“We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Donald Trump said recently. “And if somebody says something that’s totally false and knowingly false, that the person that has been abused, defamed, libeled, will have meaningful recourse.”
Yes, Trump is a jerk.
True, he himself is the Slanderer-in-Chief.
Granted, he’s a bit of a fascist.
Pertinently, libel laws are state laws. Neither the president nor Congress can change them.
But even an authoritarian hypocrite is right sometimes. And Trump is dead right that the nation’s libel laws are “a sham and a disgrace.”
My defamation lawsuit against The Los Angeles Times is a case study. (I’ve written about the merits of my case elsewhere. Here, I ask you to simply consider the process of lodging a complaint and taking it to a jury to consider. My question is this: should suing be this difficult?)
Bear in mind: the timeline in my case is typical.
The Times published an article announcing my firing in July 2015. After their excuse for my firing fell apart, they published a second piece “reaffirming” their decision in August 2015. Two and a half years later, we haven’t even begin discovery — and I’ll be lucky to get in front of a jury before 2020.
Justice delayed is justice denied. So what’s taking so long? Part of the problem is California’s understaffed, overworked court system. But mostly it’s the fact that newspapers have rigged the legal system against plaintiffs.
In California, for example, media companies lobbied the legislature to pass Civil Code 48(a). Under 48(a), you have to serve written notice to a newspaper that they’ve libeled you within 20 days of the initial publication. What if you’re off fishing for three weeks? Too bad — you can’t sue. What if you hear about the libelous article more than 20 days later? Again, you have no recourse.
What if you’ve never heard of the law? You’re like most people — and you’ve got no case, no matter what they wrote about you.
California is one of 28 states to have an “anti-SLAPP” law. According to proponents, there are wealthy individuals and companies who file nuisance lawsuits against defendants, not to win but to tie the poor defendants up in court and force them to hire expensive lawyers to defend themselves.
Assuming abusive lawsuits are actually a problem (there’s no evidence of this), the “solution” created by anti-SLAPP laws is ridiculous on its face. A defendant files an anti-SLAPP motion that, if successful, gets said frivolous lawsuit thrown out of court and forces the rich abusive plaintiff to pay the poor defendant’s legal fees. But…the operative word here is “rich.” If you’re rich and out to screw over a poor defendant, why would the risk of incurring some extra fees deter you?
Here’s where things get really crazy. I consulted with numerous attorneys who told me I’d probably beat the Times if I ever got in front of a jury. Getting past anti-SLAPP, they said, would be the tough hurdle. But the anti-SLAPP law is only supposed to kill frivolous lawsuits. Then how can it be that, in the opinion of numerous experienced lawyers, my case — which they think would probably win — could be defeated by an anti-SLAPP motion? Because anti-SLAPP law is so complicated that many judges don’t understand it and rule in favor of anti-SLAPP motions when they ought to reject them.
Some states have ruled anti-SLAPP laws unconstitutional because they deny plaintiffs their right to a jury trial. But not California. Not yet.
Lawyers I talked to in L.A. liked my case but were so cowed by anti-SLAPP that it took me months to find one willing to represent me. Finally, I filed suit in March 2016.
As predicted, the Times filed a set of anti-SLAPP motions against me. Then they invoked an obviously unconstitutional section of the California Code, 1030(a), that is so obscure that few attorneys or bond companies had heard of it, one that required me to post a cash (i.e., 100% of value) bond just to continue my case. The reason? I reside outside of California. The Times demanded $300,000. The judge knocked it down to $75,000. Thanks to appalled readers, I raised the money via crowdfunding. What would someone without a media mouthpiece do if they had to come up with 75 grand just to stay in court? They’d probably have to drop their case.
Hearings on the anti-SLAPPs took place in July 2017. It had been two years since the Times published their lies about me: two years without discovery, two years during which key witnesses might die or move away, two years during which the Times could destroy evidence.
Even though lower-court judge agreed that “the enhanced tape establishes his [Rall’s] recounting of the incident was accurate” — i.e., I told the truth, the Times lied when they said I didn’t, thus the Times defamed me — he ruled against me, awarding the Times about $350,000 in legal fees at my expense.
Anti-SLAPP is automatically appealable, so the next step is the Court of Appeals. We submit our appeal brief. The Times replies. We reply to their reply. The court sets a hearing date. If all goes well, that’ll happen some time this year. If the appellate judges rule in my favor, we finally begin discovery — in 2019-ish.
Four years after the crime. Four years for the trail to go from cold to stone-cold.
If and when I get to my actual trial, then — just maybe — print-media journalists will break their Grey Wall of Silence and report on my case. If and when that happens, though, I’m sure they’ll manage to characterize me as an abusive plaintiff trying to curtail the First Amendment rights of the pure-as-virgin-snow Los Angeles Times.
Trump can’t and won’t do anything to address our ridiculous libel laws. Which is really really #sad.