Charles Dickens famously wrote in Oliver Twist: “the law is a ass—a idiot.”
There is little doubt that myriad of Long Island business owners would ruefully agree when trying to make sense of verdicts and legal decisions impacting their companies. It has been especially brought into focus amidst what this lawyer views as unreasonable criticism of Paramount’s recent $16 million settlement that resolved litigation alleging that then-presidential-candidate Donald Trump suffered from a falsely edited CBS news interview with Kamala Harris.
Why is it relevant to the Long Island business community?
Critics have labeled Trump’s lawsuit as “frivolous.” Yet one could argue that in an era when malicious and false allegations are being made hourly on social media, defamation claims are anything but “frivolous” in this nightmarish 21st century landscape. Of special legal importance to the now-settled Trump lawsuit is the U.S. Supreme Court’s lesser-known ruling decades ago in a case known as Masson v. New Yorker Magazine, Inc., which involved altered quotations and gave rise to special rules to determine whether “material alterations” qualify as protected speech.
As lawyers who litigate First Amendment cases know, the legal and constitutional bar for sustaining a defamation action involving either “public figures” or newsworthy subjects is so unreasonably high that false and damaging reporting regularly goes unchallenged, especially following the landmark Supreme Court decision in New York Times Co. v. Sullivan, which was decided during the Vietnam War era and held that defamation lawsuits brought by public figures or concerning newsworthy subjects require proof of not mere falsity, but “actual malice.” As a result, the courts are littered with the remains of dismissed defamation actions by public figures subjected to false and highly damaging or embarrassing reports. The aftermath often washes up in corporate suites and the P&Ls of company ledgers. Similarly, Long Island’s politicians have long known this reality and have quietly suffered the slings and arrows that come with elected office.
Decades ago, I brought a meritorious lawsuit on behalf of a national mail order retailer that was marketing a highly successful children’s doll that was similar to the then-highly popular but scarce Cabbage Patch Kids dolls. Some of the Chinese-made Cabbage Patch Kids had been found to be contaminated by kerosene. Two broadcast stations falsely reported that my client’s stuffed dolls were similarly contaminated by harmful levels of kerosene when, in fact, testing by the NYS Department of Health had concluded that the dolls “do not constitute a health hazard” to children. Despite this, one outlet deliberately edited out the “no health hazard” portion of the health department report, and another outlet interviewed a local fire chief who set a doll’s stuffing on fire, called it a “fire hazard.” The on-air coverage observed this was “just like” the Cabbage Patch Kids, which were the ones actually contaminated by kerosene, whereas my client’s were not.
Millions of dollars of lost sales of a highly popular product and the costly reimbursement of returned dolls resulted from the ensuing firestorm as many news outlets then republished the same or similar false reports. Yet, the courts concluded that actual malice and knowledge of falsity was not shown “with clarity,” and dismissed my client’s lawsuit. Worse still, because New York’s even more heightened constitutional protections of speech are considered to be “broader” than the federal constitutional protections, the court refused to apply the New Yorker Magazine rule to defamatory and false quotes originating from New York television stations, instead applying New York’s even more formidable barriers to protect local New York television stations.
The chorus of criticism of Trump’s settled lawsuit against Paramount is no more justified than the dismissal of my client’s meritorious defamation lawsuit. The outcome may further presage an avenue of relief for others damaged by false and doctored quotes. And with today’s news dissemination largely based on a multitude of sources such as social media, streaming news, blogs and internet republication that cannot claim the same “added” layer of New York’s more rigorous constitutional free speech protections, then perhaps for the Long Island business community, there may be a new roadmap for litigation when a plaintiff believes he or she has been maligned by false and falsely edited quotations damaging local businesses.
Rob Calica is partner in the law firm Rosenberg Calica Birney Liebman & Ross, LLP in Garden City.
(Except for the headline, this story has not been edited by PostX News and is published from a syndicated feed.)
