“Pistols at Dawn!” has become “Subpoenas at Noon!” or “Complaints at Teatime!” Today’s legal duelists, armed with dubious lawsuits charging defamation, are B.F. Shaw Printing, the parent company of the Northwest Herald, and Cal Skinner, a blogger. That’s right, a newspaper (the Jeffersonian protectors of democracy) and a blogger (saving the world one lolcat at a time) are duking it out, each trying to out chill the other’s speech.
Before we go to the tale of the tape and examine the complaints for their relative (lack of) merit, let’s see how this all began. Shaw alleges in its complaint that Skinner gave the offending glove slap when he wrote in his blog that the Herald was favorable to the Republican Party due to a loan offered to the paper by the Republican-controlled city board (Compl. Count I ¶ 4):
[W]ho could forget the multimillion loan to the Northwest Herald at sub-market rates? I filed a Freedom of Information request for the details a couple of years and got nothing. Guess it’s time to try again. In any event, the NW Herald was not an “in extremis” condition then. The excuse for loaning the money was to keep the county newspaper from moving out of the county. The real reason was to put the paper in the back pocket of the Republican Party. (Anyone want to deny the strategy worked?)
Shaw responded to the pedestrian accusation of media bias by filing a three-count lawsuit claiming defamation, false light, and commercial disparagement. Specifically, the company claims that it: “has never been the recipient of any loan, from any public body, at market or sub-market rates “ (Compl. Count I ¶ 7), “is not, and never has been, ‘in the back pocket’ or under the control or influence of the McHenry County Republican Party” ( Compl. Count I ¶ 8) and “is not now, and has never been ‘in extremis’ condition.” (Compl. Count I ¶ 9).
Skinner, in his answer to the complaint, claimed that his statements were true (Answer at 10) and attached a copy of Resolution R-8511-02-86 from the McHenry County Board, which he claims shows that “the plaintiff was a participant in and beneficiary of a $2.6 million dollar loan, with interest at 80% of prime, from the McHenry County Board.” (Answer, describing Ex. 1).
Skinner also offered 14 additional affirmative defenses including: failure to mitigate, unclean hands, failure to state an actual injury, and fair reporting privilege for “statements relat[ing] to matters of governmental affairs.” (Answer at 12 – 13). He also countersued Shaw for bringing a frivolous suit, defamation, and false light. (Answer at 22-26). For each offense he asked for $50k of compensatory damages and $1 million in punitive damages.
I’m going to guess that Shaw is not happy with how this played out. Like Aaron Burr, even if it wins it loses. First, by suing a marginalized blogger, Shaw has attracted the national spotlight. I don’t understand why this lesson has not sunk in yet: suing your defamers will not make you whole. Since truth (usually) is a defense to defamation, you are merely inviting the exploration of what must be a sensitive topic and turning a non-story (“Crazy blogger says crazy things” is a rare headline indeed) into a news event (“Media Goliath sues David”).
Second, since Shaw’s claims are so tenuous, a victorious suit would broaden the reach of defamation claims and chill the entire newspaper industry:
- Shaw argues that the claim that it is in the “back pocket” of the GOP is false and therefore defamatory. Surely the Herald, and just about every other newspaper in the nation, has implied that some politician is beholden to a special interest group with only shaky evidence. The Herald does cover Chicago, doesn’t it? Further, isn’t every media outlet accused of some sort of bias? Air America? Fox News? (Fun Fact- Newspapers used to be sponsored by political parties. So media bias is as American as apple pie.)
- Shaw contends that by writing that the Herald “was not an ‘in extremis’ condition then”, Skinner was reasonably implying that the Herald’s finances are currently in disarray. This seems to stretch “reasonable implication” element of defamation into “any possible meaning”, no? The post was about an event that allegedly occurred in the past. Does Shaw really want a ruling that the use of the word “then” in the description of a past event should be read as “then (in contrast to the opposite condition that exists now)”? This interpretation would logically turn any complimentary story on a past event into a defamatory piece. (Story: “Ford shocked the world with its innovation then.” Response Lawsuit: “Ford is now, and has never ceased from being, innovative.”)
None of this should be taken to imply that a victory by Skinner would be good for the blogosphere.
Skinner bases his countersuit for defamation and false light on the fact that the Herald published an article on the original lawsuit, “Northwest Herald’s owner sues blogger, claims defamation.” The article, according to Skinner, “essentially parroted the allegations set forth in the lawsuit, but also contained the following . . . statement: Northwest Herald Publisher John Rung said Skinner’s assertions were ‘reckless and completely fabricated.’” (Answer Counterclaims ¶ 25). Do we want parties to sue anyone reporting the allegations contained within a complaint? Better yet, do we want a legal regime that bars parties from denying allegations made by members of the media? If so, I see legal troubles for essentially every public figure with the temerity to call the press “liars” (I’m looking in your direction, John Edwards.)
Neither lawsuit should have been filed in the first place. It is hard to imagine that either newspapers or bloggers are rooting for their champion. What a depressing sight. That is the problem with the modern legal duel: we too often find ourselves in the curious position of watching a fight and hoping both sides lose.
For more on the case, see the legal threats database entry, B.F. Shaw Printing v. Skinner.
(Andrew Moshirnia is a rising second-year law student at Harvard Law School and a CMLP legal intern. He rarely demands satisfaction.)
