Free Speech

Libel Verdict Against Founder of "Foundation for the Child Victims of the Family Courts" Upheld

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From Powell v. Jones-Soderman & Foundation for the Child Victims of the Family Courts, decided today by the Second Circuit (Judges Dennis Jacobs, Joseph F. Bianco & Michael H. Park), affirming the decision below:

[Scott] Powell brought various state law claims against [Jill] Jones-Soderman arising from her publication of allegedly defamatory statements on her public website falsely accusing Powell of sexually abusing his two minor children…. Following a bench trial, Magistrate Judge Robert M. Spector found that Jones-Soderman was liable for defamation per se and [false light] invasion of privacy because she had acted with reckless disregard for the veracity of the defamatory statements and awarded Powell $40,000 in general damages for emotional distress, as well as $60,000 in economic damages for lost income….

The district court recounted Powell's trial testimony in which he, among other things, vehemently denied the false accusations, and stated that there was "never a scintilla of truth to any of those accusations." The district court also summarized, in detail, the evidence in the record that supported a finding that the defamatory statements were false, including the fact that the Connecticut Superior Court had previously discredited the allegations that Powell had sexually abused his two children. Moreover, in its legal reasoning, the district court cited case authority that pertained to circumstances where defamatory statements are "demonstrably false and groundless." … [T]he district court found that Powell had sufficiently proven that the defamatory statements were false.

We also are unpersuaded by Jones-Soderman's argument that the trial evidence did not support a falsity finding as to her defamatory statements. As outlined in the district court's findings of fact, the Connecticut Superior Court, pursuant to a March 21, 2016 emergency application bringing sexual abuse allegations against Powell and seeking to transfer custody of his children, conducted a full evidentiary hearing regarding those allegations and concluded that Powell did not present "an immediate and present risk of physical danger or psychological harm" to his children, and that the children should be returned to his "sole legal and physical custody." Thus, in conjunction with Powell's trial testimony, the findings of the Connecticut Superior Court …, provided a sufficient basis for the district court to find that Powell had proven the falsity of the alleged defamatory statements.

The First Amendment also requires a plaintiff alleging defamation to prove that the defendant acted with some degree of fault…. [T]he requisite degree of fault a private individual alleging defamation must prove is the "constitutional minimum of negligence." … Jones-Soderman has failed to even argue that she has not acted negligently in publishing the defamatory statements, and as a result, she has waived any such argument on appeal….

To the extent that Jones-Soderman contends that Powell has failed to prove actual malice under state law …, we also find that argument to be unavailing. In Connecticut, "[a] defendant may shield h[er]self from liability for defamation by asserting the defense that the communication is protected by a qualified privilege." However, a plaintiff may prove actual malice to defeat a qualified privilege defense. "[A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth." "[R]eckless disregard may be found when an individual publishes defamatory statements with a high degree of awareness of probable falsity or entertained serious doubts as to the truth of the publication."

There is no basis to disturb the finding by the district court, after weighing the evidence and making the necessary credibility determinations at trial, that Jones-Soderman had published statements accusing Powell of sexually abusing his two minor children with reckless disregard for their truth. In making this determination regarding scienter, the district court relied on, inter alia, the following evidence:

(1) Jones-Soderman had been paid and retained by Powell's ex-spouse to conduct an evaluation so that she could try to regain custody of the two children, who were in Powell's custody;

(2) prior to publishing the allegations on her website, Jones-Soderman had reviewed clinical findings in an expert's 2011 report revealing that Powell's children may have suffered from various psychological disorders that would strongly militate against the credibility of the children's sexual abuse accusations against Powell and "conclud[ing] that the children were not being truthful in making allegations of sexual abuse";

(3) Jones-Soderman was "well aware that the earlier court records [in 2011] documented a history of neglect by [Powell's ex-spouse] and that [a Connecticut judge] had transferred custody to Powell only after considering [the expert's] reports and hearing evidence from witnesses, including [Department of Children and Families ("DCF") ] workers, school officials, [the ex-spouse's] therapist, and a former nanny of the children;

(4) "Jones-Soderman was aware, as [the Connecticut Superior Court] had noted, that previous allegations of the children against Scott Powell of sexual assault, harm, emotional neglect, [and] physical and emotional abuse were investigated by DCF, and the police, and have always been unfounded"; and

(5) "Jones-Soderman was well aware …, in particular, that [the Connecticut Superior Court] had based [its] April 2016 decision to return [the children] to Scott Powell's custody on a consideration of a substantial amount of evidence, including the complex history of this custody dispute in which there had been absolutely no support for the allegations of physical or sexual abuse" and "[t]his evidence consistently raised doubt as to the veracity of the claims [the children] leveled against their father."

As to Jones-Soderman's claim that she was acting in the best interest of the children in publishing these allegations, the district court noted that, even though she acknowledged that she was a legally "mandated reporter" of sexual abuse as an unlicensed counselor, she did not call DCF to report any of these allegations of abuse, and that her inaction "weigh[ed] against" her purported purpose.

In sum, this evidence, as well as the other evidence in the trial record thoroughly analyzed by the district court, provided a sufficient basis for the district court to conclude that Jones-Soderman acted with actual malice by virtue of her reckless disregard for the truth of her statements, particularly because under Connecticut law, "[i]t is axiomatic that a defendant who closes h[er] eyes to the facts before h[er] cannot insulate h[er]self from a defamation charge merely by claiming that [s]he believed h[er] unlikely statement." Accordingly, we conclude that Connecticut's qualified privilege defense did not protect Jones-Soderman from liability for publishing the alleged defamatory statements….

To recover economic damages under Connecticut law, "the plaintiff must prove that he suffered economic loss that was legally caused by the defendant's defamatory statements." … Powell testified that for more than a dozen years leading up to 2016, he worked as a director at a summer day camp for children ages three to ten. Powell further explained that, immediately after Jones-Soderman published her statements accusing him of sexually abusing his own children, the summer camp did not rehire him as a summer camp director and simply told him that they wanted to go in a different direction. In view of the fact that Jones-Soderman's sexual abuse accusations spoke directly to Powell's capacity to work with children at a summer camp, and considering Powell's long tenure at the summer camp and the camp's sudden refusal to rehire him immediately following the publication of Jones-Soderman's statements, we conclude that there is sufficient evidence to support a reasonable inference that Jones-Soderman's defamatory statements caused Powell to lose his summer position as a camp director….

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  1. Other than murder, about the worst thing a person can do is abuse a child. The second-worst thing a person can do is falsely accuse someone of abusing a child.

    Given the fact-finding the initial court did and given its conclusions; this seems like a reasonable, predictable, and positive result.

    [Eugene; in a case like this, I am assuming that you’d have no problem with a court order “disappearing” the prior false statements that had/have been published on the Web. Your thoughts on prospective court orders, mandating that these falsehoods (with the court specifying what factual allegations were found to be false) may not be published in the future?]

    1. I think injunctions barring the repetition of material found to be libelous — and ordering the removal of such material — may be constitutional, if properly crafted (and if they exclude fair reports of the court proceedings and other such privileged uses), see my Anti-Libel Injunctions article.

      1. Eugene probably thinks BLM’s actions in burning cities is ‘constitutional’ … redress clause perhaps? Looting just a down payment on reparations? Perhaps the modern day jews should pay the reparations as their chosen ancestors ran the slave trade.

  2. With a hyphenated name you know she’s going to be a headache in human form.

  3. Local sheriff on the radio: The reason for the metal detector in the courthouse is the Family Court, not the drug dealers and murderers in criminal court. Divorce makes people crazy, and they come in blastin’.

    This is an extremely rare decision supporting a male. The out of control, feminist lawyer profession is totally anti-male. The scum on this bench only does so because of the overwhelming legal and factual evidence, including support by the vile, anti-family feminists now totally controlling child protective services. Then they reluctantly grant a ridiculous pittance in relief, unlikely to cover legal fees.

    Feminism itself is fake. It does not exist among real people. Most females do not support this sicko, denier of reality ideology. Most women know better, and believe their eyes and experience. Feminism is a masking ideology for the rent seeking lawyer profession to plunder the assets of the productive male. When you see a female fight effectively on the screen, that is as much a fantasy as beaming up from a planet to a starship.

    Watch the first 20 seconds. Feminists are criminals attacking the females we care about. The vermin feminist lawyers at our Pentagon should be fired.

    https://www.youtube.com/watch?v=dOdNwG61vGY

    Males should know their mortal enemy, not hideous ugly feminists, but super predator lawyers. These super predators show no quarter. None should be shown them.

    1. By and large family court in the west is virulently feminist so imagine someone they think is taking it too far.

  4. Show me on the doll where the lawyer litigated against you.

  5. Eugene,

    Have courts ever delved into when a person is not allowed to believe an accusation? Is it really simply whether the judge thinks it is credible? That is ultimately what this seems to be. A court found the children’s accusations not credible so ruled for Powell. Then this court doubles down in crediting that opinion strongly enough to say that she acted in reckless disregard for the truth. Is that really enough?

    From what I read it certainly seems like it is false. I don’t have any sympathy for her, but there seems to be a very fine line (non existent) in saying that your determination of credibility is so strong that disagreement is reckless disregard for the truth

  6. The standards among the child-protection agencies are notoriously … interesting … but in a straight criminal case my understanding is that acquittal is not sufficient to show that the charge is false. Acquittal only shows that the charge was not proven beyond a reasonable doubt. Else you would think that every acquittal would automatically result in perjury or defamation judgements against the people who said the defendant was guilty.

    But maybe the child-protection people were willing to go beyond “not guilty” and all the way to “innocent”.

  7. I don’t know the facts of the case. But in a case where children are accusing a patent of something but there is doubt as to its truth, there has to be a gray area between believing the children to the point of sending the parent to jail, and disbelieving them to the point of finding anyone who repeats what they say guilty of libel.

  8. For those who are clueless, the Connecticut Family Court is traffics children, protects pedophiles and sells decisions for cash. It is run by master pedophile Judge Elliot Solomon. The jews are over represented in the judge and attorney ranks of family court, they control everything. The D. Connecticut magistrate who ruled on the defamation is a jew boy right out of Yale. Stop pretending there is law. The rabbinical court will crush its critics. Jew on!

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