Some Republicans are celebrating Judge Cathleen Caldwell’s decision denying the Argus Leader’s motion to dismiss in Dan Scott v. Argus Leader.

The SD War College has a story on the decision, where some commenters see this as some sort of “victory” against the “liberal” Argus Leader.

Here’s my take that I left in the comments:

Before you start celebrating, my Republican friends, there’s a lot of law yet to play out. The Argus will not settle and if they lose at trial will appeal as far as they can take it. That’s what major media companies do in First Amendment cases like this.

My guess is that Gannett won’t be writing a check in this case. Scott is going to have to show actual malice as a public figure, which is really, really tough to prove. Janklow is an excellent lawyer but he isn’t exactly up against patsies on the other side either.

Stay tuned.

SDWC also has a .pdf of the decision: Read all 11 pages here : danscott.pdf.

 

Technorati Tags: Bill Janklow, Gannett, Argus Leader, Randell Beck, First Amendment, defamation

In this rather extraordinary set of interviews with the Argus Leader’s and Randall Beck’s attorney Steve Sanford and Dan Scott’s attorney Bill Janklow, you see two very good trial lawyers in action with the media.

Steve sticks to the law.  Parody is protected.  Period.

Bill goes after the potential jurors who could hear this case should the case survive the motion to dismiss or summary judgment—the Argus leader sucks, Beck is mean, and Scott got screwed.

Sanford won the legal argument; but Janklow never does anything without a reason and he’s looking to rile up jurors against the Argus Leader, which he calls the “alternative newspaper.”

Extraordinary stuff.  My thanks to KELOLAND.com for posting this.

Here it is:
Technorati Tags: Argus Leader, defamation, parody, Bill Janklow, Steve Sanford, litigation, libel

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The Argus Leader reports that Sioux Falls Chamber of Commerce official Dan Scott has sued the Sioux Falls Argus Leader over his comments earlier this year.

• Read:   Argus Leader column prompts lawsuit

An excerpt:

The July 15 column by Executive Editor Randell Beck included a satirical letter of apology from the foundation’s president, Dan Scott. The column was about Scott’s recent speech to South Dakota lawmakers and others in Sioux Falls.

Scott maintains in the lawsuit that readers believed the newspaper published an actual letter of apology.

Former Gov. Bill Janklow is representing Scott, according to the Argus.  This has grudge match written all over it after years of Bill own parrying with the Argus.  On the other hand, Bill is a helluva attorney.  Bill also sued author Peter Matthiessen for defamation over his book, In the Spirit of Crazy Horse—and lost.

And, as you might expect over at SD War College, there is much glee in this turn of event in the comments.

• Read: BREAKING NEWS: Dan Scott sues Randall Beck and Sioux Falls Argus Leader

• My take:

These cases are extremely difficult to win for public figure plaintiffs.  Big media conglomerates like Gannett, the Argus’ owner, don’t settle them.  They go at least to summary judgment.  Dan Scott is in all likelihood a public figure.  That means it’s not simple negligence.  Under the New York Times v. Sullivan standard, he will have to prove that the  Argus knew or should have known about the falsity of what it wrote.  There is also considerable First Amendment protection for satire, which Randell Beck’s column might well be.  (Not very funny satire but an attempt at satire nonetheless.)

Does that mean that Dan Scott wasn’t wronged?  No.  The Argus reporting on this matter was shoddy and unfair.  But that is not the legal standard.  Anyway, it will an interesting case to watch.

The current issue of the USD Volante has a very interesting story about the terrible impacts that gossip can have on students.  Read: Spilling Secrets

Excerpt:

Vanessa Ternes was only a freshman when she experienced firsthand how devastating gossip can be. A student at Belle Fourche High School, Ternes became the object of ridicule when a classmate began spreading rumors she was a lesbian in an attempt to steal Ternes' boyfriend. Full Story

The interesting legal issue is where does gossip cross into defamation?

Here are South Dakota's statutes on defamation:

20-11-1. Obligation not to defame.
    Every person is obligated to refrain from infringing upon the right of others not to be defamed.

20-11-2. Defamation - slander or libel.
    Defamation is effected by:
(1)    Libel; or
(2)    Slander.

20-11-3. Definition - "Libel."
    Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

20-11-4. Definition - "Slander."
    Slander is a false and unprivileged publication, other than libel, which:
(1)    Charges any person with crime, or with having been indicted, convicted, or punished for crime;
(2)    Imputes to him the present existence of an infectious, contagious, or loathsome disease;
(3)    Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit;
(4)    Imputes to him impotence or want of chastity; or
(5)    By natural consequence, causes actual damage.

20-11-5. Privileged communications - Malice not inferred from publication.
    A privileged communication is one made:
(1)    In the proper discharge of an official duty;
(2)    In any legislative or judicial proceeding, or in any other official proceeding authorized by law;
(3)    In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information;
(4)    By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.
    In the cases provided for in subdivisions (3) and (4) of this section, malice is not inferred from the communication or publication.

My point is this.  Gossip can turn into defamation.  Is falsely calling someone a lesbian defamatory?  Frankly, I wouldn't advise someone to do it if they wish to avoid litigation.  

Reader Bob in the comments in Getting Sued for Something You Didn't Actually Write below notes that Brookings Mayor Scott Munsterman is not bringing the defamation lawsuit against Brady Phelps.  It is two other doctors referenced in the article at issue.  Also, read the SDSU Collegian's coverage at: Read that here.

SDW strives to be accurate.  I regret the error and apprciate Reader Bob noting the mistake.  Again, if anyone has additional information, please drop me an email.

PP at S.D. War College has all the bloody details about Prof. Gary Aguiar's run for mayor in Brookings, thanks, in part to the "help" of his SDSU political science students.  Read: Professor Aguiar strikes again.

It is an interesting story, but what really got my attention from a legal point of view was PP's description of an admission made in a deposition in a defamation lawsuit that Dr. Scott Munsterman, the winning candidate, brought.

Dr. Munsterman has sued Prof. Brady Phelps, who teaches psychology, and apparently someone else, for an opinion piece in the Brookings Register that assailed Munsterman's good name.

Well, lo and behold, in deposition, Phelps says that Aguiar, not Phelps, wrote the article with the allegedly defamatory material.

Say what?

I've represented clients who have claimed to have been defamed and were sued for defamation.  One thing that never was in question was who actually did the writing or speaking of what was allegedly defamatory.  Until now.

I haven't done any research on this particular point, but I suppose Phelps could ratify what Aguiar wrote and "make" it his own.  And ghostwriting isn't exactly new to political communications.

But still.  Phelps and Aguiar were friends.  Seems like a strange way to treat a friend.

If anyone has more information on this case or links, email me at epplaw@gmail.com. Meanwhile, PP has it laid our very nicely with links to SDSU Collegian coverage of the case as well.

Since I just received a call from the A.P. and I don't want to be scooped on news on my own case, please note that James Abourezk, Jane Fonda, and Roxanne Dunbar-Ortiz v. ProBush.com, Inc., Michael Marino and Ben Marino has been settled.

The case had been pending in Federal District Court for the District of South Dakota in Sioux Falls.

The case was going to proceed to trial after Judge Lawrence Piersol ruled against the Defendants' motion for summary judgment.  The parties amicably settled.  I am not able to reveal the terms of the settlement under the settlement agreement.

People will draw whatever conclusions they wish to draw from the case.  The fact is that most lawsuits settle.  My clients, Jane Fonda and Roxanne Dunbar-Ortiz, believe that their good names were vindicated.  Also, I believe the case shows that defamation law is applicable on the Internet just as it is in other mediums of expression.  With rights come responsibilities.

Opposing counsel was Ron Parsons of the Johnson, Heidepriem firm, who did an excellent job representing his clients.  I also wish Ben and Michael Marino the best of luck in their future endeavors.