This Is What Happens When a Court Decides Whether You Get Justice or Get Destroyed

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More care goes into the making of a sandwich.

That’s what I was thinking last Thursday as I watched oral arguments in the California Court of Appeals in Los Angeles.

Case after case came before a three-judge panel. They concerned a variety of matters. Hundreds of thousands of dollars, perhaps millions, were at stake. More importantly, so were hard-built professional careers and reputations. With so much that mattered hanging in the balance, you’d hope to see these cases handled with sensitivity, decorum and thoughtfulness—and you’d be sorely disappointed.

There was a real estate deal gone wrong that I would have needed to read up on in order to understand. A physician was resisting a subpoena for his patients’ records filed by the state medical board, which suspected him of overprescribing opioids. And there was me, former editorial cartoonist for The Los Angeles Times, defending myself from an “anti-SLAPP” motion that, if successful, would end my lawsuit before it began and bankrupt me with a court order for me—the victim—to pay the Times hundreds of thousands of dollars for their legal fees.

It ought to be illegal for a police department to own a newspaper. But it’s not. In 2015 the LAPD pension fund was a major shareholder of Tribune Publishing, owner of the Times. Annoyed at my cartoons about him, then-LAPD Chief Charlie Beck asked the Times then-publisher Austin Beutner, now LA schools superintendent, to fire me as a political favor. He did. Beck also wanted my reputation destroyed so I could never work again, in order to send a message to journalists: don’t mess with the LAPD. Beutner, Beck’s political ally and a man with ambitions to become mayor or governor, complied by ordering that the paper publish two libelous articles about me portraying me as a liar.

The second one was published after I proved I had told the truth.

I sued for defamation and wrongful termination in 2016.

Since then Times attorney Kelli Sager, who also represents the National Enquirer in its smear of gay icon Richard Simmons, has waged a scorched-earth litigation campaign designed to intimidate, harass and delay my quest to clear my name. Sager filed the anti-SLAPP, a law designed to be used by individuals to defend themselves against powerful corporate entities, against me. She convinced the court to force me to pay $75,000 just to be able to continue my case for something called a “Section 1030”—a law whose intent is to discriminate against out-of-state plaintiffs (I live in New York.) Last week, during oral arguments in open court, she compared me to a “pedophile.”

Last summer the lower court in L.A. ruled against me on the anti-SLAPP, saying that even though I showed that I was truthful and the Times was not, I must pay $330,000 (as of then) in legal fees to the Times. I appealed, which is why I was in court last Thursday.

We knew it was going to be tough. Shortly beforehand the court issued a “tentative opinion” that indicated the Court of Appeals planned to buy Sager’s arguments lock, stock and barrel. Those arguments were lengthy and complicated but they could be summarized as: the First Amendment allows newspapers to publish anything they want, the truth doesn’t much matter and if you slap a veneer of officialdom on libel—in this case, the Times claimed, it was merely reporting on what the LAPD said about me—it becomes “privileged,” i.e. inactionable.

My attorney Jeff Lewis emphasized several points.

First, he pointed out, the tentative opinion disregarded California anti-SLAPP case law that requires that I be given the benefit of the doubt, not the Times, when considering their anti-SLAPP motion. In Overstock.com, Inc. v. Gradient Analytics, Inc. (2007), for example, the court ruled that “the plaintiff’s burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.” The tentative opinion was rife with references to my supposed (in)credibility and purported to evaluate the evidence presented.

The justices seemed surprised by Jeff’s argument. They asked him to cite case law examples. He did. They wrote them down.

I hope they take notice and change tack, still, anti-SLAPP motions are commonplace in California courts. How could any judge be unaware of important cases like Overstock or the standard that plaintiffs get the benefit of the doubt in anti-SLAPP?

Jeff countered the Times’ argument that they were merely passing on what the LAPD records given to them said. It matters because “fair and true” journalistic reports about government records are “privileged.” Much of the Times’ hit pieces against me concerned the Times’ own cursory sham investigation of me. One judge asked Sager whether the Times was arguing that both the LAPD and the Times’ references were privileged. Sager repeated that the LAPD ones were, repeatedly ignoring the Times question until, after being pressed, she played dumb, insulting the court’s intelligence by pretending not to understand the issue.

No one pressed her on that or on her “pedophile” remark. Whereas the judges expressed great concern for the reputation of the doctor in the previous case about overprescribing, none spoke against comparing a cartoonist to a pedophile, further slandering me.

Jeff asked why the court’s tentative ruling ignored our most important anti-SLAPP case law precedent, Wilson v. CNN. There was no clear answer. Whether it was intentional or they forgot, people have been fired from far less prestigious jobs for considerably less shoddy work.

Lewis asked the court to consider the chilling message they would send to journalists at news outlets like the Times if they ruled for the Times against me: if you criticize the LAPD, you can be destroyed even though you did nothing wrong. And you can’t sue. There is no redress. There is no justice.

We await the court’s ruling.

UPDATE: Listen to the oral arguments here:

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

9 thoughts on “This Is What Happens When a Court Decides Whether You Get Justice or Get Destroyed

  1. Pingback: Jeff Lewis argues for Ted Rall In First Amendment battle Against LA Times – Jeffrey Lewis Attorney at Law

  2. It’s hard for me to distinguish between a SLAPP and Anti-SLAPP suit.

    The salient feature of each is that “Big Money exercises a great advantage over Small Money,” despite the legislative intent or motives of its possibly well-meaning authors.

    It seems to me an unworthy effort to enact an Anti-SLAPP law that simply memorializes the above truism, which seems more akin to the “Law of the Jungle” ( AKA, Might makes Right) than a means to remedy the anti-social injustice of brute force overcoming a (financially) weaker adversary (by financial means) in the name “justice”.

    Justice under law (to be worthy of the name “law”) should transcend the Law of the Jungle rather than merely enforce it by other means.

    • A SLAPP is, in theory, a lawsuit filed to harass and punish someone for expressing themselves. In theory because, in reality, there is little evidence that SLAPPs are a real problem. I have never found a serious statistical analysis of SLAPP suits. No one knows how many there are or how they turn out.
      The anti-SLAPP motion is used to stop defamation and libel lawsuits in their tracks before they can get off the ground and punish the plaintiff by forcing them to pay the defendant’s legal fees.

      • HI Ted,

        I understand the function the Anti-SLAPP law is intended to serve. I just don’t see that it is designed to function as it is allegedly intended to function.

        It is still, in essence, using Big Money to silence another through excessive legal fees, which makes an Anti-SLAPP look a lot like a SLAPP to me.

        Anyway, Ted, I expect you to be the exception that counters my general estimation of the situation, and prove that Pocket Change can still prevail against Big Money, which in your case would highly gratify me.

        Best Wishes, Ted.

  3. 1. I’ve noticed for a while that there seems to be a tendency for bad news to come right before a holiday. Granted, we’ve got a lot of holidays on the calendar, but getting this kind of a mangling right before Christmas? Wow. It’s like getting laid off right before Thanksgiving or a relative dying just before a birthday (a relative you like).
    2. I’ve also noticed that there tends to be an alarming reinforcement going on between the judicial system and neocapitalism. By definition, a “justice” system should make it so that a lack of money CANNOT be an impediment to pressing a claim. But here we are. You need a fortune to get your case before the “fair” system. The neolibs must love that.
    3. The more I reflect on this case, the more alarmed I become. Whether Ted is telling the truth or not isn’t even the first consideration. That’s not how our system is supposed to work. The first consideration is the evidence presented: a duplicate of a low-quality original audio without a clear trail of custody. Basic forensics work was not done on it by the LA Times (Ted had to cough up the dough for that).
    These are substantial and significant problems in any system that asserts that it runs on an innocent-til-proved-guilty model. Add to that how the media has been almost totally silent on this matter. That makes no sense. This ought to be easy pickings–if Ted did it–for every high-falutin’ editorialist to sniff-sniff in moral outrage as they rip Ted a new one. And if he didn’t do it, in an era where the news industry desperately needs to show that it has a purpose (such as defending the unjustly accused), I don’t get it either. Where are the numerous articles on this? Either way, it makes for copy. But I don’t think the Columbia Journalism Review has written more than two words on this. Ditto all the other expected contributors.
    Ted, I really wish you the best of luck.

  4. Not to worry, Ted, the US Department on (in)Justice will no doubt be on the case, when it is finished attempting to extradite foreigners changing planes in a third country or «indicting» other foreigners who have never been and presumably never will be under its jurisdiction. After all, when one is busy running the world, sometimes those hometown cases are forced to accept a lower priority….

    Henri

  5. As to the apparent, complete media blackout of this story.

    1) In general, the extent of a media blackout is proportional to the real importance of the issue to the media. Therefore, media perceives this case as important.

    2) Why is it perceived important? It shows a(nother) media giant behaving starkly contrarily to the dominant mythology
    a) basking in the sun of (truly idiotic, counter-democracy) case law*** relieving media of any obligation to seek/present objective truth in its reporting or management issues
    b) sacrificing one of it journalists to the demands of a government entity the media EXISTS to oversee but instead in whose pocket the giant now clearly & securely resides.

    Re: “The neolibs must love” … the fact that the legal system is accessible, essentially, only to the monied class. This situation is NOT an accident or coincidence randomly favoring the monied class, but, rather a projected and desired outcome of the vicious, persistent and ongoing, post WWII campaign by money to destroy the legislative trappings and social philosophy of the New Deal – that all persons matter.
    Link1
    Link2

    ——————
    *** Commencing with a mid-1980’s Florida Supreme Court ruling in favor of a FOX “News”(who else!?!) affiliate.

  6. As to the apparent, complete media blackout of this story.

    1) In general, the extent of a media blackout is proportional to the real importance of the issue to the media. Therefore, media perceives this case as important.

    2) Why is it perceived important? It shows a(nother) media giant behaving starkly contrarily to the dominant mythology
a) basking in the sun of (truly idiotic, counter-democracy) case law*** relieving media of any obligation to seek/present objective truth in its reporting or management issues
b) sacrificing one of it journalists to the demands of a government entity the media EXISTS to oversee but instead in whose pocket the giant now clearly & securely resides.

    Re: “The neolibs must love” … the fact that the legal system is accessible, essentially, only to the monied class. This situation is NOT an accident or coincidence randomly favoring the monied class, but, rather a projected and desired outcome of the vicious, persistent and ongoing, post WWII campaign by money to destroy the legislative trappings and social philosophy of the New Deal – that all persons matter.

    Link1

    A second link is included, below

    ____________________________
    
*** Commencing with a mid-1980’s Florida Supreme Court ruling in favor of a FOX “News”(who else!?!) affiliate.