Real Legal Analysis of the Snyder Case (case law provided)

[skinsnshanny]

***Mods, I posted this in another thread, but I am afraid it might get buried, and so far all i have seen are peoples opinions on what is right/wrong, with no regard or knowledge of the law. If you must NNT me, have at it or merge***

This post is going to be long. I will attempt to break down law and occasionally I will compare snyders case to the law (but for the most part im breaking down the law, then ill let someone make a case for why snyder wins) I dont think synder wins this case, his best shot is on the forgery issue. I can see it being demurred, though the lawsuit was filed in NY not VA so I dont have as much knowledge as i could. After citing case law, I will provide examples where I can and I will indent them.

In NY, defamation has 4 elements, all of which the plaintiff has the burden of proving. Elements 1,3, and 4 are going to be very hard to prove. 2 is a lock box (as it almost always is). The elements are:

1. A false and injurious statement of fact concerning the plaintiff.

2. Publication to a third party by the defendant.

3. Depending on the status of the plaintiff and defendant, made with malice, recklessness, gross negligence or made negligently or innocently.

4. Special Harm or per se actionability

Church of Scientology Intern. v. Eli Lilly & Co., 778 F.Supp. 661, 666 (S.D.N.Y.1991)

Now I will break down each element. I will first state in plain english what the law is and then provide more legal backing.

Element 1: A false and injurious statement of fact concerning the plaintiff.

This elements has 2 essential parts.

A. False Statements of fact.

The statements cannot be opinions. The statements cannot be true. No matter how horrible the statements are, if they are true, they are not actionable.

B.

The statements must be defamatory

. Even if false it must bring a party into hatred, contempt or ridicule by asserting some moral discredit upon his part

A judge will decide if the statements are fact or opinion. A judge will also decide if the statements are capable of being understood as defamatory. If a judge decides they are capable of being defamatory (both degrading and false), a jury will decide if they are.

More legal detail:

A. Factual and False:

Plaintiff has the burden to plead and prove that the words in suit are substantially false. Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 63 (2d Cir.1993)

Truth is a complete defense to an action to recover damages for defamation, regardless of the harm done by the statement. Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369.

The test to establish falsity is whether the statement as published would have a different effect on the mind of the reader or listener from that which the pleaded truth would have produced. Id.

Innuendo and adverse inferences are insufficient to establish libel. Nekos v. Kraus, 62 A.D.3d 1144

When the truth is so near to the facts as published that fine or shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of defamation, no falsity has been proved. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991);

Accordingly, minor inaccuracies will not render an otherwise truthful statement actionable. Ingber v. Lagarenne, 299 A.D.2d 608, 750 N.Y.S.2d 172 (3d Dep't 2002)

(Defendant proved that the allegations in his letter were substantially true, therefore no triable issue of fact existed to preclude an award of summary judgment)

In analyzing the words to ascertain whether a question of fact exists, the court will not pick out or isolate particular phrases, but will consider the publication as a whole. James, 386 N.Y.S.2d at 874.

Clear and convincing evidence is required to establish the falsity of a statement in a libel claim. DiBella v. Hopkins, 403 F.3d 102 (2d Cir. 2005).

(The author had written that plaintiff signed a contract with Entertainment Tonight, and that he was paid $1 million for permitting the network to film him on the plane...The court ruled that the statement regarding the payment

was substantially true

, even though the plaintiff did not sign a contract and was paid only $150,000) Stern v. Cosby, 645 F. Supp. 2d 258

Expressions of opinion, in contrast to assertions of fact, are privileged and, no matter how offensive, may not be the subject of an action for defamation Weiner v. Doubleday & Co., 74 N.Y.2d 586

New York law's analytical approach to the fact/opinion dichotomy is distinctively context-oriented and considered broader, that is, more solicitous toward freedom of expression, than what may be required under U.S. constitutional law. 600 W. 115 St. Corp., 589 N.Y.S.2d at 833.

All statements must be read in the context of the entire communication to determine their actionability. Conversely, certain "harsh words," "vigorous epithets" and "rhetorical hyperbole" are not actionable, because they could not be read as implying statements of facts. Id.

(Public high school teacher sued teachers' union for defamation. The court ruled that statements contained in a written resolution from the union that referred to the principal as "Principal from Hell" and "Satan" were not actionable, given that they were nothing more than exaggerated hyperbole.). Roth v. United Federation of Teachers, 787 N.Y.S.2d 603 (Sup 2004)

(Customer engaging in a dispute with his dry cleaner put up signs near plaintiff's place of business stating “Todd Layne Cleaners sucks and is overpriced.”) Todd Layne Cleaners LLC, Maloney, N.Y.L.J. Nov. 8, 2007 (Civ. Ct., New York County 2007

Investigative journalist Jack Newfeld wrote that plaintiff-judge was "incompetent" and "probably corrupt." The Court of Appeals found that calling a sitting judge "incompetent" was a non-actionable expression of opinion because Newfeld set forth certain of plaintiff's acts,

It seems likely that a court would find most, if not all of the statements by the city paper as non actionable, either because they are substantially true, opinions such as Dan being incompetent, or hyperbole such as the picture with the devil horns.

B. Defamatory (this part of the element, bleeds with element 4

The publication will be tested by its effect upon the average reader and the language will be given a fair reading; the court will not strain to place a particular interpretation on the published words

(The court ruled, as a matter of law, that postings that merely announced a job opening did not defame the plaintiffs. An untrue statement that the director's job was vacant could not be reasonably construed as imputing profession or incompetence to her.) School of Visual Arts v. Kuprewicz, 3 Misc. 3d 278, 771 N.Y.S.2d 804 (Sup 2003)

----I think the above case makes it clear that as far as the Six Flags board statement goes, Snyder does not have a strong case. That court held even if the statements were UNTRUE they wouldnt be defamatory.

(In a defamation action by a limited-purpose public figure, the court ruled, as a matter of law, that the headline "unscrupulous operation gouges nursing home" was not defamatory.) White v. Berkshire-Hathaway, Inc., 802 N.Y.S.2d 910 (Sup. Ct., Erie County 2005)

-----Thus, so far there has been no clear and convincing evidence that anything in the paper which was not opinion, was substantially false. Remember minor inaccuracies or difference, will NOT render something false.

Element 2: Publication..clearly met...next

Element 3: Intent. Again this element as 2 parts:

A. Status of the plaintiff

B. Standard of intent that must proved

Basically depending on the Plaintiff and Defendant, different levels of intent have to be proved. When a public figure is involved "malice' is usually the standard.

A. Status of the Plaintiff

:

"Public figures" are those individuals, who while not "public officials," nevertheless, by virtue of their status or by having been thrust "into the vortex" of an important public controversy, command sufficient continuing public interest and have access to the means of counter-argument, so that they can" "expose through discussion the falsehoods and fallacies' of the defamatory statement." Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466, 605 N.Y.S.2d 218, 626 N.E.2d 34 (1993)

(prominent restaurateur and businessman was a "public figure").Chapadeau, 379 N.Y.S.2d 61

(school teacher in small town was not a "public figure");

What is considered a matter of public interest and therefore newsworthy from the public's point of view is, however, interpreted broadly, and can include the personal marital woes of a public figure. Carson v. Allied News Co., 529 F.2d 206, 210 (7th Cir.1976).

Everything about a public figure is arguably of public interest. Pace v. Rebore, 107 A.D.2d 30

The Court of Appeals has ruled that judges should generally defer to a newspaper's editorial judgment when the newspaper concludes that a particular story contains a matter of public concern. The Court refused to "second-guess" a newspaper's editorial determination. Huggins v. Moore, 94 N.Y.2d 296, 704 N.Y.S.2d 904, 726 N.E.2d 456 (1999)

Thus, Dan Synder is most likely going to be considered a public figure and information about him and his businesses, will be considered of public concern.

I will continue on the assumption of him being a public figure and discuss malice.

B. Intent that must be proven: Malice.

Given the public's right to know about and discuss issues of public concern, the law now requires that when the defamatory statement concerns a public official or figure and relates to a matter of public interest, the plaintiff must prove that the defendant acted with

actual or constitutional malice

New York Times Co. v. Sullivan, 376 U.S. 254, 279–280, 84 S.Ct. 710, 725–726, 11 L.Ed.2d 686 (1964)

When a public official or other public figure sues for defamation that person must prove "actual or constitutional first amendment malice" on the part of the media defendant—that is, the making of a knowing or

reckless falsehood

by a publisher—before recovery may be had.

Id. At 280

To overcome a media defendant's claim that the published statement was a privileged fair comment on affairs of public interest, a public figure must prove the requisite

actual malice by clear and convincing evidence.

Lerman, 745 F.2d at 140–141.

Actual Malice Defined:

‘Actual malice’-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254

Ill will or fraud or reckless indifference to consequences is not sufficient to establish 'actual malice' In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication Gertz v. Robert Welch, Inc., 418 U.S. 323,

Sources may have borne plaintiff ill-will but that is not sufficient for 'actual malice' Gross v. New York Times Co., 281 A.D.2d 299, 299

The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a “high degree of awareness of . . . probable falsity. Gertz v. Robert Welch, Inc., 418 U.S. 323, 332,

Essentially Dan will have to prove that the paper knew the statements (facts and not hyperbole) were false or that the paper knew it was almost certain that the statements were false.

This is where the double whammy comes in for Dan. It appears most of what was written is at least arguably substantially true. It will be hard to prove (based on the standards in element 1) that the statements were substantially false. But even if he can prove that, then he must prove that the city paper KNEW they were false....the further away from the truth, the easier this is prove, the closer to the truth, the hard it is.

Element 4: Special Harm or per se actionability

As I said earlier this element seems to blend with part of element 1. Essentially the statements, if factual and false, must be defamatory.

They need to cause 'special harm' basically meaning they significantly injure the plaintiffs reputation. However, there are types of comments that are per se actionable, and then no special harm needs to be proven

Under New York law, words are per se defamatory if they falsely impute criminal activity, impute an offensive disease, would tend to injure a party's trade, occupation or business, or impute unchastity or homosexuality. Angio-Medical Corp. v. Eli Lilly & Co., 720 F.Supp. 269, 272 (S.D.N.Y.1989)

If an alleged defamatory statement is considered per se actionable, the law presumes damages and plaintiff need not specifically allege or prove them. Defamation per se, however, does not preclude a defendant from invoking any of the numerous privileges and immunities recognized by the courts. Foster v. Churchill, 87 N.Y.2d 744, 642 N.Y.S.2d 583, 665 N.E.2d 153

If a defamatory statement is not per se actionable, but is, per quod, then plaintiff must plead special damages in order to sustain the defamation action. James v. Gannett, 40 N.Y.2d 415

Special damages must consist of the loss of something having economic or pecuniary value which "must flow directly from the injury to reputation caused by the defamation, not from the effects of defamation," and it is settled law that such damages must be fully and accurately identified "with sufficient particularity to identify actual losses" Privitera, 435 N.Y.S.2d at 405

The charge about forgery could be serious and Dan's best chance at winning this thing. Courts usually take charging one with a felony very serious.

[killerbee99]

Basically in short, Snyder is a dumbass, will lose this case and has already lost the PR battle...multiple fail on many fronts by DS!!!

[pimpumd]

Basically in short, Snyder is a dumbass, will lose this case and has already lost the PR battle...multiple fail on many fronts by DS!!!

I'm a lawyer (though not a Tort or First Amendment attorney), and that wasn't at all what I got from the OP. I tend to agree with the OP, the forgery claim is the strength of Dan's case.

[Dan T.]

Thanks for the work on this.

WUSA-9 Sports director Brett Haber brought up another point on the legal aspect of this during an interview with Chris Russell on Sports980. Haber - who is Jewish - had already aired his widely publicized commentary criticizing Snyder for filing the lawsuit and for opportunistically invoking anti-semitism regarding the picture (calling the anti-semitism charge "baloney"). Haber noted in the interview that EVEN IF the drawing was intended as anti-semitic (and he didn't for one second think it was) - as repugnant as that might be, from a legal perspective it is not an actionable offense.

[PlayAction]

I'm a lawyer (though not a Tort or First Amendment attorney), and that wasn't at all what I got from the OP. I tend to agree with the OP, the forgery claim is the strength of Dan's case.

.

Yes, but I can see a jury questioning whether it was a willful mistatement of the facts when apparently it was his company that was accused of falsely authorizing the transfer of the long distance contracts. Since he owned the company and probably was the CEO, a jury might feel that the comment was close enough or at least not malicious.

BTW - why wouldn't the lawsuit have to be filed in DC since the alleged defamation occured in DC? I assume that the City Paper is a DC corporation?

[GoCommiesGo]

.

Yes, but I can see a jury questioning whether it was a willful mistatement of the facts when apparently it was his company that was accused of falsely authorizing the transfer of the long distance contracts. Since he owned the company and probably was the CEO, a jury might feel that the comment was close enough or at least not malicious.

BTW - why wouldn't the lawsuit have to be filed in DC since the alleged defamation occured in DC? I assume that the City Paper is a DC corporation?

The paper is owned by a hedge fund in NY.

[terpskins10]

Totally bookmarking this thread for when I start law school in August, lol

[SirClintonPortis]

"That’s the Dan Snyder who got caught forging names as a telemarketer with Snyder Communications..."

It didn't Snyder was just forging names willy-nilly, but as a telemarketer. Now, why would the boss be a mere telemarketer in the first place? Well, he likely isn't. Obviously, this is a poorly written sentence that should have been re-read before going to print. Is it defamation? I'm not sure.

[Destino]

"That’s the Dan Snyder who got caught forging names as a telemarketer with Snyder Communications..."

It didn't Snyder was just forging names willy-nilly, but as a telemarketer. Now, why would the boss be a mere telemarketer in the first place? Well, he likely isn't. Obviously, this is a poorly written sentence that should have been re-read before going to print. Is it defamation? I'm not sure.

The owner of a porn company can be described as a "pornographer" so there is no rule on this FYI.

[SirClintonPortis]

The owner of a porn company can be described as a "pornographer" so there is no rule on this FYI.

k

But then that means that the signature forging is "on the job"-related.

So, for those in the know, If a boss were to ask his employees to actively dupe customers, does he in turn engage in forgery?

If yes, Snyder's treading on some REALLY hot coals.

[skinsnshanny]

.

Yes, but I can see a jury questioning whether it was a willful mistatement of the facts when apparently it was his company that was accused of falsely authorizing the transfer of the long distance contracts. Since he owned the company and probably was the CEO, a jury might feel that the comment was close enough or at least not malicious.

BTW - why wouldn't the lawsuit have to be filed in DC since the alleged defamation occured in DC? I assume that the City Paper is a DC corporation?

A few points here.

1. Malice in this case does NOT mean malice as in 'ill will' or bad intentions, as it is usually used. it means Knowing or having a high awareness that what is published is False. Thus, a mistake or confusion etc will not establish malice.

2. The suit was filed in NY as you said. That is the plaintiffs choice. In a defamation case, the Plaintiff can usually bring suit wherever damage is felt (aka wherever the paper is circulated when in hard copy), I am not sure the internet laws, but clearly Dan's home state of MD, the state of VA (where the skins are based) or NY where the company has an HQ are fine location for the suit.

I do find it strange though because NY has very defendant friendly libel laws. They require a standard of proof than the constitution requires. I assume Dan and his lawyers know something I dont, or they figure that NYC would get the most attention. OR. They figure that the NY defamation per se categories fit nicely with the harm claimed. (per se includes falsely stating criminal conduct in NY, which would go along with the forgery claim.)

---------- Post added February-6th-2011 at 12:41 AM ----------

k

But then that means that the signature forging is "on the job"-related.

So, for those in the know, If a boss were to ask his employees to actively dupe customers, does he in turn engage in forgery?

If yes, Snyder's treading on some REALLY hot coals.

Yes a company is liable under respondent superior, a boss would most likely be liable if they had knowledge and would definitely be liable if they instructed them to. (think Ken Lay and Enron).

---------- Post added February-6th-2011 at 12:43 AM ----------

"That’s the Dan Snyder who got caught forging names as a telemarketer with Snyder Communications..."

It didn't Snyder was just forging names willy-nilly, but as a telemarketer. Now, why would the boss be a mere telemarketer in the first place? Well, he likely isn't. Obviously, this is a poorly written sentence that should have been re-read before going to print. Is it defamation? I'm not sure.

Classifying someone working for/owning a telemarketing company would most likely not be false. It seems to be a generalization or a slight inaccuracy at best. but notice i say 'most likely' nothing is ever 100% when predicting legal outcomes.

---------- Post added February-6th-2011 at 12:45 AM ----------

Totally bookmarking this thread for when I start law school in August, lol

Where are you going man? Seeing that your in MD, i assume its in the DMV area? let me know. Id love to give you some advice/pointers, whatever.

(though this thread will not be relevant unless your going to NY, tort law is by state, and while most states are similar, they are not identical. Ex. VA only has 3 elements to libel while NY has 4, though they are essentially the same.

[Mackdaddydean]

.

Yes, but I can see a jury questioning whether it was a willful mistatement of the facts when apparently it was his company that was accused of falsely authorizing the transfer of the long distance contracts. Since he owned the company and probably was the CEO, a jury might feel that the comment was close enough or at least not malicious.

BTW - why wouldn't the lawsuit have to be filed in DC since the alleged defamation occured in DC? I assume that the City Paper is a DC corporation?

Doesn't have to be willful can also be reckless disregard for the truth...

[TheGreatBuzz]

An almost completely off topic question but the word "tort" is involved so......

I'm active duty navy. I was on a base other then my normal one a few years ago for training. While there, I parked by the golf course in a legal parking spot. I came back to my truck and found a small dent in the hood looking about the size of a golf ball. Now the common sense side of me says "you parked by a golf course. **** happens. That is why you have insurance". Then a chief told me that the base pays for any damages that happen to a vehicle while on base. So I looked into it and sure enough the base made me fill out a tort claims form and had me get some quotes for repair. I'm not going into some of the shady practices that I may have participated in after that but the point is the base cut me a check for around $500 to fix the dent in my hood. WTF? Why is the base agreeing to pay for that?

[FanboyOf91]

Wow, exhaustive research there, sir.

[skinsnshanny]

An almost completely off topic question but the word "tort" is involved so......

I'm active duty navy. I was on a base other then my normal one a few years ago for training. While there, I parked by the golf course in a legal parking spot. I came back to my truck and found a small dent in the hood looking about the size of a golf ball. Now the common sense side of me says "you parked by a golf course. **** happens. That is why you have insurance". Then a chief told me that the base pays for any damages that happen to a vehicle while on base. So I looked into it and sure enough the base made me fill out a tort claims form and had me get some quotes for repair. I'm not going into some of the shady practices that I may have participated in after that but the point is the base cut me a check for around $500 to fix the dent in my hood. WTF? Why is the base agreeing to pay for that?

I am sure a lot is going on here. but basically a tort is when one wrongs another. A civil wrong. You parked your car where you were allowed to park it. It had no damage when you parked it there, someone else caused the damage, they committed a tort and owe you money.

Alot more is at work but thats the basics.

---------- Post added February-6th-2011 at 11:12 PM ----------

Wow, exhaustive research there, sir.

Thanks man, just here to help.

[theTruthTeller]

Great write up. I just don't think there is much to the forgery claim. If he knew about forgeries, or set up a system by which he could reasonably expect forgeries, I don't see how the court nails the WCP over a sentence that was carelessly written. As I wrote in another thread, the price Snyder will pay for this is so great, and the possible reward so slim, that I don't know how he thinks he comes out ahead in the end.

[JoeSkins]

Wow, exhaustive research there, sir.

That probably took less than 20 min. It also looks like Lexis' format (if any of it was copy/pasted). Am I right, OP? If so, I like you for not using Westlaw.

[skinsnshanny]

That probably took less than 20 min. It also looks like Lexis' format (if any of it was copy/pasted). Am I right, OP? If so, I like you for not using Westlaw.

Westlaw Next > Lexis

[JoeSkins]

Westlaw Next > Lexis

You broke my heart, Fredo.

Edit to make myself clear: I kid. I'm one of the support staff for Lexis, that's all.

[skinsnshanny]

You broke my heart, Fredo.

Edit to make myself clear: I kid. I'm one of the support staff for Lexis, that's all.

haha dont worry, plently of people i know prefer lexis, i might even prefer it to westlaw, but westlaw next has grown on me because of ease of use.