Comments on: Legal reflections on the Argus libel suit

By: Andy

Andy — Sun, 29 Jun 2008 01:40:07 +0000

Tim wrote an excellent analysis. The case has followed the precise path he envisioned almost one year ago. The trial court determined that a reasonable factfinder could could conclude the phony letter implied a false assertion of objective fact. Friday, the South Dakota Supreme Court denied the Argus’ petition for intermediate appeal.

It looks as though the case will proceed with discovery and determinations of private vs. public figure and actual malice.

By: Hog House Blog » In case you missed it …

Hog House Blog » In case you missed it … — Fri, 17 Aug 2007 20:11:17 +0000

[...] worth referring readers to this excellent legal analysis of the $1 million libel suit filed against the Argus Leader, even though other SD bloggers already [...]

By: Tim

Tim — Fri, 17 Aug 2007 18:25:19 +0000

Although I don’t think this is what Doug is saying, I want to make clear that my “circumspection” stems exclusively from the fact that at this early stage I don’t know what other law firms may be involved for any current or future parties. While I am unaware of any potential involvement at this time, on the off chance my firm becomes involved at some point, I don’t want to be opining in any fashion that might adversely impact the representation of a client.

By: Doug Wiken

Doug Wiken — Fri, 17 Aug 2007 17:11:45 +0000

Good grief, if a blogger or newspaper or TV station can be sued because some ranting blogger like say…oh Doug Wiken…goes berserk, there won’t be anything printed.

In the world of mass knowledge and media for expression now, there are hundreds or thousands who might in past years meet the requirements for permanent residence in a mental institution or as DN indicates, pulling weeds in a prison yard.

As I indicated on Epp’s blog, there seems irony in the words of the master political attack dog, Janklow claims this is the worst example of whatever he as ever seen. Must never have read his own comments on mothers and school administrators just for starters.

I keep thinking that Janklow must have made some wonderfully worded attack on Ted Kennedy after his drive into a canal and the death of Mary Jo K, but never had the resources to see if a newspaper ever recorded anything like that.

In any case, Janklow seems to have fully recovered from the acute remorseful and penitent period following his late drive through a stop sign at highway speeds. So, guess we can expect to be reading and hearing more of his verbal eloquence.

Also, thanks for the edge of legal analysis on this. Too bad that it is not easy for lawyers to express more comments on judicial opinions and court cases without endangering their future professional status and employment and income in South Dakota.

By: Tim

Tim — Fri, 17 Aug 2007 16:06:28 +0000

For what it’s worth, most courts have taken the view that the “actual malice” test supplanted any fair comment privilege. Moreover, as the state Supreme Court pointed out in the Neu decision quoted at the end of the post, “It is worthy of note that at common law, even the privilege of fair comment did not extend to ‘a false statement of fact, whether it was expressly stated or implied from an expression of opinion.’”

By: David N

David N — Fri, 17 Aug 2007 15:50:39 +0000

I am not a lawyer, but back in my news dog years, I was the guy that always got sent to the AP and j-school seminars on libel. You underscore well the aspect that a false statement of fact, even in a parody, can be libelous. What rings in my ears now is the Fair Comment and Criticism rule that exempts obviously satire and parody about the public performance of officials or entertainers from application of the libel statutes.

The crux of this case is going to be literary more than legal. It might even boil down to whether the satire was ineptly written, but I don’t know that the courts ever take up literary criticism. If they did, I’d be weeding the sidewalks in the prison exercise yard.