A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town. The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."
Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment. A jury trial was had only on the question of damages. In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm. Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:
The crux of the falsity in the defamation claim was defendants'
assertion that Pozner was in possession of and distributing a
falsified death certificate. Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds." Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog. The book publisher earlier settled and agreed to stop selling the book.
James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy
theorist. He retired from UMD in 2006. His theories are his own and are
not endorsed by the University of Minnesota Duluth or the University of
Minnesota System. As faculty emeriti, Fetzer's work is protected by the University of
Minnesota Regents Policy on Academic Freedom, which protects creative
expression and the ability to speak or write on matters of public interest
without institutional discipline or restraint.
The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances. Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.
Fetzer and Palecek have books for all occasions. One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing. Three people were killed at the scene in Boston, and more than 200 were injured.
Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court. Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity. Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.
[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]
As reported in my Sandy Hook update a couple of weeks ago, today was the day for Connecticut Supreme Court oral arguments over a discovery dispute in the Alex Jones case. The Connecticut Supreme Court usually gets audio up within a day. Check here.[UPDATE: Now posted and embedded below.]
This is the defamation lawsuit against Jones and InfoWars brought by Sandy Hook parents for the broadcasters' assertions that the Sandy Hook school shooting was a hoax, perpetrated in media with the help of "crisis actors." Megyn Kelly, making her mark after jumping ship from Fox, (in)famously interviewed Jones on this matter in 2017. You can watch that weird-meets-weirder interview at NBC. Kelly and NBC managed to infuriate both Jones and Sandy Hook advocates. The latter objected to giving Jones the platform to sell his brand of crazy and included a few paragraphs on the interview under the "Campaign of Abuse" heading in the May 2018 complaint.
The case is Lafferty v. Jones, No. UWY-CV18-6046436-S.The complaint is available from the Connecticut docket. Besides defamation and defamation per se, plaintiffs claim false light, negligent and intentional infliction of emotional distress, deceptive trade practices under statute, and civil conspiracy on the common law claims. After removal to and return from federal court, the Connecticut trial court allowed limited discovery over the defense's anti-SLAPP motion. Thus we are in Hartford.
News coverage so far is lackluster. "Lawyer Norman Pattis told the Connecticut Supreme Court on Thursday that Jones exercised his free speech rights," Dave Collins wrote for The AP (e.g., via WaPo) this afternoon. To be fair, this appeal focuses on a discovery compliance dispute, which is tangled up in First Amendment considerations, but does not squarely present the anti-SLAPP problem. The Hartford Courant has more detail on the merits and procedural posture.
Amici in Remington Arms piled in to the Court on September 3 and 4 and are collected on the case page at SCOTUSblog. The NRA, 22 members of the U.S. House, the State of Texas, the National Shooting Sports Foundation, the Gun Owners of America, and Professors of Second Amendment Law filed briefs. The latter comprise "Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Michael O’Shea (Oklahoma City), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), Eugene Volokh (UCLA), and Gregory Wallace (Campbell)," with counsel for the Firearms Policy Coalition, the Independence Institute, and the Cato Institute submitting the brief.
Rob Devine, former deputy police chief of Stoughton, Massachusetts, and a concerned parent.
Father of two, 19-year police veteran, UMass Law J.D. candidate 2020, and a distinguished survivor of my 1L Torts class, Robert C. Devinehas published some practical but scholarly policy advice "to reduce access to firearms by those mentally incapable of handling them or those with current substance addictions." Here is the abstract:
The United States is in a state of conflict over the ability
to obtain firearms as well as their use in highly publicized mass shootings. On
December 14, 2012, Adam Lanza obtained several firearms that were lawfully owned
by his mother, but were improperly secured. Lanza killed his mother that
morning and then drove a short distance to the Sandy Hook Elementary School in
Newtown, Connecticut, where he murdered twenty-six people, many of whom were
small children. Lanza eventually turned a gun on himself before being
confronted by responding officers. Though mass shootings are often headlines in
this country, the vast majority of misused firearms by the mentally ill are
tragically used in suicide. The lessons of these examples must be used to
augment current firearms policy in an effort to reduce the availability of
firearms to those suffering with afflictions that make them ill-equipped to
have access to them. Though the Commonwealth of Massachusetts asks pointed
questions in these areas regarding the fitness of the potential license holder,
it collects no data whatsoever regarding other full-time household members
where a firearm may be kept, nor what measures the licensee takes to ensure its
security.
This Article illustrates a policy, grounded in facilitative
principles, designed to reduce access to firearms by those mentally incapable
of handling them or those with current substance addictions. Key components to
the solution’s success should rely on increased vetting of the licensee’s
environment and where lawfully owned firearms will be stored, in combination
with assessing the risk factors of having been hospitalized for mental health,
drug dependence, or alcohol dependence. This recommendation is merely an
expansion of questions already used in the current Massachusetts firearms
licensing application and would produce additional factors that a licensing
official may consider when determining the suitability of an applicant. It is
important to note that this would not be an outright prohibition for a
licensee, which would likely be constitutionally impermissible. This Article
concludes by reemphasizing the importance of giving licensing officials more
information to consider in an effort to lower the risk of lawfully owned
firearms ending up in the hands of the mentally ill or violent.
Mr. Devine takes due account of the Second Amendment, but recognizes that we're not doing all we can to implement regulation, even at the margins, that is hardly controversial. The full article, Recommendations for Improving Firearms Vetting in Massachusetts, is available from the UMass Law Review and published at 14:2 U. Mass. L. Rev. 350 (Spring 2019).
Sandy Hook Update
The Connecticut Law Tribune reported last week that the Connecticut Supreme Court will hear oral arguments on September 26 in the defamation lawsuit against Alex Jones and InfoWars. The trial court had allowed limited discovery despite the defense's anti-SLAPP motion. The case is Lafferty v. Jones (Complaint at Scribd).
A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog. I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup. Hat tip to my Torts II class, which is ever vigilant.
Strict product liability—Roundup. In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide. (NYT, Mar. 19.) Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported. This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides). Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.
Gun liability—Sandy Hook. The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law. (NYT, Mar. 14.) The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act. The dissent was unpersuaded. Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here. The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.
Wrongful death, collateral estoppel—Aaron Hernandez. The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd. Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017. Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died. Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed." In the case of Lloyd, the victim's mother had settled her civil claim. But the Court recognized
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion.... There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).
Invasion of privacy, infliction of emotional distress—Monica Lewinsky. John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight. Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace. The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.
Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections. Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice. In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes. The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events. Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court. The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video. Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety. The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning. The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).
Criminal libel, First Amendment—Montana statute. The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault. The case arose from an ugly dispute in election of a county district judge. The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness. The federal court acknowledged that the state high court had read First Amendment standards into other state statutes. But the criminal libel law had been applied without modification. Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity. Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019). Professor Eugene Volokh wrote about the case for Reason.
