The Volokh Conspiracy
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Libel Suit Against Rep. Maxine Waters Can Go Forward
From Collins v. Waters, decided today by the California Court of Appeal, in an opinion by Justice John Wiley, joined by Justices Grimes and Viramontes:
In 2020, challenger Joe E. Collins III and incumbent Maxine Waters competed for a seat in Congress. During the campaign, Waters accused Collins of a dishonorable discharge from the Navy.
Collins shot back that he had not been dishonorably discharged. He showed Waters a document saying so. This document apparently was official. There was nothing suspicious about its appearance. The document, if genuine, would have established without doubt that Waters's charge was false.
Waters easily could have checked its authenticity, but did not. Her appellate briefing asserts that today, years later, she still does not know the truth about whether Collins's discharge was dishonorable.
This disinterest in a conclusive and easily-available fact could suggest willful blindness.
Collins sued Waters for defamation during the campaign, but Waters convinced the trial court to grant her special motion to strike his suit. We reverse that order. The preliminary posture of the case required the court to accept Collins's evidence as true. His evidence created a possible inference of Waters's willful blindness, which is probative of actual malice [i.e., reckless or knowing falsehood—ed.]. It was error to grant Waters's anti-SLAPP motion [a California state law motion that can be used to dismiss unfounded libel claims, but that doesn't block potentially viable claims—ed.]….
Free speech is vital in America, but truth has a place in the public square as well. Reckless disregard for the truth can create liability for defamation. When you face powerful documentary evidence your accusation is false, when checking is easy, and when you skip the checking but keep accusing, a jury could conclude you have crossed the line. It was error to end this suit at this early stage, for Collins established the minimal case needed to defeat Waters's special motion to strike.
Crediting his evidence, as is necessary in an anti-SLAPP analysis, Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness. The trier of fact ultimately may draw other inferences more favorable to Waters and may reject Collins's case lock, stock, and barrel. But Collins's showing was enough to allow this litigation to go forward. We reverse and remand for further proceedings….
As a matter of federal constitutional law, Collins's discharge document put Waters on notice of a considerable risk that conclusive evidence wholly disproved her accusations. It would have been easy for Waters then to check, but Waters kept repeating the accusation without checking. A reasonable jury could conclude Waters's lack of interest was studied: a purposeful effort to maintain plausible deniability. If a factfinder drew an inference of willful blindness, it would impeach Waters's claim of subjective blamelessness. The answer to this question of credibility was for the fact finder to ascertain. The decision to grant the special motion to strike was error.
The trial court quoted this sentence from page 258 of the [California Supreme Court's] Reader's Digest decision, to which we add our emphasis: "The failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy."
That quotation is accurate and binding. But the Reader's Digest decision also stated a "failure to investigate" was among the pertinent factors that, "in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication."
This is an "appropriate case" fitting the Reader's Digest decision, for here the failure to investigate did not stand alone. Rather, we have additional facts: the plaintiff showed the defendant facially valid and easily verifiable documentary proof creating a considerable risk the defendant was uttering a falsehood; and yet the defendant kept uttering without checking. There was nothing like that in the Reader's Digest case….
Collins showed Waters an official-looking document that, if authentic, completely pierced through to absolute truth, whatever Collins's foibles might have been, no matter the federal court opinion, and irrespective of other information.
Waters does not dispute this kind of document—the DD-214—is an authoritative source of discharge information. If authentic, it would prove Waters's accusation was totally false. The definitive quality of this proof magnified the risk of ignoring it.
Waters has not critiqued this document's appearance. It looks to be genuine in every respect. Indeed, as noted above, the form had negative information about Collins: it stated Collins's "NARRATIVE REASON FOR SEPARATION" was "MISCONDUCT (SERIOUS OFFENSE)." If Collins fabricated a document to make himself look good, this entry is puzzling.
Perhaps the document was a total fake. These days, anyone with skills can alter documents or create them from scratch on a laptop at home. At oral argument, Waters rightly emphasized that software is making it ever easier to concoct screen images that look genuine but are not.
But official documents can be checked officially. It could only have been to Waters's electoral advantage to expose Collins's fabrication, if fabrication it truly was. And the official check was easy to do. That fact—that it would have been easy to check—is in the record and is undisputed.
Waters did not check. Her briefing to us states that, to this day, she still has not checked.
A fact finder could conclude Waters was like Journal News, Globe, and Antonovich [the speakers in several past precedents that the court discussed—ed.]: do not ask if you are committed to the project and would rather not know. After they are told that potentially devastating information is easily available, decisionmakers who opt for ignorance instead of ready truth can be willfully blind. If fact finders drew this inference, Collins's proof could constitute clear and convincing evidence of actual malice. Reasonable minds could agree that people purposefully ignorant about the truth can have a high degree of awareness of probable falsity of a claim they deliberately avoid checking. At this preliminary stage of the case, then, Waters has not defeated Collins's suit as a matter of law….
Here was Waters' argument as to why she disbelieved Collins:
Waters explained she and her staff had investigated Collins when he entered the race. They traveled to San Diego, where Collins had been stationed in the Navy.
Waters discovered two lawsuits Collins filed in San Diego.
In the first lawsuit, Collins disputed an obligation to pay child support and claimed damages of $100 million. Collins, Waters declared, filed accompanying documents showing he had purportedly created a "Royal Family of Collins Trust" into which he had placed assets like his birth certificate—an asset Collins claimed had a value of $100 billion. The total value Collins asserted for these trust items was over $700 billion. Waters appended Collins's filings to her declaration.
A federal district court issued a decision in Collins's second case.
Waters declared this federal decision played a major role in her view of Collins and his discharge. In the background section of this decision, the first sentence stated, with our italics, that "[t]his action arises out of events related to [Collins's] dishonorable discharge from the Navy."
The federal district court issued this order on August 8, 2018.
We interrupt the temporal flow of these facts to note that, years later, the court deleted the significant word "dishonorable" from its 2018 decision. In May 2021—after the trial court granted Waters's anti-SLAPP motion and after Collins had filed his notice of appeal in this case—the federal district court, on its own motion, modified its decision to change this sentence and to remove what it termed the "inaccurate" description of Collins's discharge as "dishonorable." Without calling the discharge "honorable" or "dishonorable," then, the amended May 2021 decision simply refers to Collins's separation as a "discharge."
Returning to Waters's declarations, she recounted how she had called the attorney who represented the Navy in Collins's second lawsuit. Waters declared she asked him about the case. The attorney said he would pull a copy of the decision and would call Waters back. "When he called me back, he told me, 'It says right here, he was dishonorably discharged!'"
Waters's declaration did not say she asked the attorney for his personal or other knowledge about whether Collins's discharge in fact was dishonorable.
Waters declared Collins filed other documents in his second lawsuit that she said revealed his "dishonorable character." Waters claimed the documents showed Collins had been disciplined for running for President while in the Navy.
Waters also alleged the documents showed the Navy had disciplined Collins for providing alcohol to an underage sailor and for having sex with a service member under his command. Waters stated Collins was the subject of a keepaway order and that he was running a cocktail lounge, which he valued at $100 million, that was simply his on-base apartment in San Diego.
Waters also learned that, in connection with these San Diego lawsuits, Collins filed an application to proceed in forma pauperis in which he stated he was not receiving any governmental benefits. Waters declared she inferred this meant Collins's discharge had been dishonorable, for service members with honorable discharges are entitled to military benefits while those with dishonorable discharges are not.
In sum, Waters declared she had no reason to believe anything Collins told her or any document he showed her. She declared she sincerely believed Collins's discharge was dishonorable.
The court notes that this may yet yield a victory for Waters below—but maybe not:
[Cutting in Waters' favor] is the contrast between, on the one hand, the prestige and reliability of the federal district court decision on which Waters relied and, on the other hand, what Waters charged was Collins's lack of veracity and "dishonorable character." So too could Waters's phone call to Collins's opposing counsel, as well as Collins's statement about upgrading his discharge status, count as distinguishing positives for Waters. It is entirely possible that the trier of fact, later in this proceeding, will view all factors in Waters's favor and fully accept her professed sincerity. Thus a jury might find against Collins, with his $100 billion birth certificate and so forth.
Or the trier of fact may question why Waters would call the Navy's attorney simply to have him read an opinion she already had, and why she would refrain from asking that attorney for his personal knowledge about Collins's discharge status.
[On the other hand, a jury might find that] … the ease of internet research, which can yield information with a few strokes[,] … cuts in Collins's favor.
Congratulations to Donna C. Bullock, who represents plaintiff.