The Volokh Conspiracy
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Libel Verdict Against Founder of "Foundation for the Child Victims of the Family Courts" Upheld
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….
