Actual Malice and the Freedom of Press - NYT v. Sullivan: Revised

In this episode of Music Row Dealmakers, hosts Barry Shrum and Dennis Disney discuss the Supreme Court’s seminal 1964 case of New York Times v. Sullivan, which established that a public figure must prove “actual malice” on the part of a publisher to win a defamation claim. Several conservative justices have signaled an interest in revisiting this standard. Barry and Dennis break down the basics of defamation law and debate whether the actual malice rule still holds up — or whether it’s due for reform.

What You'll Learn

• The origin and holding of New York Times v. Sullivan (1964)
• What "actual malice" means and why it matters for public figures
• The basics of defamation, libel, and slander
• The current debate among Supreme Court justices over reforming the standard

About the Hosts

• Barry Neil Shrum, Esq. – Host
• Dennis Disney – Co-host

Listen & Subscribe

• Apple Podcasts
• Spotify
• Amazon Music
• iHeartRadio
• RSS Feed

Support the show — starting at $3/month.

Transcript

SPEAKER_00 0:05

Welcome to Music Row Deal Makers, where we explore our world of making deals from Nashville's famed Music Remote in the heart of Music City. We are the deal makers, from composing to closing. Now, here's your hosts, Barry Neilstrom and Dennis Disney.

SPEAKER_02 0:28

Hello there. Welcome to all of our faithful deal makers listening in. We appreciate your continued support and welcome you to this, our 22nd episode of Music Row Dealmakers from Composing to Closing. And if I haven't already, I wish you a happy July the 4th coming up. We are recording this on the first of July. As always, we Dennis and I want to thank each of you for listening in and supporting us as we continue toward growing our list of listeners. Please help us do that by sharing a link to the podcast with your friends on social media. If you haven't already, subscribe, spread the word. We really appreciate it. I'm Barry Neil Schrum, founding partner of Shrum Disney and Associates, and with me is my partner Dennis Disney. And we are the deal makers from composing to closing. Prior to July 4th, Dennis, the uh Supreme Court has just issued a flurry of its final decisions in their 2025 term. It's kind of oddly named because it starts in October of 25 and runs through the 26th or 2026. But one of which was to deny CERT to uh Trump in his appeal of the E. Gene Carroll case. And that involved not only a jury's decision that he was liable to her for sexual abuse, but following that, his refusal to accept that verdict, uh he he continued to slander and defame her, and she took her took him to court for that. So, you know, a number of issues there. But the Supreme Court denied that that cert. That was the thing that came out of this most recent flurry, and they sat on that for I think 12 weeks trying to figure out what they were going to do with it. As far as our defamation case goes, the one we talked about in the last episode, Ryan Upchurch, smoke has finally cleared a little bit for me and Dennis, and and we we hopefully are uh fingers crossed close to settling that case. So today we decided to turn to a more general discussion, I guess, maybe a philosophical discussion of defamation law in general. Before I get into the the the history and the background, don't forget if you'd like to interact with us, you can call us at 877-7 DealMakers or send us an email at questions at musicrolldealmakers.com. We'd appreciate your insights and we'll we'll we'll take any thoughts we can get. Dennis slander and defamation have a uh pretty long history in the politics of America, going all the way back to Thomas Jefferson. Back in the day, I think this was the 1800s, I don't remember exactly, but uh Scottish journalist James T. Callender was hired by uh Jefferson's party to write political attacks against his opponent John Adams. Now, after Jefferson won the election, Callender requested a cabinet position, but he was rebuffed by Jefferson. And so Callender began spreading rumors about him and exposing his alleged affair with Sally Hemmings. Back in those days, actual malice wasn't really a component of defamation law. That would come much later, and we'll talk about that case, New York Times versus Sullivan. But I I guess in those days you could win a defamation suit for just about anything. So that changed in 1964, when I guess the groundwork for what we're calling the modern law of defamation was established. Now that was a different world. You know, there were few channels on the television. You and I were the remote at that time. You know, we we would be instructed by our fathers or mothers to get up and change the channel to channel two from channel five. I think we had two, four, and five in this area. There were a handful of newspapers, of course, you know, locals, but you had the New York Times and things of that nature. So uh there were very few people who happened to own a printing press. So part of the argument, I guess, in in our society now is is that is it time for us to adapt the law to those changes? These days, of course, everybody is a quote-unquote news source, newscaster. And that that doctrine of actual malice, which we'll talk about, uh Dennis will talk about a little bit later, hasn't really changed in in since that time, since 1964, although the world around us has. You know, 787 million dollars against Fox, so 1.4 billion against Alex Jones, you know, 140 million against Rudy Giuliani. So we are starting to see larger and larger numbers against public figures. And you and I would argue even against Ryan, the $18 million verdict was a little extreme, in our opinion. So the question becomes: should the public figure, private figure distinction survive? And when when a private person can really go viral involuntarily overnight. Defamation law was built for a world of a few publishers. Today there are billions. So there's a tension. And now we have at least two Supreme Court justices, Kavanaugh and Thomas, who would eliminate that standard of actual malice and have discussed doing so in the appeal by I think that was who was that? Um, they they discussed that in their dissent and denying cert to to uh oh Dersiwich in his case. So that's the issue we're discussing today. So uh Dennis, through all of our exposures, and and we've got several cases now involving not only defamation, but the uh Tennessee Privacy Protection Act, which is one of a series of anti-slap laws that we'll talk about a little bit. Give me the elements in in plain English. Uh tell me where the the online fights actually happen. Well, first, good morning.

SPEAKER_03 7:11

Good day. Sorry. Yes, good morning to you. You just sort of dove in. I did. You did you just jumped right into it?

SPEAKER_01 7:18

Well, well, hell, you got me here early, Dennis. I, you know, I'm geared up to go.

SPEAKER_04 7:23

You're not even into your first cup of coffee quite yet. So and and second of all, let me join in wishing everybody a happy independence day. It's 250 years this year, but it's also another distinction. It's actually, if I get my numbers right, it is 45 years. The first time I ever met my wife. Ah, well, congratulations. July 4th, 1981. Yeah. And so we call it the first time ever I saw your face day. Yeah.

SPEAKER_02 7:53

Yeah.

SPEAKER_04 7:53

But we need some violins in here. And then I wanted to come back to Jefferson just for a quick moment. Yeah. Malice might not have been an issue back there, but actual mallets were. They could actually just go beat on each other if they wanted to.

SPEAKER_02 8:07

Actually, I think actual malice was the was the word of the day. I think they that that's the day in which they would, you know, slap with the the gloves and walk out and start shooting at each other.

SPEAKER_01 8:18

You know, it's like who who decided that was a good way to to resolve a conflict?

SPEAKER_04 8:24

Well some people will argue who decided it wasn't a good way. Well, that's uh I heard a uh a podcast just this morning on the way in that jokingly referred to that. Hey, you know, personally what your consequences are.

SPEAKER_02 8:37

Yeah. I I think I think personal debate is still uh got a leg up on uh on Labor.

SPEAKER_04 8:43

I would agree. At least at least it it keeps lawyers in business.

SPEAKER_02 8:47

Well, it keeps us alive.

SPEAKER_04 8:48

Yeah, exactly. This is true. Keeps us alive to pay to pay your bill you owe us, type of thing. So exactly. Yeah, so I think we touched on it a little bit last time what what some of the elements are under defamation, you know, and under classic defamation, it's it's a false statement of a fact. It's about a plaintiff, it's published to someone else, which and published doesn't mean that it's printed.

SPEAKER_02 9:14

Let's pause for a second. You didn't mention the word that was left out in the Ryan Up Church matter. Unprivileged. It's an unprivileged statement.

SPEAKER_04 9:25

It is unprivileged, that that is true. However, even a privileged statement the privilege is you have the right to say what you want to say until until it hurts somebody and causes damages. Then it's be it becomes not a quote unquote privileged statement per se, but even then I think we can even argue, we have debated even in our office. We we talk about, I mean, this is getting off my notes here a little bit, but let's just jump in. So we talk about what can be said about a in in the political discourse. And if you're a public figure, you know, the actual malice standard that comes into play there, which means it was reckless or person reckless as to its whether it was true or not. You just didn't didn't care. And number two, whether it was actually false, right?

SPEAKER_02 10:18

So that that is true. And and but I I the the reason I raise it is because because of the actual malastandard. I think that the basis of that is the privilege of the press, the First Amendment right to a free press. And I think that was part of the rationale in the 1964 decision that in my mind is still important even in today's age.

SPEAKER_04 10:44

Aaron Powell Well, it it I think we have to uh drill down a little bit deeper. It is the freedom of the press and the freedom to speak as it relates to government action, right? Well, that's not in the First Amendment. No, but that's with the context, is it not? The government says you have the the right to free speech, the freedom of the press, etc. And that's true. Until. There's always an until. So the New York Times can't go just print anything and everything they want. That's why we've had all these flurries, and we're going to get more, I'm understanding, uh, from what I've been reading. From politicians. There was a period, and there were politicians that says, well, they can they can have a right to say what they want to say. Well, that's not actually true. You don't have a right to say anything and everything you actually want to say. You do until it harms somebody appropriately. A public figure, they have a higher bar they have to clear. It has to be a reckless statement that you didn't care whether it was false or not, you just threw it out there. There's more and more case law coming in that even hiding behind the words, well, in my opinion, or I think, or it seems, is not a strong defense anymore. It's not. And I'm not sure that's wrong. It it shouldn't be that way. I mean, you you need to be, I guess in my words, I guess you have to be accountable and responsible for the words that you say. So when the only true, I guess it's a back up on this, the only true protections you have for privilege statement would be in the well of Congress when you're debating bills, even though there's internal rules about you can't attack personally other, you know, fellow congressmen. You're not supposed to do that based on the congressional rules. And so you can get censured and called out, okay, you know, it's it's a slap on the wrist, but people don't like it. Or in litigation. You're able to bring out things in litigation and you can't sue for that. You mentioned the Egene Carroll idea, Trump being a a public figure. It's a pretty high bar he had to show that, hey, she did this with actual malice. You know, but all he really said about her was after the verdict, if you read what his comment was, he called her a liar, and that's what she sued on. Because, hey, the court said I did this, you know, or you did this to me, and yada yada. He said, I don't care what the court said, she's lying. Essentially, it's what he said. So she's sued him from defamation. Okay, and and of course that court ruled in her favor on that, and we the Supreme Court has decided not to take it up. So I guess where I'm going without chasing too many rabbits here is a privilege state, you do have a privilege. The absolute privileges still only end up being in the in the well of Congress, with in the Senate and House, or in litigation. But after that, you can't just run them up saying things. You said something when we came out of trial, which you and I have debated. You said when the opposing counsel stated in his opening, you can't tell a lie about a grieving family. And you came back to me and said you absolutely can tell a lie about a grieving family. Only if that lie, quote unquote, doesn't do them real harm. If it does them real harm, they can sue you and they can win.

SPEAKER_02 13:59

Well, let's face it, you can be sued for anything. I still I still maintain uh my position that that was an incorrect statement of the law. And it is based in part on New York Times versus Sullivan. Getting back to that First Amendment principle, the amendment actually says Congress shall not pass any laws. And by Congress, of course, it filters down through the states through the Tenth Amendment. So, in other words, any law abridging free speech is prohibited by the First Amendment and abridging freedom of the press. And if the press is not publishing things in order to hurt people, like Callender did with Jefferson, intending to do him harm, then I do believe they can print what they want as long as they have a reasonable basis for it. And even if it hurts somebody, you can't you can't sue somebody simply because you're offended by what they say. Well, that's why actual harm is part of the definition as well.

SPEAKER_04 15:08

There has to be actual damage, actual harm done that can be, even though we know we have deformation per se laws out there that in many states Tennessee did away with it. They have deformation per se, but Tennessee doesn't do presumed damages anymore. Right. California does, and our case problem with that. But but you are correct that you can say whatever you want to say. The government cannot is not supposed to come in and shut you down. The government is not supposed to. But that freedom has a has a consequence to it, that freedom of speech, that if because you just said it, if you can say something that's offensive, but that's not actual harm just because you're offended. Even though California has a line there that says hurt feelings, you know, can be a compensable damage, which is I thought really which is an abridgement. Wow, that's okay. You know, you know, when do we get so thin-skinned that we can't, you know, say stuff that people find offensive. But offensive isn't, and I think the Supreme Court is ruling this, offensive isn't actual damage, it isn't actual harm per se. It is more of a subjective feeling, if you have. But my point to all that comes back to the only absolute privilege you have is in Congress in the well. If you go out on the street and say it, you can be subject to lawsuit, absolutely. If you're in litigation, that's fine. And as you saw with Trump and Eugene Carroll, after the fact, he comes out and says, calls her a liar, she sues for that. You know, and that was after the first litigation. It wasn't during the litigation, and so the courts and the jury initially said, no, that's that's wrong. You're gonna be paid, you're gonna have to pay for that. And and so that's why I look at it and I go, okay, so if we're looking at the classic defam definition for defamation, it is that false statement of fact. So it's got it does have to be a false statement about the plaintiff published to someone else that injures the reputation or causes harm in their business or something like that. And it's made with some level of fault and causing damages. And and I think we're we're saying the same things. I think the distinctions that you and I don't fully agree on is how far can you go with that statement before it crosses over the line. And I think that's going to be fact-dependent, personally. I mean, we talked about Upchurch last time. I still to this day, even though we did not prevail on that lawsuit, but still today, I think the jury absolutely got it wrong. I don't believe anything that he said was injurious to the the plaintiff. No, the jury thought otherwise. Fine. We respect the jury decision, at least until we file the you know the appeals and all those things that we've been working with.

SPEAKER_02 18:07

We talked about. I think one of the things without getting too far into the uh appeal, part of that decision, I believe, and we've talked about was engendered by some of the instructions given to the jury, which lacked the component of privilege, I think, lacked the component of First Amendment rights. And those I wouldn't say they were suppressed, but they certainly weren't emphasized. I mean, I emphasized them in my voidier. But other than that, the jury had absolutely no exposure to the fact that he can make statements as long as they wouldn't injure the the normal, reasonable person. Yes.

SPEAKER_04 18:54

And I think that's where they they lost track personally. The it's it's it still runs on a reasonable care standard, uh simple negligence standard when you're a private individual.

SPEAKER_02 19:08

Well, and one thing we we we often don't talk about, and and even in our definition that we just cited, is the the the causal relationship between the fault and the damage. As with any tort law, right? That there has to be a a causal relationship. There can't be an intervening cause. And that was part of the problem, I believe, in the Upchurch case is there were intervening causes, obviously. These people had just lost a daughter and a granddaughter. Were those the actual reasons for the harm that they suffered? Maybe accentuated by Ryan, but not caused by Ryan. So uh, you know, the causation element when we talk about fault as compared to damage is is extremely important.

SPEAKER_04 20:05

I totally agree with that. And and not to to belabor the facts in our case, but yeah, everything that had happened along the way that led up to Ryan making his statements, he was actually basing his comments on other people's comments. Yeah. You know, and that was one of the things we kept trying to draw out was the only reason he was the only one sued was because he had a bigger platform. That was it. And they essentially, I think, acknowledged that through our various questioning. They didn't come out overtly and say that, but just the way they answered other questions, you go, okay, so you're really only here because this is the guy that seemingly has the bigger platform, there go maybe bigger money awards that could be had could be had. But so we we get through all that, and and I did want to back up just real quick. So there is a uh primary case, we'll call it a seminal case, I guess from 1990. It's Milkovich that talks about not hiding behind the words, you know, I think, my opinion, it seems, that type of deal. So which goes back to we all have a reasonable care, which you brought up, to say things that are that we have at least given some modicum, some reasonable modicum of attention to as to its truth or falsity, and not just throwing stuff out there. And uh again, trying to do it without limiting debate. And that was one of the things you and I really tried to stress to that jury, I remember, was rulings like this that they ended up making absolutely can have a chilling effect on speech. Now everybody starts pulling their punches, so to speak. And what happens when you start backing off? Well, then you don't have the same zeal to verbally and publicly Talk about the some things that really need to be discussed, perhaps, especially if they're of public concern, whether that be political or other just world events that are happening. And I do think that that's a big challenge with a lot of these lawsuits and the big awards that they've been getting that have been granted.

SPEAKER_02 22:17

Yeah, without getting into too much detail about it, we've got another case that involves a statement essentially that person B, person A says that person B is connected to the Epstein files. That's similar to Milkovich. That in that opinion, or in that case, that involved a mayor who took a bribe. And that was the exact statement. In my opinion, this mayor took a bribe. And you know, you you gotta look at that and say, was that a correct decision? I mean, is it is it our First Amendment right to say, in my opinion, this mayor is crooked? Is that a statement of fact or is that a statement of opinion? And of course, the court said they took it a step further. It wasn't this person is crooked, in my opinion. It was this person took a bribe, which the court said implied a fact, right? So let's take that back to the Epstein statement. Is saying a person is connected to the Epstein files, in my opinion, is that defamatory?

SPEAKER_04 23:36

Yeah, obviously we we've debated some of that ourselves, and I think that particular wording to me doesn't rise to that level. And that's one of the things that we were arguing with.

SPEAKER_02 23:47

Well, how does that differ from Mil uh Milkovich?

SPEAKER_04 23:49

Well, because of Milkovich, they uh specifically identified the mayor as taking an actual bribe. What does it mean to be connected to the Epstein files? It could mean anything. It could have meant I was on a guest list with a thousand people at a fundraiser that he happened to attend. We don't know. So it I think there's a a the breadth of or the degrees of separation are much broader in our Epstein example than they are in Meltovich with the mayor because that was that person took a bribe. It's a very strong emphatic statement. This person is somehow in some way that we don't have really identified connected the Epstein files. You see, I think there's not a specificity enough to it for that. Now, there was another phrase in our current case we're talking about where it was alleged so-and-so has, quote, pedo friends, close quote. And that to me becomes a bit closer because there is you can read an implication into that, not that they're pedophiles, but they but the other person uh accepts, you know, and and finds nothing wrong with pedophilia. You can probably read that into it, and within the context of the full state and the ones we're not giving, that person who's has pedo friends is identified. I think that gets closer, and we've had that discussion in here.

SPEAKER_02 25:25

Yeah, I still and that that one was still prefaced within my opinion, and and I I know what what you're arguing here with Milibit Milkovich is that it's not a a full safeguard. And the reason for that is because you get different juries, different judges, different different opinions, and different things about the law. But in my opinion, saying, in my opinion, you have friends who write that.

SPEAKER_04 25:54

I'm gonna write this down in case you're hypocrites.

SPEAKER_02 25:56

Let me say Dennis has friends who are hypocrites. As a hypothetical. As a hypothetical. That's not defaming you. It's talking about your friends. It's not calling you a hypocrite.

SPEAKER_04 26:09

But you would have to admit, would you not, that saying someone is hypocritical or saying they have friends that are hypocrites does not have the same social stigma to it as saying you're a pedophile or you have friends that are pedophiles.

SPEAKER_02 26:27

Well, no, saying you're a pedophile without without regarding the falsity of it is definitely defamatory. Oh, there's no doubt about that.

SPEAKER_04 26:38

Absolutely, completely agree.

SPEAKER_02 26:39

So let's make that clear.

SPEAKER_04 26:41

Unless you are, then we have truth as a defensive.

SPEAKER_02 26:43

Well, then truth is a defense. But uh we should use a different example than pedophile. But saying, in my opinion, you have friends who are pedophiles is not defamatory because you're not over-concerning person B. You're over-concerning their friends. Yes, and that's not defamatory to them. And I agree with that.

SPEAKER_04 27:14

Where it gets a little less definitive for me, is because you do have defamation by implication, which is one of the claims in this case we're talking about. Yeah. So then you imply this and being associated even with that word pedophile, I don't care if you say I think or maybe or it seems, I think it puts our client in a in a more challenging position than than she otherwise would have been had she not used that phrase pedo friends at all.

SPEAKER_02 27:48

Well, i i that may be true, but even in in that case, and I don't want to get too far into defamation by implication, that is unique to several states, and and Tennessee being one of them. Because that involves more context. And you need to view the statement in context in order to see if there is an implication and if a reasonable person would draw that implication.

SPEAKER_04 28:13

And you know, that's the issue, one of the issues we had in our Upchurch case, because they pulled up. Very definitely. And the same thing with this claim you're talking about here. They only included the excerpts, the more salacious part of it. Right. And taken out of context, it looks bad when you first read it. Yeah. Or you first hear it. Yeah. And I know what we tried to do in the Upchurch case is bring in the full statements. As a matter of fact, we tried to get those included in the jury instructions. You know, it's not just this. You've got to see the whole statement. And we were overruled on that. We were overruled by including all the elements related to, under California law, defamation. They the judge said no, what we have works. We were arguing it's not specific enough. They've been here for five days leading hearing all this stuff, and all they hear is a sympathetic plaintiff. They're not remembering, oh, we have to actually look at specific elements. Let's keep keep those in front of them. Yeah.

SPEAKER_02 29:11

Well, in that in that regard, you you and I have talked to the talked about the the fact that a lot of these online influencers are just spouting their opinion. And it's mostly hyperbolic language. Yes. And that is, I think we agree, protected by the First Amendment. Yes. And so does this shield the, in my opinion, lack of a shield? Does that apply to things like I'm just asking questions about this? What this seems concerning. Are are those different? And would or would Milkovich treat those as yeah, you can pierce those as well.

SPEAKER_04 29:56

You know, uh, everything as we learned in law school is fact-dependent, right? Is this wrong? Is that wrong? Well, it depends. Yeah. And I think the same thing here, context and what facts we use are so important, including if you're doing it online, on a video, body language, facial expressions, all these things come into play. If you just take out the the words and put them just on a page, they can look starkly different than what was actually understood from the viewer. It just is. And that's one of the challenges everyone has with email and text. I talk to my wife and kids about this all the time. I said, Well, why did you say that? Well, I didn't mean it that way. Well, how am I supposed to know from this text? And fortunately, when it comes to online audio, podcasts, Instagram, YouTube, the dominant case law that we've been able to find is fortunately, they treat those as slander, which are verbal spoken. If it's being broadcast live, if it's YouTube. Yes, yes. And and it's not considered libel, meaning written. They they treat it like a broadcast, a TV broadcast. Right. And and the the importance for me or to me for that is that it gives you all those other elements of context, body language, facial expression, voice tone, all these things come into play. And I think you have to then, as a viewer, assess all that. And you can you can hear people when you they're being sarcastic, and you can hear people when, man, they're really serious about that, and you can you can view all that. And I think part of our challenge, even though we there were clips played and whole clips played in our Upchurch trial, if I don't I don't necessarily think the viewer, I'm sorry, the jury remembered that. I think all they paid attention to was, well, here's the statement on the page, but what's the rest of the context that you heard? And they couldn't get over, as we addressed within very early, spicy language from our clients. And facial expressions. And facial expressions. But all that matters. And I don't think they they weighed that in their final decision. And so back to your point, saying I think, or it seems, or my question is I think are legitimate and protectable in that forum, using that medium, because you can see, or potentially protectable, depends on what they said, but because you can put everything in full context. It's just that when it gets translated down to just type on a page that people get apoplectic about.

SPEAKER_02 32:31

Well, and to that point, I mean, I this is going back to my early days of law when I was in Philadelphia, and we we were just starting to use computers a lot more. For those of you listening, yes, I'm that old. And we had one senior partner.

SPEAKER_04 32:51

Was it true you and Marconi were best friends? No, not that old.

SPEAKER_02 32:54

That's just a rumor. We had I had one senior partner who was not tech savvy. And his emails, because that's that's where we first started using it a lot. You know, that's when the facts started to disappear. For those of you under 50, ask your parents what a fax, a facsimile is. But anyway, we started using email and Steve Miller was his name. And Steve would write his text in all caps. And me and some of the other attorneys had to get together and go into his office and say, Steve, when you write it in all caps, that means you're shouting. So to your point, it is difficult sometimes to discern the meaning behind written text without context. I mean, from the context of Steve's email, you know, uh, please file this brief by tomorrow at noon. We couldn't tell. Maybe he was shouting. Maybe he really wanted to emphasize that needed to be filed by noon. So sometimes the context doesn't even help. But getting back to this uh the the arguments we're making and and what we're talking about. Does the 1964 case need to be updated? Does actual malice need to be refined? One of the things I will point out is that our court system, our our tripartite government, uh the judicial system designed to determine whether laws are constitutional, the president designed to enforce the laws or or or hold, uphold the laws, the Congress designed to make the laws. This has worked pretty good for the last couple of hundred years. And our court systems have, in my opinion, done a pretty damn good job of adapting old common law principles to new technologies. So we have to be careful making the argument that just because there were fewer elements of the fourth estate back in 1964, that we should therefore change the standard now. For that, I go back to copyright. You look at when technology started to shift the paradigm, right, from distribution through a handful of record labels to democratization, where everybody had access to that. The laws simply adapted. A copyright was still a copyright. The courts still treated a copyright as a copyright. You had certain certain protections. And but the law, the the judges, they're on the forefront of interpreting how those laws apply to these specific facts. I personally think they do a good job.

SPEAKER_04 35:50

I agree. I think they generally have. Again, it comes back to there are some specific cases that you go. I don't think I agree with how that ruling came down, but that's been that way from time immemorial, right? Right. That's why everybody has an opinion and should be allowed to express that. I disagree with that that opinion, but it's now become, you know, precedent, so to speak, especially if it's within the your jurisdiction or just Supreme Court. Okay, that's fine. And at the same time, it doesn't mean those rulings can't be overturned eventually. When newer evidence or different thinking comes into play and a case arises that the court can look at, things can change. I think our system has allowed in in a miraculous way for those things to to change, whether it be with technology or evolving social norms, you know, within certain parameters, obviously, you know, murder in the streets is never going to be allowed, thank God. You know. We think. We think, yeah. You know, but so I I agree with that. And at the same time, always being as we are as lawyers, sometimes contrarians and skeptics and and all that, we also have to keep an eye that juries are human, judges are human, and and mistakes can get made and do get made. But our system is set up with a lot of ways to try to address those, which I've I think is an amazing system. I've I've shared before my wife is a big on-patrol live fan. Huge, actually. And uh when I catch it with her sometimes on Fridays and Saturday nights, she marvels at how the people who are pulled over for minor traffic infractions and they just go off on these cops.

SPEAKER_02 37:37

Yeah.

SPEAKER_04 37:37

And and say, Well, this is wrong. You got this incorrect. I didn't run that stop sign, I came to a complete stop on it, and just and just screams and yells and makes a big fuss. And I keep looking at her, I go, they have a remedy if they think it's wrong. Why are they arguing with the cop over this? Tell them you think it's wrong, get the ticket, get everything, move on, come back to court. Your arguing is not going to change the situation. They're not going to simply say, Oh, well, now that you've yelled at me for 15 minutes, you're probably right. Go on your way.

SPEAKER_02 38:08

Yeah.

SPEAKER_04 38:09

No, it actually makes it worse.

SPEAKER_02 38:10

My wife has a common phrase when I argue with the cops. She said, Look, he's just doing his job. Yeah. And that's it. That's it. Right? To your point, the remedy is okay, get the ticket, go to court, and argue the facts. Yes. Yeah, is it successful?

SPEAKER_04 38:27

But really, you're not going to change anything in that 15 minutes that you're haranguing the guy or the or the lady officer. And I and so I think coming back here to even these defamation claims, there are remedies for these things. If you think you've been harmed, then let's go to court.

SPEAKER_02 38:42

And that's where the scales of justice come in. So let's uh let's assume, okay, we've got we've got fault, we've got all of that. What's the connection to this last element of damages? Talk about that. Now we know that the per se, you know, if you accuse somebody directly of a crime and and it's a false statement, then that's per se. And or at least as far as damages go, the court can assume damages in many states. That's not what we're talking about here. What we're talking about is not defamation per se, but something that's been adjudged to be defamation. Where is that causal relationship? How does that work?

SPEAKER_04 39:30

Well, you know, according to the law, you're supposed to, the plaintiff is supposed to prove uh with evidence that something has how they've been damaged, let me put it that way, and that you specifically caused it. So case in point, the Johnny Depp Amber Heard trial that happened a couple years back, he ended up winning that case. And one of the things that jurors, when they talked with him later and the plaintiff attorneys, uh, Depp's attorneys appointed to was he actually lost a $20 million film because of that. Yeah, that's real damage. Because of what she said, this film production studio or the studio itself said, Well, we can't do a film with you because nobody's gonna want to come out and watch it. So they they dropped him as a lead character. And he had a contract, as most do, that obviously spelled out the terms how much money he was going to get paid. It probably had a morals cause in it, as most of these do. And they said, Okay, you violated that for this. Okay, that's real damage. Others could be others could be reputational damage. Now, how do you prove reputational damage? Well, a lot of that is by what people are saying to you. But it's it needs to be, in my opinion, people who know you and know of you. The the distinction being here that in our Upchurch case, they kept bringing up some comments made on Upchurch video posts. People who said may have said things against the plaintiffs. Plaintiffs didn't know those people, didn't know where they lived, had no clue how to find them, never brought them up. They just wanted to highlight the comment and show, well, see, their reputation was harmed because of this. Well, not really. I mean, people have to know you for you to have any reputation with that person, I would think. But but they couldn't prove as they should have that locally people were ostracizing them for whatever reason or stop doing business with them. And so when you get into damages, you actually have to prove your statement directly caused this. We can show that by this statement and this comment and what it meant over here. And we've brought in people to show it. But even then, there has to be some sort of quantitative element to it. What is that? It's not an assumed, it's not like per se, it's not supposed to be assumed. Show me the actual harm or damages from the harm that was you alleged. And that's a tougher battle to fight for a lot of people, and that's why I have some issues with a lot of these things. Now, I know that we got a little bit into in the Upchurch, we got into some analysis on the Alex Jones verdict and what that meant. And they brought in experts to say, well, every view is is worth this amount of money, et cetera, et cetera. You're saying the Alex Jones people brought in the experts. Yeah, the Alex Jones plaintiff. Yeah. Not Alex Jones defense, but they brought it in and and said Alex Jones has such a huge platform that they put a quantitative analysis to that and said each statement or each viewer rather was equal to this amount of money. And the they had expert testimony to to show that, and the jury, you know, bought into it. And that's fine. Same thing with Giuliani and and some others. And you know, so the the the damages part is a it's just mathematics and how persuasive you can make the mathematics work. But you have to bring in some semblance of actual proof of those harms. This new case that we're we're working on, that's one of the things that I'd yet to see is uh these statements might have been made. We don't think they're absolutely actually defamatory, fine. But what how do you get to the damages you're claiming? You know, no one has claimed that you've been harmed by a reputation ding. You've not lost any business because of it. None of these things have happened. There's been some online harassment, you know, people posting, and that happens, actually happens on both sides because, as we know, the other party ended up making some commentary.

SPEAKER_02 43:38

Well, and I think I think this is where the modern era sort of affects even ancient tort law, right? When we're talking about causation, and one of the typical cases we go back to is is Cardoza's Falsecraft opinion in the railroad case. You may remember that from from tort. Class. For the audience, just briefly, a woman was taking her children out to the to Long Beach. She's standing on the platform of the train, waiting for the train. And a man with a box or a suitcase or something was running toward the train, and the employees were trying to help him get on the train. She was just standing there waiting for the next train. Well, he happened to be carrying fireworks. Who knew? Right? And somehow, when he dropped the box, the fireworks went off and somehow caused one of those big weight machines to tip over and fall on Ms. Foscrat. Cardoza says the railroad's not liable because they weren't the cause of the explosion. There was an intervening cause. You talk about difficulty improving causation. That case to me illustrates it perfectly. It is difficult, and in our minds, we can't even logically at this point draw a connection to the railroad. Yes, the the employees was were trying to help a customer get on the train. But could they have foreseen that he would be carrying a box of explosives?

SPEAKER_04 45:21

Yeah, and that's that's really to me the tenet that comes out of that is the foreseeability, but it had foreseeability has to be reasonable. Foreseeability. It does. Now, can you reasonably foresee that if we get back to online defamation, that I make a YouTube post, is it reasonably foreseeable that there will be negative comments in in the in the chat there that people can post either against me as a poster or against the subject that I'm talking about? Is that reasonably foreseeable? Probably. But see, now that becomes a question for me of but But was that the cause of any damage. And exactly. And and so I know there was a lot of one of the rulings within the case dealt with one of the defendants in the R. Church case went on YouTube and under one video, one time, posted something. Why are you continuing to talk about my family? And that was it. And that particular chain of comments was a couple of thousand long. And we tried to bring out the you know, the plane tried to make a big deal out of it that obviously our client knew and should have taken steps because of that. Instead, it was just more negative posts happening, and he never stopped making his own comments. What we tried to point out was that was one comment in a whole chain of a couple of thousand, and our client testified he doesn't read that many comments. You can't. You'd spend all day reading all the comments for one post. You can't go on with your life that way. I saw that as being unreasonable to think that he saw that. And the court disagreed, they allowed it.

SPEAKER_02 47:10

Yeah, but to your point, you know, back in the days in the 1960s, when the fourth estate was a handful of newspapers, right, the way you would comment on a story would be to write a letter to the editor.

SPEAKER_04 47:25

Yes.

SPEAKER_02 47:26

And that was a big deal. And if they published the letter, obviously they had notice that this was causing harm to somebody, possibly. In today's world, social media, like you said, Ryan has millions of followers. It's impossible, literally, for him to read every comment. So is it reasonably foreseeable he would get notice of the harm he's potentially causing? No, that's not reasonable at all.

SPEAKER_04 47:55

Well, it's not even axiomatic, if you will, that even if he had seen that comment, a comment, and even commented on it himself, yeah, that he would ever have seen another one after that. I mean, that you're you're putting an expectation on people that if you're posting, then now you have a responsibility to read every single posting that happens after that. Which then gets back to what your original uh debate here is on privilege statements. Don't those commenters themselves have privilege, if you will, to make their own opinions known. Absolutely.

SPEAKER_02 48:30

Well, according to you, if they do harm to the individual, well, no, it's always up until. But this is why, to me, the actual malice, because in in New York Times versus Sullivan context, Ryan Upchurch is a public figure. Yes. And in order to prove defamation, someone should have to prove actual malice on his part. Well, it's the other way around, though. Well, it is, yes, you're right. You know, but we as well.

SPEAKER_04 49:02

Our argument was that the plaintiffs were limited. Public public figures. Because they were in the situation that they engaged in. And even yes, there is case law that says if there are certain circumstances that befall you, not of your making, you weren't you didn't voluntarily, voluntarily interject yourself. And I understand that. And and I thought this one sort of fit in the middle because it wasn't just that this tragic event happened to this family. It's that they voluntarily engaged with the community and with national and international media, et cetera. And so that was my argument that they know they did push themselves into that. I mean, you know, that said, as a if you're a public figure, we'll go back to the Trump thing. You know, if you said something about him, then they have to show, well, wait a minute, as a public figure, you have to prove actual malice. Are you sure? There was a time, there was an instance, I don't know if you remember this, and this is where the privilege does come in, but uh Senator Reed from Nevada, he passed away a few years ago, but at one time he was the majority leader of the Senate. He's a Democrat, was a Democrat. And in the well of the Senate, he made blatant uh accusations about another senator who I think was going to be running for president on the Republican side, blatant comments about you know, about he he's a tax cheat, he does this all these things. And you go, well, wait a minute, that would even pass the you know the malice standard pretty easily. But the privilege was he said it in the well of the Senate. Couldn't touch it. He didn't say it outside of that. Had he said it outside, then we get back into okay, well, was that said with reckless disregard for the actual truth, which people, you know, press checked into it, and the accusations were absolutely false. But nothing could happen to him there. So that malice standard, you know, you have some places where I said earlier, it's absolutely privileged, but then you raise that bar really high. Private figures, unfortunately, it's just simple negligence, which gets into the duty. Did you breach the duty? Was it the was what you did the cause of the harm? What are the damages? And I know we kept really stressing hard, you got to hit every one of these standards, every one of these elements. And we kept trying to point that out to the jury that the only thing that they could really point to was he, our guy made a statement. Okay, and that was truly it. But all these other ones we didn't think they met. And that's why we thought the the judgment was so egregious there. And I'll be honest, I'm a little surprised the Supreme Court didn't take up the E. Gene Carroll matter for a lot of the reasons we're talking about here. I and I don't know why I haven't read the opinion fully. I know there were a couple of dissents to that, but it was a 5'4, I think. Might have been 6'3, but I think it was 5'4. And only because I think what we're talking about, it does start mattering. Like, well, wait a minute, you know, what even public figures have freedom of speech, right? They they should have. Even if you don't like them, even if they're offensive. And I don't know all the facts of the case, so I just know what other headlines I've read really. But if it's true, as my sense of it is, all he said was the jury got it wrong, and she's a liar. Is that defamation per se? Well, first of all, is it damn defamatory? Okay, but in the broad scope of things, really, everything that gets said out there, really, that's it. Is it per se defamation? I you know, I I I I don't I don't know the facts of the case. My point is that there's not a bright line that you can say this is, this isn't, except for you know, there are very specified elements under per se defamation. Communical diseases, that you are a frightful better word, a crooked businessman or woman, you know, that type of thing. And you and and and two or three others that are actually enumerated in most of the statutes that we've seen for per se. Okay, fine. We can do that. Then we still get back to the damages. Okay, that might be per se, but are the damages presumed, like in California or not, like in Tennessee. And if they're not, you gotta show the actual damages. In California, you don't have to show them, they're presumed, and the jury's free to pick a certain number, whatever they feel. So I think I thought it would might be good, you know, at this stage to would have been better if the Supreme Court had at least taken a look at it, heard all the arguments fully, and it came out on whichever side they came out on. Fine. I thought it might have brought a little bit more clarity to some of this, because that's one of the challenges with defamation. One of the things I find so intriguing, it is fact so fact-dependent and context-dependent, and there's not a bright line except on some elements of per se. There's not a real bright line there, and that makes it fun. I mean, from a weird lawyer sense of in in trying to figure these puzzles out. But I think this is going to be an ongoing thing that's happening. We're gonna see more and more of these lawsuits pop up all across the board. In the age of social media, where it's you mentioned the word democratization, the democratization to quote publish now, it's never been this way. So anybody with a smartphone can become a podcaster, a an Instagram, a YouTuber, and and pontificate and express opinions on anything in the world. And which is amazing when you think about it. But I think it's also gonna create a lot of challenges for what really is something that is unlawful. And even if it is unlawful, to what degree is it unlawful? What are those damages and these headline damages like Alex Jones and Giuliani and even the first Eugene Carroll matter against Trump, all those things, it just feeds into this idea of hey, you said, well, we just experienced that. You said this bad about me, and boom, you know. Now, granted, ours there were two plaintiffs, and so it it was like uh 67%, closer to 55% of the money went to one plaintiff for the other went to the other plaintiff. So it's almost like a double whammy, you know, uh idea. You like it, if there's only one of those guys, it that would have been cut in half. That's that was my be my sense of it. But I just find this whole area of law, which we're still trying to find all the nuances and things to just immensely fascinating. For all the we've talked about, you know. I mean it is, and I and and we do so much in the arts, you know, we're entertainment lawyers, right? That that's we deal with a lot of public figures. Uh and and and but my point is the the the freedom to share your opinions and your thoughts is supreme for us. I firmly believe in that freedom of speech. Without a doubt. Absolutely. If you're a if you're a writer, a singer, speaker, author, actor, you should believe in the freedom to say what you feel and to share that. Where you have to watch is you're free to do that up until it causes someone real harm. I should say real harm, actual harm, then they might be able to sue you for it. So you've got to be a little careful, but at the same time, we should want to protect our freedom of speech uh in this country.

SPEAKER_02 56:49

I I think that's that's paramount. And uh, you know, that's one of the reasons I would say I think the actual malice standard of the New York Times should should stay sacrosanct, despite what a lot of people are saying. I I I do realize that, and you use the Alex Jones case, and that is perhaps one of the highest uh damages awarded for defamation, but but that case to me was very clear and very distinguishable from what Ryan did in this case involving uh the Rodney girl. He was, as we've argued, stating his opinion hyperbolically. That to me was his First Amendment right. Alex Jones, on the other hand, and and back to Ryan, Ryan was one, as we argued, of a chorus of people across the world talking about that case. That's what got him interested in it. Alex Jones, on the other hand, was claiming that shooting at a school was fake. That is irresponsible. And he was essentially the only one. He was the only, as far as I know, the only one claiming that. And so I don't I don't sympathize with him in that decision, and and I don't see that as a bad decision. We are getting close to an hour here. So I'm thinking just for the audience, and Dennis and I had planned, and you can tell this is a passionate topic for us. We had planned to to do this all in in one sitting, but uh we've got another section that we're gonna be talking about, which is the anti-slap uh component of of this issue, which is important. And my guess is we're probably gonna spend about an hour on that. So what we're gonna do is is cut this short right here.

SPEAKER_01 58:57

Short and spend an hour.

SPEAKER_02 58:59

Well, how about cut it off right off? We're gonna end this nonsense. We do and and and do that section maybe next time. So we hope you'll join us. We'll talk about the the Cardi B case a little bit. We'll talk about those uh anti-slap uh provisions, the federal ones are in section 230, I think. What what statute is that, Dennis?

SPEAKER_04 59:23

Yeah, oh crud, it's section two thirty of the telecommunications.

SPEAKER_02 59:27

Oh, that's it, yeah. And uh and then we'll we'll talk a little bit more about some other First Amendment limits and and cases and Supreme Court cases like the Nazi case that we uh mentioned in the last episode. And and so we've got a lot more to talk about. And we hope you'll join us uh in a couple of weeks when we revisit all of that. We appreciate again your your your support. We hope that you enjoyed this episode, and we will see you again in a couple of weeks.

SPEAKER_00 1:00:02

Music Rotemakers is a production of Shroom Disney and Associates. Recorded on location on Music Remote, the heart of Music City, Nashville. Subscribe to future episodes wherever you enjoy your podcasts.