by Paul Alan Levy
Last October, blogger Christina Garner posted an introspective article reflecting on media coverage of a lawsuit in which Tonya Cooley, a reality-show participant, alleged that two fellow participants had assaulted her sexually in a sequence that did not appear in the broadcast, including inserting a toothbrush into her while she was passed out on the floor. Cooley also sued MTV and the production company claiming that the camera operators continued to film while the act was perpetrated, and also that MTV and its Viacom parent not only failed to take strong action against the perpetrators but, indeed, gave them more work. Quoting a long post by one of her Facebook friends, Garner reflected on how easy it is to blame the victim, even though the actors in question — Kenny Santucci and Evan Starkman — had apparently made a number of crude remarks about women and behave improperly toward women even on camera. She noted that the media reports on the controversy all featured photographs of the victim but none of the accused perpetrators, a flaw that she corrected by including their photographs. She ended her analysis by arguing that the blame should be placed where it belongs – on the alleged rapists. She concluded by urging her readers to communicate their outrage both to MTV and to Santucci and Starkman themselves. Although the article did not use the word “alleged” every time it referred to the rape, the article made fairly clear that Garner was relying on Cooley’s litigation claims and not making her own judgment that the individual defendants were guilty as charged. For example, she said “Whether you believe the men guilty of rape or not, you can let @MTV know that you don’t find their frequent sexist and misogynistic actions to be entertaining.”
Nearly a year later, Usman Shaikh, a lawyer who apparently represents Santucci and Starkman in their entertainment contract negotiations, sent Garner a stiff threat of litigation for having taken Cooley’s side in the lawsuit even though, he claimed,
the facts revealed that her claims were without merit as to Mr. Santucci and Mr. Starkman. The court ordered Ms. Cooley to dismiss Mr. Santucci and Mr. Starkman from her lawsuit on April 18, 2012. Accordingly, Mr. Santucci and Mr. Starkman were dismissed as parties to the lawsuit without any liability or wrongdoing having been established and without having to pay a dime to Ms. Cooley.
Although the threat never expressly stated that the dismissal occurred because Cooley could not substantiate her accusations, that was the implication.
Garner did not take the article down, but rather responded with a defiant challenge to the demand. Shaikh then upped the level of threat, saying that his email was:
a final and stern warning. I hereby request that you remove my clients’ names from the aforementioned article or remove it in its entirety within 72 hours from the date and time of this correspondence. Failure to do so will cause us to promptly take appropriate legal action against you and any other appropriate parties.
Garner came to us for help addressing the threat of litigation. It was, of course, not a satisfactory response that, as Garner noted in her initial public response, the focus of her article was not whether Santucci and Starkman had actually raped Cooley, but on MTV’s unsatisfactory response to the accusations as well as on the dangerous tendency to blame the victim. Even if Santucci and Starkman were not the main targets of her criticism, a blogger can’t deliberately impugn two individuals to support her case against a company; the individuals, too, have reputational rights.
We do not generally litigate defamation claims at the trial court level, but I volunteered to investigate the basis for the defamation claims, as well as to help Garner locate a lawyer who could defend her in the event she was sued. Kenneth White, whose Popehat signal I have answered a few times, answered the Levy signal by tentatively agreeing to take the case, with the intention of having any suit dismissed, and attorney fees awarded under California’s anti-SLAPP statute. In the event, it appears that a legal defense will be unnecessary.
The Flaws in the Threatened Libel Claims
First, the threat of litigation on their behalf was weak even on its face. In his initial threat, Shaikh acknowledged that, at the time Garner had written her post, “media reports at the time . . . focused only on the claims made in Ms. Cooley’s complaint”; Shaikh was apparently arguing that, once he called the dismissal of the claims against his client to her attention, including mention of their “strong denial” of the accusations, she would be liable if she failed to remove the original statements from her blog. But Santucci and Starkman are likely limited purpose public figures, either because of their acting careers or, at least, as defendants in widely reported civil litigation. Moreover, a claim that Garner posted with actual malice would be judged by what she knew at the time of writing, not what she learned in a demand for retraction. Even then, the bare fact that his clients had issued strong denials of Cooley's charges would not put Garner on notice that those charges were "probably false." So, by admitting that existing media reports gave Garner reason to believe what she wrote, Shaikh defeated his own threat of litigation.
But it gets worse. After Garner requested our help, I checked the docket sheet for the suit by Tonya Cooley, and discovered that Santucci and Starkman were dismissed from the case for lack of personal jurisdiction, not for any reason related to the merits. When I called Shaikh to ask him for any documents he had supporting his contention that Santucci and Starkman had established their innocence of the claimed rape, he initially said he would "gather the appropriate documentation." Then, when I pressed him, he said that he didn’t have any documents and, in fact, had not been involved in the Cooley litigation in any way, but was just asking the litigators in the case for documents. He told me that the demand to have the blog post changed was on hold pending receipt of any documents that might support his assertions. But what was the basis of his claim that his clients had established their innocence?
My prediction – this threat will never lead to litigation. But Santucci and Starkman might end up questioning their choice to send a demand letter that will likely bring them much more unwanted attention. Indeed, one might wonder whether a client's interests are well-served when a lawyer sends threats of libel litigation based only on their say-so about the facts.