Blog on the Run: Reloaded

Tuesday, May 13, 2014 12:09 am

Radical conservative morons try to shut down local blogger; or, An even more special kind of stupid, cont.


So it turns out that the political action committee Conservatives for Guilford County and four of its principals are suing local blogger Jeff Martin, who blogged under the pseudonym Fecund Stench, for defamation. If I liked popcorn, I’d be buying some.

First, the obligatory disclosures: Jeff and I have been friends online and in real life for years. (Less relevantly, his wife and my ex-wife used to work together at the old TriadStyle magazine, which is, indirectly, how he and I first met in real life.)

Second, for those of y’all not from ‘Round Here: C4GC is a local Tea Party outfit, with all the ideological baggage that that term implies. And Jeff Martin, a more traditional Republican, despises it and everyone associated with it. And Jeff plays hardball. To extend the baseball metaphor, I don’t think I’ve ever seen him intentionally hit a batter, but when a batter crowds the plate, Jeff will throw a 99 mph brushback pitch and not lose a second’s sleep. I like him, but I don’t agree with every last thing he says. And fellow Greensboro blogger Ed Cone, who is more dispassionate about Jeff, says this about him: “At his best, Fecund Stench is Guilford County’s own, digital H.L. Mencken (and like Mencken, his use of racial and religious stereotypes can be an issue). At his not-best, duck.” I think that’s fair.

Now, the complaint, which you can read for yourself. (Jeff has 30 days to respond.)

Now, the obligatory disclaimer: I Am Not A Lawyer, and I don’t play one on the Internet. However, I did publish a fair bit of potential lawsuit bait about some incompetent and/or bad people during my 25 years in print journalism, consulting with lawyers many times in so doing, without ever being sued at all, let alone successfully. And my just-completed master’s program included a media-law course just a year ago. (Much of what appears below is adapted from the text for that course, The Law of Public Communication, by Kent R. Middleton and William E. Lee, published in 2013 by Pearson.) So I’m in a position to do a little analysis without attempting to say who will win.

Now, the caution: Jeff has taken the Fecund Stench blog down, apparently as a result of the lawsuit, so the posts quoted in the complaint are absent any context. That caution is important no matter which side of this case you’re inclined to come down on at the moment.

In plain English, the first question is: Are the plaintiffs — that is, C4GC and the four named individuals — public figures? The answer determines what they have to prove in order to win the suit. The answer is that they almost certainly are. They are not public officials — the least ambiguous type of public figure. But they are public figures. The PAC has attempted to play a role in local elections. Jodi Riddleberger is an occasional op-ed columnist for the News & Record. And so on.

I’ll explain why the fact that they are public figures is important in a minute. First, you need to know that to win a libel suit, plaintiffs must prove, at a minimum, all of the following six things:

  • defamation: that what was published damaged plaintiffs’ standing in the community or professional reputation via attack on plaintiffs’ character or professional abilities, and/or that it causes people to avoid the person defamed. (Fun fact: The law does, indeed, recognize the possibility that someone’s reputation might already be so bad that they can’t be damaged any further by being libeled.)
  • identification: that what was published specifically identifies each plaintiff (it need not do so by name if the description clearly identifies a particular individual).
  • publication: defendant made the allegedly defamatory statements where at least one other person besides defendants could see them. Blogging on the World Wide Web meets this definition.
  • fault: defendant published the information either knowing it was false or with reckless disregard for whether it was true or false.
  • falsity: the information must be provably false, and the burden of that proof falls on plaintiffs.
  • injury: plaintiffs must prove some form of actual damage, financial or reputational.

Remember, the plaintiffs must prove all six to have a chance of winning.

Now, the public-figure status of the plaintiffs matters because of the level of fault they must prove as public figures, noted in bold above. In North Carolina, private figures under the law need not prove quite as much — merely that the allegedly libelous material was published negligently. But, as I noted, I’m pretty sure that C4GC and the named individual plaintiffs qualify as public figures because of how they have injected themselves into public debate on issues of public import, e.g., elections. If the court finds that they are in fact public figures, they’ll have to prove that Jeff knowingly or recklessly published false and defamatory statements about them.

Here’s the thing, though: Defendants in libel cases have several defenses available to them under the law, and if the defendant employs any of those defenses, the burden of proof is on the plaintiffs not only to prove the six things listed above but also to show that those defenses are inadequate or don’t apply.

Some of those defenses that might relate to this case are:

  • statute of limitations: Even if a statement is libelous, a suit must be filed within a certain period of time after its publication to be allowed to proceed. If a would-be plaintiff waits too long — typically a year — to sue, the plaintiff is out of luck. Some of the statements at issue date to 2011.
  • truth: If the plaintiff alleges that the defendant has published something false and the defendant can prove that the statement is true, the plaintiff is out of luck.
  • neutral reportage: If Candidate A says something potentially libelous about Candidate B, Newspaper C may be able to report what Candidate A said without committing libel, even if it knew or suspected that Candidate A’s statement was false and defamatory, as long as it reports what Candidate A says in fair and disinterested fashion. Candidate B might, just maybe, have a libel case against Candidate A, but not against Newspaper C.
  • First Amendment opinion defense: Statements can’t be libelous if they are opinions based on verifiable fact or if they are opinions whose truth can be neither proven nor disproven.
  • exaggerations and figurative terms generally are not libelous.

Obviously, we can’t even begin to know until the discovery phase of the suit is complete whether plaintiffs can prove the six things they need to prove. Publication is a slam dunk, and for the sake of argument, let’s give all five plaintiffs the benefit of the doubt on identification. That still leaves falsity, defamation, injury, and fault, specifically that the plaintiffs must prove that Martin published false and defamatory material either knowing it was false or with reckless disregard for whether it was true or false.

Which raises another issue. Is it provably false, for example, that plaintiff Brett Riddleberger “suffers from a medical condition known as Erectile Narcolepsy, by which loss of blood to the brain when aroused causes him to lose consciousness.” To this layman, a better question would be: Who, among those older than 9, would believe this to be true in the first place? This is arguably an example of the kind of exaggeration that cannot be considered libel.

Anything is possible in a lawsuit, particularly if a case actually gets tried in front of a jury. But few libel cases get that far. The farthest most ever get is that after discovery (in which each side is obliged to provide certain evidence to the other), both sides move for summary judgment — they ask the judge to rule for their side without even letting the case go to trial — and the judge grants it to one side or the other after determining that there are no real issues of fact for a jury to determine.

But even more likely than that is that the two sides settle or one side, usually plaintiffs, realizes that it has no case and cuts its losses. A letter from Jeff’s counsel, Ron Coleman, strongly suggests to plaintiff’s attorney that that is where this case should be headed:

Although we have only passing familiarity with the litigation pending in Guilford County at this point, we see no reason to doubt that a cooperative resolution of this matter is the likely outcome. In light of your own experience and considering your level of practice, we would expect that you see it the same way. If so, you will probably agree as well that we should make every effort to skip the stupid steps and get to that point now.

Rationally, I agree that that’s exactly where this case should be headed. But I’ll be honest: Part of me wants to see what plaintiffs have to say, under oath during depositions in the discovery phase of the suit, about the businesses of the Adkinses and the financial backing of C4GC. As a longtime Republican living in N.C.’s 6th Congressional District, I must vote in a runoff between the top two finishers in the May 6 GOP primary, one of whom, Mark Walker, is backed by C4GC. If one of the candidates is backed by money from strip clubs, I’d certainly find that relevant. It might or might not affect my ballot — past performance, more than anything else, generally dictates my voting decisions — but it might very well affect those of other Republican voters in the 6th District. It’s certainly germane. And, frankly, given the Christofascist nature of some of the candidates previously supported by C4GC, the possibility of exposing great hypocrisy is attractive to me.

In short, part of me wants to see plaintiffs spanked so hard their appendixes come flying out of their mouths.

But this isn’t about me. It’s about Jeff and his constitutional right to publish factual information, criticism, and even parody, and about the same rights for other bloggers, perhaps, one day, including me. Assuming everything he has published is either true fact, protected opinion or parody, not only does he need for this suit to go away, America needs for the plaintiffs to be driven away with their tails between their legs and lots of bright red bruises on their asses so that robust political commentary and criticism can continue unabated.

10 Comments »

  1. For Pete’s sake, the people are so politically inept. They’ve just crippled Mark Walker’s uphill climb against Berger, Jr..

    Comment by Roch — Tuesday, May 13, 2014 7:36 am @ 7:36 am | Reply

  2. Thank you very much.

    Comment by Jeff — Tuesday, May 13, 2014 9:05 am @ 9:05 am | Reply

  3. […] Blog on the Run: Reloaded […]

    Pingback by Others Posting on Fec | Under Siege — Tuesday, May 13, 2014 9:09 am @ 9:09 am | Reply

  4. Let’s remember folks, it was a long, cold winter. A lot of us were bored.

    I can’t help but imagine a meeting of C4CG meeting in February:
    Member 1: Wait a minute. Maybe we should think this through. What are the possible ramifications?
    Member 2: Let’s do it! After all, we’ve got God on our side.

    Comment by Janet Wright — Tuesday, May 13, 2014 9:18 am @ 9:18 am | Reply

  5. Where should the case be headed? Not to cooperative resolution but to summary dismissal. What a steaming pile of stupid.

    Comment by Andrew Brod — Tuesday, May 13, 2014 10:36 am @ 10:36 am | Reply

  6. Prof. Brod, I’m pretty sure that when Coleman calls for “cooperative resolution,” he means, “Your clients have no case, and for the good of all concerned including yourself, you need to get them to walk away. Now.” Lawyers are like that. They don’t say, “You’re a liar,” even when they could. They say, “I believe it is possible that your client might not have been fully forthcoming with you.” I think “skip the stupid steps” was the tell on this one. :-)

    Comment by Lex — Tuesday, May 13, 2014 1:16 pm @ 1:16 pm | Reply

  7. Attempting to find something positive in this catalogue of ineptitude, I’m hanging on to the thought that at least your rightwing nutjobs have recourse to the civil law (I’m assuming, please correct me if I’m wrong, that in the US libel is a civil matter, not criminal as it is in the UK). Over here, our rightwing nutjobs send in the police to intimidate bloggers who ridicule them –

    http://www.theguardian.com/politics/2014/may/12/police-ask-blogger-remove-legitimate-tweet-ukip

    (For the benefit of American readers, UKIP are, roughly speaking, our version of the Tea Party, only rather less, erm, rational . .)

    I particularly enjoyed the police spokesman’s words – “This is not 1930s Germany.” I think I’ve just discovered a disturbing variant of Godwin’s Law. Either that or the spokesman can’t pronounce the word ‘yet’.

    At least you lot have a written constitution to protect citizens from the arbitrary power of the state . . . (still, just).

    Comment by Nick — Tuesday, May 13, 2014 4:38 pm @ 4:38 pm | Reply

  8. […] As I said originally, the lawsuit by the Adkinses, Riddlebergers, and Conservatives for Guilford County against my friend Jeff Martin was about Jeff, not me. So if this account is accurate, I will neither criticize nor second-guess. […]

    Pingback by And Adkins v. Martin apparently is over | Blog on the Run: Reloaded — Wednesday, May 14, 2014 9:33 am @ 9:33 am | Reply

  9. Nick, criminal libel isn’t addressed in the U.S. Code; however, it is a real crime in 17 states (including North Carolina). Nationwide, during the 40 years ending in 2004, there were 16 convictions, with nine resulting in jail time. (Source, p. 172.) Unless I missed it, I’m not sure N.C. has convicted anyone of criminal libel in my lifetime.

    Comment by Lex — Wednesday, May 14, 2014 1:16 pm @ 1:16 pm | Reply

  10. Thanks for sharing your thoughts about home. Regards

    Comment by webpage — Wednesday, May 21, 2014 6:07 pm @ 6:07 pm | Reply


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