March 12, 2013

Lawyers for FishbowlDC claim 23 defenses against the libel suit filed in January by Washington-area publicist Wendy Gordon. Devoted FishbowlDC readers will remember Gordon the star of a recurring feature—from the fall of 2011 through October 2012—titled “Wendy Wednesday.”

Defense No. 5 reads, “Statements attributed to Defendants were not highly offensive to a reasonable person.”

In other words, FishbowlDC’s lawyers are arguing that:

  • Writing that Gordon is “DTF and on the prowl” is not “highly offensive to a reasonable person.” “DTF,” as explained by FishbowlDC, is an acronym that cannot be expanded on washingtonpost.com for taste reasons but means “insanely inclined to engage in sexual relations.”
  • Writing that anyone interested in pursuing sex with Gordon should “think about double bagging it and say hello to Cougar Wendy!” is not “highly offensive to a reasonable person.” Here, “double bagging” means wearing two condoms, a tactic that, in the words of Gordon’s complaint, falsely implies that she has “some loathsome disease.”
  • Writing that Gordon “wishes” she was performing a certain sex act on D.C. politician Marion Barry is not “highly offensive to a reasonable person.”
  • Writing, “We actually have a burning and enduring love for Wendy that grows stronger every week. Kind of like chlamydia…” is not “highly offensive to a reasonable person.”

Such “Wendy Wednesday” highlights explain why Gordon and her lawyer, David S. Wachen, sued FishbowlDC, writers Betsy Rothstein and Peter Ogburn and WebMediaBrands Inc. for defamation and false light invasion of privacy. The complaint denounced an “unprovoked, online smear campaign by Defendants, in which they — week after week for more than a year — knowingly published false, defamatory, malicious, nasty, and tasteless statements about Ms. Gordon, designed to cause and that did cause serious harm to her reputation, business, and overall well-being.” The posts often stemmed from photos of Gordon posted on Facebook.

That FishbowlDC & Co. would fight back with language citing how a “reasonable person” would view the “Wendy Wednesday” posts is a smart bit of legalcraft. A trio of attorneys from media-law powerhouse BakerHostetler are working the case for FishbowlDC, an impressive show of legal force. “You’ll notice that they have three lawyers defending them,” says Wachen.

Those attorneys know case law. Appealing to the standards of a “reasonable person” ties into protections that courts have recognized for hyperbolic writing — stuff that’s so outrageous or fanciful or absurd that it cannot possibly be taken seriously. “[T]he commentary in the postings, when viewed together with the photographs of Plaintiff taken in public places that accompanied the postings, represents satire, opinion, hyperbole and other expressions of speech squarely protected by the First Amendment and District of Columbia law, or is otherwise not defamatory,” the attorneys write. (Read the FishbowlDC response for yourself.)

A hyperbole defense is to a news outlet what “just kidding” is to a junior high student. An important 1970 Supreme Court case addressed the matter: Charles Bresler was a developer (and member of the Maryland House of Delegates) who was seeking zoning considerations from the Greenbelt City Council so that he could build a housing development. The developer had some leverage in the matter, as he owned land that the city was pursuing to put up a new high school. In an October 1965 story, the Greenbelt News Review reported criticisms from the public that Bresler was perpetrating “blackmail” against the community. “The word appeared several times, both with and without quotation marks, and was used once a a subheading within a news story,” reads the case file.

In a decision favoring the journalists — yeah! — Justice Potter Stewart wrote:

It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: it was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. [Footnote 7] On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.

An extended family of hyperbole-protecting court decisions has cropped up over the years. A chunk of those decisions was nicely summed up in this case of the Supreme Court of Georgia:

“In encouraging discourse on public issues, both federal and state courts have repeatedly rejected defamation claims that challenge a speaker’s use of ‘rhetorical hyperbole,’ namely, the sort of ‘loose, figurative language that no reasonable person would believe presented facts.”

Some more highlights:

  • Levinsky’s, Inc. v. Wal-Mart Stores, Inc. (1997): “competitor’s statement in magazine article that plaintiff’s store was “trashy” not actionable.”
  • Letter Carriers v. Austin (1974): “First Amendment protected hyperbolic statement that plaintiff was a “traitor” as it was made “in a loose, figurative sense” and was nothing more than “lusty and imaginative expression.”
  • United States Steel v. Tieco, Inc. (2001): “under Alabama law, statement analogizing party’s conduct to that of “Jeffrey Dahmer” could not reasonably be interpreted as likening party to a convicted mass murderer.”
  • Dunn v. Air Line Pilots Association (1999): “defendant’s placement of plaintiff’s name on list of ‘scabs’ not defamatory as matter of law.”
  • Keller v. Miami Herald Publishing Co. (1985): “cartoon depicting nursing home operators as gangsters and likening nursing home to ‘haunted house’ not actionable.”)
  • Rosenauer v. Scherer (2001): “local candidate’s statement that commercial landowner was ‘thief’ and ‘liar’ protected by First Amendment.”
  • Webster v. Wilkins (1995): “assertion that plaintiff mother was ‘unfit to have a kid’ not actionable.”

For a precedent that better approximates the language and sensibility of “Wendy Wednesday,” scan anti-pornography activist Andrea Dworkin’s case against Hustler magazine. In July 1985, the magazine published a negative profile of Dworkin’s attorney, Gerry Spence, in a feature titled “Bits and Pieces.” It managed to throw some elbows at Dworkin along the way:

His client is “little guy” militant lesbian feminist Andrea Dworkin, a [excrement]-squeezing sphincter in her own right. In her latest publicity-grab Dworkin has decided to sue Hustler for invasion of privacy among other things.
Dworkin seems to be an odd bedfellow for “just folks,” “family values” Spence. After all, Dworkin is one of the most foul-mouthed, abrasive manhaters on Earth. In fact, when Indianapolis contemplated an antizorn ordinance co-authored by Dworkin, she was asked by its supporters to stay away for fear her repulsive presence would kill the statute. Considering that Dworkin advocates bestiality, incest and sex with children, it appears Gerry “this Tongue for Hire” Spence is more interested in promoting his bank account than the traditional values he’d like us to believe he cherishes.

The Supreme Court of Wyoming ruled against Dworkin:

Hustler’s Bits and Pieces article is an ad hominem attack against an advocate of a social, moral and political viewpoint contrary to Hustler’s. The statements in question were uttered in the context of an ongoing debate in which Dworkin seeks to destroy the industry of which Hustler is a part. In response, Hustler seeks to destroy Dworkin’s viewpoint by vilifying its advocate. In such a heated and spirited confrontation, of which the statements are a part, abusive epithets, exaggerated rhetoric and hysterical hyperbole are expected.

Bolded text added to highlight something missing from the “Wendy Wednesday” series. FishbowlDC’s postings were part of no larger debate, no larger public questions, unless you consider the lifestyle and habits of a relatively low-profile D.C. publicist a matter of civic consequence.

In their filing, lawyers for FishbowlDC contend that Gordon is “a public figure, or alternatively a limited purpose public figure, for purposes of the statements alleged.” Such contentions are commonplace for libel defendants, considering that public figures, under U.S. libel law, have a heavy burden of proof in asserting defamation claims against news organizations. Common examples of public figures include politicians and celebrities—folks whose work entails a high profile. “Limited-purpose” public figures are people who thrust themselves into the public sphere over a certain issue or controversy. Following a year of “Wendy Wednesday” posts, perhaps Gordon could fashion a new category: “highly unwilling, limited-purpose private figure.”

Asks Gordon’s lawyer Wachen: “How do you satirize somebody that’s not a public figure that no one’s ever heard of? Normally satire involves famous people, people in the public eye,” he argues, noting the circumstances of this case: “Anybody can be plucked out of obscurity and people can write these despicable things about them and hide behind the veil of, ‘This is just satire’? That ought to be disturbing to people who put things on Facebook.”

When asked about the case, BakerHostetler partner Mark I. Bailen e-mailed these thoughts:

As the filing last week demonstrates, we do not believe that a reasonable reader of the FishbowlDC website could find the commentary about the plaintiff to be assertions of fact. When a publicist who will do almost anything for attention poses for a photograph on her knees in front of a wax statute of Marion Barry, she makes herself fair game for the humorous pen.

The bummer for FishbowlDC — aside from the hassle of getting sued — is that its legal defense says some unflattering things about the product. The site reports on the huge world of media jerks in and around Washington — to chronicle their job changes, their errant tweets, their vanity, their mistakes and how female campaign reporters are going for that “sexpot look.”

For all of that stuff, FishbowlDC asks its readers to take a literal approach to its reporting. Facts are represented as facts. Quotes are represented as quotes. Everything is real. In its response to the Gordon complaint, however, the site appears to be arguing that folks may not take the content seriously, that these posts are not a matter of fact, etc. “What’s ironic is that Fishbowl is arguing that Fishbowl readers would never believe the statements in Fishbowl are factual. It’s inherently disparaging its own product,” says Clay Calvert, a University of Florida professor and the Erik Wemple Blog’s go-to libel-law commentator.

And what readers expect from a publication isn’t an idle matter; it’s a constitutional matter. Under a test widely applied in the courts, there’s a four-part test to draw the line between fact and opinion:

(1) “the specific language used”; (2) “whether the statement is verifiable”; (3) “the general context of the statement”; and (4) “the broader context in which the statement appeared.”

Perhaps those considerations will save FishbowlDC. It would be a great moment for the Erik Wemple Blog to hear a courtroom consider the fact/opinion balance of the acronym “DTF.”

Whatever these in-the-weeds legal considerations, Wachen argues that the FishbowlDC response proves that the publication “didn’t do any homework. They never contacted Ms. Gordon about any of the information.”

Or did they? Have a look at this brain-twister of a paragraph from the FishbowlDC response:

Defendants admit that none of the Defendants contacted, communicated with, or sought consent from Plaintiff regarding any specific posting, but deny that they never sought her input or comment regarding the postings generally.

Lawyers.

UPDATE 3:50: David S. Wachen, lawyer for plaintiff Wendy Gordon, responds to the “humorous pen” comment from FishbowlDC’s lawyer:

Ms. Gordon is in the business of generating publicity for her hospitality clients, not herself. She is not a public figure; she is not someone who was generally known by the public or, for that matter, Fishbowl’s target readership. There is no indication that Ms. Gordon was trying to “do almost anything for attention.” A Google search of Ms. Gordon’s name during the time period in question revealed only the defamatory postings by Defendants, not “attention seeking” material generated by Ms. Gordon.

Thus, the only attention that was brought on her was by the Defendants, who misappropriated pictures from her restricted access Facebook account and published them with accompanying false and defamatory comments about her. Her “pose” was for a private picture taken by a friend. She was not on her knees, and actually was pretending to frisk Mayor Barry in light of his trouble with the law. This picture and the others were not racy, and were posted on a Facebook page with restricted access. They were never meant for distribution to the general public. She never disseminated them and never sought attention for them.

Plus, how then to explain the Defendants’ using, without authorization, a picture of Ms. Gordon dancing at a charity benefit in appropriate cocktail attire and turning that into a report about her being “DTF,” a “cougar,” and someone with whom it would be necessary to “double bag[]” it.

There is nothing “humorous” about claiming that an attractive woman, who is a private individual, is a sex-crazed, diseased cougar when there is no factual basis to support such a claim.

If posting a picture on your private, restricted access Facebook page makes you “fair game” for vulgar, misogynistic and malicious falsehoods, then we are all in deep trouble.

Message clear: The two sides in this dispute have little fondness for one another.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.
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