I Have a Stupid Legal Question...

[Joe Guy]

If you are sued for defamation and then found "not liable", can you turn around and sue the accuser for defamation?

[Bicycle Bill]

Waiting for BSG to weigh in with her vast store of legal acumen.  The way she goes on, constantly reminding us all of her time in the legal trenches, I'm amazed that she hasn't yet been nominated to the SCOTUS.

-"BB"-

[Sue U]

If you are sued for defamation and then found "not liable", can you turn around and sue the accuser for defamation?

Not a stupid question, and the answer is "it's complicated." Although not exactly the scenario you present, here's a commentary on a 2004 Pennsylvania case that sets out many of the issues that may be involved, particularly the privilege that attaches to making allegations in court proceedings:

Lawyer Who Gives Pleading to Reporter Can Be Held Liable for Defamation

By Carl A. Solano

On October 20, 2004, the Supreme Court of Pennsylvania handed down two notable defeats for First Amendment interests in Pennsylvania. The first was in Norton v. Glenn, which was the subject of a report in last month’s MLRC MediaLawLetter at 11. The other was Bochetto v. Gibson, 2004 Pa. LEXIS 2466, 2004 WL 2358289, (Pa. Oct. 20, 2004) (Nigro, J.) in which the Court held that a lawyer can be held liable for defamation merely because he or she faxed a copy of a filed civil complaint to a reporter.

Background
The case involved name-calling by two Philadelphia lawyers who were in the midst of hotly-contested litigation. The plaintiff was George Bochetto, a former Pennsylvania Boxing Commissioner who is known to a number of media entities for his representation of plaintiffs in recent libel actions brought against press organizations.

In 1997, he was retained by a Pennsylvania foxhunting group to defend it in local real estate litigation. After the fox hunters lost at trial, they retained a new lawyer, Kevin Gibson, to sue Bochetto for malpractice, charging that Bochetto had failed to inform the fox hunters that an expert report prepared on their behalf contained information suggesting that they were likely to lose the case.

After filing the complaint, Gibson faxed a copy of it to a reporter for a Philadelphia legal newspaper, The Legal Intelligencer, which then published a story about the malpractice case and quoted some of the allegations. Bochetto sued Gibson for defamation, arguing, among other things,
that the faxing of the complaint to the reporter made Gibson liable for publication of any of the complaint’s defamatory content. (Gibson filed a defamation counterclaim for statements made by Bochetto to the same newspaper in an interview, but lost that claim on summary judgment because he could not prove damages.)

Judicial Proceedings Privilege
Gibson defended on the basis of judicial privilege, arguing that he was absolutely immune from suit because he merely provided the reporter with a judicial pleading, and he won on that basis at summary judgment. The Philadelphia trial judge, Albert Sheppard, reasoned that he could not “ignore the chilling effect that could result from effectively precluding attorneys from forwarding copies of the pleadings they have filed to the press.” Bochetto v. Gibson, 2002 WL 434551 (Pa. Ct. C.P.) (Mar. 13, 2002). The Pennsylvania Superior Court affirmed, but, on further appeal, the Supreme Court reversed in a 4–2 decision written by Justice Russell Nigro.

The Court drew a distinction between two publications by Gibson of the information in his complaint against Bochetto. First, there was the publication to the trial court through the filing of the complaint. Gibson had an absolute privilege from liability for that publication because it was a communication made in the regular course of a judicial proceeding that was pertinent and material to the redress sought — a traditional application of judicial privilege. However, the Court held that Gibson’s separate publication of the information in the complaint to the reporter was not privileged.

It “was an extrajudicial act that occurred outside of the regular course of the judicial proceedings and was not relevant in any way to those proceedings.” In entering summary judgment for Gibson because of concerns about a “chilling effect” on reporting, the trial court erred, in the
Supreme Court’s view, because the judicial privilege “is not meant to promote the airing of pleadings to the media” and “is only meant to promote the airing of issues and facts during judicial proceedings.”

The Court continued, “although the failure to apply the judicial privilege to an attorney’s communication with the media may inhibit the ability of the media to access the documents filed in a case, that problem is not one that the judicial privilege was designed to remedy.”

Two members of the Court, Justices Ronald Castille and Max Baer, dissented. They noted that the information given by Gibson to the reporter was no more than the reporter could have gotten by obtaining a copy of the complaint at the courthouse, and they saw “no principled distinction” between those two situations. Both were methods of furnishing legitimate information to the public and, they concluded, both should be privileged. Justice Sandra Newman did not participate in the decision.

The Court’s decision does not disclose whether Gibson’s faxing of his complaint to the reporter was unsolicited or was in response to the reporter’s request, and the decision does not distinguish its result on that basis. In his argument, Bochetto suggested that a lawyer who makes scurrilous charges against another lawyer in a pleading and then sends that pleading to a reporter engages in unprofessional conduct, and that theme may
have resonated with some of the justices. In his own case, Bochetto successfully defended against the malpractice action that Gibson had filed, winning a jury verdict just a few days after the Supreme Court’s decision.

But the Supreme Court’s decision is not limited to internecine lawyer battles and will have much broader implications. Obtaining of pleadings, briefs, and other court documents from lawyers is a common part of everyday reporting to which the Court’s decision presents a serious obstacle. In answer to the trial court’s concerns about press interests, the Supreme Court observed that a reporter can always obtain a filed document from a courthouse and, without explanation, declared that court clerks cannot be held liable for distributing copies “so long as they act in accordance with the law.”

But obtaining a filed document from counsel often is quicker, more convenient, and less expensive than going to court, and can be done while interviewing the lawyer for an explanation of what the document provides. Perhaps, as courts migrate to electronic filing systems, the inconvenience of obtaining documents from a court office may dissipate, but that day is not yet here and it will not eliminate the other advantages of direct lawyer contact.

Meanwhile, the “chilling effect” feared by the trial court will be real. Lawyers — usually a cautious group to begin with — are unlikely to risk personal litigation to assist a reporter. Pleadings often contain allegations that might be characterized as defamatory, and complaints are particularly susceptible to such a claim, since they typically will accuse a defendant of some sort of unlawful conduct.

Of course, defenses other than absolute privilege should apply to defamation claims based on dissemination of pleadings, and the Supreme Court itself left open the possibility of a qualified immunity defense for Gibson. But such defenses often present factual issues not susceptible to pretrial disposition, and few lawyers can be expected to want to engage in protracted litigation regarding them.

Therefore, as word of the Bochetto decision spreads, it is not difficult to imagine that law firms throughout Pennsylvania will develop policies that discourage or forbid forwarding of litigation documents to reporters, and that they will advise their clients to follow similar practices. And if such caution applies to the mere sharing of filed pleadings, the reticence will likely spread to the making of any comments about a case at all, since no privilege applies to extrajudicial statements.

Doctrinally, as a strict matter of judicial privilege, the Supreme Court’s decision is not without legal support. While public relations often are an
important component of a lawyer’s comprehensive legal strategy in high-profile litigation, the dissemination of pleadings to reporters does not perform the type of direct judicial function to which that privilege typically has applied. But from a policy standpoint, the Bochetto decision makes little sense. It provides scant protection to plaintiffs’ reputations, since the allegedly defamatory information already is in the public domain in official court files.

The main effect of the decision will be inhibition of the press by forcing reporters to go to a courthouse to obtain the same information that they could more easily obtain by fax or e-mail from counsel. The quick brush-off that the Court’s opinion gave to the policy of informing the public is of deep concern.

One answer to this concern may be that the Bochetto case was argued under the wrong privilege. Rather than claiming a judicial privilege to disseminate court documents to the press, such communication can be viewed as a natural adjunct to the fair report privilege of the press to report about judicial proceedings. After all, a lawyer who provides a court document to a reporter is merely enabling the press to report about it.

The Supreme Court hinted at the possibility that it may entertain this argument, citing to Section 611 of the Second Restatement of Torts in a brief footnote suggesting that some sort of qualified privilege may be applicable. While not absolute, the fair report privilege provides more robust protections for defendants than do other qualified privileges in Pennsylvania. Fair report was not argued by Gibson, and that issue therefore remains open.

Source: Media Law Resource Center, via Schnader Harrison

[Joe Guy]

Thanks for your response, Sue. I understand what you mean by "It's complicated".

The question came to me when I was reading about the Trump vs E. J. Carroll case but would be the same for any defamation case. I was wondering if Trump's public comments about Carroll aren't enough to find him liable for defamation against her, would that make Carroll's accusation of rape and any comments she's made publicly about it potentially defamatory?

Then again, how could anyone defame Trump? He's a god to his minions and despised by smart people, so there would be no change in public perception.

If Trump is found 'not liable' it would seem that standard Trump procedure would be to sue her for defamation for accusing him in the first place. Not a smart move, in my opinion, but very Trumpish.

Based on your response I'll just accept the fact that it's complicated.

[Crackpot]

To be fair “it’s complicated/it depends” is lawyers standard response