I don't remember reading about the judge's decision (in September), but last May I'd blogged "Richard Simmons sues The National Enquirer for defamation — but is saying that someone has had sex reassignment surgery defamatory?" At the time, I wrote:
I notice the difficulty — if one wants to maintain pro-transgender values — of arguing that it hurts one's reputation to be known to have had what the NYT calls "a sex change." The Times serves up a lawprof quote: "I think it would be an open question as to whether or not it’s capable of a defamatory meaning."I'm trying to decide if I'm surprised at the outcome of the case. It seems that Simmons will appeal the decision.
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55 comments:
What's to be surprised about, it's a ruling from a judge.
What's going on here? Is he undergoing sex-change? Did he want to keep it a secret?
Or is he not undergoing sex-change but was reported as doing so?
If the former, NE had every right to report the story. If the latter, it's clearly libel because it's false.
Is he undergoing sex-change?
How could they tell ?
Wouldn't it be defamatory as a subjective description not as an objective status?
I guess that would be akin to printing that a celebrity has died when they haven't. Being dead isn't inflammatory (we all will do it!) but it has a influence on the reputation and expression of the person involved.
In other words, shouldn't a person have the right of control over their own narrative? What if someone printed that Oprah voted for Trump? It's not legally defamatory but it would affect her expressed interaction in society, and thus is defamatory to her subjective self-expression.
Judge’s have to toe the SJW line.
If Simmons had been accused of voting for Trump it would be defamation per se.
I guess this puts the kibosh on Walter Peck's suit against Raymond and Peter for the "dickless" insult.
Transgender/crossover. It's not just a sexual orientation, and he will always be approaching a gender limit.
30 years ago when SNL was funny, they had a skit about "Lyle -- the Effeminate Heterosexual"
Probably would be a hate crime today, but it always reminded me of Richard Simmons.
Wait, I thought each of us were allowed to pick our own gender and that it was cruel and all sorts of bad for the rest of us to not accept -- with a straight face --
whatever gender was selected. So, if Simmons claims he isn't transitioning, wasn't the National Enquirer wrong to claim that he was? Not because its bade to be a tranny but because its bad publicly question someone's chosen gender identity -- which is what the Enquirer did whether Simmons is transitioning or not. In today's world, he (she, xur, etc.) gets to decide what gender identity the rest of us should us when referring to Simmons.
Simmons could have a sex-change operation, but still identify as a male -- just one in a female body. What's wrong with that?
Anybody know what is the California court rule or statute that permits the award of attorney fees in this case?
Why does someone wait to become 69-years-of-age before mutilating their genitals?
There is something similar in New York now. Saying someone is gay is not defamatory.
"The judge dismissed the lawsuit last year on the ground that it doesn't necessarily hurt one's reputation to be known as transgender..."
What a bunch of bullshit. It may not hurt Richard Simmons reputation...the dude is a freak either way. Transgender people are nuts.
Chuck
You are the laziest lawyer ever. Look it up yourself.
You want to be spoon fed
Well, hell yes, he should appeal!!!
I'm long past surprised of the tyranny of the dictatorship of relativism, where not only is wrong to object to those who say that what is false is true, it is frivolous and worthy of condemnation.
Even if an accusation of being transgender isn't libelous--which seems wrong to me--the accusation that one is hiding one's gender identity and acting hypocritically does seem libelous. California judges, boy howdy!
I'm not yet sure if I would be surprised if the appellate court did not immediately reverse since what is defamatory is a question of fact for the jury, who also determines the degree to which it is damaging. It might cause someone to lose out only only dollar if someone says he is "transgender," but that is for the jury to decide, not some ideological thug judge.
Chuck, it’s the California Code of Civil Procedure §1032 which states that “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”
Anybody know what is the California court rule or statute that permits the award of attorney fees in this case?
Don't need to look it up. Rule 11 of the court rules, or whatever the equivalent is in that jurisdiction, which allows for sanctions, such as attorney's fees, for bringing a frivolous claim that is manifestly without justification in fact and/or law.
Note - costs and attorney's fees are two different things.
I predict shark jumping in the next summer olympics.
I thought they wanted to be Loud & Proud.
Public disclosure.
Private facts.
So if I call a tranny a man, I can't be sued for defamation either?
Gender is now absolutely subjective, but honor is in the eye of the beholding judge.
If someone accused me of being transgendered, I would consider myself defamed.
Why does someone wait to become 69-years-of-age before mutilating their genitals?
That's about how old Bruce Jenner is...so he waited until he was in his mid 60's.
If someone accused me of being transgendered, I would consider myself defamed
I imagine in Red States that would be considered "fighting words".
Simmons is lucky the judge didn't charge him with a hate crime.
Wow. I thought my question was a simple one; I imagine it would be, not merely for a California attorney but even just someone who had access to a .pdf of the decision, which would cite the applicable provision(s).
Instead, I get "mccullogh" telling me to "look it up myself."
Then, a perfectly good and well-meaning response from Thorley Winston, citing to the California state code section that awards "costs" to the prevailing party. Most states have those. Problem is, I don't think this was just "costs" with Richard Simmons. Wasn't it attorney fees as well? And attorney fees are very much distinct from "costs." At least they are in the jurisdictions I'm familiar with. I don't know, maybe this litigation was so grueling and costly that perhaps the $130,000 was indeed nothing more than statutory "costs." (And the "fees" were a multiple of that?) But wow; usually they are limited to filing fees, witness (non-expert) fees, etc.
Then Mark asserted that nobody needs to look it up because it is whatever the California version of FRCP Rule 11. That is the court rule for civil procedure in federal courts wherein an attorney or a party who signs a pleading in bad faith or with knowledge of the document's false claim(s) can be punished by having to pay the other side's attorney fees in having to respond to that pleading.
But it is a rule that is rather rarely enforced, and it is usually enforced against attorneys who knowingly abuse procedural means. It is rarer that clients get hit with Rule 11 sanctions, and the Rule is not a catch-all for frivolous claims although some would like it to be so.
Well, I got pissed of enough that I did some looking and found a newly-posted .pdf of the decision.
So, mccullough, I did what you suggested.
And no, as I expected this was not a Sec. 1032 cost-shifting claim.
And while sort of similar, this was not exactly a California court rule equivalent of Rule 11.
Per the order, it was a different statute, not a court rule, with special sanctions allowed for "a special motion to strike" under Code Civ. Proc. section 425.16, subd. (c).
https://www.scribd.com/document/357656566/Richard-Simmons-v-the-National-Enquirer
So now I answered my own question.
He should be proud of it. Howard is.
so someone in court could call this judge a transgender, and the judge Wouldn't charge him with contempt of court? I mean, it's not defamatory, right?
I'm trying to decide if I'm surprised...
That sounds like a question that answers itself, but it is not, of course.
The Zen answer would be, "Where is this thought? What knows all of this?"
Good job Chuck.
Ask not what we can do for you. Ask what you can do for us.
You too are a jelly donut.
Gilbar,
It’s not defemation in Los Angeles County Court.
Simmons should have sued the Enquirer in North Dakota.
First thing you learn in law school. How to forum shop. You don’t need to be a good lawyer. You just need the right judge.
“Judge’s have to toe the SJW line.”
“Since Simmons is a public figure, he will need to prove that the statement was published with a reckless disregard of the truth. But the National Review seems to be suggesting that the statement isn't even defamatory, that is, it doesn't harm his reputation. I notice the difficulty — if one wants to maintain pro-transgender values — of arguing that it hurts one's reputation to be known to have had what the NYT calls "a sex change."” (Ann’s previous post)
I don’t think that you can say, per se, that claiming that someone is transitioning is, or is not, defamatory. Which takes it out of defamation per se, and requiring, I think, proving that that reputation actually had been harmed. I think that you could come up with people on either side of that. For example, claiming that Trump was transitioning might well be defamatory, but for a drag queen, probably not. Which essentially places the burden of proving the harm to reputation on the plaintiff. Without, of course, getting into the Actual Malice requirement for public figures like Simmons.
I think that the point of taking the SJW line is that you really can’t have defamation per se, if the behavior is acceptable, if not even exalted by a significant portion of the (better thinking) populace. Defamation per se was limited to claims about someone that most would find defamatory. Thus, at one time claiming that a woman engaged in unchaste behavior was defamation per se, because most everyone agreed that such, if proven, would greatly damage her reputation. But then, unchaste behaviour became rather common with women, and even exulted by some celebrities, and the mere allegation of such no longer, if proven false, was sufficient to prove defamation. Rather actual harm to reputation was also required. For example, Chelsea Handler, with several books to her name extolling her promiscuous behavior, couldnt just claim that she had been defamed by falsely having been accused of sleeping with someone, except, maybe if it had been Trump.
Well, I got pissed of enough
You know what Chuck? Go fuck yourself, you ungrateful piece of shit. You had people answering your question in good faith, treating you like a normal person. But you prove yourself once again to be an asshole.
No, not "good job." Go back to whatever hole you crawled out of (which most likely is your own ass).
I'm surprised Doc. I fingered you would grace us with another one of your 6-degrees of Kevin Bacon relationship stories giving us the inside scoop on the foibles and personality of famous Angeleno Richard "Still Rockin Dolfin Shorts" Simmons.
I have had people in journalism tell me that National Enquirer employees very good lawyers and fact-checks everything.
They published that he was crazy, and that's not defamatory?
Bottom line, lawyers are expensive in Hollywood.
California recognizes the tort of "false light" publicity. The critical element Is "offensiveness". I'm surprised Simmons didn't add a count for false light based on the implications of wanting to change his sex surgically.
California recognizes "false light" claims. False light is about false implications of fact. In other words, false light is more about the impression created by the publication rather than its veracity. False light may be more appropriate than a claim for defamation in cases where there is no direct false statement, but there is at least a publication of information that leaves a false impression that would be highly offensive to a reasonable person.
False light in California is different from defamation. While defamation concerns statements that are actually false, false light is about false implications. The difference between defamation and false light can be illustrated by Gill v. Curtis Publ'g Co., 239 P.2d 630 (Cal. 1952), the case that established false light in California.
In Solano v. Playgirl Magazine (9 th Cir. 2002) 292 F.3d 1078, the plaintiff celebrity was featured on the cover of Playgirl Magazine, which typically contained sexually suggestive nude pictures of men. The 9 th Circuit held that the cover, which featured the celebrity’s bare-chest photograph and various suggestive headlines, would falsely imply that he voluntarily posed for and appeared nude inside the magazine.
In Gill, the "Ladies Home Journal" published an article criticizing "love at first sight" as being based on nothing more than sexual attraction. The author said such love was "wrong" and would lead to divorce. The article featured a photo of a couple, with the caption, "[p]ublicized as glamorous, desirable, 'love at first sight' is a bad risk." The couple, who did not know the photo had been taken, sued. Although the journal did not actually say the couple was engaged in the "wrong" kind of love, the implication was clearly there. The couple won by proving the magazine created a false impression of them...
Offensiveness
For the plaintiff to win, the statement must do more than create a false impression. The false impression that is created must be "highly offensive to a reasonable person." Fellow v. Nat'l Enquirer, Inc., 32 Cal. 3d 234, 238, 13 Media L. Rep. 1305 (Cal. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.
If a Judge ruled himself, then that was a Summary Judgement or a Motion to Dismiss For Failure to State a Claim.Either way, it will be over turned since it is a Jury question of fact. The Judge gets a reelection, and the entire Appeals Court takes the heat unless they are all afraid of hard cases.
Howard said...
I'm surprised Doc. I fingered you would grace us with another one of your 6-degrees of Kevin Bacon relationship stories giving us the inside scoop on the foibles and personality of famous Angeleno Richard "Still Rockin Dolfin Shorts" Simmons.
3/14/18, 7:06 PM
Oh go do your laundry Howard, I love is Old K Stories.
Judge needs to rule based on the present universe that actually exists, not the universe the judge wishes would come into existence.
Why does this interest you?
Why does it interest anyone?
Is there nothing more interesting?
Yeah, yeah, this is a "pop culture blog".
Jupiter said...
They published that he was crazy, and that's not defamatory?
The judge was virtue signalling. And wrong.
Excellent point:
>You don’t need to be a good lawyer. You just need the right judge.
It’s a shame you often can tell how a judge will rule, depending on whom appointed them.
Simmons should appeal the judgment on the grounds that the "transition" National Enquirer reported is biologically impossible.
Freeman Hunt wrote: Judge needs to rule based on the present universe that actually exists, not the universe the judge wishes would come into existence.
Magical thinking knows no bounds. It won't be too long before matters of witchcraft return to the courts.
So, if a major national newspaper or magazine printed stories that Hillary Clinton was or has transitioned that would be okay? Of course, in the case of the politician formerly known HRC, it may actually enhance his/her reputation with the Democrat base.
It's no longer defamatory to be called a son of a bitch. Some day it will be grounds for a lawsuit if you don't thus address someone who identifies as a son and whose mother, of whichever of the many possible sexes, identifies as a bitch.
'"Yeah, yeah, this is a "pop culture blog".'
No, the topic is a lawsuit. That it also falls into the pop culture category is only coincidental.
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