Some More Gilmore v. Jones, et al. News


Brennan Gilmore was present at the Charlottesville riot in 2017. He recorded a car being driven into a crowd that resulted in the death of a women, and he posted that video online. He also made appearance in the news media discussing what he saw. As a result, Gilmore and his video became a topic of controversy, and Gilmore was upset with some of the commentary. He has sued Alex Jones and a host of others for defamation in federal court. When the judge in the case denied most of the motions to dismiss, two separate groups of defendants filed motions for reconsideration or for an interlocutory appeal of the dismissals to the Fourth Circuit Court of Appeals.

The judge has granted a motion certifying an interlocutory appeal of the following question:

Where an online journalist or publisher with a national audience purposefully and primarily focuses their coverage underlying the suit-related conduct on forum-state events and persons, is such conduct sufficient for a forum court to assert specific personal jurisdiction over that journalist or publisher?

I found footnote 1 interesting.

However this question is limited, the Fourth Circuit may nevertheless review uncertified issues contained within the Court’s order on Defendants’ Motions to Dismiss. “[W]e would not necessarily be limited to only those questions expressly or implicitly identified as ‘controlling’ by the district court; under § 1292(b), appeal is from the order certified, not from particular rulings embodied within it.” Fannin v. CSX Transp., Inc., 873 F.2d 1438, 1989 WL 42583, at *3 (4th Cir. 1989) (unpublished).

IANAL, but seems as if the judge in taking note that the defendants could raise other issues related to the motions to dismiss beside the certified question in their appeals.

This could be interesting.

NPR and Defamation


Politico reports that a U. S. District Court in Texas has ruled that a defamation suit filed against a group of defendants including National Public Radio can proceed to discovery. Judge Amos Mazzant found the $57 million suit filed by Ed Butowsky makes plausible claims that the network may be liable for defamation for a series of online stories about Butowsky’s role in publicizing assertions that Democratic National Committee staffer Seth Rich was murdered as part of a broader political plot.

NPR argued that the reports by media correspondent David Folkenflik accurately described a prior lawsuit filed against Fox News and Butowsky for defamation, accusing Fox of fabricating quotations in a story about Rich’s murder. The judge did not agree.

“The statements made by Folkenflik were made as verifiable statements of fact,” the judge wrote. “The statements at issue were not merely expressing a subjective view. Looking at the context of the verifiable facts, nothing shows the statements expressed Folkenflik’s opinion or merely offer Folkenflik’s personal perspective on disputed facts.”

Butowsky has several other defamation suits pending against other news outfits, including CNN, Vox, and The New York Times.

Another Day Older and Deeper in Debt


The judge in the Gibson’s Bakery case has ordered Oberlin College to post a $36 million dollar bond if it appeals the $31.5 judgment against it. An appeal could require several years, and interest on the judgment is piling up at the rate of several thousand dollars a day. It seems that the judge believes Oberlin’s claims of financial distress and wants to make sure that the plaintiffs can collect their judgment after the college’s appeals are exhausted.

Bad First Amendment News


TechDirt reports that a state court judge in Rhode Island has issued a restraining order requiring a Massachusetts blogger to take down allegedly defamatory posts. The order was issued without a hearing, creating due process issues in addition to being clearly at odds with the First Amendment.

There’s more about the case over at The Volokh Conspiracy where Eugene Volokh points out that the First Circuit Court of Appeals (Rhode Island in in the First Circuit) has ruled that even permanent anti-libel injunctions barring the repetition of statements found to be libelous at trial are unconstitutional.

The ACLU is representing the blogger and has removed the case to federal court.

Stay tuned.

First Amendment News


Congratulations to Project Veritas on its victory in court yesterday. They were being sued for defamation in a federal court in North Carolina, and Judge Martin K. Reidinger granted them a directed verdict when the plaintiff failed to produce enough evidence for the case to go to the jury. The judge said this in his ruling (beginning at the bottom of page 14 of the transcript below):

The law requires, and the Supreme Court has made clear under the Liberty Lobby case, that I not only have to look at this from the standpoint of whether or not there is the thinnest of thin reeds, that scintilla of evidence, but rather whether a jury could find by clear and convincing evidence that there was actual malice. And these very thin reeds, which I believe as to several of these are really no evidence of malice at all, are insufficient to meet that standard. Therefore, for that reason, the defendant’s motion — defendant’s motions pursuant to Rule 50 will be granted.

Federal Rule of Civil Procedure 50 deals with ruling on matters of law during a jury trial. Judge Reidinger continued:

Whenever I have something that is of particular difficulty, such as this case, it is my ordinary, knee-jerk reaction to tell the party that I’ve ruled against that I urge you to have the court of appeals go grade my paper. To that end, I will say that I will follow this up with a written order before I enter a judgment in this matter that will further elucidate what I’m talking about.

And I do have an inclination to say exactly that. I think that if I got this wrong I’d certainly like for somebody to tell me that I got it wrong. I have a little bit of hesitation in saying that this time. Because if I’ve gotten this wrong, and the Fourth Circuit says that this is not what the law is, I hesitate to think where the First Amendment is going in this country.

It’s always good First Amendment news when a frivolous defamation LOLsuit fails, and I have to admit that seeing one fail because the plaintiff couldn’t come up with a “scintilla” of evidence at trial has a certain resonance for me.