Writ Questions

Supreme Court Petition 19-6442

Untitled 7

Question # 1

In Gertz v. Robert Welch, Inc (1974), the U.S. Supreme Court determined that the plaintiff, a lawyer tangentially involved in the prosecution of a policeman, was not a limited purpose public figure in connection with the controversy surrounding the prosecution because he had not “thrust himself into the vortex of [a] public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” 418 U.S. at 352, 94 S.Ct. 2997. The public figure status of a person in a libel case is to be determined by focusing on the “nature and extent of an individual’s participation in the controversy giving rise to the [alleged] defamation.” 443 U.S. at 167 (citing Gertz).”

As articulated by the Second Circuit, a limited purpose public figure is someone who has: (i) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of the litigation (ii) voluntarily injected himself into a public controversy related to the subject of the litigation; (iii) assumed a position of prominence in the public controversy; and (iv) maintained regular and continuing access to the media. Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612, 617 (2d Cir.1988), citing Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123, 136–37 (2d Cir.1984).

Whether the petitioner, an unknown musician and independent filmmaker (NPR stated: “Nobody’s ever heard of this guy.”), who fails to meet the requirements for a limited purpose public figure under Gertz and the line of cases that consistently require “affirmative steps,” “purposeful activity,” “voluntary” injection, or “invit[ing] public attention” See James, 40 N.Y.2d at 423, 386 N.Y.S.2d 871, 353 N.E.2d 834; Lerman, 745 F.2d at 136–37; Contemporary Mission, 842 F.2d at 617; Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 588–89 (1st Cir.1980), who did not “thrust himself into the vortex of [a] public issue, nor did he engage the public’s attention in an attempt to influence its outcome,” nor did he “voluntarily injected himself into a public controversy related to the subject of the litigation,” nor did he “maintained regular and continuing access to the media (1),” can be considered a limited purpose public figure in connection with a matter public concern, when he had no participation in the matter other than recording the album in 1989.

Important information to consider: The Supreme Court still has to decide if they considered the cancellation of a record album on Discogs a matter of public concern.
(1) Neither National Public Radio contacted (prior to the news or after) the petitioner to give him the chance to reply and defend himself, nor did any other media outlet offer him a platform to counteract the allegations against him.

Question # 2

“In Time, Inc. v. Firestone, 424 U.S. 448, 458, 96 S.Ct. 958, 967, 47 L.Ed.2d 154 (1976), the Supreme Court rejected the equation of “public controversy” with all disputes of interest to the public. Mere newsworthiness, it stated, is not sufficient to create a public controversy. See Wolston v. Readers Digest, 443 U.S. at 167-68, 99 S.Ct. at 2707-08. In Avins v. White, 627 F.2d at 647, we cited with approval the District of Columbia Circuit’s definition that a public controversy “must be a real dispute, the outcome of which affects the general public or some segment of it.” Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C.Cir.), cert. denied,449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). To be “public,” the dispute must affect more than its immediate participants.

Public Interest: is a common concern among citizens in the management and affairs of local, state, and national government, affecting the rights, health, or finances of the public at large. It does not mean mere curiosity. Public Controversy: is a state of long term dispute or debate, generally about a topic that affects a large proportion of the public, that creates conflicting opinion.

Considering that NPR was the only major media outlet that covered this piece of news (the cancellation of the sale of a record album (that happened 3 months before) in Discogs), which proves that this was not even a case of newsworthiness; considering that there was no “real dispute” and no “debate,” considering that it didn’t affect the general public, and considering the test developed by Chief Justice John G. Roberts (3)

(3) Considered a landmark case, Snyder v. Phelps, 562 U.S. 443 (2011) “matters of public concern” were finally addressed by the Supreme Court voting an 8-1 ruling in favor of Phelps, several tests were framed by Chief Justice John G. Roberts that were major factors that helped the Justices make their decision regarding what should be considered “a matter of public concern.” Chief Justice’s three variables were required to consider (1) content of the speech; (2) form of the speech; and (3) context of the speech. The Court made it clear that consideration of these factors is mandatory, not simply suggested or recommended, also emphasizing that “[i]n considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” Chief Justice Roberts’s reasoning squares solidly with that of the Court’s interpretation of a message’s meaning in obscenity cases, under which “the First Amendment requires that redeeming value be judged by considering the work as a whole.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 248 (2002) Chief Justice John G. Roberts also framed a disjunctive test to

determine whether a statement relates to a matter of public concern, stating that a statement related to a matter of public concern if:(1) the statement related “to any matter of political, social, or other concern to the community,” or (2) the statement related to “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Finally to determine if the WBC’s speech was about a matter of public or private concern, Chief Justice Roberts made it clear that the inquiry must be highly fact specific, taking into account “all the circumstances of the case,” with the lone exception of whether the speech is inappropriate or controversial in character.

Question A) Whether the news regarding the cancellation of a record album sale on the website Discogs can be considered a matter of public concern/public controversy.

In Buller v. Pulitzer Publishing Co., a reporter sought the services of a professional psychic and then published an article portraying her as a fraud, or at least as a joke. The Missouri court of appeals considered that the woman’s psychic abilities and the nature of her consultation with clients was a private matter; and the disclosure was offensive because she was depicted as doing her work in an unprofessional manner. But most importantly, the court found that her consultation with clients were not of legitimate public concern. Unless she was accused of a crime, or predicted world disaster, there was nothing newsworthy about her work.

The official statement in the press release that Discogs sent to NPR specifically reported that the sale of the 301 Jackson St. record album had been cancelled. Discogs never accused Billy Yeager. Discogs stated that the seller and the buyer of the album were located in 2 different states and had different IP addresses.

Question B) Considering NPR’s story was a news article (not an opinion column) written by a reporter (not an opinion columnist) specifically addressing a ‘brief statement’ sent to NPR by Discogs (the cancellation of the sale of the record album), in the case of a petitioner that is considered an involuntarily limited-purpose public figure (even if this ‘brief statement’ was considered a matter of public concern), whether defamatory falsehoods referring to his life (misrepresenting his career, his motivation and purpose in his life and in his work, his private thoughts and feelings), which the lower courts considered were statements of opinion, be protected by the First Amendment, when the petitioner was not a person of “public interest” (in NPR’s own words “a complete unknown”) and the statements of opinion were unnecessary to report the news (the cancellation of the sale of the record album) communicated by Discogs, and were of no legitimate public concern.

410 U.S. 113 (1973) The central court decision that created current abortion law in the U.S. is Roe v. Wade. The Ninth Amendment not only has been stretched to encompass privacy, liberty, and a woman’s reproductive choices.

The Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people. The Supreme Court said in the 1977 case of Moore v. East Cleveland that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation’s history and tradition.”

The early years in the development of privacy rights began with English common law Those rights expanded to include a “recognition of man’s spiritual nature, of his feelings and his intellect.” The “natural rights” theory is based largely on the word “retained” in the Ninth Amendment.

Question C) Whether NPR’s article was a complete violation of the Ninth Amendment and Tenth Amendments invading my rights to personal privacy when addressing my wife “Anais” in their article, and including personal information about how and why we were married, and my private thoughts (“motives” “motivation” “ambitions” “intent”) in a story that was about the “sale of a record album”?

Question D) Whether the district court of Kansas err in holding that all the defamatory claims presented by the petitioner regarded a ‘matter of public concern’ and that the petitioner, an ‘involuntarily limited-purpose public figure,’ had to prove actual malice for all of the defamatory claims.

Question # 3

Justice Stewart: While some risk of exposure “is a concomitant of life in a civilized community,” Time, Inc. v. Hill, 385 U.S. 374 388 (1967), the private citizen does not bargain for defamatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation. It is a fallacy … to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not … The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system. Rosenblatt v. Baer, supra, at 92 (STEWART, J., concurring).

Justice White’s comment to Justice Stewart’s statement above: His remarks indicated his uneasiness with application of the New York Times standard to defamation of private persons: “That rule should not be applied except where a State’s law of defamation has been unconstitutionally converted into a law of seditious libel. The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars.” 383 U.S. , at 93.

In agreement with Justice Stewart and Justice White, and quoting some of Justice White’s opinions (for I cannot express this better than him), with gratitude for their contribution and their willingness to fight for the rights of the private individual that has been defamed, I respectfully ask this court:

Question A) Were there sufficient grounds for the Supreme Court (in New York Times v. Sullivan and its progeny, including Gertz v. Welch) to, contrary to history and precedent, abolish/retool the common law of libel, jettison the settled law of the States, consequently depriving the States of the opportunity to experiment with different methods for guarding against abuses, and depriving the private citizen of his ‘historic recourse’ to redress published falsehoods damaging to character and reputation; leaving ordinary citizens (such as the petitioner) with no chance to even have a trial or declaratory judgement to vindicate their reputation, regardless of whether they can or can’t recover damages?

Question B) Whether the Court “has gone too far” in protecting the First Amendment rights of the media above the rights of the individual (whether characterized as a right

of privacy or the common law right not to be defamed / 9th amendment or 10th amendment) who may be permanently damaged or quite literally destroyed by the powerful news media.

Whether an ‘involuntarily limited-purpose public figure,’ who was falsely accused of perpetrating a dishonest act based on dishonest motives without proof; who had no chance to defend himself on any media platform; who proved negligence, actual malice, damage to reputation, work, and health; should be able to have a trial/declaratory judgement, regardless of whether he is or not able to recover monetary damages (not just to prove that the damaging publication was false and to redress his reputation, but to let the public know the truth about the petitioner and his wife’s purpose and work).

Question # 4

From the founding of the Nation until 1964, the law of defamation was “almost exclusively the business of state courts and legislatures.” Gertz, supra, at 369– 370 (White, J., dissenting). But beginning with New York Times, the Court “federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States.” Gertz, supra, at 370. These decisions made little effort to ground their holdings in the original meaning of the Constitution. The Court took it upon itself “to define the proper accommodation between” two competing interests —“the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, 418 U. S., at 325 (majority opinion).

Although the Court held that its newly minted actual-malice rule was “required by the First and Fourteenth Amendments,” id., at 283, it made no attempt to base that rule on the original under-standing of those provisions. New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.” Dun & Bradstreet, 472 U. S., at 766 (White, J., concurring in judgment). The Court promptly expanded the actual-malice rule to all defamed “‘public figures,’” Curtis Publishing Co. v. Butts, 388 U. S. 130, 134 (1967), which it defined to include private persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved,” Gertz, supra, at 345.

The Court also extended the actual-malice rule to criminal libel prosecutions, Garrison v. Louisiana, 379 U. S. 64 (1964), and even restricted the situations in which private figures could recover for defamation against media defendants, Gertz, supra, at 347, 349; Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986).

None of these decisions made a sustained effort to ground their holdings in the Constitution’s original mean-ing. As the Court itself acknowledged, “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication.” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501–502 (1984).

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times,

supra, at 279).

We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we. Justice Clarence Thomas February 19, 2019 McKee v. Cosby No. 17–1542

The Supremacy Clause says “[t]his Constitution” is the “supreme law of the land.” The Constitution therefore is the fundamental law of the United States. Federal statutes are the law of the land only when they are “made in pursuance” of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void.

The federal judicial power extends to all cases “arising under this Constitution.” As part of their inherent duty to determine the law, the federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution.

All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.

In the words of Justice Clarence Thomas (Concurring opinion in McKee v. Cosby) the petitioner asks:

Question A) Whether either the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard for public figures or otherwise displaces vast swaths of state defamation law; more so considering the respondent receives funds from the government.

“In controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and to remain sacred and inviolable.” George Mason

Question B) Does either the First or Fourteenth Amendment, as originally understood, encompass an actual malice standard for private individuals that were involuntarily thrust into a controversy but had no participation in it (involuntarily limited purpose public figures) or otherwise displaces vast swaths of state defamation law; and if the purpose of libel law is to provide an individual with a via to defend his reputation, character and rights, but instead the present laws have rendered it impossible for the petitioner to defend himself, not being even able to have the chance to have a judgement that allows the falsity of a statement be publicly known (whether he can or can’t recover damages); isn’t this wrong, unjust, cruel, an unconstitutional act, a violation of the constitutional rights of the petitioner (9th and 10th Amendments)?

Question C) Whether either the First or Fourteenth Amendment, as originally understood, encompass a negligence standard for private figures (involuntarily limited purpose public figures) to prevail in their defamation claim.

Question # 5

Excerpts from the Supreme Court of the state of Kansas decision in Marshall Dominguez v. Paul Davidson: One who gives to another publicity which places him or her before the public in a false light of a kind highly offensive to a reasonable person, is subject to liability to the other for invasion of his privacy. False light invasion of privacy is one of four types of invasion of privacy and the elements of the false light type are: (1) publication of some kind must be made to a third party; (2) the publication must falsely represent the person; and (3) that representation must be highly offensive to a reasonable person.

A false light privacy action differs from a defamation action in that the injury in privacy actions is mental distress from having been exposed to public view, while the injury in defamation actions is damage to reputation. Truth and privilege are defenses available in both causes of action.

Whether a news article and broadcast, both containing numerous defamatory falsehoods and highly offensive falsehoods that damaged the reputation of the petitioner (an involuntarily limited-purpose figure) and his health, including great mental distress (factual evidence proves this), and as a whole, the article and the broadcast, on its face, indefeasibly represents an attack on the character and reputation of the petitioner and represent the petitioner in a false light that is highly offensive to a reasonable person (including misrepresentation of private matters such as his character, work and life), if factual evidence proves extreme negligence and actual malice, is it within the constitution for the court to dismiss the claim for defamation and false light and not present the question to the jury or even a trial court?

Question # 6

The first amendment protects individuals’ free speech rights from government infringement. Although the first amendment’s language refers only to Congress–“Congress shall make no law . . . abridging the freedom of speech, or of the press” the amendment has been interpreted to protect those rights from infringement by federal agencies, and state and municipal governments. Thus, in order to invoke the first amendment’s protection, a plaintiff must first demonstrate sufficient federal, state, or municipal government involvement (“state action”) in the infringing conduct. Courts must assess the sufficiency of government involvement by examining the facts and circumstances linking the government to an alleged First Amendment violation. Id. at 146 (White, J., concurring)

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), was a United States Supreme Court case that considered the application of the Equal Protection Clause on a private business that operates in close relationship to a government to the point that it becomes a “state actor.” Archibald Cox proved to the Court that the fact that the business was a state lessee as well as franchisee, was located in a parking complex developed by the state to promote business, and that the complex flew a Delaware flag in front of the building, all rendered the state a “joint participant” with the restaurant, sufficient to invoke the Fourteenth Amendment. The Court agreed. The Burton case broadened the reach of the Equal Protection Clause to include not only direct government action, but also actions by private companies acting in close relationship to a government agency.

Question A) Whether there are sufficient facts to render the United States Government a joint participant with NPR, and to invoke the First and 14th amendments.

The petitioner’s work, reputation, mission, future and health have been damaged because of the defamatory statements published and broadcasted by National Public Radio.

Pursuant to the due process clause in the Fifth and Fourteenth Amendment, government entities, including state and federal agencies, must follow certain procedures before taking action that affects an individual’s life, liberty, or property. Those procedures allow an individual the opportunity to be heard and thereby influence the outcome of the government’s action.

Question B) If the government is a joint participant with NPR, and the petitioner was stripped of what he had worked for (40 year career), and he was denied the chance to express himself freely and defend himself, wasn’t his First and 14th (due process) Amendments violated, and must not the court protect his rights?

In United States law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating certain rights and freedoms. If the government merely enters into a contract with an individual or organization for the goods or services, the actions of the private party are not state action, but if the government and the private party enter into a “joint enterprise” or a “symbiotic relationship” with each other it is state action (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961.)

Question C) Whether NPR / a journalist working for NPR is considered to be acting on behalf of a governmental body (state actor), thereby making the United States Government a joint participant in a libel case when NPR libels/slanders a private citizen.

Question # 7

The Supreme Court in accommodating government regulation of broadcasters, emphasizes the right of viewers and listeners to receive ideas. In determining the contours of this right, the Supreme Court sometimes has restricted broadcasters ‘traditional free press rights.’ The Supreme Court has examined only a few FCC fairness doctrine rulings and, in all cases, has upheld them on constitutional grounds. See, e.g., id. at 375 (fairness doctrine requires free reply time for personal attacks and reasonable response time for political editorializing); Columbia Broadcasting Syi, 412 U.S. at 123 (upholding FCC determination that fairness doctrine does not require right of access for editorial advertisements).

[1]In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8-0) the constitutionality of the fairness doctrine in a case of an on-air personal attack, in response to challenges that the doctrine violated the First Amendment to the U.S. Constitution. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others…. In Red Lion, the Supreme Court stated that “[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than countenance monopolization of that market, whether it is by the Government itself or a private licensee.” The Court went on to say that it was consistent with this First Amendment purpose for the Commission “to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues.”

Justice White concluded in Red Lion Broadcasting v. FCC: “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”

The Supreme Court in FCC v. League of Women Voters identified this paramount right as “the public’s First Amendment interest in receiving a balanced presentation on diverse matters of public con-cern.” By choosing this phrase, the Court captured the idea that the public’s free speech interest in broadcasting is a collective right.

As the court had suggested previously in the Red Lion case: “[T]he people as a whole retain their interest in free speech by radio [and television] and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.”

Thus, in the Supreme Court’s attempts to sort out the various first amendment

interests at stake-the broadcasters’ and the public’s interests-the Court has settled on protecting the public’s interest primarily as a collective right of access to a variety of ideas, rather than a right of individual access or individual determination of program content.

And limited as this collective right may be, the public continues to retain it even though individual free speech interests in broadcasting largely have been relinquished by legislative decision to a government-regulated industry.

The Supreme Court, in the context of broadcast regulations, has pointed to this theory as a justification for FCC regulation protecting the public’s collective right of access: [Because it] is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, …the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences [through the medium of broadcasting] is crucial here

[and it]

may not constitutionally be abridged.

Question: Considering the Supreme Court reasons for their ruling in Red Lion, considering the reasons for which the ‘Fairness doctrine’ was required such as the “discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage,” considering the reasons why these rules were created by the FCC (including “equal time” rule and a “response to personal attack” rule) such as “the broadcasting spectrum is limited and; there are only so many spaces available in any geographic area, thus anyone who is fortunate enough to obtain a license to use public airwaves must serve the public interests,” considering that National Public Radio is partially governmentally funded, and considering the case of the petitioner, a private citizen who “has no access to any other broadcasting or media platform to defend themselves from the attacks on their character and

reputations” (such as in this case), isn’t it unconstitutional (and inconsistent with the public’s right / the rights of the viewers and listeners) to not impose a fiduciary duty on the licensee to be required to contact the person that is being attacked not only to provide him with a chance to reply on the air and to the story (in accordance with his individual rights granted to him by the constitution and his natural rights given to every human being by our creator) to defend his reputation, but to present the public with all points of view?

In other words, whether the removal of the Fairness Doctrine/personal attack rule by an “administrative law” is unconstitutional (infringes upon the petitioner and the public’s right to “freedom of speech”) in the case of an attack on a private citizen on the air- waves on National Public Radio.

Question # 8

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Question A) Whether the Petitioner’s First Amendment rights were violated by “viewpoint discrimination” when National Public Radio issued ‘prior restraint/ censorship’ on the petitioner when NPR’s in-house general counsel stated that they would “decline” to publish the petitioner’s reply/viewpoint if they considered that his reply/viewpoint “might create liability” or “not serve their audience,” which represents subjecting the petitioner under ‘restrictions/conditions’ that would abridge the petitioner’s Freedom of Speech.

Question B) Whether the Constitution and Bill of Rights grant the First Amendment clause ‘Freedom of Press’ precedence over the First Amendment clause “Freedom of Speech” allowing the media the right to be able to issue prior restraint and censorship on the subjects of their reports and broadcasts?

Question # 9

This 2 part question addresses the alternative grounds for which the court of appeals for the 10th circuit stated the petitioner could not succeed on appeal.

Question A) In the case of a petitioner that is an involuntarily limited-purpose public figure, whether a defamatory statement of opinion in a news article is protected if it can be proven with factual evidence that this statement is false; that it was made with negligence and actual malice; and also that the facts on which the reporter is basing his opinion are false, defamatory, and were published/republished with actual malice/ negligence.

Question B) Whether the court of appeals committed an outlandish error dismissing the petitioner’s case based on ‘alternative grounds’ considering that the court stated the petitioner “may have preserved his argument as to whether Mr. Flanagan made the “purposeless obfuscation” statement with actual malice” and that the ‘disclosed facts’ on which the defamatory claim stating that the petitioner’s life is “one of purposeless obfuscation” are the same that the ‘disclosed facts’ on which the ‘alternative grounds’ are based, and all these ‘disclosed facts’ are false, defamatory and made with actual malice / negligence?

Question # 10:

This question also addresses the alternative grounds for which the court of appeals for the 10th circuit stated the petitioner could not succeed on appeal.

Question A) Whether (in a news article and broadcast) a ‘statement of fact couched as an opinion’ that asserts a matter of objective fact that can be proven true or false (that accuses the petitioner of perpetrating a dishonest action/activity), which can be proved with factual evidence and sworn witnesses to be false; to have been distributed all over the world; to have injured the petitioner (discredited him, destroyed his reputation as an honest person and a serious artist, misrepresented his work, his career, diminished the esteem and confidence in which he was held prior to the defamatory article and broadcast); to have been published and broadcast in violation of the code of rules, ethics and standards of NPR (and the American society of journalism); to have been published and broadcast with actual malice (knowledge of falsity or reckless disregard for the truth regarding defamatory information being published or broadcast); and for which all the disclosed facts can be proven to be defamatory and made with negligence and actual malice; can be considered non-defamatory.

Question B) Whether the district court err stating this ‘statement of fact couched as an opinion’ (accusing the petitioner of perpetrating a dishonest action/activity) was not defamatory even if it was false.

(Note 1: The ‘statement of fact couched as an opinion’ addressed in this question was not stated in any way that would mean the journalist didn’t seriously mean it; the statement was made in an assertive manner and it was repeated several times in the article clearly accusing Billy Yeager of having acted with dishonesty.

(Considering also that according to Gertz the petitioner, as an involuntarily limited-purpose public figure, doesn’t have to prove actual malice, the sentence before the last sentence in the question above (that can be proven with factual evidence to have been published and broadcast in violation of the code of rules, ethics and standards of NPR (and the American society of journalism)) becomes significantly important as ‘proof of negligence,’ which, according to the present libel law, would become the burden of proof (threshold for liability) that the petitioner would have to meet instead of the actual malice requirement.)

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