The Volokh Conspiracy

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$400K Libel Judgment in Lawsuit Over Statements During Election Campaign

Such libel cases aren't easy to win, but sometimes they can indeed be won.


From McCann v. Gordon, decided last week by Judge Scott DelConte:

Defendant David Gordon [a former Oneida County legislator] repeatedly, publicly, and falsely accused Plaintiff Caitlin McCann of engaging in an illicit sexual relationship with her married employer, Oneida County Executive Anthony Picente, and then participating in a corrupt coverup to hide the affair and their nonexistent child. By Decision and Order entered February 10, 2021, this Court held that McCann established as a matter of law that Gordon had defamed her during a series of live media events and press releases….

The morning of [the scheduled damages trial on] June 4, 2021, Gordon—who elected to proceed pro se in this action after his counsel withdrew from representation—advised that he would not participate in jury selection. Thereafter, McCann waived her right to an inquest and assessment of damages by jury, and the Court proceeded with a bench trial….

After examining the exhibits and hearing all of the testimony, evaluating the credibility of the witnesses, considering the legal arguments of McCann's counsel and Gordon, and upon due deliberation, … the Court awards McCann damages in the amount of $394,416.10, consisting of $4,416.10 in economic damages; $40,000 in damages to McCann's reputation; $50,000 in past humiliation and mental anguish; $250,000 in future humiliation and mental anguish; and $50,000 in punitive damages….

This action arises out of Gordon's intentional and defamatory statements to the media and the public during his 2019 Republican Party primary campaign against incumbent Anthony Picente for the office of Oneida County Executive. Gordon's callous and cruel attacks on McCann and her character trace back to the February 8, 2019 broadcast of the long-running and popular "Keeler in the Morning" news-talk radio show and, specifically, the host's reporting that Gordon—who was, at the time, vigorously campaigning to unseat Picente—had been arrested in 2017 on a domestic violence charge following a complaint filed by Gordon's fiancee. That reporting was based upon Gordon's actual arrest record, which the show's host had journalistically obtained and then discussed, and read portions of, live on the air. Gordon was invited to appear on the radio show and respond. Gordon, however, declined.

Instead, three days later, on February 11, 2019, Gordon invited major regional media outlets to a press conference at Utica City Hall. At that well-attended event, Gordon responded to the recent reports of his prior arrest by blaming the episode on his fiancee and, as he outlandishly asserted, an unexplainable emotional imbalance caused by her pregnancy.

Gordon then strategically pivoted, and sought to redirect the gathered media's attention to his primary opponent by claiming that Picente had abused his elected office by having an affair with a former staffer, who then became pregnant and fled to South Carolina to hide the pregnancy at Picente's insistence. While Gordon did not specifically name the staffer whom he accused of having an affair, a former Oneida County official contacted McCann almost immediately after to inform her of Gordon's accusation. McCann was easily identified as the target of Gordon's allegations, because she was the only former female staffer in Picente's office to have ever relocated to South Carolina.