Smart Phones: Dangerous Weapons?

The country was recently captivated by the Johnny Depp and Amber Heard trial, arguably the most high-profile defamation case in recent history. Following a colorful trial, a Virginia jury found that a 2018 Washington Post op-ed by Heard defamed Depp. As a result, Depp was awarded $10 million in compensatory damages and $350,000 in punitive damages. At the same time, the jury awarded Heard $2 million dollars in compensatory damages for defamatory statements made by one of Depp’s attorneys, ostensibly on Depp’s behalf. The trial had millions of people asking a number of different questions, including the basic question “What is defamation?” Recent Louisiana cases such as Yanong v. Coleman, 53-933 (La. App. 2 Cir. 5/17/21), 317 So. 3d 905, 911, reh’g denied (June 24, 2021), writ denied, 21-01107 (La. 11/10/21), 326 So. 3d 1249 help to provide an answer.

As explained in Yanong, a party claiming defamation in Louisiana must prove four elements:

(1) a false and defamatory statement concerning another;

(2) an unprivileged publication to a third party;

(3) fault (negligence or greater) on the part of the publisher; and

(4) resulting injuries.

**To prove the third element of “fault,” malice must be shown.

The Yanong court explained that claims of defamation must be balanced against the right to free speech found in the state and federal Constitutions.

Louisiana recognizes two categories of defamatory words: (1) words that are defamatory per se and (2) words that are defamatory in meaning. Id. at 9. Words that are defamatory per se “expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances.” Id. When words are deemed defamatory per se, there is a presumption of fault on the part of the defendant that may be rebutted by showing that the statement was true or protected by a privilege such as fair commentary on a matter of public concern. Id. Words that are defamatory in meaning are words that, when taken in context, “a listener could have reasonably understood the communication to have been intended in a defamatory sense.” Id. at 9-10. Proof of words that are defamatory in meaning creates no presumption of fault.

Louisiana defamation suits frequently arise in the employment context. However, defamation claims in the employment context face obstacles. Such cases sometimes fail on the second element, publication to a third party, because “inter-corporate communications…[are] merely a communication of the corporation itself,” meaning an employer may need to communicate the alleged defamatory statement to an outside third party outside for it to be considered “published to a third party.” Cook v. Par. Of Jefferson, 2022 WL 19350, at *11 (E.D. La. Jan. 3, 2022). However, defamation claims do not always fail on the publication element and they are not limited to “A-list” celebrities or multi-million dollar cases.

In Yanong, the Louisiana Second Circuit affirmed a $15,000 compensatory damage award to a plaintiff who successfully proved that statements made by defendants on a podcast show and on Facebook were defamation per se. Yanong, p. 8. Under the facts of the case, the defendants on a live “podcast” expressed on multiple occasions their belief that the plaintiff was a victim of sex-trafficking and that she was purchased by her much-older husband. Id. at 1. The defendant(s) also labeled the plaintiff’s marriage as “legalized prostitution,” and stated that they had contacted foreign authorities to inform them the plaintiff was a victim of “trafficking.” Id. at 2. The statements continued onto social media, where one defendant insinuated the plaintiff’s husband purchased her from a catalogue or an internet matchmaking site. Id.

On appeal, the defendants argued the plaintiff did not prove the publication element of her case. Id. at 5. The appellate court found this contention meritless. The defendants “were fully aware they were engaging” in communications with third parties, they were recoding a podcast, were “shown onscreen on all the broadcasts,” and made comments that showed “they were aware that they had an audience and third parties were engaged in the interactive broadcast.” Id. at 17-19. Thus, the Second Circuit found Plaintiff met her burden on the publication element and affirmed the trial court’s judgment. Id. at. 20.

While the publication element can present a hurdle in some cases, the publication need not be in a national media source as featured in the Depp-Heard case. The Yanong decision reminds that statements made on social media and podcasts can meet the required standard.

A Decade Old Article Finds New Life: Televised Testimony - Keogh Cox.

Recently, a Louisiana appellate court found that images fromGoogle Earth images were admissible. In Walker v. S.G.B.C., LLC,2019-506 (La.App. 3Cir. 2/5/20); --- So.3d ---, 2020 WL 563818, theLouisiana Third Circuit rejected a challenge to the use of the images on thebasis that they were not properly authenticated.

In this case, the plaintiff sought recognition of ahistorical servitude of passage from his landlocked property. During the trial,the plaintiff offered Google Earth images of the property to show a gravelpathway on the alleged right of way. The images were dated January 2004,November 2005, and December 2017. Multiple witnesses identified the pathon the images. Thereafter, the trial court admitted the images into evidenceover the defendant’s objections.

On appeal, the defendant argued that the images were notproperly authenticated under La. C.E. art. 901 because the plaintiff did not:(1) have the creator of the images testify to their authenticity; (2) get acertification from Google that the images were what they purported to be; and(3) have an expert testify that the images were accurate depictions of whatthey claimed to be.

The Walker court affirmed the trial court ruling thatthese images were admissible. Louisiana Code of Evidence Article 901(B)(1)provides the testimony of a witness with personal knowledge may supply theauthentication of evidence required for its admission. Because the plaintiffidentified various landmarks on each image, and each image was subsequentlyrecognized by multiple witnesses (including the defendant’s witnesses), theCourt concluded there was sufficient support for finding the images authentic.

In Walker, the precise dates the photographs were taken were not critical. Under different facts, courts may choose to apply the authentication rules of Article 901 more stringently.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.

The Louisiana Supreme Court recently upheld as constitutional two statutes requiring the registration of sex offenders even when applied to a person who was found not guilty by reason of insanity. See State of Louisiana v. Isaiah Overstreet, Jr., 12 - 1854 (La. 3/19/13). While an ultimate resolution of this issue would cause the Court to measure the asserted personal interests of the defendant against the public's interest in safety, the defendant's challenges were rejected because he failed to properly raise and brief the constitutional issues.

In Overstreet, it was factually established that the defendant attempted to force himself upon co-eds at two universities. After his arrest, he was diagnosed as schizophrenic and consistently denied any recollection of the crimes. Overstreet was found not guilty by reason of insanity and continued in state-run mental facilities for over a decade until filing a Motion to be Released in 2010. The motion was denied as a consequence of his refusal to participate in sex offender treatment.

When he inquired about the potential release to a group home, he was advised that he would have to register as a sex offender. He then moved to declare LSA-R.S. 15:541(7) and 15:542 (the sex offender registration statutes) unconstitutional.

The Trial Court struck down the statutes as an affront to the Louisiana Constitution, giving conflicting oral and written reasons in support of the ruling. The Trial Court later explained in a per curiam opinion that the primary concern is one of capacity and that it would be unjust to require registration from one lacking capacity to do so.

At the Supreme Court, the defense attorney argued that an application of the registration statutes to Overstreet would violate due process and equal protection because he had not been convicted as a sex offender. In response, the State argued that a finding of not guilty by reason of insanity is not equivalent to an acquittal and that the registration statutes are not punitive but instead are designed to protect the public. The State contended that the defendant was a "sex offender" irrespective of the not guilty by reason of insanity defense.

The Louisiana Supreme Court did not address the merits of these positions. Instead, the Court held that the defendant had not sufficiently particularized the grounds for a constitutional challenge. The Court reasoned that legislation is presumed constitutional. As a result, if a party desires to challenge the constitutionality of a statute, that party must raise the unconstitutionality and specifically plead the basis of the alleged unconstitutionality.

The Overstreet Court reversed the Trial Court because it is the challenger's duty to sufficiently raise the constitutional objections. In so doing, the Court disregarded the Trial Court's sua sponte ruling ("on its own motion") that the sex offender registration statutes were unconstitutional because the Trial Court did not have the authority to raise these challenges.

While Overstreet did not resolve the ultimate issues of the constitutionality of the sex offender statutes in this setting, it did define the issues which would likely guide its decision should the issue ever be properly raised before the Court.