Business Law Review Cites David McKee MD V. Dennis K. Laurion

2015 (Volume 48)

“Recent Trends In Defamation Law: From The Straigtforward Action In Ventura V. Kyle To Unmasking An Anonymous Poster In The ‘Fuboy’ Case”

David P. Twomey, Business Law Review, Volume 48

Published by Husson University Bangor, Maine, for the North Atlantic Regional Business Law Association

Internet and mobile platforms have radically changed how society consumes and shares news, opinions and other content. The Internet is now seen by some as the “Wild West” where anything goes and the preponderance of speech is either hyperbolic or acerbic, with speakers enabled to “sound off”, often with harsh and unbridled invective.

A carry-over effect exists to cable television and satellite radio. The First Amendment protects freedom of speech and the long enduring right to speak anonymously in a lawful manner. However, when vigorous criticism descends into defamation, constitutional protection is no longer available.

This paper presents, in a current context, a discussion of the elements and defenses in civil defamation cases. It then presents the special issues regarding online defamation cases including identifying anonymous posters of defamatory statements through nonjudicial and judicial actions. Further it identifies a framework for determining whether a statement is protected vigorous criticism or defamation, with true facts and pure opinions broadly protected and mixed opinions susceptible to its speaker bein unmasked in the pretrial defamation process. The paper concludes with brief admonishing for informed carefulness as we express our broadly protected First Amendment freedoms.

Defamation is an injurious false statement by one party about another to a third party. Slander is spoken defamation. Libel is a false publication by writing, printing, picture or other fixed representation to the eye, which exposes any person to hatred, contempt or ridicule, or which has a tendency to injure the individual in his or her occupation.

The elements of defamation are (1) the making of defamatory statement, (2) publication of the defamatory material; and (3) damages that result from the statement. In cases in which the victim is a public figure, such as a well-known entertainer, a professional athlete or political figure, another element is required – the element of malice, which means that the statement was made by the defendant with knowledge that it was false, or with reckless disregard for whether it was true or false.

For example, former wrestler and Governor of Minnesota, and a former Navy SEAL, Jesse Ventura sued Chris Kyle the author of the bestselling autobiography entitled American Sniper for defamation.

Kyle, also a former Navy SEAL, wrote that a character named “Scruff Face” holding court in a Coronado California bar said, “he hates America,” the SEALS “were killing men and women and children and murdering” and SEALS “deserve to lose a few”; at which point Kyle “laid him out”. While not naming Ventura in the book, Kyle confirmed on the O’Reilly Factor cable network television show and the Opie & Anthony satellite talk radio program that “Scruff Face” was Ventura.

Kyle was later killed by a troubled veteran, and his wife, as executor of his estate, was substituted as defendant.

The case, brought by public figure Jesse Ventura, boiled down to a credibility contest with several witnesses testifying that Ventura’s version of events was true, while several other witnesses testified that Kyle’s version of events was true.

The jury decided the case for Ventura, with the court concluding that in believing Ventura’s version of the facts, then Kyle’s writing and telling of the story of punching out Ventura was itself a basis for the jury to make a finding of actual malice.

On the defamation claim, the jury awarded $500,000 in damages. Some $1,345,477 in damages was assessed for unjust enrichment for the money made in defaming Ventura in the book American Sniper.

Truth is a complete defense to a defamation action and “true statements of fact however disparaging are not actionable. The First Amendment also broadly protects pure opinion from defamation claims.

In McKee v. Laurion, Dr. David McKee brought a defamation action against the son of a patient who posted statements regarding Dr. McKee on various “rate-your-doctor” websites after his father’s release from [ St. Luke’s Hospital in Duluth ].

The court reviewed the statements in question and found that the statements were substantially true, pointing out that the common law approach to falsity in the context of libel “overlooks minor inaccuracies”

Regarding a final statement published as follows: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee’s is a real tool!!’”, the parties dispute whether this statement is protected opinion. The court stated that referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. The court concluded that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. Accordingly, truth is an absolute defense, and pure opinion cannot be basis for a defamation lawsuit.


David McKee MD V. Dennis K. Laurion


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