January 21

Freedom of Speech & Defamation

Our last article concerned the First Amendment, specifically the freedom of speech, and the standard of proof to establish whether someone runs afoul of the First Amendment. Today we’ll focus on the issue of defamation, and discuss when untruthful publications fall outside the First Amendment’s scope of protection. Consider the highly publicized case of defamation, based on a fictitious sexual assault, alleged to have occurred in 2012 at a University of Virginia fraternity. A brief background follows.

“Jackie,” an 18-year-old freshman at UVA, claimed she was invited to a fraternity party where she alleged to have been gang-raped for several hours by seven male college students. According to her initial account of the incident, Jackie’s friends convinced her not to go to the hospital, and she did not immediately report the supposed rape. In fact, according to her first version of the story, two weeks thereafter, Jackie ran into her perpetrator and thanked him for inviting her to the party. Near the end of her freshman year, Jackie did report the allegations to UVA’s administration, though she declined to pursue criminal charges.

By 2014, in her junior year, Jackie still had yet to file a criminal complaint. Around that time, a reporter for Rolling Stone magazine, Sabrina Erdely, made contact with Jackie. Ms. Erdely heard of Jackie’s story and subsequently published an article purporting to expose a ‘rape culture,’ and an indifferent administration at UVA. Soon thereafter, Rolling Stone found itself under scrutiny by journalists who identified glaring discrepancies and inconsistencies in Jackie’s story. Rolling Stone was later forced to concede they never interviewed the friends who supposedly came to Jackie’s aid, nor did they interview the alleged male offenders. No one from Rolling Stone even attempted to do so. Remarkably, however, Rolling Stone, stood by Ms. Erdely’s article, insisting Jackie’s story was legitimate and was adequately fact-checked. According to The Washington Post, however, Jackie’s story was simply not credible, and contained conspicuous irregularities that were demonstrably false.

After the story was shown to be a fabrication, and Rolling Stone exposed for journalistic sensationalism, the magazine eventually issued an apology. The Columbia University Graduate School of Journalism conducted an independent review of the magazine’s reporting. It was determined that Jackie lied about the rape story for her own benefit. Columbia University called out the article’s many conflicts and Rolling Stone’s journalistic misconduct, naming the story the winner of “this year’s media-fail sweepstakes.” Finally, five months after publication, Rolling Stone retracted the article in its entirety.

Several people then sued for defamation. On May 12, 2015, Nicole Eramo, UVA’s associate dean, who at the time handled sexual assault issues at UVA, filed a $7.5 million lawsuit against both Rolling Stone and Ms. Erdely. Ms. Eramo claimed damage to her reputation and emotional distress, and claimed that both Rolling Stone and Ms. Erdely acted willfully and wantonly by publishing the article. On November 4, 2016, a jury found Rolling Stone and Ms. Erdely liable for defaming Ms. Eramo, and awarded damages of $3 million.

The First Amendment’s free speech protections have limits. Ms. Erdely published a damaging story about a sensitive topic, without fact checking or interviewing individuals with supposed direct involvement in the story. All of which goes against everything the First Amendment stands for. The First Amendment protects individuals’ right to free speech, but it does not protect assertions of objectively false facts, nor does it protect statements made with knowledge that they are false or made with reckless disregard for whether they are false or not. It is not o.k. to merely hear a scandalous story, then publish it without verification. To do so can have devastating consequences for innocent people.

Ms. Erdely relied solely on the unverified story of a 20-year-old student, and published her story for millions of people to read. Her conduct grossly violated the most basic of journalistic standards, and violated the rights of others. The First Amendment cannot and will not protect people who blatantly disregard the truth. Absent these limitations, anyone willing to engage in falsehoods might otherwise do unanswerable harm to the lives of others.

November 24

The First Amendment

The First Amendment to the Constitution provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.” In modern society, the First Amendment safeguards Americans’ rights in profoundly important ways. The freedom of speech is inherently counter-majoritarian, because popular speech rarely needs protecting in the first place. Americans enjoy the right to free speech, a free press, and to practice religion, or not at all. Even so, courts sometimes impose limits to the scope of protections.

The recent case of “Bollea v. Gawker” is one example. Better known to WWE fans by the name “Hulk Hogan,” Terry Gene Bollea filed suit against the online company, Gawker Media. For those unfamiliar with the case, Gawker Media was sued in Florida, for publishing portions of a sex tape depicting Mr. Bollea with a married woman. Among his claims, Mr. Bollea alleged invasion of privacy, and intentional infliction of emotional distress. Attorneys for Gawker argued that First Amendment guarantees of a free press protected their client’s actions. Gawker’s attorneys tried making the case that a decision for Mr. Bollea would fundamentally change the application of First Amendment law in later cases.

The procedural history of Bollea v. Gawker is a little confusing. The case was initially filed in federal court, then dismissed and re-filed in Florida state court. Before trial, Mr. Bollea asked the federal court for a preliminary injunction that, if granted, would have forced Gawker to take down the sex tape until the conclusion of the case. The federal court applied a high standard and said, “publication must threaten an interest more fundamental than the First Amendment itself.” Examining Mr. Bollea’s lifestyle, the federal court also determined that Mr. Bollea failed to prove that he’d suffer irreparable harm unless the video was taken down; the court held 2that embarrassment and economic harm did not meet the standard for irreparable harm. Moreover, the court was not convinced that taking down the sex tape would serve the public interest, and the request for a preliminary injunction was therefore denied.

When the case was later re-filed in Florida state court, Mr. Bollea’s second attempt at a preliminary injunction was granted. When Gawker appealed the decision, however, the Florida Court of Appeals reversed on First Amendment grounds.

At trial, Gawker argued that its actions were Constitutionally protected. Mr. Bollea argued that Gawker violated his right to privacy by circulating the sex tape. And a jury agreed, awarding Bollea compensatory and punitive damages of more than $130 million. Gawker declared its intention to appeal, but was forced into bankruptcy before it could do so. Shortly thereafter, Gawker and Bollea agreed to settle the judgment for only $31 million.

The case is significant, if only to illustrate the very high standards of proof in cases involving the First Amendment. Bollea v. Gawker did not set any new precedent, but the case is a reminder that First Amendment protections are indeed limited, and that consequences for unprotected speech can be severe.

October 31

Landlord Tenant Laws

According to the National Multifamily Housing Council, over 35% of the U.S. population, 111 million residents, rent rather than own their home. That hefty figure means there are a lot of “landlords” and even more “tenants.” In Ohio, there are rules in place to protect the rights of both landlords and tenants.

Chapter 5321 of the Revised Code contains Ohio’s landlord tenant laws. Section 5321.04 covers a landlord’s duties and obligations. Among them, landlords must ensure the rental property is safe, and must keep all common areas habitable. Landlords must also allow a tenant quiet enjoyment of the rental premises, which means giving 24 hours’ notice before entering the property, and means only entering the property for reasonable issues and at reasonable times.

Likewise, section 5321.05 covers a tenant’s obligations, including to keep the rental premises in a clean and habitable condition, and allowing the landlord reasonable access to the property. Tenants cannot damage or destroy the premises (obviously), and must conduct themselves so as not to disturb the neighbors.

If either the landlord or the tenant fails to comply with their statutory obligations, the law provides for remedies. In the event a landlord is noncompliant, section 5321.07 specifies that a tenant must first give written notice of the problem to the landlord. If the landlord doesn’t remedy the issue within a reasonable time (usually 30 days, unless an emergency), then the tenant may do one of the following; place the monthly rent payment into escrow through the court, or ask the court to order the landlord to remedy the situation at hand, or terminate the lease.

In the event a tenant is noncompliant, section 5321.11 permits a landlord to give written notice to remedy the violation. If unresolved within 30 days, the landlord then has the option to terminate the rental agreement. Moreover, if a tenant is not paying rent, or is damaging the property, a landlord may seek eviction. Upon filing an eviction, the court will set a court date, two weeks from the date of filing. Both parties may appear before the court to give their version of events. The court will usually grant a tenant a one-time 7-day continuance, for good cause shown. If the court decides eviction is proper, the tenant will then be given a date by which he or she must vacate. If the tenant does not vacate, the landlord may then pay for a set out, whereby a bailiff comes to the rental property to supervise, while the landlord removes from the premises the tenant’s personal belongings.

Hiring an experienced attorney can help the process go more smoothly. It’s worth noting, however, that most landlord/tenant disputes can be solved by open communication. Sometimes the decision to file an eviction is impulsive, and a better outcome could easily be reached through open discussion. If you have a landlord tenant law question, contact your attorney to ensure that your rights are protected.

October 26

Privacy In Civil & Criminal Court Proceedings

Privacy is rather important to most everyone, but is easily compromised when living through either a criminal or civil matter in court. In today’s technology-filled world, people are more comfortable than ever sharing personal information. If you Google© someone’s name, the search often returns a personal Facebook© profile, a LinkedIn© profile, a Twitter© profile, and so on. A few more mouse-clicks, and you’ll discovery plenty more personal information. Someone’s Facebook© page reveals a person’s high school alma mater, how many kids they have and, perhaps, where they had lunch on Tuesday. While many are comfortable with this degree of online sharing, it doesn’t necessarily mean the average person is comfortable sharing personal and private information pursuant to a criminal or civil court proceeding.

Those charged with a criminal offense have very limited control over information that enters the public record. In Franklin County, the arraignment process (the process by which the court sets bond for criminal defendants) is held in open court. In other words, any member of the public may walk into the courthouse and watch the day’s arraignment proceedings. News reporters may also attend arraignments, and often they bring cameras for broadcast. During arraignment, the prosecutor will read aloud the charge(s) against a defendant and, depending on the severity of the crime, may read aloud intricate and gruesome details of the matter alleged. The court may also read aloud a defendant’s criminal record, including every past conviction. To the uninitiated, the lack of privacy may come as a surprise. But the criminal justice system regards such information as public, and not subject to privacy.

In cases that involve domestic abuse or sexual assault, personal information often becomes public concerning both the defendant and the victim, both individually and collectively. Ohio’s Rape Shield Law, however, protects certain aspects of a victim’s sexual past. The law was enacted to encourage victims to come forward and to report incidents of sexual assault. Even so, the law doesn’t necessarily guarantee that certain details of a victim’s sexual past won’t become evidence admissible at trial. Fairness and justice requires, under certain circumstances, that various aspects of a victim’s past be subject to examination at trial. As an example, where the defendant and victim previously have had a consensual sexual relationship, such information can be brought in as evidence admissible at trial. For victims of sexual assault, unfortunately, sometimes privacy takes a backseat to the defendant’s Constitutional right to due process.

In the context of civil litigation as well, privacy can be lacking. In personal injury cases, for example, plaintiffs are often surprised by the scope of personal information to which opposing counsel is entitled. Plaintiffs expect to disclose the nature of an accident and their injuries, though aren’t necessarily prepared to disclose their complete medical history and lifestyle choices, often as far back as ten years. Parties in domestic court, pursuant to divorce or dissolution, can also expect to divulge details concerning personal finances and expenses, including income, debts, retirement accounts, and other assets.

Plainly, the luxury of privacy is largely absent from criminal and civil courts alike. Prior to filing a lawsuit, or before entering the justice system in any other manner, it’s important to consider the extent to which private information will become public.

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