Updated to add: The plaintiff Warren Kremer Paino Advertising has voluntarily withdrawn its lawsuit against defendant Lance Dutson. From Ronald Coleman: “They didn’t expect pushback — much less pushback from the whole ‘blogosphere,’ with lawyers lining up to defend the little guy. The handwriting was on the wall. Or the screen, I guess.” [More info here]
A number of InternetCases.com readers have e-mailed me asking about the recently-filed defamation case against Maine blogger Lance Dutson. The case is called Warren Kremer Paino Advertising, LLC v. Dutson and has been filed in the U.S. District Court for the District of Maine.
Here’s just about everything you need to know about the legal issues in the case: there is nothing new under the sun … but the defendant is a blogger.
As I emphasized a couple of weeks ago when I spoke on the topic of blogging and defamation, the traditional principles of defamation law apply with equal force in the blogosphere. Just because a defendant is a blogger does not mean he or she is held to a stricter or more lenient standard than a speaker in the brick-and-mortar world.
Under Maine law, which the Federal court hearing the case will have to apply, a successful defamation plaintiff must prove that (1) the defendant made a false and defamatory statement concerning the plaintiff, which was contained in (2) an unprivileged publication to a third party, (3) that the defendant was at least negligent in making the statement, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Lester v. Powers, 596 A.2d 65 (Me. 1991).
Because the subject matter of the alleged defamatory postings involves a matter of public concern (e.g., accusations of misappropriated tax revenue), the plaintiff will have to prove that the statements contained in the postings were made with “actual malice.” This heightened standard for matters of public concern has its origins in the landmark Supreme Court cases of New York Times v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
Although one should not lose sight of the fact that there really is nothing unique about the legal issues in an online defamation claim, the allure of a blogger-defendant is undeniable. The democratizing aspect of blogs as media naturally elicits all kinds of First Amendment and root-for-the-underdog sentiments. Attorney Ron Coleman, who is assisting in Dutson’s defense, observes,
“Most defamation claims are brought for the simple purpose of intimidating defendants who can’t afford lawyers. Historically, therefore, media outlets have made it their business to find a way financially to keep lawyers on retainers. That’s not true of bloggers — at least not yet. Until then, bloggers can count on the good offices of public-spirited [law] firms … and the coordinating and legal contributions of fellow bloggers at the Media Bloggers Association.”
In any event, one fact in the case could yield some entertainment value if it is the subject of a motion. You may recall that mere opinions are not actionable as defamatory. One of the allegations in the case is that Dutson defamed the plaintiff when he wrote that it was “pissing away” taxpayer money. It would be enlightening to read the court’s analysis on the question of whether that statement “communicates [a] factual proposition susceptible of proof or refutation.”