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Third Strike Against Andrew Shirvell – 6th Circuit Upholds Substantial Damage Award

Posted on: February 12th, 2015 by Art Leonard No Comments

Just weeks ago, Michigan’s Court of Appeals dealt two strikes against former Michigan Assistant Attorney General Andrew Shirvell, rejecting his challenge to his discharge by former Attorney General Mike Cox and denying his claim for unemployment benefits.  Shirvell, who had undertaken an obsessive campaign to discredit the openly gay president of the student government association at his alma mater, University of Michigan, was held by the state appeals court to lack any First Amendment free speech claim in connection with his discharge.

Now another court has dealt him a third strike, as a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati with jurisdiction over cases from Michigan, approved a damage award of $3.5 million against Shirvell, payable to Christopher Armstrong, the young gay man who was the victim of Shirvell’s actions.  Armstrong v. Shirvell, 2015 Westlaw 410545 (February 2, 2015).  This court also rejected any First Amendment defense.

Armstrong sued Shirvell on multiple tort claims, including defamation, false light invasion of privacy, intentional infliction of emotional distress, abuse of process, intrusion upon seclusion, and stalking.  Shirvell removed the action from state to federal court and the number of claims was reduced through pretrial actions.  The trial judge rejected Shirvell’s pretrial summary judgment motion, and Shirvell formally refused to retract various statements he had made about Armstrong.   Then the case went to trial in August 2012.  The jury found Shirvell liable for defamation, intentional infliction of emotional distress, false light invasion of privacy, and stalking, awarding Armstrong $4.5 million in total damages.  Shirvell had filed motions during and after the trial seeking to have the case dismissed, but none were granted, and the trial judge ordered Shirvell to pay the damages plus interest, denying his request to have the damages reduced.

Shirvell’s appeal attacked every aspect of the verdict, arguing that his conduct and speech were protected by the First Amendment, that the evidence did not support the jury’s conclusions, and that the trial judge’s instructions misled the jury to award excessive damages.  Writing for the Court of Appeals, Judge Julia Smith Gibbons found merit in only one of Shirvell’s objections: that inaccuracies in the trial judge’s jury charge led to the imposition of duplicative damages for defamation.

As to the merits, however, the court found that the trial record fully supported the jury’s conclusions.  As to the defamation claim, for example, Judge Gibbons wrote, “The evidence in Armstrong’s favor — demonstrating harm caused by statements that were properly submitted to the jury as defamatory — was immensely one-sided.  Through a special verdict form, the jury found over 100 statement by Shirvell defamatory and over 60 of those defamatory statements were made with actual malice.”  “Actual malice” is a legal term of art indicating that the jury found that Shirvell knew the statements were false or proceeded with reckless disregard as to whether they were true.  Even though it was arguable that the jury might have been wrong as to a few of those statements, or that some statements were not, as a matter of law, defamatory, “there is very little chance that the small number of potentially erroneous statements made a difference in the quantum of harm to Armstrong’s reputation, or to his mental or emotional state,” wrote Gibbons.

The court also rejected Shirvell’s attempt to argue that Michigan student body president Armstrong was a public figure.  The Supreme Court’s defamation cases have made it extremely difficult for a public figure to win damages for defamation, requiring a finding of “actual malice” in such cases.  The court disagreed with Shirvell about how to characterize Armstrong.  The student body president is not a public official or a government spokesperson, and the court concluded that he even fell short of the category of “limited public figure” — somebody who can be considered a public figure for limited purposes because he has thrust himself forward into a public controversy.  The only controversy in this case was created by Shirvell, not Armstrong.  But this argument would not get Shirvell very far even if the court had agreed with him, because the jury found that over 60 of Shirvell’s defamatory statements were made with actual malice, so he would be liable to Armstrong even if Armstrong was deemed to be a public figure.

As to the finding of “actual malice,” the court thought the trial record provided plenty of evidence to support the jury’s conclusion.  “A reasonable jury could conclude from the evidence that many of Shirvell’s statements were pure fabrications,” wrote Judge Gibbons.  “For example, he claims that police ‘raided’ Armstrong’s house during a party, but the evidence contradicted this.  A reasonable jury could conclude that Shirvell — who was standing outside, filming the house — simply fabricated his story.”  She described Shirvell’s attempts to minimize some of the evidence as “disingenuous” and “implausible.”

Shirvell claimed that Armstrong failed to prove that he suffered any real injury as a result of Shirvell’s actions, but the court found that there was plenty of evidence to support the jury’s conclusion that Armstrong was entitled to compensatory damages.  For one thing, having found that some of Shirvell’s statements fell into the category of per se defamation (statements that are presumed to inflict injury, such as, for example, tarring Armstrong as a racist, a liar and a Nazi), the jury could award compensatory damages without any need to find that Armstrong had suffered physically, emotionally, or financially as a result of Shirvell’s actions.  But, wrote Gibbons, the jury could have found that Armstrong did suffer actual losses. For example, it appears possible that Shirvell’s activities contributed to Armstrong’s rejection by the Teach for America program, and distracted him sufficiently during the job-seeking process to interfere with his obtaining employment after graduation.  Armstrong ended up taking unpaid internships while continuing his job search.  Although he had a modestly-compensated job by the time of trial, he testified about his concern that the notoriety around this case would adversely affect his future job searches.

Judge Gibbons also found that there was “significant evidence of the emotional harm that Armstrong suffered,” and so the court upheld the award of compensatory damages and punitive damages.

But the court agreed with Shirvell that the trial court’s instructions misled the jury into awarding duplicative damages for defamation and false light invasion of privacy.  Although Michigan law allows a plaintiff to sue for defamation and false light invasion of privacy in the same case, the two theories are so highly related that the plaintiff may “have but one recovery for a single instance of publicity,” according to a state court precedent cited by Judge Gibbons.  “Here, the jury found that seventy-seven of Shirvell’s statements constituted false light.  The jury found that each one of those statements also constituted defamation.  It then awarded a total of $1.25 million in damages for defamation and $1 million for false light.  It did not specify whether each statement generated damages for the defamation claim or the false light claim.  This suggests that the verdict allowed Armstrong to recover for the same harm under two separate theories.”

Such a duplicative recovery is not allowed, so the court of appeals cancelled the damage award for the false light claims, finding that they had already been compensated through the defamation damage award.  This reduced the overall verdict from $4.5 million to $3.5 million.  Neither of those sums seems likely ever to be actually collected by Armstrong, unless the hapless Mr. Shirvell has suddenly become a fabulously wealthy internet entrepreneur.  At this point, the verdict seems more about symbolic vindication.

 

Sigh of Relief for Law Prof Sued for Defamation and Invasion of Privacy Due to Law Review Article and Lecture

Posted on: May 8th, 2014 by Art Leonard No Comments

Law professors publish law review articles in which they may discuss cases pending in the courts. Such discussions may relate what the plaintiffs are alleging and then theorize about how the courts might treat such claims. When a professor includes the names of the parties in the lawsuit, and one of them feels that the professor’s discussion could be harmful to the party’s reputation and lead people to take an unfavorable view of them, should the professor be liable for damages in a civil court action?

U.S. District Judge Paul Engelmayer of the Southern District of New York gave a firm “no” to that question, at least in the factual context of a lawsuit by the defendant in a case that was pending at the time it was being written and spoken about, seeking to hold Professor Zachary A. Kramer liable for statements published in his article “Of Meat and Manhood” published in the Washington University Law Review as well as a lecture Kramer gave about the subject of his article at Western New England University Law School. Kramer’s article was devoted to some recent developments in employment discrimination law. He discussed the then-pending case of Pacifico v. Credit Agricole, in which a foreign exchange trader at the defendant company claimed to have been subjected to homophobic harassment by a supervisor who, he alleged, labeled him as gay because he is a vegetarian. (Weird, isn’t it? And strongly denied by the supervisor…) Kramer hypothesized that the supervisor equated vegetarianism with homosexuality because of his sex-stereotypical view that “real men” eat meat. The Pacifico case was voluntarily terminated with prejudice after Kramer had published his article and given his lecture, but was still pending when these events happened.

Kramer used the names of the parties in his article and the supervisor (defendant in the civil rights suit) sued him in U.S. District Court in New Jersey, as well as suing the law school whose law review published the article and the law school where the lecture was given (which made available an audio recording the school’s website). Kramer is a professor at Arizona State. The plaintiff lives in New Jersey, although he and the former Credit Agricole employee who sued him for discrimination under the New York State Human Rights Law worked in New York. When the two law schools were voluntarily dismissed from the case, the case was shifted to the federal district court in New York, as the New Jersey court did not have personal jurisdiction of Kramer, the sole remaining defendant. The plaintiff, Robert Catalanello, alleged that he had been defamed and that the statements made about him in the article and lecture had placed him in a false light. New Jersey recognizes the tort of false light invasion of privacy, but New York does not, so an important part of Judge Engelmayer’s decision is his choice of law analysis, concluding that New Jersey tort law would apply, although he found this a “close case.”

But he did not find that there was a close case as to whether Catalanello had stated valid tort claims under New Jersey law. The judge decided that a contextual reading was necessary, and that viewed in context Kramer’s discussion of the case in his article and the lecture were protected from liability under the “fair-report privilege,” which shields from liability “the publication of defamatory statements appearing in a report of an official action or proceeding.” Kramer was discussing the facts alleged in a legal complaint on file in the federal district court in New York, and he made clear in both his article and his lecture that he was taking facts from the complaint, that the facts were contested and that the case was pending. Thus he was not stating that these factual assertions were true, and he was merely using them to illustrate his own theory of shortcomings in employment discrimination doctrine under which it was questionable whether the factual allegations, if true, would state a valid legal claim. (Kramer’s article is very much worth reading on this point, for anybody interested in the way that employment discrimination law is developing in the area of “sex stereotyping” and sex discrimination.) Under New Jersey cases, as long as a publication of defamatory statements takes place in the context of a “full, fair, and accurate account of the official proceeding,” the author cannot be held liable for defamation. This is true as well for the false light claim.

In addition, Judge Engelmayer concluded that some of the statements challenged by Catalanello would be classified as statements of opinion rather than statements of fact, and statements of opinion are generally not actionable as defamation. These statements pertained to Kramer’s theorizing about the motivation of Catalanello for engaging in the conduct in which he was alleged to have engaged, conflating vegetarianism with sexual orientation based on stereotypes about the behaviors of men and women. That is, the court concluded that Kramer was not asserting as fact that Catalanello had these particular motivations, but rather was using the factual allegations of the lawsuit to illustrate his doctrinal critique, in the course of which he speculated as to the motivations of somebody who would engage in the conduct that was alleged in the court complaint.

Sigh of relief for Prof. Kramer that the judge “gets it” and understands the nature of the academic inquiry and the use of fact patterns derived from real cases to discuss doctrinal developments. Cautionary note to law professors who are writing about real cases and using the names of parties: unless a court has made factual findings, be clear that you are discussing allegations that have not been proven as fact!!