Free Speech

Risky Pleading in Sex-Related Libel Cases

If plaintiff broadly claims that defendant libeled her by "imputing unchastity," she risks having to disclose a lot about her sexual history.

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From Judge Dominic Lanza's opinion Thursday in McKnight v. McKnight (D. Ariz.):

The core allegation in this action is that Defendant  …, a "well-known singer" and the estranged father of Plaintiff  …, posted a video on his social media accounts in August 2019 in which he falsely accused Plaintiff of "having sex" with "an older cousin" when she was a minor. Based on this allegation, Plaintiff has asserted claims against Defendant for defamation and false light invasion of privacy.

The current dispute arises from how Plaintiff chose to characterize the elements of her defamation claim in the complaint. In paragraph 30, the complaint alleges as follows: "On August 16, 2019, the defendant published the above-alleged defamatory statements imputing unchastity to the plaintiff."

During the discovery process, Defendant propounded interrogatories to Plaintiff. As relevant here, one interrogatory asked Plaintiff to "[i]dentify all persons with whom you had sexual contact of any kind prior to August 15, 2019" and another asked Plaintiff to "[d]escribe each sexual encounter you had prior to August 15, 2019, including the person involved, their age at the time, the place the encounter occurred, and the nature of the encounter (e.g., kissing, holding, petting, intercourse)." … [At a later hearing,] Plaintiff argued that the interrogatories were overbroad and oppressive because they weren't limited to the sex-with-a-cousin allegation and instead sought information concerning her entire sexual history, while Defendant argued that because Plaintiff had chosen to characterize her theory of defamation as "imputing unchastity"—an allegation that is far broader than an allegation of incest—she had opened the door to an inquiry into her sexual history, because truth is a defense to defamation and evidence of prior sexual activity would show that any imputation of unchastity was true.

During the hearing, the Court expressed agreement with, and sympathy toward, aspects of Plaintiff's position, noting that "I am as uncomfortable as one can be with the idea of forcing an 18-year-old … woman … to have to answer discovery requests concerning her sex life. I know how private and intensely personal those things are, and I wish that there was some way that we didn't have to go there." Nevertheless, the Court also noted that Defendant's arguments had some force in light of the peculiar wording ("imputing unchastity") of the complaint….

Thus, the Court asked Plaintiff's counsel to explain why Plaintiff had chosen to use that particular phrase in the complaint…. Plaintiff's counsel responded by providing an answer that, at the time, was confusing to the Court. On the one hand, counsel seemed to acknowledge that the "imputing unchastity" language wasn't legally required. On the other hand, counsel then stated, without citation, that "the only reason those words appeared in the Complaint is because that's how Arizona law terms defamation. And so I had to relate what was said to what was recognized in the law."

At the conclusion of the hearing, the Court ruled that it was inclined to allow Defendant to obtain some of the information requested in the challenged interrogatories because Plaintiff had, for whatever reason, chosen to phrase her theory of liability as "imputing unchastity," which "is broader than imputing incest," and "because that's the allegation in this case, the defense has the right to defend itself by seeking information that would show that any imputation of unchastity was, in fact, true."  However, the Court also ruled that the interrogatories were problematic as written because "they seem to define sexual contact in an overbroad way." ….

In yesterday's order, though, the court ultimately concluded that discovery on plaintiff's sexual behavior should be limited to sexual contact with relatives:

Although this represents a change from how the Court approached the issue during the March 31, 2021 hearing, and although the Court is not usually inclined to reconsider earlier decisions, the key difference is that Plaintiff has now identified legal authorities that help explain (if not fully justify) why she chose to use the phrase "imputing unchastity" in the complaint. (As noted, the Court expressed some confusion as to this issue during the previous hearing and Plaintiff was unable, at that time, to cite any legal authorities in support of her position.)

Specifically, in the joint statement, Plaintiff cites §§ 570 and 574 of the Restatement (Second) of Torts. A review of these provisions helps explain the genesis of the phrase "imputing unchastity." Section 570 is entitled "Liability Without Proof of Special Harm— Slander." It identifies four specific categories of defamatory statements that are considered so inherently damaging that the existence of damages is presumed. The four categories are when "the publication imputes to the other (a) a criminal offense, as stated in § 571, or (b) a loathsome disease, as stated in § 572, or (c) matter incompatible with his business, trade, profession, or office, as stated in § 573, or (d) serious sexual misconduct, as stated in § 574."

Section 574, in turn, is entitled "Slanderous Imputations of Sexual Misconduct." It provides that "[o]ne who publishes a slander that imputes serious sexual misconduct to another is subject to liability to the other without proof of special harm." As relevant here, the reporter's note to § 574 explains that although this provision was once limited to "imputing unchastity to a woman," it was subsequently "broadened … to imputing serious sexual misconduct." Comment c to § 574 further explains that this change was rooted in considerations of equal protection, because although "[t]he rule stated in this Section has traditionally not applied to the imputation of unchastity in a man … [c]onstitutional requirements as to equality of treatment between the sexes may affect the holdings that an imputation of unchastity for a woman is slanderous per se while a similar imputation for a man is not."

This backdrop helps explain why Plaintiff chose to insert the phrase "imputing unchastity" into her complaint. The Court is satisfied that it was not an attempt to hold Defendant liable under the outmoded theory that women are expected to be chaste and thus any accusation of sexual conduct lodged against a woman, irrespective of the nature of the sexual conduct, is slanderous. Rather, Plaintiff's narrow theory is, and has always been, that Defendant's alleged statement in August 2019 was defamatory for a specific reason— because it alleged sexual conduct of an incestuous nature. Thus, the Court interprets Plaintiff's use of the phrase "imputing unchastity" in the complaint as nothing more than an effort to signal her view that, as a matter of Arizona law, damages are presumed when this sort of incest-based defamation claim is raised.

Given this understanding, there is no reason to require Plaintiff to disclose, as part of the discovery process, the entirety of her sexual history. Only past incestuous conduct would be relevant in providing a truth-based defense to her defamation claim. Thus, the Court agrees with Plaintiff that her disclosure obligations should be limited to "any relative" with whom she had sexual contact before August 16, 2019, not "any individual" as requested by Defendant. {Plaintiff is on notice that, in light of this ruling, she will not be allowed during a future stage of this case to argue that the alleged statement was defamatory for some reason other than its implication of incest.}

But the court ruled for the defendant as to what sorts of sexual conduct he could inquire about:

Given that Plaintiff will only be required to disclose past sexual contact with "any relative," it is within the bounds of permissible discovery to require Plaintiff to disclose each instance in which she and such a relative engaged in any direct or indirect touching, fondling, or manipulating of any part of the genitals, anus, or female breast by any part of the body or by any object or causing a person to engage in such contact.

Plaintiff's competing proposal, that she only be required to disclose instances in which she and a relative engaged in "fornication or any other form of sexual intercourse (oral, anal or vaginal)," is too narrow. That approach would preclude Defendant from learning about any instances in which Plaintiff and a relative engaged in highly sexualized conduct that approached but did not quite meet the definition of intercourse. If any such incidents exist, Defendant is entitled to learn about them because they may provide a truth-based defense to the pending defamation charge or may, at a minimum, help Defendant discover other information that may provide a defense to that charge…. "Relevancy in civil litigation is a relatively low bar." … "For discovery purposes, courts define relevance broadly, stating that information is relevant if it bears on or might reasonably lead to information that bears on any material fact or issue in the action …. [C]ourts are quick to point out that discovery is concerned with relevant information—not relevant evidence—and that as a result the scope of relevance for discovery is necessarily broader than trial relevance."

NEXT: Today in Supreme Court History: May 15, 2000

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  1. “‘. . . fornication or any other form of sexual intercourse (oral, anal, vaginal),’ is too narrow.”

    Pun intended?

    1. There are 540 ways to love. The plaintiff should describe instance of her practice of each of those.

      This brings up another problem with the stupid lawyer profession. Her body is not obscene. Nor is her sexual practice. The damage comes from shame and retaliation after the publication of her unchastity. The defendants should be the churches, employers, friends that harass her and hurt her after the publication.

      You have the wrong defendant, lawyers. Judges are not bright enough to understand this simple idea.

  2. Boilerplate legalese can’t be used by women, apparently.

    1. Yeah, I dunno. Defamation ain’t really my thing, but I see the argument it creates an ambiguity somewhat. On the one, the claim could be the statement’s false because it impliedly asserts unchastity—incest with a cousin is certainly a species of that genus. On the other, the statement could also be false simply because it asserts incest expressly. But, while evidence of sex with strangers would certainly be relevant to proving that she was unchaste, that alone could never suffice to make the specific incest allegation true. Maybe it’s me, but it seems like a huge windfall that the defendant makes a specific allegation X, and then uses that to bootstrap into discovery about both X and Y, even though evidence of Y by itself can never make X true. That would seem to make Y irrelevant by definition, considering that evidence of X is already sufficient to prove up the allegation.

      All that said, maybe plaintiff’s counsel was a bit sloppy in using that one phrase, but the law seems clear enough and the actual, specific statement at issue only pertains to incest.

      Speaking of sloppiness, defendant’s first rog asking for identities of sexual partners was blatantly duplicative of the second rog asking for details of sexual encounters because the details sought by the latter included identities of the partners too.

      Maybe Rudy G. could have assisted the parties here. While he’s not versed in AZ law, he certainly knows a thing or two about cousin fornicating.

      1. Good points. But it seems to me that any conscientious lawyer would have to insert the common law phrase “unchastity”, a libel per se term, so as to avoid a motion to dismiss for failure to prove damages (which would require invasive disclosures in itself).

        1. The quoted portion of the restatement would suggest that a lawyer does not, in fact, have to insert that phrase.

          1. Exactly the point I wanted to make.

            Also, I note this is a Gloria Allred case, although she’s not lead counsel, someone else at her firm is. Take from that what you will…

    2. Liberals only know sexism and racism as causes, never anything neutral.

      Seems to me that the judge went out of the way [“I am as uncomfortable as one can be with the idea of forcing an 18-year-old … woman”] to have her avoid the discovery. Unearned female privilege I’d say rather than sexism, don’t you think?

      1. Do you have any basis to suppose the judge would have been less solicitous of the invasiveness of a similar request propounded on a male plaintiff?

  3. “accused Plaintiff of “having sex” with “an older cousin” when she was a minor.”

    This is interesting because the age of consent in Arizona is 18. Second, Arizona (like most states) only prohibit marriages between first cousins (shared grandparents) and there are a lot of other kinds of cousins — See: https://www.familysearch.org/blog/en/cousin-chart/

    So let’s forget the *possible* incest here and just go with the statutory rape — which she would be if his statement is true….

    1. In other words, this is the exact opposite of the Epstein matter, where the girls are presumed to be “victims.”

      Here there is no such presumption, and that’s what I find interesting. Both she and her father are operating under the presumption that she had the ability to consent (notwithstanding AZ law to the contrary).

      And the other thing is if someone under 18 can’t consent to sex, how is it different if the other party is under 18 — she *still* isn’t old enough to consent…

      1. I’m not sure I get it. Are you saying she would have a better claim for defamation based on her dad falsely accusing her of being a statutory rape *victim*? If she was a minor, then she would be the victim, since the older cousin, whoever that is, was alleged to be over 18, and thus would be the perpetrator. While falsely accusing someone of being a rapist seems like a straightforward basis for defamation, I’m not sure if that’s also true for being a rape victim. Maybe the older cousin ought to sue too, although he doesn’t seem to have been identified. Anyway, even if they might have been allowed to get married—which of course wasn’t the allegation in the statement, i.e., that older cousin proposed to her—and even if she didn’t commit any crime herself, being accused of incest still seems like a perfectly reasonable basis for bringing a defamation claim. Maybe I missed something though.

        1. Also, I don’t see where the purported incest was alleged to have taken place in AZ specifically. It does seem that she was an AZ resident the entire time, but that doesn’t exclude the possibility of her travelling out of state to see a cousin. There’s no info about where any of the cousins live either. Her father lives in GA at least currently, so any cousins on his side of the family might very well be outside AZ. Of course, they could also travel to visit her, but again, we seem to have no info one way or the other.

          1. Interesting — because the age of consent in Georgia is 16.

            1. Something tells me this case doesn’t live long enough for all those details to come out.

              Also, I’m not sure why she is so paranoid about the rog for sexual contact with relatives just short of intercourse. One would hope she has no responsive info whatsoever?

              1. I’m not sure why she wants to reveal less rather than more either. But an 18 year old girl not wanting all the details of everything to do with her life being shared with her alienated father is perfectly understandable. Her wanting to limit details he would relate to the world on his blog or his youtube videos is understandable.

                That could explain her “paranoia”.

                I also think “paranoia” is an interesting choice of words given that this dad already dropped his accusation that she might have had sex with a cousin.

                Oh, and this dad dropped his “concern” about incest info on his youtube video when she was “about to turn 18”. For age, look just before minute 1 here: https://www.youtube.com/watch?v=OOPaZO5duTk&t=291s
                For his dropping the “concern” see after 5:30. It’s worth nothing AZ children’s services who he called do not seem to have charged this older cousin. On the video, he also airs his accuses Brianna’s mother of only had his child to get child support.

                I’m not sure “paranoia” is the correct adjective to use to describe a concern that Brianna’s father will air his version of any information he gets a hold of even to the detriment of a minor child’s reputation or mental state. History suggest Brianna would have some basis to suspect he might do a similar thing again.

                1. I’m not sure I follow you. Her dad propounded a rog asking about any intercourse or conduct just short of that with any of her relatives. Obviously, she denies having sex with the older cousin that was the substance of the dad’s allegedly defamatory statement. So presumably with regard to the cousin, she’d have nothing to say in response to the rog. But despite that, she was still very adamant in pushing back on the scope of the rog. That just aroused (no pun!) my curiosity. Unless she did indeed have sex or some other sexual contact with a *different* relative, you’d think she has nothing to worry about in responding to the rog. So it seems a bit suspicious to be fighting it so fiercely.

                  Given the above, my “paranoia” comment wasn’t about her dad’s likelihood of spilling the beans on her rog response. That would of course be a protective order violation, but I don’t know if her dad rolls that way. My comment was rather about her seemingly excessive concern with responding to the rog itself.

                  1. But despite that, she was still very adamant in pushing back on the scope of the rog.

                    Yes. It is perfectly reasonable to not want to have to share details of your personal life with your father. It is especially reasonable not to wish to do so when your father is known to publicize details to the world on his “rog”.

                    Unless she did indeed have sex or some other sexual contact with a *different* relative, you’d think she has nothing to worry about in responding to the rog.

                    Actually, that’s ridiculous. Having “nothing to worry about” doesn’t mean she should somehow want to over share with her Dad. Perhaps she had kisses on the cheek. Or perhaps some other cousin groped her ass and she would prefer not to share that with the world for some reason.

                    …but I don’t know if her dad rolls that way.

                    You don’t. But it would hardly be “paranoia” for her to think the way he rolls is to spill personal information in a way that is adverse to her. He has done so.

                    My comment was rather about her seemingly excessive concern with responding to the rog itself.

                    You’ve failed to make a case that her concern is excessive. You’ve claimed it’s so and used the word paranoia. But her being concerned seems perfectly reasonable given her father’s history of “sharing” personal information about his kids, and in particular her– a minor child at the time– on his youtube video.

                    Or perhaps you can explain why these kids should trust their father with personal information when– quite clearly– he is willing to share it (to their detriment) on a youtube video.

                    1. You seem really invested in this case, so I just have to ask: Are you a member of some kind of B-hive, but instead for Briana? Just in case it wasn’t clear already, I have zero canines in this altercation. If anything, purely from looking at the available materials, I think Briana has the superior position, in case there was a concern about being sympathetic to her dad.

                      That out of the way, let me just say a few things in direct response.

                      First, as Beldar articulated so nicely below, yes, if you are a defamation plaintiff, you *do* in fact have to respond to at least some discovery. And, yes, when the allegation is incest, the discovery *will* be about sexual contacts with relatives. Like Beldar said, that is one of the very first things counsel will caution hopeful plaintiffs about; not doing so could be malpractice. Briana has not just highly experienced, but also celebrity defamation counsel, so I think we can safely assume she went into this fully informed.

                      Second, if Briana gets incurable cold feet about going through with this discovery, she’s obviously free to dismiss or try to settle the case immediately. Yes, there could still be a hit for attorneys’ fees and costs if the case were deemed frivolous etc., but that doesn’t seem likely here.

                      Third, if she does opt to go forward, then no, her dad actually *won’t* be privy to the info she provides. Not surprisingly, the operative protective order includes a designation akin to “attorney’s eyes only” and I have to assume Briana’s response—if she even has any responsive info, and that’s a substantial if—will be so designated. In that case, the info will only go to her dad’s counsel in the first instance, and they will be forbidden from sharing it with him (or anyone else for that matter). (Admittedly, in my previous comment, I referred to her “dad” colloquially without distinguishing between him personally and his counsel.) From what I can tell, his counsel are not fly-by-night types, and especially in a case like this, the judge is going to be apoplectic over any PO violations. I won’t dispute that her dad may indeed be eager to get his hands on (no pun!) and broadcast the info—again, if it even exists—to all and sundry, but the odds he can pull that off seem quite low and the penalties would be severe.

                      Fourth, “kisses on the cheek” would absolutely not be captured by the rog, even under an interpretation most favorable to her dad. That’s not close to a realistic concern. I don’t think you can really make a plausible argument for an unwanted grab-ass either. Just under the text of the rog—which includes “touching … of the … anus”—I concede it might seem fair game. But you have to interpret the rog in light of the judge’s order too. It stated that her dad was entitled to info about “highly sexualized conduct that approached but did not quite meet the definition of intercourse.” Viewed that way, I think there’s little question that mere ass-groping doesn’t fit the bill. So neither of your two examples is persuasive. However, if something a lot more substantial happened in that region without rising to the level of straight-up sex, then yes, I do think it’d be fair game. Again, as Beldar pointed out, that is an unfortunate but unavoidable consequence of bringing a defamation claim over something like incest allegations. It’s also something I expect she would have discussed thoroughly with counsel before opting to proceed.

                      Regrettably, I may have caused unneeded alarm with my initial colloquial reference to her “dad” without getting into the exact mechanics of the process. If so, that’s on me. But hopefully the above clears everything up. I appreciate the lively back-and-forth on this case!

                    2. hardreaders,
                      I’m not invested in this case. I read about it here and I find it interesting. You and I are both commenting and replying to each other. Perhaps you are “really invested” in the case?

                      Also with respect to your legal points: I don’t know why you are putting those in reply to me. I wasn’t making any legal points. I was talking about what is natural for a young woman in her position to want or fear. Whether the judge would granter has much as she prefer is a legal issue. But not wanting to reveal more than she absolutely has to to her dad is natural. But you seem to want to call her her request to have to reveal less “paranoia”. There is no reason to think that is the case.

                      Oh, no, it doesn’t become “paranoia” just because what she wants is more than a judge was likely to grant her. Nor does it become so if it’s normal for a judge to grant more than she would prefer under discovery.

                      But you have to interpret the rog in light of the judge’s order too. It stated that her dad was entitled to info about “highly sexualized conduct that approached but did not quite meet the definition of intercourse.”

                      Well… no. Because I responded to your initial wonderment which was

                      “I’m not sure why she is so paranoid about the rog for sexual contact with relatives just short of intercourse.”
                      Her request they limit discovery precedes the judge’s order. So it makes no sense to suggest we need to consider the judges later order to guess her thinking or state of mind before the order came out.

                      There are tons of reasons an 18 year old woman might not want to discuss her sexual history with people. I suppose it would be less alarming to her if it is, in fact, only the attorney who will know. I’m not one, so I didn’t know this so thanks. But still, I was once an 18 year old woman, and know many other 18 year olds. Plenty would prefer to limit this discussion to a minimum. That’s why they would ask.

                    3. “if she does opt to go forward, then no, her dad actually *won’t* be privy to the info she provides.”

                      Bar ethics question:
                      Father suspects that she did something sordid with someone else, but does not know. The attorney does, but can’t tell him.
                      He then asks for legal advice about a blog post stating that she did said sordid thing with someone else.

                      What advice does the attorney give?

                      If the attorney knows that the statement is not libelous because the attorney knows it to be truthful because she admitted to it in the deposition, what advice must the attorney give?
                      Conversely, if she didn’t, does he not have a duty to warn his client of the libelous nature of the statement?

            2. In his youtube video airing his concerns about his daughter having sex with a cousin, McKnight says he called Arizona child protective services. So GA law doesn’t appear relevant.

              1. That’s not necessarily conclusive as to where the actual conduct allegedly happened. She is domiciled in AZ, so I think it would be natural to call AZ CPS regardless of whether the conduct happened there or in another state.

                But I don’t really think the whole statutory rape aspect is that relevant to begin with. Certainly it has little or no bearing on the actual issues raised in the case.

                1. Fair enough. But she seems to have been living in AZ at the time.

                  1. I already stated that earlier.

                    1. Yeah.. but the comments are multi threaded. So I hadn’t seen that! I saw the person who thought she was in GA!
                      Thanks!

                  2. “Fair enough. But she seems to have been living in AZ at the time.”

                    Which doesn’t mean that she couldn’t (or didn’t) cross over into a state that had a lower age of consent. Now there would be the question of if the Mann Act applied, but sex with a 16-year-old is legal in some states (and the British, as opposed to US, Virgin Islands).

                    Hence Jeffery Epstein — if he’d built Orgy Island in the British Virgin Islands, and had his mansion in Boston rather than New York City, there wouldn’t have been any issue with the 16-year-olds (other than possible Mann Act, although I’m not sure about that).

          2. Also, Special Ed is, as always, legally incorrect. Arizona has a Romeo and Juliet law, so even if this did take place in Arizona that would not necessarily make it statutory rape.

            1. You are correct about the R & J law. But as I said there really aren’t enough facts right now. If—and it’s not clear—the purported conduct did happen in AZ, it might conceivably be within the safe harbor. The father’s accusation was the older cousin was “over 18” but without giving a precise age. So he might have been 19. The law allows up to a 2-year difference, and we know she was alleged to be a minor, so if she was 17, then it’s possible she was in the safe harbor. But again we have no way of being sure right now.

            2. I have a first cousin 21 years older than I, his *children* are my age. So much for your asinine presumption, Special David….

              1. David was once intelligent and ethical.
                Then he passed 1L. The tragic effect is worse than a traumatic brain injury.

              2. Wow, are you that bad at basic logic?

                David says there are examples where “under 18” and “over 18” could be within the R&J safe harbor, but it’s not obvious from the facts. He provides a specific example of an age gap that might be within the safe harbor.

                Your response is an anecdote about a cousin who is 21 years older than you – clearly not within the safe harbor. SoTFWhat? That has no evidentiary value to *this* case.

                I have a cousin who is within 6 months of me. Also irrelevant to *this* case.

            3. Nor not necessarily make it not.

  4. I would have required a motion to amend the pleading to replace unchastity with a narrower word.

    1. If you look at the joint statement on the motion, the plaintiff’s statement points to many other places in the existing complaint that made it super clear it was just about incest. And of course, the statement itself was just about incest. I think while the complaint wasn’t perfect, it was more than adequate without being amended further.

  5. This specific case seems kind of nasty, but let me comment on some of the legal analysis:

    “the outmoded theory that women are expected to be chaste and thus any accusation of sexual conduct lodged against a woman, irrespective of the nature of the sexual conduct, is slanderous”

    What’s supposed to be “outmoded” in that sentence? Expecting women to confine sex to marriage, or assuming reputational damage?

    Hopefully, “outmoded” modifies only the latter, the reputational-damage presumption.

    I hope the court isn’t going with the idea that expecting chastity from men *or* women is “outmoded.” Imagine how many fewer cases would be in the courts if people observed a norm of chastity!

    1. As for the equal-protection issue of the old common-law rule presuming damages for women but not men…my best guess would be that the judges lived in an era where, though both sexes were supposed to be chaste, men who violated the norm were judged more leniently, so automatic damages would be unfair.

      1. I would guess that the “loathsome disease” rule picked up some of the slack – I expect “loathsome disease” generally refers to an STD, implying that the plaintiff got infected through illicit sex.

  6. Shouldn’t a strong independent woman embrace her sexuality…?

  7. The defamation plaintiff in this case is not, of course, the first to confront the downsides of enduring relevant discovery regarding her reputation.

    I cannot count the number of potential defamation plaintiffs whom I have actively and vigorously discouraged on these and other grounds. “When you decide to go to court, you’re in a room lit by klieg lights, with a special spotlight on your past, and the other side will examine every inch of you and your past under a microscope, with the public (including all your friends and acquaintances and family and business associates and prospective future employers and mates) watching over their shoulder,” I tell them.

    “Newton’s laws notwithstanding, some guns kick harder than they shoot,” I continue, “and your case may well be one of those.”

    1. This is really well put, thanks!

    2. The discovery request comes solely from the plaintiff’s lawyer’s stupidity.

      Imagine if someone accused you of, say, striking someb in a drunken rage, and you sued him for falsely accusing you of a lack of temperence.

      Naturally, the defense would try to find out if you had ever drunk alcohol in your life. If you had, that would prove lack of temperance, make the accusation true, and hence be a complete defense to your lawsuit.

      But lack of temperence is a completely stupid theory to proceed on. It’s the acccusation of striking someone, not just drinking alcohol by itself, that should be the real basis of the libel.

      This seems a very similar situation. He accused her of incest, and she is suing him for accusing her of having had sex outside of marriage. So if she ever once had sex outside of marriage ever in her life, the claimed accusation would be true, and of course the defense is entitled to use discovery to find out if she has.

      But it’s only because her stupid lawyer is using the wrong libel theory that the situation arises. If the complaint had just alleged that the defendant falsely accused her of incest, then the defendent would only be entitled to use discovery to find out about any actual instances of incest. Ordinary lack of chastity would be irrelevant.

  8. Although a judge is not supposed to be a party’s attorney, this is one of thise rare cases where perhaps the judge should simply say that plaintiff’s attorney is simply wrong and allegations of incest without more are libelous in Arizona, and there is simply no requirement that the recipient of such defamation has to be completely chaste in order to sue.

    The judge might even go so far as to suggest that the attorney’s behavior is courting a malpractice lawsuit. The attorney’s theory is both giving the other side a completely unnecessary defense (if the plaintiff has committed any act of unchastity, the defense wins) and subjecting his client to completely unnecessary embarassment.

  9. Seems like there would be some articles on the DOJ/FBI actions related to Jan 6.

    First time offenders who were just present after being let in by the Capitol Police. Not committing any crime other than trespassing being held without bail.

    But crickets here on the “law” site

    1. I must admit that I find this disturbing — along with the silence of the ACLU on it. Do we or do we not have an 8th Amendment in this country?

    2. https://reason.com/volokh/editorial-independence/

      “We write mostly about law and public policy, though we feel free to blog about whatever else strikes our fancy.”

      Not sure why you’re whinging about lack of Jan. 6th posts. You’re free to look elsewhere.

  10. Seems like there would be some articles on the DOJ/FBI actions related to Jan 6.

    First time offenders who were just present after being let in by the Capitol Police being held without baik

    But crickets here on the “law” site

    1. Citation required for any individual who is both charged only with simple trespass *and* being held without bail.

      Most of the people charged are out on bail; the small fraction ordered held are charged with serious felonies like “assaulting a police officer”.

      Put up or shut up.

  11. As I understand it, the Supreme Court upheld the statute under which bail was denied here, but they did so over a dissent from progressive icon Thurgood Marshall, joined by William Brennan:

    “This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution….

    “…the very pith and purpose of this statute is an abhorrent limitation of the presumption of innocence….”

    https://www.law.cornell.edu/supremecourt/text/481/739

    (I would agree with the dissenters, but on 9th Amendment grounds)

    1. Reply to discussion immediately above

    2. The Court, per the great civil-libertarian icon, Chief Justice Vinson (/sarc), said this in 1951:

      “From the passage of the Judiciary Act of 1789…to the present Federal Rules of Criminal Procedure…federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction….Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”

      https://www.law.cornell.edu/supremecourt/text/342/1

      This would indicate to me that the right to bail in noncapital cases was one of the “rights retained by the people” when the Constitution was adopted.

  12. One of the handful of items I remember from bar review is that “unchastity of a women” is a trigger for defamation per se and that it means essentially any sexual activity rather than “promiscuity.” I would never have a client include an “unchastity” pleading in a defamation case unless she were willing to show unchastity in the most Victorian sense imaginable.

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