Daily Archives: August 14, 2021

Attorney Sidney Powell speaks at a press conference on election results in Alpharetta, Georgia, U.S., December 2, 2020. REUTERS/Elijah Nouvelage

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(Reuters) - Litigators can talk an awful lot of smack in court appearances and filings without having to worry about defamation. But when they step outside of the courtroom, its a different story: Litigation is not a license to lie.

Im borrowing that thoroughly delicious phrase from a brief by voting equipment maker U.S. Dominion Inc, opposing a motion by former Donald Trump campaign lawyer Sidney Powell to dismiss Dominions $1.3 billion defamation suit. As Ill explain, Powells lawyers argued, among other things, that she could not be liable for her accusations of vote manipulation because she made those statements in the context of Trump campaign litigation (or prospective litigation) to overturn 2020 election results.

On Wednesday, U.S. District Judge Carl Nichols of Washington, D.C., rejected that argument (and Powells other defenses) in a decision allowing Dominion to move ahead with its case against Powell and other defendants.

An attorney's out-of-court statements to the public can be actionable, even if those statements concern contemplated or ongoing litigation, Nichols wrote. Powell cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation.

Nichols opinion summarized a veritable parade of television interviews and press conferences in which Powell slung vote manipulation accusations at Dominion. In the judge's view, Powell clearly crossed the contextual line between protected litigation-related statements and unshielded commentary that's outside the bounds of litigation.

But his decision made me curious about where, exactly, that line is drawn. Powells brief, after all, cited U.S. Supreme Court precedent holding that you don't have to be in court to be engaged in litigation-related activity. The court's 1963 ruling in NAACP v. Button arose from Virginias allegation that the NAACP was illegally soliciting clients when it distributed desegregation petitions, among other activities. The Supreme Court ruled that the First Amendment protected the NAACPs lawyers and organizers when they advised prospective litigants about their rights.

Powell's lawyers contended that she, like the NAACP, was engaged in litigation and prospective litigation of momentous significance and immense public interest. According to them, her TV appearances and press conferences were intended to publicize the evidence and legal theories she was espousing (or planned to espouse) in the Trump campaign's litigation challenges to election results. So under the Supreme Courts reasoning in Button, Powells lawyers insisted, she was engaged in litigation-related activities protected by lawyers' First Amendment privilege in court proceedings.

It would make no sense, and serve no public purpose, to give immunity for statements made during the course of litigation which are themselves public but burden lawyers with the threat of billion-dollar defamation verdicts when the same allegations are made at press conferences and news releases announcing and discussing the case, wrote Powell lawyers Lawrence Joseph and Howard Kleinhendler.

Dominions counsel at Clare Locke and Susman Godfrey tore into that argument in their opposition brief. Powell, they said, was asking the court to manufacture a propaganda exception for wild accusation, defying precedent that has permitted defamation suits against lawyers for statements made outside of court proceedings.

The most compelling citation in Dominions brief, by my reading, is Seidl v. Greentree Mortgage, a 1998 Colorado federal case. (Powell argued that Colorado law applies in Dominions suit.) The underlying facts are incredibly complex, but all you need to know is that the mortgage company countersued a plaintiff's lawyer for defamation after she issued an online press release announcing her clients lawsuit against Greentree. The lawyer contended that she was immune, pointing to language in the Restatement (Second) of Torts that says lawyers have an absolute privilege to publish defamatory statements before or during litigation as long as the statements have some relation to the proceeding.

The Greentree court disagreed. Press releases and statements to reporters, the judge said, arent entitled to absolute privilege because press conferences arent judicial proceedings. The ruling explained that the key issue in determining whether the litigation privilege applies is the lawyer's audience: Were the allegedly defamatory statements addressed to people with a recognized interest in the case or to outsiders? Journalists and members of the public have no interest except as observers, the court said. Lawyers can therefore face defamation claims based on press releases. The decision quoted 1962 precedent: An attorney who wishes to litigate his case in the press will do so at his own risk.

Its probably telling that Powells lawyers, who did not respond to my email query, didnt offer a single example in their reply brief of a case in which a court ruled that a lawyers comments at a press conference or in a press release were protected under the litigation privilege. Powells brief did not attempt to argue that members of the press or public had a sufficiently specific interest in the Trump campaigns litigation to extend Powells privilege to out-of-court statements.

In Wednesday's opinion, Nichols noted a 2006 case from the District of Columbia U.S. Circuit Court of Appeals that highlights the critical question of the audience for allegedly defamatory statements. The case, Messina v. Krakower, stemmed from a dispute between two business partners. A lawyer representing one of them sent a letter to the other, outlining his clients grievances and warning that there would be litigation if the other partner didnt agree to negotiate a split.

The letters recipient argued that the litigation privilege didnt apply because the lawyer sent a draft of the letter to a third person, whom he had proposed as a mediator. The D.C. Circuit acknowledged that lawyers can lose litigation privilege immunity from defamation claims when they publish statements to outsiders but said the proposed mediator had an interest in the threatened litigation so the privilege remained intact.

Sidney Powell, on the other hand, told everyone listening to her press conferences and television interviews that Dominion manipulated the results of the 2020 election. And now shell have to prove that those statements were not defamatory.

Read more:

Trump allies including Giuliani lose bid to dismiss Dominion vote machine lawsuits

Ex-Trump lawyer Powell asks judge to toss voting machine company's $1.3 billion lawsuit

Voting machine company sues pro-Trump lawyer Sidney Powell over 'wild accusations'

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the Worlds Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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Sidney Powell and the limits on a litigator's 'license to lie' - Reuters

11 August 2021

Duane Morris LLP

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Today, the U.S. Court of Appeals for the Eighth Circuit upheld,in part, the constitutionality of an Iowa law that makes it acriminal offense to obtain access to an agricultural facility byfalse pretenses. Animal Legal Def. Fund v. Reynolds, No.19-1364 (8th Cir. Aug. 10, 2021). The court reversed in part adistrict court ruling that the law violated the FirstAmendment.

In light of animal activist infiltration of farms and otheragricultural operations, the Iowa legislature passed a law in 2012that made it a crime (a misdemeanor) to commit "agriculturalproduction facility fraud." That crime could be committed intwo ways: (1) by obtaining access to an agricultural productionfacility by false pretenses (the Access Provision); or (2) bymaking a false statement as part of an employment application to anagricultural production facility if the person knows the statementis false and makes it with an intent to commit an act notauthorized by the owner (the Employment Provision). Iowa Code 717A.3A(1)(a)-(b).

This measure was characterized as an "ag gag" law byits detractors on the ground that it allegedly penalizes freespeech on animal abuse issues. But it was seen by its supporters asan appropriate response to the animal rights activist tactic ofeither trespassing on farmland or obtaining employment at a farmwith false statements and then secretly videotaping or otherwiseexposing what the advocates claim is inhumane treatment of farmanimals.

Plaintiffs, which included the animal rights groups Animal LegalDefense Fund (ALDF) and People for the Ethical Treatment of Animals(PETA), sued claiming that the law violated their First Amendmentrights. The district court agreed and enjoined enforcement of thelaw. A three-judge paned of the Eighth Circuit reversed as to theAccess Provision but affirmed as to the Employment Provision.

The Access Provision did not violate the First Amendment becauseit proscribes using false statements to obtain access to privateproperty. The court examined the leading Supreme Court case onwhether the First Amendment protects false statements theso-called "stolen valor" case of United States v.Alvarez, 567 U.S. 709 (2012) but found the pluralityopinion in that case to be inconclusive. Nonetheless, the EighthCircuit concluded that, in light of Alvarez,"intentionally false speech undertaken to accomplish a legallycognizable harm may be proscribed without violating the FirstAmendment." Slip op. at 7. In this regard, the court ofappeals specifically disagreed with the district court'sreasoning that trespassing on a farmer's land was not a legallycognizable harm because the farmer would only be able to recovernominal damages:

Even without physical damageto property arising from a trespass, these damages may compensate aproperty owner for a diminution of privacy and a violation of theright to exclude legally cognizable harms. . . . "Theright to exclude is one of the most treasured rights of propertyownership." . . . We therefore conclude that the AccessProvision's prohibition on assuming false pretenses to obtainaccess to an agricultural production facility is consistent withthe First Amendment.

Id. (citation omitted).

However, the court found the Employment Provision to beunconstitutional. The court noted that, while a narrowly tailoredstatute that prohibits making false statements to get a jobprobably would pass constitutional muster, the Employment Provisionwas broader because it penalized the making of the false statementwhether or not it influenced the offer of employment. Id.at 8. The Employment Provision therefore "proscribes speechthat is protected by the First Amendment and does not satisfystrict scrutiny." Id. at 9.

Two judges wrote opinions separate from the majority authored byJudge Colloton. Judge Grasz joined in the majority opinion but didso "hesitantly as to the Access Provision. The court'sopinion today represents the first time any circuit court hasupheld such a provision." Id. at 11. Judge Gruenderconcurred in part and dissented in part. He concluded that neitherthe Access Provision nor the Employment Provision violates theFirst Amendment:

In sum, the Alvarezplurality's reasoning implies that both the AccessProvision and the Employment Provision areconstitutional. Consequently, although ourjurisprudence leaves open two ways of resolving theMarks question in this case, both ways converge on thesame result: we must uphold both provisions.

Id. at 21.

This case is a significant victory for animal businesses thathave been subjected to property invasions by animal rightsactivists. At least in Iowa, lying to get access to a farmer'sproperty in order to expose purported animal abuse is a crime.Moreover, even though the Employment Provision was invalidated, theEighth Circuit indicated that the state legislature could fix thatproblem by narrowing the law to "proscribe only falsestatements that are material to a hiring decision."Id. at 9. Whether there are further steps in thislitigation at the Eighth Circuit or Supreme Court levels, thedecision in this case will reverberate throughout the animal rightscommunity.

Disclaimer: This Alert has beenprepared and published for informational purposes only and is notoffered, nor should be construed, as legal advice. For moreinformation, please see the firm's full disclaimer.

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Eighth Circuit Upholds Part Of Iowa "Ag Gag" Law - Litigation, Mediation & Arbitration - United States - Mondaq News Alerts

One of the most high-profile art censorship sagas of recent times is explored in a new book by Arnold Lehman, titled Sensation: The Madonna, the Mayor, the Media, and the First Amendment. The former Brooklyn Museum director dives into the furore around the 1999 exhibition Sensation: Young British Artists from the Saatchi Collection, which took place at the New York museum while he was at the helm. The show had first opened at the Royal Academy of Arts in London in 1997 where it had also drawn protests and made headlines.

In New York, Chris Ofilis painting The Holy Virgin Mary (1996)depicting a black Madonna amidst porn magazine cut-outs and elephant dungwas at the centre of the storm. In response to the painting, which he called anti-Catholic, New Yorks then-mayor Rudy Giuliani sought to cut the museum's funding and evict it from its city-owned building. It has taken Lehman two decades to fully absorb and reflect on events, and this book is his very personal account of what happened, says the publisher in a statement. In the extract below, Lehman describes presenting the controversial works in Sensation to Giuliani and his cohorts at New York City Hall.

Sensation: The Madonna, the Mayor, the Media, and the First Amendment by Arnold Lehman

Perhaps most surprising to me at the time, and certainly in retrospect, was the Bastille Day meeting, as I called it, with the mayor, in City Hall on July 14, 1999, a meeting that both our board chair, Bob Rubin, and I had requested on a number of occasions but with no response until we received a call a week before. With mayor Giuliani were DCA [Department of Cultural Affairs] commissioner Schuyler Chapin, deputy mayors Joseph Lhota and Randy Levine, and budget director Robert Harding. The mayors office had earlier that week indicated that we would have 15 minutes to present our capital funding request of $20m for Brooklyn Museums new front entrance. While the city had been providing operating funds for many decades to cultural organisations that were part of the CIGsthe Cultural Institutions Group, 33 organisations operating in city-owned buildings or on city-owned land, based on a formulaic annual allocationcapital funding was a hit-or-miss process most often dependent on political advocacy from the borough president, city council, mayor or some combination of those.

After a pleasant welcome, and before getting to talk about the museums pressing need for its proposed capital project, the mayor, Bob and I talked about Brooklyn, where both the mayor and I were born, and exchanged friendly jibes about his Yankees versus the Mets. I then used the first part of our slide presentation to show the major need for the new entrance as well as the highly engaging designs by our team of renowned Japanese architect Arata Isozaki and greatly respected New York architect James Polshek.

[]

I concluded my presentation with slides from Sensation, starting with Damien Hirsts The Physical Impossibility of Death in the Mind of Someone Livinga ferocious shark encased in hundreds of gallons of formaldehyde. This immediately got the attention of everyone in the room and gave me the opportunity to talk about the exhibition generally, the necessary ticketed admission fees and, most importantly, its provocative nature. I showed one image after another of what we had understood to be the most controversial works in the exhibition as reported from the Royal Academy and the media. I prefaced this part of my presentation by saying that the RAs distinguished Exhibitions Secretary for two decades, Norman Rosenthal, had personally selected the works for the Sensation exhibition from the premier contemporary art collection in Great Britain, that of Charles Saatchi.

Installation shot of Sensation: Young British Artists from the Saatchi Collection at the Brooklyn Museum showing works by Damien Hirst, Marcus Harvey and Sarah Lucas Image: Brooklyn Museum, 1999

Again thinking that I would prepare Giuliani for what might happen, I went on to say that in the months before the exhibition opened to the public in London, there were already attacks in the British press and by Royal Academicians on the controversial nature of the works to be shown and thattrying to make the connection as clear as possible to the mayorRosenthal had been quoted in the UK Times in February 1997 [saying] that such works were as shocking, difficult, and thought-provoking as Goyas Disasters of War and Picassos Guernica had been in their day and that art is good when it perplexes us. As I was quoting Rosenthal, I immediately thought that I might have overestimated the art-historical knowledge of the mayor and his lieutenants!

[]

As the meeting was ending, Mayor Giuliani shook hands with Bob Rubin, patted me on the back, and told Deputy Mayor Randy Levine to give them what they wanttheyre good guys. With that said, I was already banking that $20 million in city capital funding for the museums new entrance!

That was the last time I spoke with Rudy Giuliani.

[.]

However, on Wednesday morning, September 22, I answered a call from Schuyler to my office. After a few moments of nervous but cordial chitchat, he abruptly announced that he was delivering a message from Mayor Giuliani that unless the museum immediately cancelled the Sensation exhibition, the city would terminate all funding for the BMA. I was incredulous that he had agreed to deliver this preposterous message and remained silent on the phone. Schuyler asked nervously, Arnold? Arnold, are you there? I held my temper and spoke coolly, with great deliberation: Im here, Schuyler. But where are you in this ultimatum? Where are you in all of this? What about freedom of expression?

Installation image of Sensation at the Brooklyn Museum showing Chris Ofili's The Holy Virgin Mary (1996) Image: Brooklyn Museum, 1999

Im just the messenger. Im just the messenger, Schuyler responded even more nervously. With my voice raised but still under control (which, thinking about it later, amazed me), I responded, But youre the damn commissioner of cultural affairs for the city of New York! You have to take a stand! He hung up the phone. An hour later, he called again to tell me that the mayors position had not changed. I asked if he had spoken to Giuliani, but he didnt answer. I asked if he was going to do something about this destructiveness on the part of the mayor?

Like what? he asked.

Like quit, I replied.

Schuyler said something I couldnt make out, seeming almost to whimper in response to my now nearly shouted suggestion. This time, I hung up. Within minutes, Giuliani appeared for a City Hall press briefing, seemingly timed directly to Schuylers second warning. The New York Times reported that one of the mayors aides had prompted a CBS reporter at the briefing, Mary Gay Taylor, to ask a question about recent press coverage of Sensation. Giuliani jumped in with a clearly rehearsed answer denouncing the museum: You dont have a right to government subsidy for desecrating somebody elses religion and, therefore we will do everything that we can to remove funding for the Brooklyn Museum until the director comes to his senses and realises that if you are a government-subsidised enterprise, then you cant do things that desecrate the most personal and deeply held views of people in society. Needless to say, Giulianis message until the director comes to his senses rang louder in my ears than had I been standing in the belfry of Londons Big Ben.

Sensation: The Madonna, the Mayor, the Media, and the First Amendment, Arnold Lehman, Merrell Publishers, 248pp, 25 (hb)

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Extract | How Mayor Rudy Giuliani went from 'patting on the back' to trying to pull the plug on Sensation show - Art Newspaper