Libel: (citations from Wikipedia)
" The communication of a (written or printed) statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. Requirement: that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).
Under United States law, libel generally requires five key elements.
A)The plaintiff must prove that the information was published,
B) the plaintiff was directly or indirectly identified,
C) the remarks were defamatory towards the plaintiff's reputation,
D) the published information is false, and that
E) the defendant is at fault."
Last week the Wall Street Journal (WSJ) fondled these 5 points of libel with a pestiferous editorial entitled "The ‘Absentee’ Senator".
Did the Minneapolis Star Tribune ("Strib") use it to commit libel?
PUBLIC ANNOUNCEMENT:
We interrupt our regularly scheduled series on the MN-Sen Events (final diary coming Wednesday!) to bring you a slab of lutefisk that has been left out in the sun too long. The editors of the Wall Street Journal took a break from fighting against EFCA, health care reform and the green economy. Before heading for their cottages in the Hamptons for the 4th of July ("We'll be taking the just the Bentley, Jeeves. Times are very hard you know...") they unloaded a yacht-load of billious, sulfurous gasconade that has left me----dare I say it---miffed!
"May it please the Kos Court, on July 2, 2009 the WSJ, inspired by National Perspirers at checkout stands at 7-11s nationwide, printed an unsigned editorial entitled "The ‘Absentee Senator.’"
http://online.wsj.com/...
Following the example of their Australian (pseudo-American) owner Rupert Murdoch, they produced the following kangaroo farts of lies:
>The Franken legal team had "new or disqualified ballots counted after the fact" (I would ask them to name one)
>"absentee ballots, thousands of which the Franken team claimed had been mistakenly rejected" (The "s" on "thousand" seems actionable; the plain sense says 2 or more thousand, while the Franken team never entered more than 1600 into evidence. The Coleman Team claimed anywhere between 4797 and 10962 absentees in their ever pulsating universe of absentee ballots.)
>the Franken side "ginned up an additional 1350 absentees from Franken-leaning counties" (Is the 1350 in addition to the previous point? Or part of it? These 1350 ballots were the famous "5th pile" absentee ballots--produced by each of the 87 counties statewide (are these 87 county auditors, and the 30,000+ poll workers who worked for them an identifiable class (Class action!) being singled out for harm, calumny, defamation and abuse? "Franken-leaning counties" is not supported by facts, is contradicted by facts, and KNOWN to be contradicted.)
>Coleman "lost the fight to stop the state canvassing board from changing the vote-counting rules after the fact"—When did SCB change the rules? Which decisions? What actions?
Prima facie these are lies, each one "falsifiable." (Indeed they have been so shown false in the Election Contest Court.)
Lies are not protected speech. These lies are not privileged speech from either court or legislature. Lies known to be lies cannot be excused as opinions. The WSJ does not cite sources for their lies so they fail a test of good-faith reliance. (Relying on information believed to be true but later found false.) Lies do not qualify as fair comment on a matter of public interest.
Now the Minneapolis Star-Tribune received this WSJ editorial via its subscription service like papers do. Their OWN sad reportage nonetheless shows the WSJ printed lies noted above to be lies.
The Strib did not inform the WSJ of their error and lies. The Strib did not print a point by point refutation of the WSJ piece. Both of these would have been honorable, even Constitutional, courses of action.
Instead the Strib did two libelous acts. They reprinted the WSJ piece (with attribution) on page A9 of their July 2, 2009 issue. The Strib also changed the headline of the piece to read, "How to Steal an Election."
By publishing this piece they have met test A for libel. The plaintiff identified indirectly was every election official in the state...indeed every voter that took part was aiding and abetting a felony (election fraud; despite Coleman attorney Friedberg’s flat statement to the MN Supreme Court on June 1 that there was no election fraud in the contest.) So B is met and I stand as plaintiff and claimant.
The information is indeed defamatory of reputation (test C) and known to be false (test D). The substitution of headline was done deliberately by the Star Tribune and so they are at fault (test E.)
Now since Secretary of State Ritchie, the entire Secretary of State’s office, 87 county auditors and their staffs, a couple dozen city election officials and their staffs, and more than 30,000 poll workers in 4131 precincts might perhaps be construed as public officials and covered by Sullivan (1964), let the court note the Strib’s substitution of title demonstrates malicious intent. Even Sullivan allows "public figures" to bring libel actions if they could demonstrate the publisher's "knowledge that the information was false" or that the information was published "with reckless disregard of whether it was false or not". Famously, entertainer Carol Burnett won a multimillion libel action against the National Enquirer for printing lies about her.
These lies are not opinion, nor relying in good faith upon other sources. These lies are not protected by free speech nor by freedom of the press of the First Amendment. Indeed these lies assault the legitimacy of free election and attack the US Constitution’s guarantee to the states of a republican form of government.
I assist the court with a set of proposed remedies:
>A front-page printed retraction and apology, above the fold, with wording, font and font size approved by plaintiff
>The Strib becomes co-plaintiff in libel action against the WSJ
>The Strib pays damages to the MN Secretary of State’s Office in the amount of 1 year’s operating budget as set by the MN legislature in 2008.
>All local and state costs of the 2010 MN election shall be paid by the Strib
>A written apology from the Star-Tribune editorial board and board of directors and from the owners of the Strib shall be mailed by US mail to every citizen of the state of Minnesota, each letter legibly hand-signed by a member of the editorial board or corporate board, or by a member of the corporate board of the owners, postage paid by the Strib and its owners, along with a check for $300.
>The Strib to pay all court costs and lawyers fees for both sides of this libel action including all appeals; payments to be made monthly as said costs accumulate
>The Strib to pay punitive damages of $1 in US currency to WineRev, framed, along with a handwritten apology from the Strib Editor in Chief.
I move for summary judgment.
Subject to comments, reactions, & revisions from real lawyers, since all I know is from Perry Mason, LA Law (that Victor Cifuentes profile, you know), and 7 freakin' weeks in Minnesota Election Contest Court.
Shalom.