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Post by nighttimer on Mar 15, 2019 17:45:16 GMT -5
I'm curious as to whether the family is being taken in by ambulance chancing type lawyer who thinks big news orgs will throw gobs of money at them, or if they themselves think that they will. Either way, I don't think this makes Nick look good, and can do some serious damage to his college and job prospects if they view him as being money hungry and/or litigious. (Is that the right way to use the word?) On the one hand, it shouldn't take a lawsuit for new organizations to correct incorrect information, but this is just downright silly. Ambulance chasing lawyers? GTFO! If this isn't a hustle, I've never seen one.
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Post by Vince524 on Mar 15, 2019 21:09:08 GMT -5
Interesting, but I'd really be curious to know if they sought him out, or him them. I don't know that it makes much difference, but I'd still like to know.
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Post by Deleted on Jul 26, 2019 19:26:10 GMT -5
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Post by Optimus on Jul 26, 2019 19:53:54 GMT -5
Not surprising. It would be almost impossible to impute/prove malicious intent on their part. And, it's the Post, so...
"Never attribute to malice that which is adequately explained by stupidity." - Hanlon's Razor
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Post by Vince524 on Jul 27, 2019 14:42:05 GMT -5
I was literally coming here to post that. I imagine he might have a better shot at someone like Kathy Griffin, but even that might seem too far-reaching. Sandmann was hurt here, but reporting on it, taking the accusations and having an opinion that's based on a hat more than all the evidence isn't libel. And shouldn't be. It would be nice if the Post did a front-page story correcting what they got wrong, but I won't hold my breath.
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Post by Optimus on Jul 30, 2019 20:12:01 GMT -5
Informative breakdown of the dismissal (this guy's channel is pretty good overall, too):
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Post by Vince524 on Jul 31, 2019 11:54:03 GMT -5
After watching that, I've come to a few conclusions.
1)Sandman may indeed have a case. I didn't look at all the articles. It seems to me the idea that it didn't impugn him is ridiculous. They did in some articles name him, plus it all referenced a video. Here is where I think someone like Kathy Griffin might not be as lucky as she's not a news organization, and she called for them to be named and shamed. Other's said they should be thrown into a wood chipper or called Sandmann a little bitch. Based on the analysis, I think discovery should be allowed. 2) I think there's something wrong with us that we're okay with targeted threats and mob justice against teenagers based on a video that didn't tell the entire story. 3) This guy needs to lay off the caffeine.
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Post by Deleted on Jul 31, 2019 14:12:57 GMT -5
Speaking as a lawyer, Sandemann does not have a case. it was correctly dismissed.
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Post by Vince524 on Jul 31, 2019 14:31:46 GMT -5
Speaking as a non lawyer, could you address the points made in the video without freebasing redbull?
If I understand correctly, the way it's supposed to work is if the plaintiff pleads are sufficient that, taken in a vacuum he was wronged and there was a breach, it should proceed to discovery. In other words, you and I have a dispute. I say you smacked my upside the head and yanked my underwear up over my head in public. If that is sufficient to sustain the charge, it goes to discovery. You then, as the defendant, present evidence. If the evidence is fairly overwhelming in your favor, the judge can grant summary judgement. (Video showed Cass never went near Vince, who habitually wears his underwear pulled over his head anyway.) But if there are still facts that are in dispute, then a jury or bench trial happens.
I don't think anyone can claim that Sandmann wasn't prone to get attacked in public by friends and family and others based on the storied. It showed his face, and some stories named him. The need to prove it wasn't opinion or that damage was in part the fault of the newsgroup is a matter for evidence.
What am I missing. I never really thought he had a good case, but that video makes me think he deserved a chance at discovery.
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Post by Deleted on Jul 31, 2019 15:59:24 GMT -5
I am trying to meet a deadline tomorrow, so I don't have time today to go into detail today, but I attached the court's opinion above and agree with the court's reasoning (and the court doesn't sound like it's been inhaling redbull).
There are very specific elements you have to meet for a defamation case, and Sandemann didn't meet them. The court, a few pages in after it lays out the facts, lays out the standard that must be met, and then goes painstakingly through each element and applies the law to the existing facts.
E.g., to take just one of the 4 elements, expressing a negative opinion about someone isn't sufficient for a defamation action. You need it to not only be defamatory, but also be a provably false statement purporting to be actual facts. My asserting Rob acted like an asshole--not actionable. My saying Rob is a murderer who shot Kennedy from the grassy knoll, though, might be, if it's false and all the other elements are met.
When you file a complaint, in order to get past a motion to dismiss, you have to show that if you can prove that everything you've said is true, you would meet all the elements of your cause of action. The court accepts the plaintiff's factual assertions as true at that point, in other words, unless they are contradicted by certain evidence, e.g., documents in the public record (like all those youtube videos of the incident, for example). But the complaint must contain sufficient allegations to meet all the elements. In other words, crying "but they were meeeeaaaan to me and I got huuuuuurt" won't cut it.
In Sandemann's case, a lot of the allegations were opinions or characterizations, not provably false statements of fact. Also, a number of the alleged statements were about the group of kids as a whole, not Sandemann in particular, which won't cut it.
There's lots of detail in the actual opinion--it's 30 or so pages long.
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Post by Optimus on Jul 31, 2019 18:25:03 GMT -5
I'd be interested if you could address the issues that the lawyer in my posted video brings up. He not only cites directly from the dismissal decision brief but also the relevant Kentucky case law, arguing that (ignoring whether Sandmann had evidence to win) the dismissal was procedurally premature (if not unjust), not based on the actual merits of the case, and partially based on facts not in evidence.
Unless he's way off base in his analysis, his claims were persuasive to me (a non-lawyer). So if you could counter any of his claims with specific case or statutory law, I'd be really interested in learning more.
He also did a Q&A vid today based on comments he got on the original breakdown vid:
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Post by Deleted on Jul 31, 2019 19:56:22 GMT -5
I'll do it when I get a chance (It will take a while to listen again and address each point), but for now I'll note this:
1) this guy is a Canadian lawyer trained in Canada. That doesn't mean he's not an awesome lawyer, but it does mean he may be taking a Canadian legal perspective to American law; their defamation law standard might be quite different (I don't know, tbh). I've had friendly disputes with foreign lawyers many times over our legal standards versus theirs.
2) He talks awfully fast, but he seems to me to be muddling the standard for a motion to dismiss, and to be parsing the elements of a defamation action, which confusingly makes it seem like if one or two elements could plausibly be proved with more evidence, the complaint shouldn't be dismissed, and that's not how it works. An allegedly defamatory statement has to meet ALL the elements to get past a motion to dismiss. He also takes into consideration stuff that has nothing to do with the cause of action -- e.g , the fact Sandemann is a minor. I know that's all sympathetic and shit, but it's not an element of a Kentucky defamation suit. He pounds the table on that point, but yeah, it's not relevant to this action.
Honestly, the impression I get here is that he'd gone so far out on a limb predicting the complaint would get past a motion to dismiss he's now doubling down to say the judge made a mistake.
Me, I wasn't surprised it was dismissed, so take that for what it's worth. And I will note this: lawyers I know/follow on Twitter seem to find the dismissal as unsurprising as I do. E.g., Popehat joked about the decision, and he's way into defamation law. If he thought this decision was fucked up, he's be all over it.
We'll see what happens on appeal, assuming there is one, but my guess is the decision stands
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Post by Vince524 on Aug 1, 2019 6:19:43 GMT -5
Again, from a non-lawyers perspective, it seemed as if based on the video, the judge's logic was in part that Sandmann didn't have a claim because he wasn't named, but then goes on to say he was named in later articles. If I say a teenager was responsible for beating up a homeless man, and police are investigation John Doe, but the teen's name is Sam Riley, I'm not naming him. But If I say an unnamed teen, who is pictured below, etc, then people who know him will know who we're talking about. And if in a subsequent article I do name him, then the fact that I didn't name him in the 1st becomes irrelevant as people would simply now know that John Doe in article 1 and Sam Riley in article 2 are the same person.
In addition, the idea that this didn't cause reputational damage to Sandmann is on it's face absurd. We all know who he is, and many have concluded he was guilty and quite frankly still think that. He and his class received death threats, were made to be mocked on a national stage.
Now so is someone like Epstein or Trump. And if police arrest Rob for straking through central park, it's factual to report that. If Rob is cleared because he proves he was nowhere near central park, but I didn't infer he was guilty, I'm still clear. However, if I say Rob was arrested because he stripped nekkid and ran around central park yelling out "I will not put my clothes on until they bring back Firefly for a ten-year run!" not he allegedly said that then the case could be made I defamed him.
As far as proving all elements, 1st off, all he has to do is plead in a way that it is plausible, right? I accuse someone of something, which is a bad thing to do, which may or may not be true. I don't have to prove at this stage it's not, but if I alleged that you who published this should have reasonably known it wasn't true but I need discovery to prove that, wouldn't that pass muster?
Let's say I accused Cassie of being a secret Trump fan because she wore a MAGA hat to my office, which I have cctv footage of. Cassie says no I didn't and if they are forced to produce that video, it'll clearly show she wore a neon hat that said 'Girls just want to have fun." Forgetting about the fact that accusing her of MAGA hat wearing isn't itself defaming, she'd need that video to prove it was false.
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Post by Deleted on Aug 1, 2019 7:52:06 GMT -5
A statement alleged to be defamatory has to meet all the elements. You don't get to bootstrap by saying "well, this statement meets this element and that other statement made on another day meets some other element..." It doesn't work that way.
And again, the "is the statement about an individual rather than about a group " is only one subpart of one of the elements. That is what I mean when this fast-talking guy parses out the standard. He focuses on one element or some aspect of an element or something (like the fact that Sandman is a minor) that isn't an element at all, and pounds the table on it, but he doesn't (as you must) consider whether the statement meets each of the 4 elements. Another thing to remember is that each of these 4 elements has been applied in previous cases; a court interprets them in light of those precedents.
Out of curiosity, I took a quick look and it is indeed the case that Canadian defamation law is the most plaintiff-friendly in the English speaking world. Apparently also the case that Canadian courts rarely dismiss a suit before discovery. I think that as a Canadian lawyer, this guy feels that this suit would have gotten past a motion to dismiss in Canada. But the standards here are different.
Seriously, read the opinion. The judge lays out the applicable standards, and takes each statement and analyzes it in light of that law. And he's not talking a million miles an hour.
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Post by Deleted on Aug 1, 2019 8:53:56 GMT -5
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