Am I a victim of the COVID-19 pandemic? Legally, maybe.
Reversing direction unexpectedly, the California Supreme Court has decided NOT to hear my defamation and wrongful termination lawsuit against the Los Angeles Times, billionaire publisher Austin Beutner, and parent company Tribune Publishing, which at the time of my firing was owned in large part by the Los Angeles Police Department pension fund.
Adding to the confusion, the Court decertified the Court of Appeals ruling against me. This means that, while I will soon be ordered to pay close to $1 million to the LA Times for their legal bills defending themselves from lying about me in two articles, I can take comfort in the fact that Rall v. LA Times will not be used to screw over other journalists under California’s anti-SLAPP statute. My case cannot be used as a precedent. It’s sort of like Bush v. Gore.
You are welcome, California journalists. You are safe.
Why did the court make the decision they made? There’s no way to tell. They issued a pair of trite phrases: “Petition for review denied; CA opinion decertified.” After five years and thousands of pages of opinions and blood and sweat and tears, that’s all she wrote.
A few weeks ago, the California Supreme Court signaled to my attorneys that it planned to kick my case down the road for at least several months due to the COVID-19 epidemic and the closure of California courts.
My lawsuit against the Los Angeles Times is a long, complicated story. The following is an attempt to bring you up to speed in digestible form.
I became the staff cartoonist of the Los Angeles Times in 2009. Unbeknownst to me, in 2014 the LAPD Pension Fund became the biggest shareholder of Tribune Publishing, parent company of the Times. No one at the Times told me to lay off cartoons about the cops, probably because my editors too were unaware of the secret deal. In 2015 the Times fired me at the request of the LAPD.
The LA Times’ Nutty Audio I was walking from a Bill Maher show taping to dinner in West Hollywood in October 2001 when an LAPD motorcycle officer confronted me, handcuffed me and roughed me up, drawing a crowd of passersby. He wrote me a ticket for jaywalking. I had not been jaywalking. I filed an Internal Affairs complaint about the false arrest but nothing came of it. In July 2015 a LA Times reporter informed me that the officer had secretly audiotaped my arrest, that the LAPD (actually, it was Police Chief Charlie Beck, see below) had given the Times (actually, to publisher Austin Beutner, see below) the tape and that the tape showed I had lied about being handcuffed and mistreated by the cop in a 2015 blog that was posted with a cartoon that I did for the Times about an LAPD jaywalking crackdown. The sound quality is atrocious. It’s 6-1/2 minutes of static, wind and traffic noise. There is evidence that it was spliced or otherwise tampered with. The LAPD audio neither confirms nor denies my account, which was truthful. Nevertheless, the Times decided to terminate me AND to publish a libelous “Editor’s Note” to readers intended to destroy my reputation as a journalist so that I would never work again. I had the audio “enhanced”—cleaned up so that voices and other sounds could be heard. The enhancement confirmed my version of the encounter, including a woman shouting “Take off his handcuffs!” at the officer. I sent the vindicating evidence to my editors at the Times. They ignored me.
The Times Doubles Down Three weeks passed. During this time, pressure built on the Times to reverse their decision. Journalistic organizations, Times subscribers commenting on their website, letter writers and social media from left to right urged the Times to reinstate me. They refused questions from reporters at other press outlets, censored the letters and shut down online comments at latimes.com. Thanks to the enhanced audio, the Times knew it had libeled me in the Editor’s Note. Rather than issue a retraction and offer me back my job, the Times issued a second article, this one by the Times’ ombudsman, that doubled down on the allegations from the first article, which they knew to be false.
My Lawsuit I waited seven months for the Times to do the right thing. Finally, in 2016, I sued the Times, its parent company Tribune, and four individuals for defamation and wrongful termination. I am determined to defend my reputation against these scurrilous smears.
Here are the individual defendants:
Austin Beutner Times publisher at the time, hedge-fund multi-billionaire Austin Beutner was subsequently fired by Tribune for trying to orchestrate an inside-the-boardroom coup. Beutner secretly met with LAPD Chief Charlie Beck, who subsequently resigned in disgrace. At this meeting Beck handed Beutner the audio recording from 2001. Beck demanded that I be fired for criticizing the police in my cartoons; Beutner, Beck’s political ally and a man who’d like to run for mayor or governor, complied. (The Times still hasn’t told readers where the audio came from.) Beutner is currently the superintendent of the Los Angeles public school district, the largest in the country. His refusal to give teachers a raise prompted an acrimonious walkout by educators.
Nicholas Goldberg Times editorial page editor Nicholas Goldberg, a middle manager, appears not to have been trusted with inside knowledge of the high-level conspiracy between Beutner and Beck. It’s hard to know anything for sure before the courts grant discovery, but Goldberg’s role was likely limited to that of hatchet man: his by-line is on the Editor’s Note.
Paul Pringle Bypassing Goldberg, Beutner probably assigned Times investigative reporter Paul Pringle to look into my story. Pringle informed me that the LAPD was accusing me of lying and questioned me at length about what happened the evening of the jaywalking arrest. Pringle, who worked the “cop shop” beat for years and thus spent a lot of time with police, made clear that he believed the cops, not me. Among other silliness, he asked why the low-quality audio didn’t contain the sound of my driver’s license (made of paper) hitting the ground after the officer tossed it or the click of the handcuffs going on. He also wondered why there was no sound of me arguing with the officer; I repeatedly explained that I was compliant, that I don’t argue with cops. In order to determine the authenticity of the LAPD audio, he told me, he asked the LAPD if it was legitimate. Pringle won the 2019 Pulitzer Prize for Investigative Journalism.
Deirdre Goebel Edgar Until 2018 Deirdre Goebel Edgar was the “Reader’s Representative” of the Times. The reader’s representative is the ombudsman of a newspaper; though paid by the paper her duty is akin to Internal Affairs at a police agency: to make sure the paper is upholding journalism’s highest ethical standards in service to readers. Indeed, in 2014 she authored the Times’ Ethical Guidelines. Among other things, the guidelines require that the subject of a critical story be interviewed at length, in person, to give their side. Edgar wrote the second “doubling down” article in 2015 smearing me as a liar. She did not contact me.
The Times Hits Me With an Anti-SLAPP Motion California’s anti-SLAPP (strategic lawsuit against public participation) law was designed to stop individuals and whistleblowers from being slammed by big corporations like real estate developers out to crush community activists by tying them up in court with frivolous defamation claims. After I sued the Times, Kelli Sager—a high-powered $715/hour attorney employed by such reputable enterprises as the National Enquirer to fend off legitimate libel lawsuits—hit me, a fired $300/week cartoonist, with an anti-SLAPP motion alleging that I was using my power and influence to deprive the Times of its First Amendment free speech rights. The Times is currently owned by Dr. Pat Soon-Shiong, who is reportedly worth $7 billion. Soon-Shiong gets a lot of good press that he doesn’t deserve; he has continued to employ Sager. Before the case begins, the anti-SLAPP motion must be resolved. First up: the trial court.
Superior Court At trial court in Los Angeles, the Times filed a motion for summary judgement against me, arguing my claim to be frivolous. The judge at the time, who retired a few months later, denied the Times’ motion. Switching tacks, Sager filed a motion demanding that I post $300,000 cash bond to guarantee the Times’ legal fees in the event that it won anti-SLAPP and won a judgement that required me to pay the Times’ attorneys’ fees, because I live in New York and not California. The judge knocked it down to $75,000. Hundreds of people contributed to my GoFundMe. I posted bond. Every year I pay the bond company $1250 to hold the money. After a blizzard of stalling tactics by Sager, Judge Joseph Kalin heard the anti-SLAPP motion in 2017. Just days before the second and third of three anti-SLAPP arguments, attorney Carney Shegarian abruptly fired me as his client. I do not know why. I quickly found a new attorney but Judge Kalin ruled that I had to represent myself against Sager in oral arguments. Anti-SLAPP requires judges not to assess the evidence, but to assume that all the claims are true to see if the complaint has any merit. Kalin assessed the evidence, agreed that the audio enhancement showed I was innocent, and nonetheless ruled against me. He ordered me to pay the Times $330,000 for Sager’s fees. I appealed.
Court of Appeal Earlier in 2019 the Court of Appeal, also in Los Angeles, heard my appeal. Like Kalin, the Court of Appeal ignored the anti-SLAPP rule about assessing evidence. During oral argument Justice Elizabeth Grimes, seemed shocked when my attorney Jeff Lewis brought it up. Grimes ruled for the Times. I appealed. The California Supreme Court accepts fewer than 5% of petitions for review so I was pleasantly surprised when they agreed to hear my appeal. Seven major First Amendment organizations issued amicus letters supporting my appeal to the state Supreme Court. My petition was a “grant and hold,” which means it’s tied to the outcome of a related case, in this situation Stanley Wilson v. CNN. Wilson claims he was wrongly terminated and defamed by CNN as a ruse, with the real reason being race discrimination.
California Supreme Court The high court ruled in favor of Wilson in a ruling that urges lower courts to grant discovery in anti-SLAPP cases, something that was denied us. As we petitioned and against long odds–they reject more than 95% of appellants–the court remanded us back to the Court of Appeal with instructions to rehear us in light of Wilson. A favorable ruling by the Court of Appeal would mean that the $330,000 judgement would be erased, we can begin discovery and, four-plus years after the fact, the actual case would commence.
Listen for yourself to the oral arguments in the most recent Ted Rall v. Los Angeles Times anti-SLAPP hearing. I’m defending myself against Dr. Pat Soon-Shiong and the LA Times’ defamation as a favor to the LAPD.
The National Enquirer is in the news rather than reporting it—not for printing that Elvis is alive and well, but for its alleged role as “a dirty-tricks shop for Donald J. Trump in 2016,” as The New York Times put it in an article that described the supermarket tabloid as “the most powerful print publication in America.” The Enquirer served as a propaganda rag for The Donald, first targeting Ted Cruz during the primaries and then amplifying anti-Hillary conspiracy theories like “PizzaGate,” the ridiculous stories that candidate Clinton was sleeping with Huma Abedin and that she had hired a “hitman” to murder people who annoyed her.
It paid $150,000 for the story of a former Playboy model who said she had an affair with our current president—so they could bury it. (They call this a “catch-and-kill” deal.)
Even for the pond-scum standards of the National Enquirer, this is super sleazy. Mainstream media outlets like the Times are pointing out how gross and yucky the Enquirer is and they’re right to do so.
What these august guardians of the Fourth Estate are not as eager to talk about is how, when it comes to a little-known law with a massive effect on libel and defamation law, respectable print institutions like the New York Times are on the same side as such exemplars of yellow journalism as the National Enquirer.
Twenty-eight states—including many of the most populous—have “anti-SLAPP” laws ostensibly designed to protect newspapers, radio and television outlets from being sued for libel or defamation.
Their real purpose is to allow the media to get away with murder.
Let’s say a newspaper prints an article that destroys your reputation: for example, you’re a teacher and the piece says you sexually assaulted students. Now let’s say that you’re innocent. Not only that, you can prove you’re innocent. So you sue the paper for defamation or libel.
In the old days, your lawsuit would head to discovery and then to trial where a jury of your peers would weigh the evidence. If 12 men and women good and true agreed that the paper had lied about you and hurt your reputation, they might award you damages to make up for lost wages and other financial harm. After all, even a verdict in your favor probably wouldn’t cause a school district to be willing to hire you.
Now we have anti-SLAPP. If you live in a state with one of these pretzel-logic statutes, the odds of getting justice are very low. It doesn’t matter how brazen the lie about you was or how much it hurt you or your livelihood. Even if you can prove the paper knew what they said about you wasn’t true when they decided to print it, an anti-SLAPP motion will probably stop you dead in your tracks—assuming you can find a lawyer willing to represent you in a state with an anti-SLAPP law in the first place. As a defamation law expert in California told me, “Defamation law is effectively dead. There is no redress.”
Here’s how it works. First you sue. Then the paper that slimed you files an anti-SLAPP motion. Discovery—subpoenaing each other’s documents, deposing witnesses on both sides—halts before it begins. So you can’t collect evidence. Years pass. Legal bills mount. Without access to documents and witnesses you have to convince a judge—not a jury—that your case doesn’t involve “privileged communications”—whatever that is—and that you’ll probably prevail before a jury. Of course, the judge doesn’t know that. Odds are you’ll never see that jury. Here’s the best part: after the judge tosses your case, you—the victim!—have to pay the legal fees of the publication that tried to ruin you.
Because they violate the centuries-old right to trial by jury, two state Supreme Courts—in Washington and Minnesota—have gotten rid of their anti-SLAPP statutes, ruling them unconstitutional. But there’s still a long way to go before sanity prevails; if anything, the momentum is for more states to legalize defamation with anti-SLAPP laws.
Because anti-SLAPP motions are themselves the subject of years-long litigation and appeals, trial lawyers rake in hundreds of millions of dollars a year from the anti-SLAPP racket. The only victims are plaintiffs forced into bankruptcy.
Run a Google search for “criticism of anti-SLAPP laws” and you’ll likely come up empty. News articles about anti-SLAPP contain countless quotes in favor, none against.
Media companies love anti-SLAPP laws because they allow them to run “fake news” day after day without the slightest worry of being held accountable for their perfidy. Even liberal former labor secretary Robert Reich has fallen for anti-SLAPP propaganda, which holds that such laws help poor individuals defend themselves against frivolous lawsuits filed by deep-pocketed corporations when, in fact, the opposite is more often true.
A California court recently ruled in favor of an anti-SLAPP motion filed against fitness icon Richard Simmons by the National Enquirer. Simmons had sued the tabloid after it falsely published a BS cover story (which it described as “shocking!”) claiming Simmons had undergone a sex change to become a woman. He had not. Simmons said he “has a legal right to insist that he not be portrayed as someone he is not” and “to be portrayed in a manner that is truthful.” Few reasonable people would disagree.
Simmons got screwed.
Check out the Orwellian Enquirer argument the judge bought hook, line and sinker: “Plaintiff has no right to suppress speech about him, even false speech, if it is not harmful to his reputation.” The judge ordered Simmons—the victim—to pay $130,000 to the Enquirer, which admits it lied about him. “Falsity is not enough” to prove defamation, said Enquirer attorney Kelli Sager.
The anti-SLAPP business has become shameless. Sager even defended the Daily Mail after it ran a fake-news story connecting First Lady Melania Trump to an escort agency.
The Los Angeles Times recently made a similar anything-goes argument in favor of its anti-SLAPP motion against me. In 2015, when the #1 shareholder of the Times’ parent company was the LAPD pension fund, the then-LAPD chief ordered the then-publisher, his political ally, to fire me and run a fake-news story describing me me as a liar and fabulist. After I proved it was the Times and not me who lied, Kelli Sager—the National Enquirer lawyer who also represents the upscale Los Angeles Times—told the court: “This is not a case about the quote-unquote truth.”
After I sued for defamation, the trial judge—in the same courthouse as the Simmons case—ruled that I—the victim—must pay the Times $330,000 in their legal fees even though I had shown they were liars and that they knew what they printed about me was untrue at the time. Like Simmons, we are appealing.
The Enquirer recently hit the Playboy model in the Trump case, Karen McDougal, with an anti-SLAPP motion that would force her to pay its legal fees.
For my money the most outrageous California example of abuse I’ve read recently is former Trump attorney and fixer Michael Cohen’s anti-SLAPP motion against Stormy Daniels. Cohen said Daniels lied about having an affair with Trump—which is plainly false.
Cohen has been sentenced to three years in prison for arranging hush-money payoffs to Karen McDougal and Stormy Daniels. Too bad he won’t be bunking with the publishers of the National Enquirer and The Los Angeles Times.
(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.)
Even the shirt is “fake news.” Look at the text. It’s not actually printed on the fabric. (from LATimes.com)
I am suing for the Los Angeles Times and the $638 million newspaper conglomerate Tronc for the defamation and wrongful termination they carried out as a favor for the chief of Los Angeles Police Department.
I don’t know how things will turn out. But I have learned a lot about the justice system.
I’ve learned there’s a “Thin Grey Line” — a conspiracy of silence that media outlets use to shield one another from public scrutiny and accountability. It’s not President Trump’s supposed “fake news.”
It’s No News At All.
A black hole.
If media misconduct falls in the woods, whatever sound it makes receives no coverage in “rival” media outlets.
The Thin Blue Line is a 1988 movie describing how police protect one another from allegations of wrongdoing by clamming up about what they know, leading to the railroading of an innocent man. Similarly, media organizations conspire to keep allegations of libel and other wrongdoing out of the public eye. You don’t cover my bad behavior and I won’t cover yours.
Of course, some libel lawsuits are too big to ignore. In those cases the Thin Grey Line slants their coverage to make the victims look like petulant crybabies or greedy pro-censorship fascists.
I learned about the Thin Grey Line when I reached out to media organizations about my situation with the LA Times. Although certain outlets did a good job covering my case — the UK Guardian and the New York Observer stood out — big papers like the New York Times and Washington Post wouldn’t touch it.
“Cartoonist Critical of Police Fired as Favor to LAPD after LAPD Pension Fund Buys Major Interest in LA Times’ Parent Company” has all the components of a major story: big guy crushes little guy, privacy violations, secret police spying on citizens going back decades, ugly conflicts of interest, a police department pension fund that bought newspaper stock so it could leverage it into editorial control of major newspapers, a criminal conspiracy at the highest levels of local government.
If the villain wasn’t a media company, a media outlet would be all over it.
Most U.S. media outlets ignored my story. Most that put out reports were either online-only or based overseas.
Some, like NPR, explained that my story required investigative reporting for which they didn’t have a budget.
Rall v. Los Angeles Times is a natural fit for The Intercept, the news site dedicated to the Snowden revelations and perfidy by government and the press. Indeed, an Intercept reporter worked the story, spending hours talking to me. Then he took it to his editors — who killed it. Was someone higher on the food chain connected to the Times or LAPD? Were they reluctant to take on a fellow media outlet? All I know is, the guy never called me back. That’s unusual to say the least.
Historically, problems at the local daily newspaper have been red meat to an alternative newsweekly, the scrappy underdog in many metro media markets. New York’s late Village Voice used to love taking on the Times, Post and Daily News. But things are different now. Journalists who follow Los Angeles are shocked that LA Weekly won’t cover my two-year-old lawsuit.
Major libel verdicts against media outlets get buried by the Thin Grey Line. A jury dunned the Raleigh News & Observer$9 million for libel in 2016. Two Cal Coast Weekly writers owe their defamation victim $1.1 million as of 2017. You probably didn’t hear about those.
Legacy media still hasn’t figured out the Internet. But they’re good at propaganda. Exploiting Trump’s bombastic “fake news” broadsides against the press, they’re casting themselves as party organs of the anti-Trump “Resistance.”
As a journalist and satirist who relies on the First Amendment, I am sympathetic to worries that news outlets might self-censor due to the threat of libel suits. But corporate media looks ridiculous when they portray every defamation and libel plaintiff as sinister threats to press freedom. And it’s downright silly to pretend that every libel and defamation case is inherently frivolous.
“The $140 million payout mandated by a Florida court in Hogan’s privacy case against Gawker, which was bankrolled by Silicon Valley billionaire Peter Thiel, was a chilling development for media companies that are already battling to keep costs down,” Keith Gessen wrote in Columbia Journalism Review.
Nowhere in Gessen’s piece did he mention that Gawker could have saved every penny of that $140 million by exercising a modicum of editorial judgment. Or that Thiel’s role merely leveled the playing field between an individual and a (then-) deep-pocketed media outlet.
The Hogan verdict is only “chilling” to publications so arrogant and stupid as to fight for the right to gratuitously publish material that can ruin a person’s life — material with zero news value — without a legal leg to stand on.
Based on the coverage of the Gawker-Hogan coverage I’ve read since the 2016 verdict, most media outlets are still pushing the Thin Grey Line narrative that Hogan had no grounds to complain. I say that Hogan has the right not to have his sex acts posted to the Internet without his permission.
Thin Grey Line aside, I bet most people agree with me.
(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 independent political cartoons and columns and see his work first by sponsoring his work on Patreon.)
The National Enquirer and Radar Online published a series of news stories that reported that Richard Simmons, the fitness instructor and TV personality, was transitioning to become a woman. “Richard Simmons: He’s Now a Woman,” read an Enquirer headline.
The Enquirer lied about Simmons. So he sued.
Seems like a straightforward case of libel. Yet, insanely, thanks to California’s constitutionally dubious, nonsensical “anti-SLAPP” statute, a judge has ordered him — a bona fide victim of “fake news” — to pay the Enquirer $122,000. The miscarriage of justice in Simmons’ case is worth thinking about as well-intentioned progressives try to defend the Fourth Estate from toxic smears by President Trump.
Proposals like a federal “shield” law to protect journalists and their sources could help shore up the First Amendment. But the current push for a national anti-SLAPP law like the one that slammed Simmons is woefully misguided and would only bolster Trump’s argument that the media publishes lies with impunity.
Simmons, a gay icon who calls himself “an avid supporter of the LGBTQ community,” sued the media outlets for libel in Los Angeles. Simmons presented key evidence, an Enquirer document indicating that the newspaper could not rely on its source for the Simmons transgender story, his former assistant.
The landmark 1964 U.S. Supreme Court case Sullivan v. New York Times established a standard that, in order to prove libel, a public figure such as Simmons must show that the defendants either knew a story was false at the time of publication, or that they had reckless disregard for the truth. Simmons seems to have the makings of a successful case on both counts.
Simmons says he sued because the stories violated his privacy and falsely portrayed him as someone he’s not. Also, given that as many as one out of four Americans are uncomfortable with and/or actually despise transgender people, it would not be unreasonable for Simmons to worry that he might lose business as a result.
Twenty-eight states have anti-SLAPP (“strategic lawsuit against public participation”) laws. They’re presented as a way for a poor individual or whistleblower to defend themselves from deep-pocketed corporations. The reality is a classic case study in unforeseen consequences: poorly-written, confusing anti-SLAPP laws are routinely abused by giant media outlets so they can avoid being held accountable for reckless smears and to send a chilling message to victims who seek redress in the courts.
The assumption behind anti-SLAPP appears to have originated during the Reagan-era “tort reform” movement. Courts, conservatives claimed, were clogged by frivolous lawsuits filed by giant companies. In 1996, for example, Texas cattlemen sued talk host Oprah Winfrey under the state’s “veggie libel” law for saying that she’d stop eating burgers. But there is no statistical evidence that the problem, if it exists at all, is widespread or can’t typically be disposed of by the standard litigation tactic of filing a motion for summary judgment.
In states like California, a libel or defamation defendant like the National Enquirer can file an anti-SLAPP motion as soon as it receives a lawsuit. Discovery stops. Plaintiffs aren’t allowed to subpoena documents or depose witnesses. A judge reads the legal complaint, assumes everything the plaintiff says is true and everything the defendant says is false and, based on those assumptions, assesses whether the case has minimal merit. If so, the anti-SLAPP motion is denied and the case moves forward.
If not, the case is thrown out of court and the plaintiff is ordered to pay the defendant’s attorneys’ fees. (The supreme courts of Minnesota and Washington have declared anti-SLAPP laws unconstitutional because they violate plaintiff’s right to a jury trial.)
That’s what happened to Richard Simmons. He is appealing.
Anti-SLAPP laws rely on a flawed theory. In reality, deep-pocketed interest groups like the cattlemen who sued Oprah aren’t deterred by the potential expense of having to pay the defendant’s legal fees. Moreover, the statutes are extremely confusing, featuring more exceptions to exceptions than French grammar. Moreover, anti-SLAPP asks judges to act against their very nature; for example, judges are not supposed to assess the evidence, but simply take everything the plaintiff says at face value. In case after case, judges simply can’t help themselves.
Judges are gonna judge.
Which is how Simmons, the gay icon, wound up on the hook for $122,000, forced to pay a newspaper that lied about him, that oppressed him, that common sense says owes him an apology and a retraction, as a martyr to transgender rights. Los Angeles Superior Court Judge Gregory Keosian ruled that Simmons falsely being declared a woman did not expose him to “hatred, contempt, ridicule or obloquy,” so no more defamation occurred than if they had falsely described the color of his clothes.
“While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them,” Keosian ruled.
If Simmons loses his appeal, California’s Court of Appeals will order him to pay the publications even more money.
To most people, Simmons’ case is a mere judicial curio. Not for me. I’ve taken an interest in anti-SLAPP laws since 2016. That was when the Los Angeles Times, defended by the same lawyers as the National Enquirer, filed a California anti-SLAPP motion against me. I had sued the Times for defaming me in a pair of articles they ran as a favor to the Los Angeles Police Department, which I had criticized as the paper’s editorial cartoonist, by falsely accusing me of lying and fabulism.
Like the judge in Simmons’ case, Judge Joseph Kalin failed to follow the letter of the anti-SLAPP statute. He ignored the minimal-merit standard. In his decision, he stated that the facts in the case were in my favor, not the Times. Nevertheless, he ruled against me using logic counter to the anti-SLAPP law and awarded the Times and their lawyers — the party that victimized me — $350,000. I am appealing too.
In both these cases and countless others, wealthy media conglomerates are shaking off cases that deserve their day in court before a jury, and collecting hundreds of thousands of dollars at a time from plaintiffs victimized by brazen journalistic malfeasance. Media companies might be winning in courthouses — but they’re getting clobbered in the court of public opinion.
Yesterday my attorneys filed, and California’s Court of Appeals accepted, our Appellate Brief in my defamation and wrongful termination lawsuit against the Los Angeles Times et al.
I sued in 2015. The Times filed three anti-SLAPP motions against me, halting the case because they’re scared of facing a jury and want to intimidate me. In 2017 a lower-court judge ruled for the Times, ordering me to pay them $350,000 in the Times’ attorneys fees. This document is our appeal of the 2017 decision.
If successful, the $350,000 judgement will be vacated and I can build my case to take to a jury.
If not, the $350,000 stands, plus more fees for the Times defense of this appeal. And my case dies. And Californians who work for media companies will have no recourse in the courts if their employer discriminates against them, even if they do so for racist or sexist or homophobic reasons.
Please read our brief below; it’s an interesting read. I look forward to hearing your thoughts and reactions. Thank you for your incredible support!
“We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Donald Trump said recently. “And if somebody says something that’s totally false and knowingly false, that the person that has been abused, defamed, libeled, will have meaningful recourse.”
But even an authoritarian hypocrite is right sometimes. And Trump is dead right that the nation’s libel laws are “a sham and a disgrace.”
My defamation lawsuit against The Los Angeles Times is a case study. (I’ve written about the merits of my case elsewhere. Here, I ask you to simply consider the process of lodging a complaint and taking it to a jury to consider. My question is this: should suing be this difficult?)
Bear in mind: the timeline in my case is typical.
The Times published an article announcing my firing in July 2015. After their excuse for my firing fell apart, they published a second piece “reaffirming” their decision in August 2015. Two and a half years later, we haven’t even begin discovery — and I’ll be lucky to get in front of a jury before 2020.
Justice delayed is justice denied. So what’s taking so long? Part of the problem is California’s understaffed, overworked court system. But mostly it’s the fact that newspapers have rigged the legal system against plaintiffs.
In California, for example, media companies lobbied the legislature to pass Civil Code 48(a). Under 48(a), you have to serve written notice to a newspaper that they’ve libeled you within 20 days of the initial publication. What if you’re off fishing for three weeks? Too bad — you can’t sue. What if you hear about the libelous article more than 20 days later? Again, you have no recourse.
What if you’ve never heard of the law? You’re like most people — and you’ve got no case, no matter what they wrote about you.
California is one of 28 states to have an “anti-SLAPP” law. According to proponents, there are wealthy individuals and companies who file nuisance lawsuits against defendants, not to win but to tie the poor defendants up in court and force them to hire expensive lawyers to defend themselves.
Assuming abusive lawsuits are actually a problem (there’s no evidence of this), the “solution” created by anti-SLAPP laws is ridiculous on its face. A defendant files an anti-SLAPP motion that, if successful, gets said frivolous lawsuit thrown out of court and forces the rich abusive plaintiff to pay the poor defendant’s legal fees. But…the operative word here is “rich.” If you’re rich and out to screw over a poor defendant, why would the risk of incurring some extra fees deter you?
Here’s where things get really crazy. I consulted with numerous attorneys who told me I’d probably beat the Times if I ever got in front of a jury. Getting past anti-SLAPP, they said, would be the tough hurdle. But the anti-SLAPP law is only supposed to kill frivolous lawsuits. Then how can it be that, in the opinion of numerous experienced lawyers, my case — which they think would probably win — could be defeated by an anti-SLAPP motion? Because anti-SLAPP law is so complicated that many judges don’t understand it and rule in favor of anti-SLAPP motions when they ought to reject them.
Some states have ruled anti-SLAPP laws unconstitutional because they deny plaintiffs their right to a jury trial. But not California. Not yet.
Lawyers I talked to in L.A. liked my case but were so cowed by anti-SLAPP that it took me months to find one willing to represent me. Finally, I filed suit in March 2016.
As predicted, the Times filed a set of anti-SLAPP motions against me. Then they invoked an obviously unconstitutional section of the California Code, 1030(a), that is so obscure that few attorneys or bond companies had heard of it, one that required me to post a cash (i.e., 100% of value) bond just to continue my case. The reason? I reside outside of California. The Times demanded $300,000. The judge knocked it down to $75,000. Thanks to appalled readers, I raised the money via crowdfunding. What would someone without a media mouthpiece do if they had to come up with 75 grand just to stay in court? They’d probably have to drop their case.
Hearings on the anti-SLAPPs took place in July 2017. It had been two years since the Times published their lies about me: two years without discovery, two years during which key witnesses might die or move away, two years during which the Times could destroy evidence.
Even though lower-court judge agreed that “the enhanced tape establishes his [Rall’s] recounting of the incident was accurate” — i.e., I told the truth, the Times lied when they said I didn’t, thus the Times defamed me — he ruled against me, awarding the Times about $350,000 in legal fees at my expense.
Anti-SLAPP is automatically appealable, so the next step is the Court of Appeals. We submit our appeal brief. The Times replies. We reply to their reply. The court sets a hearing date. If all goes well, that’ll happen some time this year. If the appellate judges rule in my favor, we finally begin discovery — in 2019-ish.
Four years after the crime. Four years for the trail to go from cold to stone-cold.
If and when I get to my actual trial, then — just maybe — print-media journalists will break their Grey Wall of Silence and report on my case. If and when that happens, though, I’m sure they’ll manage to characterize me as an abusive plaintiff trying to curtail the First Amendment rights of the pure-as-virgin-snow Los Angeles Times.
Trump can’t and won’t do anything to address our ridiculous libel laws. Which is really really #sad.
(Ted Rall (Twitter: @tedrall) is co-author, with Harmon Leon, of “Meet the Deplorables: Infiltrating Trump America,” an inside look at the American far right, out now. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
Remember this the next time someone tells you it’s too easy to file a lawsuit in American courts. We need tort reform, but not to make it harder. It needs to become easier to seek justice!
As I wrote earlier, a judge in LA Superior Court ruled against me in the first round of anti-SLAPP motions filed against me by the LA Times. The Times is deploying anti-SLAPP — a law promoted as a way to protect whistleblowers and critics against wealthy corporations — against me because I am suing them for defamation and wrongful termination. (This was after they falsely claimed I had lied about being roughed up by an LAPD police officer in the course of a jaywalking arrest, and continued to lie after I used their own evidence to prove it. The Times and its publisher had a close financial and political relationship with the LAPD, which I had repeatedly criticized in my cartoons.)
On November 20 the ethics-impaired LA Times — terrified that my case might someday be heard before a jury of my peers — continued its scorched-earth litigation tactics and asked a judge to issue a judgement against me for about $350,000 of the Times’ legal fees. The fees included Times lawyer Kelli Sager’s $705/hour fee, which she described as “discounted.” It also included fees for preparing the anti-SLAPP motions themselves, which violated court rules by running 27+ pages instead of the allowed 15, and a previous judge threw out of court.
The Times also requested that I be forced to post an “appeals bond” equal to 1.5 times the value of the award, thus amounting to about $525,000. That bond would have to be posted in cash; in other words, I would need to send a bonding company 100% ($525,000) to post the bond in order to continue my case.
Remember: the Times is the defendant! They wronged me, not the other way around.
The judge ruled in the Times’ favor.
Corporate media takes care of its own, so I do not expect much solidarity from my fellow inked-stained wretches.
Every defendant is entitled to a vigorous defense. That’s a basic principle of Western jurisprudence.
My belief in that precept was sorely tested by oral arguments in my defamation and wrongful termination case against The Los Angeles Times. It’s one thing for a lawyer to represent a distasteful client like the Times, whose crooked top management sold out its readers to the Los Angeles Police Department in a secret backroom deal. But when framing facts turns into outright lying in court, count me out.
I have great new lawyers. On July 14th, however, I was “between lawyers” because my previous ones had just dumped me and the scorched-earth Times defense team refused to grant me a delay so my new attorneys could get up to speed. So I was forced to represent myself pro se against a senior partner with three decades of experience as a courtroom litigator.
“Since the beginning of this case,” I opened, “the defense has tried to make this a complicated case about technicalities. In fact, it’s actually a very simple case.”
I went on to explain how, after a spotless six-year record as the paper’s cartoonist, the Times received a static-filled audio recording of unknown provenance from LAPD Chief Charlie Beck. Beck claimed the CD-R showed I’d lied in a blog post when I wrote that I was mistreated by a LAPD cop who’d arrested me for jaywalking.
I continued: “In fact, the audio did not show anything of the kind. In fact, the audio was obviously never listened to, because if they had, even if nothing else had happened, they would have been able to, in a quiet room with headphones, they would have been able to hear people arguing with the police officer. They would have heard phrases along the lines of, ‘Take them off. Take off his handcuffs,’ that sort of thing. The Times rushed to judgment. They operated extremely recklessly, negligently. They did not investigate the audio. They did not give me any benefit of the doubt whatsoever even though the doubt was 100 percent.”
Times lawyer Kelli Sager was unimpressed.
She is paid to be unimpressed.
“So Mr. Rall has repeated a lot of the stuff that’s in the [filing] papers. But as we said in our reply [motion] and as the court ruled on the individual defendants’ motion already, this is not a case about, quote/unquote, ‘truth.’”
I am so naïve. We were in a courtroom. If the truth — sorry, the quote/unquote ‘truth’ — doesn’t matter in a court, what does?
The Times’ answer: technicalities. Bear in mind, the Times is a newspaper. Their job is to print the truth. “That’s not the argument that we made in the SLAPP motion [stet], whether or not the statements that he’s complaining about were true or not,” Sager continued. “The Fair Report Privilege doesn’t need the court to adjudicate the truth. The Fair Report Privilege looks at whether the gist and sting of what the articles reported were from records of the LAPD statements made by people in the LAPD that were official statements and so forth.”
Translation of the Times’ defense: It doesn’t matter if the Times published lies and refused to retract. Under California’s anti-SLAPP law — which is abused by deep-pocketed corporations so they can libel poor individuals with impunity — the Times can write whatever it wants as long as it generalizes about something a policeman said in a police record. This, of course, ignores the existence of defamation and libel statutes.
Sager went on: “Whether the Times had a good motive or bad motive is irrelevant under the law.”
Not really. The Times claims that I am a public figure. If the court agrees, Sullivan v. New York Times, the 1964 case that redefined defamation law, would be pertinent: “The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).” When the Times published its two pieces about me, they knew that what they were publishing (that their audio showed I was a liar) was false and they didn’t care. Motive matters.
Oh, the lies! Like when Sager said: “So there is no dispute that the records came from the LAPD.”
An hour earlier, in the same hearing, in front of Sager, I had said:
“I dispute that these records were officially released by the LAPD. There is a declaration by the investigative reporter Greg Palast in that giant pile of paper next to you in which he says that he contacted the public information office of the LAPD and in no uncertain terms they denied ever having released the documents and the audio. And in fact, that they’re still in the evidence room over at the LAPD. So what we have here is a case of conflation; a cases of many lies of omission, some lies of commission. But one of the big lies of omission is that the L.A. Times is trying to pretend that Chief Beck is the LAPD. And that is no more true than President Trump is the United States government. The official records have never been released.”
How could she say there was no dispute?
Sager couldn’t argue the facts. So she pretended the facts didn’t exist.
You can read the whole transcript here. You can support my fight for free speech here.
(Ted Rall (Twitter: @tedrall) is author of “Trump: A Graphic Biography,” an examination of the life of the Republican presidential nominee in comics form. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
Ted Rall is the political cartoonist at ANewDomain.net, editor-in-chief of SkewedNews.net, a graphic novelist and author of many books of art and prose, and an occasional war correspondent. He is the author of the biography "Trump," to be published in July 2016.