$1.1M Libel Award to Drag Performer Who Had Been Accused of Exposing Himself

From the Couer D'Alene/Post Falls Press (Kaye Thornbrugh) yesterday:

The jury found that blogger Summer Bushnell defamed Post Falls resident Eric Posey when she accused him of exposing himself to the crowd while he performed in drag at the Coeur d'Alene City Park bandshell in June 2022….

The day of Posey's performance, June 11, 2022, Bushnell posted a video of herself discussing the mass arrest of Patriot Front members near City Park, as well as footage from Posey's performance.

"Why did no one arrest the man in a dress who flashed his genitalia to minors and people in the crowd?" she said in the video. "No one said anything about it and there's video. I'm going to put up a blurred video to prove it."

The next day, Bushnell published an edited video she had received from local videographer Jeremy Lokken, which included a blur over Posey's pelvis. Bushnell told others that the blur concealed "fully exposed genitals" and urged people to contact police….

City prosecutors ultimately declined to file charges and stated publicly that the unedited video showed no exposure….

Attorney Colton Boyles, … maintained that Bushnell's "honest belief" is that Posey exposed himself, though she admitted on the witness stand that she never saw the "fully exposed genitals" she described to others….

The awarded consisted of $926K in compensatory damages and $250K in punitive damages, based on a finding "that Bushnell knew her allegations were false when she made them or that she made the accusations with 'reckless disregard' for the truth."

Comments

[Michael P]

Did the jury here have a reckless disregard for the meaning of the “actual malice” legal standard?

I always understood the "reckless disregard" prong to mean that there was some particular basis that the speaker should have known to doubt the veracity of what they said. What evidence supports that conclusion? Or did the jury just decide to punish wrongspeak?

[ReaderY]

She blurred the video and had the unblurred video. So a reasonable jury could conclude she knew that her blurring didn’t conceal what she claimed it concealed.

[Michael P]

TFA, and EV's excerpt from it, only says "an edited video she had received from local videographer". To me, that reads like she got the edited video from the videographer rather than posted an edited version of an unblurred video. Maybe that's a flaw in the news report.

[Mr. Bumble]

"Maybe that’s a flaw in the news report."

Given the state of "reporting" today that's almost certain.

[not guilty]

In a case involving the reporting of a third party's allegations, "recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688 (1989), quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968).

[Rev. Arthur L. Kirkland]

The newspaper report indicated the defendant had lied. More than once. That might have been part of the reason for the verdict.

[jb]

According to this article, she was the one who blurred the video:

Bushnell said she has never attended a Pride event and she stood by her claim that the performer exposed himself. “I put a blur because I didn’t want to be responsible for a minor seeing the genitals that are actually there,” she told the Statesman.

[ReaderY]

Also, as I’ve written before, I think this is a misinterpretation of what Sullivan requires. The law shouldn’t work to reward savvy competent professional people who are prudent and careful not to learn any facts before shouting their moths off, thereby safely insulating themselves from liability, while punishing naive people who think foolishly investigate and obtain facts before speaking, thereby exposing themselves to liability.

[Magister]

shouting their moths off

The Silence of the Lambs

[Michael Ejercito]

I do believe Sullivan was wrongly extended to mere public figures (as opposed to public officials, candidates for public office, and nominees for public office).

The plaintiff did not have to go so far as to convince SCOTUS to retract Sullivan, though.

[David Nieporent]

Also, as I’ve written before, I think this is a misinterpretation of what Sullivan requires.

You know there are Supreme Court cases issued after Sullivan, right? And whatever their merits, they clearly do require something close to actual knowledge (in cases where public figure standards apply) rather than negligence.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I guessed she had also seen the unedited video, or could have / should have. Maybe there’s some mention of that in the link.

City prosecutors ultimately declined to file charges and stated publicly that the unedited video showed no exposure….

ETA and possibly she should have retracted her statement after the prosecutors told her.

[Mr. Bumble]

"City prosecutors ultimately declined to file charges and stated publicly that the unedited video showed no exposure…."

So what did the unedited show and why was it blurred?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Who knows? Skimpy underwear? A jockstrap? A g-string? Presumably the jury got a peek.

[David Nieporent]

Perhaps it was deliberately blurred because of what it didn't show.

[Rev. Arthur L. Kirkland]

That was perhaps the million dollar question . . . and perhaps answered with a million dollars!

Enjoy bankruptcy, Idaho clinger. (I hope the plaintiff gets control of her wingnut website in the bankruptcy proceeding.)

[hobie]

Reportings from the case showed that the original video had no exposure at all and that the defendant admitted to adding the blur herself so as to legitimize her complaints

[mike petrik]

Bushnell actually testified that she knew her assertion was false. That meets the actual malice standard wrongspeak or not.

[Bwaaah]

"she admitted on the witness stand that she never saw the "fully exposed genitals" she described to others"

[John F. Carr]

Nobody needs to be lying. The blogger's lawyer could be right that she honestly believed there was an exposed penis. She got a blurred video and assumed the blurring was meant to conceal an exposed penis because why would anybody blur clothing? The article doesn't claim she ever saw the unedited video. The jury verdict does not depend on her having seen it. One can be fined for jumping to conclusions.

[jb]

Other than the fact that she's the one that did the blurring, it's a nice theory.

[John F. Carr]

I just saw your link to the other article. The article Eugene Volokh linked made me think her source added the blurring.

[Kenneth Almquist]

Right, according to Bushnell’s testimony, she didn’t do the blurring. That doesn’t mean no lying; it means that she was lying when she claimed that she had been the one who blurred it. (In an earlier comment, JB linked to a news article quoting Bushnell making that claim.) If Bushnell had been the one who blurred the video, that would mean that she would have seen the unedited video.

Punitive damages were justified because Bushnell knew she hadn’t seen the unedited video. It’s possible that Bushnell honestly believed there was an exposed penis, but she was clearly lying when she claimed to have seen evidence supporting that belief.

[jb]

She absolutely saw the original video. According to the original complaint she: (1) sent the original video to the city, and (2) posted on Facebook that she "saw the raw, unedited footage".

In addition, at trial she testified that she knew that the claims she made were false at the time:

Wendy J. Olsen, legal counsel for Posey, questioned Bushnell about Facebook messages she sent to multiple friends, including ones in which she references being able to see Posey's genitals in an unedited video.

“And you knew at the time it was false,” Olsen said.

“It was not accurate,” Bushnell replied.

“You knew that at the time,” Olsen said.

“Correct,” Bushnell said.

And as the cherry on top, she spliced in video of children watching from a different performance in her attempts to make people mad. The whole thing is a web of lies from this woman, but it's the kind of story that gets passed around right wing media to stoke the moral panic about drag queens and trans people.

[Kenneth Almquist]

I was mistaken. Thank you for providing the additional information.

[Rev. Arthur L. Kirkland]

You seem exceptionally eager to defend the low-life bigot, John F. Carr.

As usual.

Why?

[hobie]

In the 5th Circuit, one element of malice is that a defendant did what she did for the purposes of "private advantage". And that malice can be proven by circumstantial evidence and “... can be inferred from the fact that a defendant may have acted with reckless disregard for a plaintiff's rights.”

[Randal]

I thought the actual malice standard only applies to public figures. Does Eric count as a public figure? I wouldn't have thought so.

[Rev. Arthur L. Kirkland]

Today is (yet another) Drag Queen Hysteria Day at the Volokh Conspiracy.

Just wondering about something “interesting” . . . right, former professor Volokh?

Will tomorrow be White Grievance Day, Transgender Day, Male Grievance Day, or Racial Slur Day?

Carry on, clingers.

[ReaderY]

C’mon. It’s a libel case, a topic of Eugene Volokh special interest, that happens to involve a drag queen.

[Estragon]

You are correct that this is a libel case. However, it is also true that some libel and anonymity cases seem to draw Eugene’s interest more than others, and that interest does not always, in fact, revolve around novel or interesting issues of libel or anonymity, legally speaking, but rather the, shall we say, identities of the parties.

For example, I may be missing something here, but this looks to me to be a pretty bog standard libel case without a whole lot of nuance, legally speaking. EV also offers no comment on the law here. Is Idaho law different that other states? Is this award out of line with other libel cases? Etc.

So why the interest in this particular case? Could it be that he’s counting on comments like alphabet soup’s below (“pedo priests”) to drive engagement? It is beyond predictable, after all these years, the move to Reason, etc., that the huckleberries will show up and make comments such as that one. At some point don’t we have to ask ourselves if that is the real goal here?

[Rev. Arthur L. Kirkland]

I think some of this blog's most ardent fans are genuinely too dumb to connect those dots.

Mr. Volokh and at least a few of the other Conspirators seem to count on that.

[Rev. Arthur L. Kirkland]

" but rather the, shall we say, identities of the parties."

Gay?

Trans?

Muslims?

Lesbians?

Blacks?

What are you trying to say?

[darkknight9]

Estragon, have you ever commented on anything else here at the Conspiracy? Curious.

[Krayt]

The exact kind of people you complain about got a $1.1m comeuppance, and you still try to wrench it around?

[Bwaaah]

One of the reasons I read the comments for this one was to confirm my suspicion that Resentful Arthur would be on it like a fly to sh_t, knowing there’s no sh_t here.

But Eugene Volokh said “drag,” and evil is evil, fair and square. (Did I mention that Eugene Volokh said it?)

Relatedly, Family Guy employed a comedic technique of taking a minor, unfunny element and repeating it so many times beyond reason that it became funny. (example here) Arthur sometimes becomes funny to me in that way, as here.

Anyway, in the spirit of it all, I bid you a “carry on, clinger.”

[TwelveInchPianist]

A post about a case where a drag queen is falsely accused of exposing himself?

[Rev. Arthur L. Kirkland]

You had Mr. Volokh at "drag queen."

[John F. Carr]

The compensatory damages seem high unless the public reaction was at the "destroys your career" level. Is not flashing his genitals at children this guy's main paid job?

[OtisAH]

No, you twit, flashing his genitals at children is neither his main paid job nor his hobby.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How do you know what his hobby is? Why do so many drag queens insist on reading to children? About the only thing better than pedo priests is they admit they care more about the presence of children than the reading.

[Nige]

You're asking why do kids like it when people dress up in costumes to read to them?

[Randal]

As we all know, this is what the pedos and groomers are actually up to:

https://www.pinterest.com/pin/571464640207294778/

[Bob from Ohio]

"neither his main paid job nor his hobby."

Just a side gig then.

[Nige]

You'll always just go for the lie.

[Rev. Arthur L. Kirkland]

Does Bob from Ohio deny that he is a right-wing bigot?

I sense he is proud of it. Just like in the "good old days" for which he pines -- when the conservatives' bigotry was open, loud, common, even casual. Before better Americans put those bigots in their place.

[Snorkle]

I think this is pretty close to the line of attempting to incite a lynching. People have ended up dead over lesser lies.

Seven figures seems likely to make other malicious shitbags like Bushnell think twice about trying to ruin peoples' lives over stupid nonsense like this. Works for me.

I do hope Bushnell thinks about drag queens every minute she working that drive-through to pay this off.

[Rev. Arthur L. Kirkland]

Do they have drive-throughs in Idaho yet?

[John F. Carr]

Compensatory damages are meant to compensate for actual harm, not what might have happened. I am not questioning the punitive damages, which can consider the hypothetical consequences of a lie.

[M L]

Let's see the video so that we confirm whatever happened is fine upstanding behavior.

[Sarcastr0]

Bigoted burden shifting. We don't need to confirm anything.

[M L]

Not for the specific legalities of this case, but it's certainly key to the human interest side of this story, and would shed light on the various implications and speculations comprising this comment section.

[shawn_dude]

Are you going to say she deserved it because she wore a short skirt?

[Sarcastr0]

No, you're still burden shifting due to some pretty negative and unsupported preconceptions about drag performers.

[Rev. Arthur L. Kirkland]

You figure a $900,000 compensatory award requires a "destroys your career" case?

How's life in the sticks, clinger?

[Bored Lawyer]

Still working on your inferiority complex, I see.

[Rev. Arthur L. Kirkland]

You derive that from my sense that a $900,000 compensatory award isn't an "end of the world" case?

[Davy C]

Probably from the *other* sentence. But congratulations on going one post without insulting anyone.

[Rev. Arthur L. Kirkland]

Here is the lying, virus-flouting, right-wing bigot's blog . . . which indicates this award couldn't have been imposed on a more deserving person.

Carry on, clingers.

[ObviouslyNotSpam]

I'm just surprised there are drag shows in Idaho.

[M L]

You’d be surprised in many such cases. Pride festivals are popping up everywhere, including in a lot of places where the general population has no idea what these events are sometimes like.

[shawn_dude]

I've never been to a Pride parade that is any worse than the slew of similar parades related to Mardi Gras like Carnival or Gasparilla. The very first Pride festivals and parades I attended were well-attended by public figures and celebrities (Cindy Lauper was a regular in Vegas.) Parades include Mayors and other elected officials all the time. There are major corporate donors for the larger parades (NY, LA, SF, etc) and none of these celebrities, politicians, and corporations would sponsor events where genitals are shown. In later years, I've seen more and more hetero families with young children at Pride parades (especially in St Pete, FL.) Nothing happens at these parades that doesn't happen at non-Pride parades all over the country.

People who adhere to strict gender roles and would prefer it if they could convince/force others to do the same would find these events offensive. I recommend they don't attend.

[shawn_dude]

Right?! It always amazes me that LGBT people choose to live in places like Idaho. You'd think the first Greyhound bus they could afford out of town would be the last time they'd see Idaho. Or that any drag shows that might pop up would end up like Colorado's Club Q or Florida's Pulse nightclub.

[David Brayton]

I'm kinda surprised that people still make this argument. It's kinda like saying that [*immutable characteristic*] people should leave Idaho because they are discriminated against in Idaho.

Why should LGBT move to be free from unwarranted/illegal discrimination? Would you argue that Jewish people should leave the neighborhood because some of the neighbors are anti-Semitic. Or that Black people should leave Alabama because there are a lot of people in Alabama that still believe segregation should be the law of the land.

Everyone has the right to be free of discrimination based on an immutable characteristic. Full stop.

[shawn_dude]

My mother once said there is "right and there is dead right. Don't be dead right." She was talking about right-of-way on a bicycle but I've found this bit of motherly wisdom to apply in many more situations. Just because I have the right to be free from discrimination doesn't mean I enjoy living in a place where I have to constantly be on guard for it and arrange my normal activities around the possibility I could encounter someone willing to get violent. There's plenty of studies relating living in these kinds of stressful environments to LGBT rates of substance abuse and suicide. So while I should be able to live without discrimination, I have always had to include it in my daily planning when I lived in Nevada (Crimes Against Nature sodomy law) and Florida (an array of escalating homophobia for decades.) It still guides which jobs I'll apply for and how I plan trips to other states. I endured vioilent, anti-gay bullying as a child. I've been denied hotel rooms (Alabama), tables at restaurants (Arizona), and similar public accommodations over the decades.

I argue that life cannot always be stress and struggle. If a person is able to leave a bad environment for a better one, they should for their own health. There is a long tradition of LGBT youth doing this in America, not always by choice but by necessity. Jews tend to live in communities with temples and other Jews. African Americans tend to live similarly. LGBT persons, because of the nature of our immutable characteristic, are often more isolated with reduced access to the types of social support networks that can help us endure discrimination. I agree that we should be able to live free from discrimination but I live in the real world and I'd rather not be "dead right."

[David Nieporent]

Voting with one's feet!

[Rev. Arthur L. Kirkland]

.

Everyone has the right to be free of discrimination based on an immutable characteristic. Full stop.

That is true. But it seems reasonable to question why anyone with adequate education, character, and resources would stay in a place such as West Virginia, Idaho, Mississippi, west Texas, or any of America’s other bigoted, half-educated, parasitic, can’t-keep-up rural and southern areas.

Most people don’t want to remain in burning buildings, either.

(This observation is inapplicable to minors. Until you graduate from high school, there is no shame in living in a deplorable community.

[M L]

Shawn dude - didn't the percentage of LGBT among young people go from like 2% to 30% overnight? And then you have all the non-LGBT people who are interested in drag shows and pride events, and follow the LGBT topic with a distinctly religious fervor. Your comment displays a lot of confusion and ignorance about what is going on.

https://www.nbcnews.com/nbc-out/out-news/nearly-30-gen-z-adults-identify-lgbtq-national-survey-finds-rcna135510

[Nige]

ML knows what's goin' on.

[shawn_dude]

According to the article:

In its LGBTQ identity breakdown, the report found 72% of Gen Z adults identified as straight, 15% as bisexual, 5% as gay or lesbian and 8% as something else.

Bisexual and the "something else" is likely heavily weighted with "non-binary." The gay and lesbian number isn't shifting much. But, I do find the GenZ approach to gender and sexuality encouraging.

Having said that, we still live in a world where conservative states are passing "Don't Say Gay" laws and other anti-LGBT laws, banning books and topics in schools, and going after LGBT businesses and entertainment. There are still shooting massacres at LGBT businesses and right-wing militias still organize to attack LGBT events--up to and including bringing weapons to a kids event at public libraries. If these numbers you quote have any real meaning, it won't be until they're in large enough numbers to have a meaningful impact on politics.

BTW: You don't look that good lecturing a gay man on "ignorance about what is going on" in LGBT America. Do you do that with all the minorities or just my own?

[Mr. Bumble]

Do you have some cites for your claims or is it just feelings?

[Sarcastr0]

all the non-LGBT people who...follow the LGBT topic with a distinctly religious fervor

Haha what? I'm sure these people exist, but you seem to think they're thick on the ground.

Your comment displays a lot of confusion and ignorance about what is going on.
Often wrong but never confused - the ML credo!

[Randal]

No. The number of gay (and lesbian) people is ~5%. It's always been that, since we came down from the trees, by all possible measures.

At times of great persecution, gay people won't self-report as gay in surveys. But you'll never see over 5% report themselves gay.

The other 25% is other stuff including bi and queer. Queer basically means straight but would rather hang out with the oppressed rather than the oppressors --- aka dumbasses. You might see over 50% queer if things keep going the way they're going, with the emptying-out of the political middle.

[Rev. Arthur L. Kirkland]

It seems reasonable to expect that anyone with a college degree (or hope to obtain one), functioning synapses, any level of decent character, and a few hundred dollars would be on the first bus out of Idaho.

[Bored Lawyer]

In a defamation case by an individual, hurt feelings and emotional distress can be the basis for compensatory damages. It's not limited to commercial/pecuniary damages. I suspect that is what happened here. I doubt the plaintiff's monetary life has been negatively affected.

[shawn_dude]

It's possible (likely?) that an employer would terminate an employee caught flashing themselves in public when children are present (the accusation against Eric).

Here is the only employment reference I could find. It lacks detail:

Posey's reputation has been tarnished, he has suffered distress from harassment and the police investigation, has suffered consequences with his employer, and has lost professional opportunities, Olson wrote.

The article also mentions that the festival made the news because Patriot Front was there to riot.

[M L]

Where is the video? I'd like to see if this event and behavior looks appropriate for children, as they are currently springing up in small towns across the land.

[jb]

Who cares if you think the event was appropriate for children? It was a Pride event, not a children's birthday party. If parents wanted to take their kids to a drag performance at a Pride event, seems like that's their parenting decision and not yours to decide what's "appropriate" or not.

All of which is irrelevant to whether or not the dude was defamed anyway, since the specific defamatory claim was that he exposed his genitals, not that he did a dance that ML thinks isn't appropriate for children.

[M L]

Going on a tangent is not allowed in these comment threads, huh? Some people I know enthusiastically embrace these things and bring their young children to them. Some people are opposed to hosting a pride festival in their town at all. Most people are somewhere in the middle, not necessarily aware, might not care one way or the other, might like to generally go with the flow or whatever is advantageous, etc. Do you think the video is available?

[David Nieporent]

It was presumably introduced into evidence at the trial, so just mosey on down to the Kootenai County court clerk's office and you can review the file for yourself.

[jb]

I was entertaining your tangent in my first paragraph, but pointing out that given the context it seems mostly like a parenting decision so not sure why you care.

This news story has some short clips from the video:

https://www.youtube.com/watch?v=CP4t7kdY8K0

[M L]

You’re asking why I would care about a parenting decision? Maybe because I have kids. People are discussing parenting decisions like this. People are also discussing decisions like whether or not to host things like this in their town square or other places.

Also, I just watched a bit more of the link I posted below. Interestingly, most of the video consists of highlighting various statutes that are not limited to “exposing genitals.” For example, a law against causing a child to witness “sexual conduct” which includes “any touching of the genitals or pubic areas . . . in an act of apparent sexual stimulation or gratification.” Or “erotic fondling” which includes “clothed or unclothed” touching . . . and a bunch more stuff that could plausibly include these types of shows. That’s also why it is of interest, because people are considering statutes like that in relation to things like this and whether to pass or enforce them. This presumably doesn’t help the defendant’s libel issue since the body of her blog post said “exposing.” But there is an issue of whether locales should ban or restrict things like this, and more interestingly, whether they can even do so, or who makes that decision.

[jb]

Just stumbled across this; I think it's the "original video" which unfortunately is only 12 seconds long:

https://www.facebook.com/NorthIdahoNews/videos/the-video-of-the-drag-queen-performance-at-pride-in-the-park-has-been-shared-wit/974472399897836/

[M L]

Here's the archive of the defendant's blog post. First 1 second was enough for me to say - nah, not appropriate for kids imo.

https://web.archive.org/web/20220614144237/https://www.thebushnellreport.com/post/why-isn-t-this-man-in-jail

[Randal]

Is this more your style?

https://www.pinterest.com/pin/669136457114381281/

[Rev. Arthur L. Kirkland]

You figure it's worse for children than the ignorance at a faith healing event, the indoctrination at a revival meeting, or the antisocial display at a gun bash or militia gathering?

[hobie]

Alex Jones
Fox News
NewsMax (pending)
OANN (pending)
Rudy
Kraken
The dingbat in the instant post

All sued into oblivion for lying to their audience and harming people. Any of you rubes still get your training from these losers?

[David Nieporent]

You forgot MyPillow Guy.

[Rev. Arthur L. Kirkland]

Trump is at $88 million so far, isn't he? Not counting Trump University.

[hobie]

I didn't want to get gratuitous. You have consider people's feelings here

[darkknight9]

Snort!

[ObviouslyNotSpam]

And there's the chief MAGAloon, himself, currently racking up millions in defamation awards in relation to E. Jean Carroll. Trump, of course, keeps re-defaming the same person. Carroll may sue him again after he defamed her (again) this week. He just doesn't seem to understand that Carroll doesn't need to re-prove the facts of the case each time he defames her.

Good thing he's not blowing his own money!