Thursday, January 14, 2010

What Is Defamation, Philly?

Political Flyers Can Defame?!!!

Generally speaking defamation is the tort of communicating as fact, a false and malicious claim about another which injures a person in their reputation, particularly in their business or professional reputation.  Got that?

Defamation is commonly divided into two categories: slander and libel.  The former is an utterance, the latter a writing. Defamation is also divided into two further (more important) categories:  per se, and per quod.  The first category is the sort of defamation that in the law, needs no further explanation. An example of per se defamation exists in the situation where one is falsely accused of being a criminal.  No further explanation is necessary, no further words need to set out contextualize the defamatory remark.  Per quod defamation requires the setting out of context, as when innuendo is used to suggest something vile about another or a claim is made which given the circumstances can be highly-damaging to the professional standing of another. 

In the latter category I represented a professional who was accused of writing prescriptions--since my client was a nurse, and was unable under her licensure to write prescriptions the supervisor who accussed her of this act, was actually claiming that my client waspracticing medicine without a license.  If this claim had been true, the fact of "practicing medicine without a license" would have cost her my client her nursing certification and job.   This case was spectacular because the defendant was a young attractive female physician at a major OurTown hospital and physican practice who were also defendants.  This young Black physician suffered a terrible insecurity around this senior white battle ax nurse.  It was the nurse's job to help the doctors navigate the OurState workers' compensation reimbursement system--the young physician did not realize that certain forms were required to be submitted by the medical practice to get revenue from the OurState workers' compensation program.  The doctor decided the nurse was her enemy and carried on a calculated campaign to get my client fired. 

When you seek to prove defamation per quod you must prove, as I set out in the definition, malice, ill will, hatred, etc.  When I took the discovery deposition of the physician I asked the doctor:  Do you hate my client?  The doctor answered, after a long puase:  Yes.  End of case. 

Per Se, defamation is the easier case.  Sally Busybody says to someone,"Joe Flabeetz is a child molester."  Assuming Mr. Flabeetz is not a child molester, he can begin counting his greenbacks.  I had this situation against the Archbishop when the Archbishop falsely claimed a pedophile priest was moved to another parish with children in the parish population with my clients' approval!   It took no additional words to understand that my client was being accused of participating in a cover-up of criminal conduct, which was particularly appalling when you also learn (although this is not necessary to the tort certainly relevant to damages) that my client was a victim of the same pedophile priest. 

Now let us turn to the case in Philly with Judge Snite.  Yesterday I asked, how did this case get to a jury--I still have very few details although I've pieced together some impressions from the comments at to the expanded report from the trial.  Apparently, city councilman Jack Kelly eked-out a razor-thin (less than 150 votes) reelection to his city council seat following a barrage of critical campaign flyers issued by a private citizen.  The citizen Paul Corbett objected to the city council's decision to force the Boy Scouts out of a municipal meeting place.  Here's what had to say about the underlying occurences:

"Kelly's case against Corbett grew out of a 2007 City Council vote to force the local Boy Scouts chapter to pay $200,000 per year or move its headquarters off city-owned property it had rented for $1 per year since 1928.  Council, acting on an opinion from then-City Solicitor Romulo Diaz, decided the Boy Scouts were violating the city's anti-discrimination ordinance.  The U.S. Supreme Court ruled in 2000 that the Boy Scouts of America can ban homosexuals.   Corbett testified yesterday that he tried to have a meeting with Kelly and, after being rebuffed, sent a letter to try to change Kelly's mind. He also admitted that he also threatened to distribute fliers attacking Kelly just before the 2007 general election.  Corbett printed 5,000 of the fliers and stuck them on cars parked at 20 churches in Northeast Philadelphia, starting with Kelly's Roman Catholic parish.  The flier read:  'Councilman Jack Kelly voted with the homosexual lobby to remove the Boy Scouts from their city rent-free headquarters. The Scouts can remain only if they agree with the homosexual agenda which would promote sodomy to our youth.' The flier also accused Kelly of 'contributing to the delinquency of minors.'It was printed with the name 'Citizens Opposed to Politicians who Pander to Perverts.' Corbett continued putting the fliers on cars at Kelly's parish after the pastor asked him to stop.  'I tried to embarrass him'  Corbett told the jury with obvious pride. 'I wanted to have as big an impact as I could. And I did. He almost lost the election.'"

Why is this defamatory?  Assuming the statements are false, it certainly seems like Mr. Corbett "published" opinions not factual claims. 

More importantly, in United States we have adopted the "Public Figure doctrine" which holds that for a false statement to be actionable as it relates to a public figure, like councilman Kelly it must be made with a knowing or reckless disregard for the truth and made with actual malice.  Furthermore, political speech of this sort is highly protected under the First Amendment (remember that, Judge Snite?), being precisely the sort of speech which the U.S. Supreme Court has reached out to protect if not foster.  Certainly, Mr. Corbett is a gadfly, but he seems like one in the long tradition of American history and politics. 

You don't have to agree with Paul Corbett (BL: I don't) to respect citizen Corbett's right to say anything he wants about councilman Kelly.  I see the robust communication of opinion as being in the long tradition of free speech, not defamation.  

But maybe there are facts we haven't gleaned from the reports at the Philadelphia Inquirer, hmmmmm?  We'll just have to keep a Bad Lawyer eye on this one.


  1. this is really interesting from a layperson's perspective. I love when you write these "educational" posts, BL. Like having a mini-law course!

  2. GM--

    Thank you, for that nice comment. I have planned and a tentative draft of a post to talk about how a sutdent "learns to [st]ink like a lawyer." Obviously, the Paper Chase was the definitive look at the Socratic method, and there are possibly an infinity of posts and essays on the topic, so I'm looking for a slightly Bad Lawyer angle to the subject. I've been reading essays on the subject, and one of the more influential legal pundits, says there's no such thing! I disagree, but I do see "lawyer logic skills" in a lot of non-lawyers. But there is a unique combination of subject matter and training that enables most lawyers to do their thing, for better or worse.

    BTW, I watched Anatomy of Murder, the old Jimmy Stewart, George C. Scott, Ben Gazzara and Lee Remick film on Turner Classic Movies yesterday and I too must talk about law and the movies, soon.