Suing Wine Writers

There are a lot of misconceptions about defamation. And even though it’s been quite a while since I co-taught a course on mass media law at Cornell, the Supreme Court has not made any major changes over those intervening years.

The quick summary below is not legal advice, but intended as a quick “Cliff’s Notes” version prompted by Steve Heimoff’s concerns and Rob McMillan’s recent article.

LIBEL = DEFAMATION, IDENTIFICATION & PUBLICATION.

Defamation is anything — whether its true or not — that’s injurious to a reputation.

Spoken defamation is slander while written defamation is libel.

The object of the defamation needs to be identified.

TRUTH = ABSOLUTE DEFENSE TO LIBEL

Something that is provably true in a court of law — even if it is clearly defamatory — is the absolute defense to libel.

In a trial for defamation in the United States, the burden of proof is on the plaintiff to prove the untruth.

SOME FALSEHOODS ARE PROTECTED

There are other protections  to defamation including: consent by the person defamed, accidental publication and reliance on the official public records of a governmental body (courts, legislatures, county board of supervisors etc.)

DIFFERENT STANDARDS FOR PUBLIC FIGURES

Finally, to prevail in a case of false defamation, a person or business that voluntarily thrusts themselves into the public eye, must prove actual malice (including reckless disregard for established journalistic principles) on the part of the writer.

The Supreme Court continues to struggle on how to define “public figure.”

However, it is reasonable to argue that wine samples, wine advertising, public relations and other marketing and promotion are certainly voluntary attempts to be in the public eye.

But your mileage can vary because there’s no telling what a court is likely to do. As a very prominent and successful lawyer once told me, “Courts are not about justice. Courts are not about fairness. Courts are about the law.” He also reminded me that,  “Not every judge who interprets the law is a Solomon.”

IN THE END, ANYBODY CAN SUE FOR ANYTHING

Plenty of flimsy and downright baseless lawsuits clog American courts. Sometimes frivolous lawsuits are filed to punish a writer, to coerce them into not writing more and to stop public discussion — called SLAPP lawsuits for Strategic Lawsuit Against Public Participation. Many states, including California, have laws against SLAPP lawsuits. A number of public interest law firms are in the business of defending those SLAPP-ed with such legal actions.

WHAT TO DO

Be right. Check your facts and stick to the facts.

Stay objective in your subjectivity. If you’re describing wine, describe objectively what you taste, smell, feel.

Objective words like  “barnyard” and “stale urine” describe something that can be tied to a fact.

But, “smelled like something an incontinent monkey fermented in a dirty toilet bowl” may be over the line. To win that last one, you’d need to produce the monkey and the toilet.

Don’t change quotes to make people look bad. Don’t change quotes, period. If you excerpt, make sure it’s in full context.

Get rid of inflammatory phrasing. If someone or something cannot be damned by sticking to the facts, then they don’t deserve your damnation. Keep your ego and attitudes out of the article. This, in some quarters, is called “fairness.”

FURTHER READING

There are billions and billions of words that can be read to learn more. I believe I read three or four billion of those words back when I was taking courses at the Cornell Law School (I was still an undergrad, but an honors program allowed me to take courses because had already been accepted there).

The issue — especially of defining who and what are public figures — is still constitutionally squishy.

This article is one of the better lay accounts of the issues.