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So Much For The Home Court Advantage

Aug 26, 2013

Scottie Pippen, a 6 time NBA champion with the Chicago Bulls may have been surprised to find himself a loser recently in a Chicago court. Certainly didn’t happen much back in the day. But this was not basketball court – it was the United States Court of Appeals for the Seventh Circuit. No dunking allowed.

Pippen brought a defamation suit against a number of media outlets for reporting that he’d declared bankruptcy. Although he’d suffered some financial reversals following his playing career, he’d never filed for bankruptcy. The trial court granted the defendants motion to dismiss, finding that Pippen failed to establish any harm from the reports, and moreover, that Pippen failed to establish that the reports were published with “actual malice.” 

The appellate court affirmed.  And in the process, the court made some interesting findings. First, Pippen contended that the false bankruptcy report was so innately damaging to his reputation that it constituted “defamation per se.” Certain types of statements fall in to the per se category. And if a defamation plaintiff can establish that a statement does constitute per se defamation, he need not prove actual damages flowing from the report.  The jury may simply award a sum of money that in its approximates the damage to the plaintiff’s reputation.   

Pippen argued that the false bankruptcy reports were per se defamation because they suggested that he could not competently perform his job, and/or that they injured him in the pursuit of his trade or profession.  In the court’s view, however, the comments did not affect Pippen in the way he contended.  According to the court, Pippen’s post playing jobs were “goodwill ambassador” for the Bulls, color commentator, and celebrity product endorser. A report that Pippen declared personal bankruptcy does not imply that he is incompetent at any of those tasks. The appellate court agreed that Pippen failed to establish per se defamation. 

The appellate court also agreed with the trial court that Pippen failed to establish “actual malice.” A public figure who files a defamation suit needs to show not only that the report was false, but that it was reported with “actual malice.” And actual malice has nothing to do with whether the reporter dislikes the subject, but rather, whether the reporter knew or had reason to know the report was false. Pippen argued that the folks who reported on his bankruptcy could have easily confirmed the story by checking the federal dockets. That is a simple chore, since all of the federal courts are part of the Pacer system – a searchable computerized system.

But the United States Supreme Court has ruled on several occasions that a failure to investigate is not actual malice. Even if that failure would constitute negligence. 

Pippen tried to argue that various defendants failed to retract the statement after he proved to them that he’d never filed for bankruptcy. But again, precedent has established that a failure to retract cannot create actual malice. The reporter’s state of mind at the time of publication is all that matters. In addition, courts recognize the “single publication rule.” According to that rule of law, a report is published once – the first time it runs, no matter how many times it is re-published or how long it remains on a Web site. 

Pippen argued that the single publication rule should not apply to a Web site. According to Pippen, the reason for the rule’s adoption – that it would be impossible to recover all of the printed copies and correct them – does not apply to a Web site, where the content can be adjusted with a mouse click. But the Court rejected that argument, much like Pippen himself rejected shot attempts. Pippen brought his case under Illinois common law, but no Illinois court had considered the question of whether the single publication rule applied to the Internet. In that circumstance, the federal court must predict how the Illinois Supreme Court would decide the issue. Noting that every state court that had considered the question ruled that the single publication would apply to the Internet, as well as the fact that every federal court that had addressed the topic agreed,  the Seventh Circuit ruled that the single publication rule would apply to Internet publications.  Citing a New York decision, the Seventh Circuit agreed that the Internet’s greater reach means that, absent the single publication rule, Web site operators would face even greater potential for endless retriggering of statute of limitations, multiplicity of suits and harassment of defendants.

From the view of one who defends defamation suits, the Seventh Circuit got it right here –even if that means a tough break for a truly great player. 

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