, maybe he can make even a motion-to-remand opinion interesting.) Will keep you folks posted.

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  1. If someone becomes libel-proof after the suit was filed, as Avenatti almost certainly has, it strikes me that the suit should be dismissed on that basis since there are no damages.

    1. That’s like dismissing a rape complaint because the woman is a prostitute. I could see someone like (convicted) mobster Whitey Bulger being libeled if someone called him an English Protestant (as opposed to the Irish Catholic he was).

      this is about us and who we are, not who Michael Avenatti is.

      1. No, it’s not like that at all. In a defamation case, your damages stem from the injury to your reputation. But if your reputation is already really bad, then what damages do you have?

        Think of it this way. Suppose someone wrote an article claiming that Ted Bundy killed 100 women, and Bundy responded, “That’s defamatory; I only killed 50.” Do you really think anyone would actually think more highly of him since it was only 50 instead of 100? And if not, then what damages does he have?

        1. You’re both right. It’s a car wax and a refreshing drink. I don’t think Avenatti is so generally disgraced to be libel-proof as to anything anyone might say about him, though his damages, given the current state of his general reputation, are likely to be small. But they would not be non-existent, so dismissal would be wrong.

          1. I suppose whether someone actually is libel-proof would be a question of fact, though there might be extreme cases, like my Ted Bundy example, in which it’s a question of law if the judge concludes no reasonable jury could reach the contrary conclusion.

            1. Isn’t that how you get damage awards of $1.00?

              1. That’s an interesting question I don’t know the answer to.

                Nominal damages would actually make a ton of sense in a libel-proof plaintiff situation, because it at least makes the statement to the world that the statement was in fact defamatory. Might be a good law review article to write about that subject.

        2. Does reputation always have to be general? Or can it be specific?

          Lets take another murderous Ted, Ted Kaczynski. Like Bundy his reputation is generally already really bad because he is the Unabomber. But what if someone claimed that he faked his academic credentials and plagiarized all his prior mathematical work? Now his reputation specifically as a mathematical genius is damaged, right? It might be very hard to say what the monetary value of that damage is, but I think you could argue that people think even worse of him after hearing that: “oh not only is he a crazy murderer, he was actually a dumb crazy murderer who cheated and lied!”

          1. I think so, too.

            1. Well, what we need is a distinction between limited purpose libel-proof figures and general purpose libel-proof figures. 🙂

  2. Trump-nominated judge follows unusual path to preside over case of (sketchy) Trump antagonist. Clingers seem to approve, with glee.

    1. Literate judges tend to write things entertaining to read.

      Kirkland, not so much…

    2. It’s amazing that after years of contributing no substance whatsoever to this blog while spamming it with the same mindless insults, Kirkland has actually managed to find a way to become more annoying, linking to irrelevant YouTube videos in his comments.

      1. You’ve been RALKed again.

      2. If you thought that comment was mindless or substance-free, you must be a partisan Republican.

        If you think the links are irrelevant, you are not paying attention.

        1. Yes, David Nieporent, the partisan Republican.

          I’m probably as close as you have to a fan round these parts. But this sort of thing ain’t helping.

  3. I thought he was going to be President?

  4. I sure wish Popehat still blogged. Twitter is a dreadful platform for such things.

  5. “…indeed one of the leading conservative criminal procedure scholars of his generation….”

    Talk about a big fish in a small pond.

  6. I find the word “funner” grating. Even if one holds the dubious view that “fun” can be an adjective, as opposed to always being a noun, “more fun” still seems better.

    1. It’s dubious to say “that was a fun ride”?

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