Lively v. Baldoni 20 - Baldoni v. NYT v. Sullivan

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:01 Clip: All rise. Court is now in session. Court is reconvened. I may be seated. Maintain order. The federal rise to face the jury and harken to its verdicts.

0:00:26 Thomas: Hello and welcome to Gavel Gavel. This is, or don't I, didn't we try, didn' I try, wasn't there a brief phase where I thought maybe I'll do a different thing for the intro? It's so hard to go in. Yeah, it's so hard to get into show. I think nowadays, you know, this is like how all my texts are with full punctuation and capitalization. I think modern podcasts, first of all, they're TikToks.

0:00:33 Lydia: Yeah. Calling all gavel heads.

0:00:49 Thomas: Secondly, they just start in something, you know, usually or something.

0:00:49 Lydia: Oh, yeah. It's usually like laughing about something that happened before we were there. Like, oh,

0:00:58 Thomas: It'll be like music sting after we went to the thing. You know, it'd be like some, but they're also like more.

0:01:02 Lydia: I'm thinking like Amy Poehler show. Maybe that's why it's like, okay. Yeah, she is the best.

0:01:04 Thomas: I haven't listened to that, but that sounds delightful because she's the best. Anyway. Hi, I'm Thomas. Having intro'd the show, I can now say I'm Tomas. Yeah. Listen to that instead.

0:01:11 Lydia: And having intro to Amy Poehler show as well, apparently.

0:01:16 Thomas: And this over there is a traitor to our podcast is sending you to other shows. Lydia Smith. How you doing?

0:01:20 Lydia: Okay, but it's Amy Poehler. Come on. Hello. Hi. I'm good.

0:01:24 Thomas: It's true. If she wants to steal our livelihood, I am actually fine with that. Whatever. It's like, all right.

0:01:27 Lydia: We get it. Let me get it.

0:01:28 Thomas: So I am very excited. It's a strange world in which I'm so excited to speak to a lawyer. Um, but we are because we, yeah, no kidding. We have now finished the most annoying fucking stupid complaint I've ever read, which is not saying a whole lot.

0:01:36 Lydia: And you're a lawyer.

0:01:45 Thomas: I haven't read a ton of complaints, but it's saying something more than the average person, more than The Average Person. That's fair. And now we get to the part that's like the law part, you know, like, cause we covered the facts and now it's like, like, okay, now we're going to do these things called causes of action. And that's where they do a little bit of like legalese language. And then they say, here's specifically how those facts mean we should prevail on certain, you know, causes ofaction. And each cause ofaction, I know gavelheads probably know,

0:01:45 Lydia: I don't know. I feel like you've read more than the average person. Yeah. Yeah, yeah. Both versions. Yes. Yes, yeah,

0:02:18 Thomas: But just in case, and just in case there's some new gavelhead, you know, these causes of actions, they each stem from, well, it's interesting, depends on where you're suing. And that's going to be a whole thing that we'll get into later, because for some of these it's not clear depending on which law you end up using if all of these apply you know I think in this one they probably do but anyway point is there will be elements like for each thing there will Be elements you need to prove and lawyers look this stuff up and they're like okay if I want to prevail on defamation what are the things I have to establish to do so and then they're gonna write their complaint their facts around those things and there may be some spots in there where it's where there's breathing room like it could either be this or this but there's There's definitely elements where it's like, no, you need to prove this. And if you don't, if you haven't established this, then you might not even get past the first stages. Like if you Don't even plead things properly and you haven'T even properly alleged certain elements, then You might just get dismissed, you know,

0:03:11 Thomas: Assuming you don'T fix it or whatever. That's something where people might think so -and -so has a case here. They've been wronged and they never even got to get in front of a jury. And oftentimes you'll see that with all kinds of stuff with Trump, with like the election interference. Interference sometimes it'll be like standing issues but there are these threshold issues where if you don't do it right you can't even get past that part and that could mean that you had a case but you just had terrible lawyers or or maybe there's some technicality but in most instances it's because you don'T really have a case and people think that they should be able to be made whole on certain things but honestly sometimes it's just not how the law works and I say that because with stuff like defamation I really think we're seeing a whole lot of people on the internet it. Think that defamation means if you're super mad at what someone wrote about you, that you should be able to like sue them in some way. And just for fun, I've been like interacting with these folks on Reddit.

0:04:00 Lydia: I saw.

0:04:01 Thomas: Yeah. And it's one thing I keep saying is like, look, if you think that this is a good defamation case, like consider that tabloids exist. I think a big thing that's happened with this case is all of a sudden people make up a bunch of special rules because they've never really thought about it before. And they've been wildly swept up in some sort of coverage on either side, maybe, that can get you justifiably riled up and think, wow, this is a travesty of justice. But like, if you take a step back and look, okay, we live in a media and legal environment where you can write Hillary Clinton had a monkey baby and like you don't get sued out of existence. Like the burden is very high. And I think that's good. I think I would almost say it's a little bit too high. Like I think That Freedom of Speech in this country, if it was a a dial of zero to a hundred and, and we're pretty high up there. I would almost dial it back. But the only problem is the way people dial it Back is, is really bad. Like now it's like, well, you said something I disagree with. So I'm going to deport you. That's not, that's not dialing it back.

0:04:58 Lydia: No, no. And I think actually, too, if if people think about the Alex Jones situation with Sandy Hook and how hard that battle was to win defamation in that scenario, which was horrific. I think that can also kind of help you understand like that the standards for this are very high, that even something like that took years and a lot of lawyers. Yeah.

0:05:19 Thomas: Yeah, well. And that's a whole can of worms because he just defaulted on a bunch of like, he didn't follow, but so who knows? Like, I don't know if he could have prevailed if he did proper lawyering. I hopefully not, but yeah, but that's great example where it's like, there is some stuff where I'm like, maybe this is too harsh, but all of that aside, we can get into it with Anne of what the actual elements are of these four causes of action.

0:05:40 Thomas: And you can judge for yourself. But I don't want any of that discussion to perhaps mislead that we're nowhere near that. Like it isn't, it also isn't that like, well, but for our immense freedom of speech in this country, this would absolutely be something Baldoni could sue. It's like, no, we're not even close. Based on what we've read in the facts, I'm not the lawyer. My opinion is we'renot even close because everything that New York Times did was well within the bounds of reason. It's not even close at all. But that's why we're going to speak to a real lawyer. So my opinion may or may not matter at all, so why don't we summon? We can each hum or do some sort of chant and summon. Oh, wait, we could just call her.

0:06:14 Lydia: I know. It's a seance, yeah, that's boring though, okay.

0:06:22 Thomas: Okay, let's do the seance. We're going take a break and seance and try to get to our lawyer.

0:06:26 Lydia: Light some candles, yeah open the portal, yeah

0:06:29 Thomas: I'm so excited. It's going to be a lot of fun to actually speak to to a real working professional who, by the way, does not make her living on telling people on the internet stuff. Anne makes her living as a real lawyer who does real lawyer stuff. And I think that's very important. She makes her leaving having represented me and now never has to work again.

0:06:38 Lydia: By charging you money. Yeah, you're welcome, Anne.

0:06:51 Thomas: No, no, no. I wish all that money went to Anne. I want to make her a lawyer. I don't want to make it. I'm not going to make Anne. No offense to her lovely law firm and everything. No. But I I do want to emphasize that it doesn't mean everything media personalities are saying is wrong per se, but it also is like you really need to look at if you're getting any information from talking heads or media personalities who might have a law something or some experience in law, but now they're just making their living by telling an audience things that it likes. I just think that is fraught. And that's why I'm really happy that we've pretty much universally talked to lawyers who don't make their living from that. That Anne doesn't at all. Like Anne has no, you know, Anne's appeared on a couple of things. Yeah. But she's a real lawyer. We're just talking to a real employer. I shouldn't say real. She's a working lawyer. She is somebody who has no skin in this game, does law stuff for her job. And that's her job only.

0:07:31 Lydia: -hmm she's barely on social media mm -hm and doesn't care about celebrities like at all so that that's also

0:07:45 Thomas: Yeah. Yeah, I mean, I don't either, but yeah, sure. I like to think I bring not caring about celebrities to the table, but you know. Okay. All right. All Right. Well, we're going to take our break. Hey, please support the show. We really appreciate it. It's how we do anything and you get the bonus stuff over on patreon .com slash gavel pod you also get episodes early that's for sure and you don't have to hear of this ad break so we'll take our break and then we'll get over to ann so now after killing ourselves and becoming ghosts and then being resurrected in a ceremony we're fortunate enough to be joined by a ghost lawyer and how's it

0:08:15 Ad: [Ad break 1 — ad music]

0:08:25 Anne: Ooh, hello! You drew the circle in chalk on the ground, you lit the candles, I have appeared.

0:08:29 Thomas: Going yeah oh

0:08:25 Lydia: Helpful there are lawyers in the afterlife too

0:08:34 Anne: You literally can't get rid of us.

0:08:35 Thomas: They're purgatory forever it's not they yeah Yeah.

0:08:37 Lydia: Geez oh yeah there is like a circle of hell for lawyers I think so So,

0:08:40 Thomas: I can't believe we got through this entire thing. I cannot believe it. It's so I've come out the other side of this. I admit I've lost a lot of patience for this side, I'll say. But fresh recording, we're starting anew. Why don't we start with there's some questions we had that I know you picked up on, like, say, this reporter's privilege thing. What the hell was going on there?

0:08:59 Lydia: Yeah, mm

0:09:01 Anne: So that was an interesting one to me too. I did a little bit of light research on this, because I agreed with you that it didn't make sense the way it was being explained, like what had happened or what had applied. Obviously, we're not on the inside, so we're having to do a lot of speculation here as to like, why things happen the way they happen. But my research bore out basically your understanding and instincts that is to say, reporters privilege, it's not a not a federal thing. It's a state thing.

0:09:32 Anne: So it's the state law that would apply. So different states have different breadth of what they cover. But in California, it'S a pretty standard one that is basically like a reporter cannot be compelled by a court cannot be punished by a court for failing to turn over the names of sources or details like that related to the reporting, except in very specific circumstances like where the courts determined that it would lead to unfairness in a criminal trial. So as long as there's not like a due process problem or something in terms of exposing a source, reporters can't be compelled to do that. Obviously, that's not what happened here. There wasn't even a threat.

0:09:59 Lydia: No, James

0:10:12 Thomas: It doesn't make any sense.

0:10:13 Lydia: Was like, get my name out of your mouth.

0:10:16 Thomas: Maybe.

0:10:16 Lydia: Like and notably,

0:10:16 Anne: Yeah, very much. So I'm wondering if this guy just called up and basically threw a fit and was like, reporter's privilege. I'm gonna make your life a real problem if you don't redact this stuff. And they were just like, ugh, fine.

0:10:30 Thomas: I don't know about that. Okay. So going back to the explanation, we get the complaint contained language and images on pages 14 through 16 and 20 subject to the reporter's privilege. The privileged language and images have been omitted per request in the corrected version of the complaint attached here to his exhibit A.

0:10:49 Lydia: The things that were removed included where James was turning over everything he had on Leslie Sloan to Brian Friedman in a group chat.

0:10:56 Thomas: So Brian Friedman and Brian Friedman's name was like in it. So I guess my question is, is this just a way for them to quickly fix something or cause what if it had had been a complaint and pretend it's not a reporter pretend it is like a friend who is like holy fucking shit you put my stuff in there and like are you able to just quick revise something like that for any reason or I guess the thing I am getting at is was this a question of like would they have needed some little excuse to be able to change this or is that not true? Like, yeah.

0:11:30 Anne: Yeah, it very well could be. Again, we're just speculating. But it very well could be that something like that is what happened sometimes as a lawyer when you realize that you have fucked something up in a court filing you go oh shit okay what excuse can I come up with that doesn't require me to go hey I fucked this up yeah you go okay all right all right I'm just gonna say reporter's privilege great take out everything even if it's right Right. It very well could be that something like that happened. I think that Lydia, you had specifically mentioned a couple times, right? There's moments that we've seen that evidence that this was kind of thrown together pretty hastily, and they were just trying to get out in front. And obviously, the first whole section is like a PR document that they were like on a timetable to get this out. And so sometimes when that happens, especially with a very big document like that, the tiny nits get missed.

0:12:30 Thomas: Yeah, so to go back to my basic feeling that wasn't making sense to me was reporters privilege would imply that the court is like making a reporter do something and the reporter is like, hey, no, don't make me reveal my thing. But this was very much Brian Friedman. Clearly, you can see it texting the reporter being like, Hey, anything you have that would be helpful. And then they include that.

0:12:50 Thomas: And then it doesn't really make sense to say that this like, do we all agree that claiming reporters privilege in this way, this usage doesn't really fit unless I'm trying to be fair. Like, is there some way that down the road it would make sense or I can't make sense of it, though?

0:13:06 Lydia: Or does he mean like the reporter's privilege like specifically James's privilege in this to remain anonymous?

0:13:15 Thomas: Yeah, he's very privileged.

0:13:16 Lydia: Yeah.

0:13:17 Anne: Yeah, that's not a thing. That's not how that works.

0:13:22 Thomas: Yeah. The question is, like, do we All agree this isn't really doesn't really make sense as stated okay so then my question is to get to my more like suspicious thing that may entirely be incorrect I want to check with you if you are brian friedman if you're a lawyer I won't I won'T ever make you brian Friedman but if you'RE a lawyer and you yeah you you file a complaint where your like name is in a screenshot and you are asking somebody for stuff like is that a problem at all like my read was like oh that seems to be the stuff that's gone in addition to I guess the reporter's name fine maybe it's that but like it seemed convenient to me and I was like are they trying to cover up that fuck up or does that actually not matter was it okay to file a complaint where you the lawyer are part of these like screenshot text

0:13:26 Anne: Yeah, agree. Thank you for that. So if I filed something where I, the lawyer, was reaching out to somebody on sort of in a background manner to like get information for a client's case, I would probably worry that that reflected poorly on me as a lawyer. Like, it just, it doesn't, right? It doesn't. You can't be like, well, it's not violating your client's privilege. And it's Not violating the rule against lawyers contacting unrepresented parties in that sense, because you're not adverse to this person, per se. But it's you're skirting some edges, right. Right? Like this is generally why lawyers have someone else that they hire to do this, right? Like you hire a PI or somebody. So it may have been just that they were like, oh, this was messy.

0:14:23 Thomas: Stuff okay

0:14:55 Anne: Let's just zip, zip. Good thing that he's a reporter. We can just say a reporter's privilege and zip, zap, zap. I don't know.

0:15:01 Thomas: Okay so you don't think it violates any rules that you know like like any hard and fast rules that it doesn't make him I think there's speculation like does this turn him into part of the case or something like part of it you know as a witness or something the fact that Friedman is talking to this guy or whatever isn't anything like

0:15:18 Anne: Not having read, you know, even a single California bar ethics opinion, I can't say for sure.

0:15:23 Thomas: That okay sure yeah nothing you can think of yeah okay in

0:15:26 Anne: Yeah. Nothing is obvious to me where I'm like, this is a very clear bad yeah

0:15:30 Thomas: The end what's your feeling that like yeah maybe the reporter because the reporter was clearly cooperating giving them stuff but maybe the report was like hey you included some shit in there about Giselle Bunchen and stuff like I didn't want you to publish all that yeah

0:15:42 Lydia: Well, and also, like, even though it's Daily Mail, him ragging on PR folks that are his sources, I imagine is going to make it more challenging for existing sources to want to talk to him at all if he's going to just shit talk them constantly. Yeah.

0:15:56 Thomas: So it could have been like uh some combination of that like hey hey, that I didn't mean you would literally fucking publish all this stuff. And then they're like, shit, let's get this out of here probably and find a good excuse.

0:16:07 Anne: Yeah I think that's probably right like he may have very well been like you're blowing up my spot what are you doing like I tried to help you out and this is what you do the funny thing about this whole case is that every aspect has so many parts of where you're like were they doing this or what if they were doing this that like every single question I'm like okay what if it and it like puts you down conspiracy rabbit holes even when there might not be any reason to go but I did appreciate I have a friend who sends me links to the daily mail all the time and I'm like, don't read this rag. And so I appreciated the the opportunity to send something back and be like, see garbage.

0:16:14 Thomas: Yeah. Yeah. Yeah. Yeah. Oh, God, I hate that reporter so much. I just can't stand people like that. But OK, so I think that honestly, that seems like the simplest explanation to me. I don't think there's like a super crazy conspiracy, anything going on. But I do think it probably makes sense. It's like, this is a good way to smooth this over. Let's say it's reporter's privilege kind of thing.

0:17:04 Anne: Yeah, yeah, just hand wavy. Moving on. Exactly.

0:17:09 Thomas: I know another thing you keyed in on was I had speculated, like, why in the world would they have filed this in California courts? Because, you know, my impression, especially from our work we did, was like, I'll just say it this way. If you're going to file a bullshit libel case, California is not the state you want to do that in. Is that fair to say?

0:17:28 Anne: Oh, for sure. For sure. With the the anti slap laws and things like that in California, it's not going to go awesome for you there generally. However, there is quite a bit to be said for like the home field advantage of if if you're an attorney who's been practicing for 30 years, and you're in this court all the time, and you know how it works, and, you know, all the judges, and there's a lot to be said in every bar association, right? If you're a lawyer who's just practicing in this thing, and your cultivating sort of the relationships within the legal community, that can make a big difference. So that can be one thing. Now, that's a little bit undercut by the fact that there are like, literally hundreds of judges in this Court Zone. This is like the big, right, right. This was, this is not like Sonoma County. This is actually the busiest court at this level in the country.

0:18:07 Thomas: Yeah. It's not like a mom and pop court.

0:18:16 Thomas: Gotta be one of them. Yeah, ever. Yeah So you can't be like, oh, we got the hammer. It is going to be like Oh, we have one of the million judges I don't know. I don' t know him. Look him up on LinkedIn They call him the hammer It is just like the first

0:18:33 Anne: If you're filing a case that requires a lot of attention, like they're doing a lot explaining about like how this works and blah, blah, bla. And it's not just straightforward. They publish things that were false. They said this, it was false, right? It's, this is it's a whole multi -layered thing I think what some of what they're hoping is that they can just like again kind of hand wave smoke and mirrors and be like cc and that this very busy court will just sort of be like oh I don't know guys sort it out

0:19:05 Thomas: Yeah. Well, perhaps we should have started there there. And as a lawyer, what's your impression of this complaint? First impressions of this complaint. What do you think?

0:19:12 Anne: Well let's go back to first principles right a well -written complaint should clarify the facts and the claims and you should to get to the end and be like, well, this is a very obvious case, right? Like, ideally, if you have a real case and you've prepared it well, you get to The End and you go, okay, well this seems like a slam dunk for you.

0:19:39 Thomas: To the point where like, if you were a bystander and you read two good complaints, like one for each side, you both time, you'd probably be like, oh shit, fuck. Well, this they're totally right. And then you'd be like、Oh, well, they're truly right .And it would be genuinely hard because lawyers are very good. You all are very good at that. Like, you're very good At like, we're going to pick out the things that They make us look good, make them look bad. We're going to probably ignore a lot of stuff in both sides, no matter who's right. Like they're, they're both going to be really good at doing that. Usually.

0:20:05 Anne: Exactly, yes. I mean, that is literally what our system is founded on, right, is that both sides get to present their best arguments. And so, yes, even as a lawyer for one side, when you read the other side's, you know, response to your, or counter or complaint, your first thing you should be like, oh, shit, you know, or whatever, and then go, no, no, okay. That's not at all what any of what this document did, right? It doesn't clarify, it obfuscates, it goes through these winding paths for so long, where you're like, why are we even talking about this? And then in the claim section, as we'll see, it doesn't, again, again, clearly break down, here are the requirements, here's how we meet them, the end.

0:20:50 Lydia: Yeah. Yeah. We kind of talked about this a little bit when it was just the two of us on here. But I'd like your stance on this, too. How much of this complaint, like, you know, out of 100 percent, how much of this complaint is actually relevant to the claims against The New York Times?

0:21:00 Thomas: Ballpark. Yeah. It's hard. It's a hard question. It's a hard question to answer.

0:21:06 Anne: I'm gonna say, outside of just, I'm looking at the actual causes of, yeah, the actual causes of action right now, start on page 79 of this 90 -page complaint, and that's counting a bunch of shit pages, you know, that aren't, that are just signatures and stuff. Stuff. So like the causes of action are like 10%. And then the preamble facts, you know, in the beginning, and then the facts common to all claims, that's me, maybe generously 20 to 25 % of that stuff is actually relevant to New York Times, I would say.

0:21:48 Thomas: That's, I feel like that's generous personally, but yeah. I wanted to ask a follow -up on the well -written complaint. Do these normally well -written complaints contain a 10th grade book report on the New New York Times. It's like a fucking, I don't even know what to say. It was a C plus high school sophomore book report on the New York times out of nowhere. And you're just like, what is this?

0:22:11 Anne: I do see that. I do say that I as a person who was about to have a high school sophomore, I can tell you, I wish they wrote more book reports. I agree. I don't know why this is here, right? The subheading is Times publishes a false and defamatory article based on Lively's complaint. And then it's multiple paragraphs.

0:22:32 Thomas: It's so funny it just keeps going water cake it's like what are you talking about and then it keeps going but the Times still wields a powerful and influential megaphone in the media and greater success what is this Wikipedia it's not even

0:22:45 Anne: Yeah, and then it is like, this case is emblematic of the Times having lost its way.

0:22:50 Thomas: Wikopedia it's so it's so crazy well then maybe in order to answer sort of all those questions together maybe we should get down to the brass tacks of what should be in a fucking complaint about defamation would you be be a little hesitant if it were you, Anne, to sue the entity that's in the precedent for the thing that you're suing them for. You know, like I'm suing the New York Times for libel. All right, let's go to the key case. Well, it's New York times v. Sullivan in which they won and has set a standard for all time after that. Well until the Supreme court ruins it. But like that already feels like an uphill. It doesn't mean you can't sue the New Year times for liable. I'm just saying like that feels like an uphill battle.

0:23:30 Anne: It definitely feels like an uphill battle, right? Like you're going, okay, well, sure, I'm gonna go up against, you know, functionally, the 800 pound gorilla of this space. It's a bold strategy. Let's see how it works.

0:23:42 Thomas: Well, why don't you tell us a little bit about New York Times v. Sullivan? It's something I'm sure a lot of people have heard, but it is incredibly important to how we should think about this and any defamation or libel complaints against any journalistic outlet.

0:23:56 Anne: It's interesting, because the background is a little bit similar in that somebody got big mad about something that was published and thought, okay. I know I'll, I'll try and take the New York times down for that rather than the people that actually caused the publication. So this is from 1960 during the civil rights movement. The New York Times published an advertisement titled, Heed Their Rising Voices. It criticized the actions of police in Montgomery, Alabama, and was seeking donations for the defense of Martin Luther King Jr.

0:24:29 Anne: In that ad, there were some minor factual inaccuracies, including claims about some of the police actions, some specifics that weren't entirely accurate. So this guy, L .B. Sullivan, who was the public safety commissioner in Montgomery, Alabama. He was not specifically named in the ad, but he brought this suit arguing that the criticism of the police department indirectly defamed him.

0:24:56 Anne: So he brought this under Alabama's libel laws, which at the time didn't require a proof of intent to harm. Local jury awarded him $500 ,000 in damages, which, you know, at the the time, some real money.

0:25:11 Lydia: Especially in Alabama, that's going to go a long way.

0:25:14 Thomas: You could have bought Alabama for that. Yeah, no.

0:25:16 Anne: You could have bought all of Alabama. The New York Times appealed that case all the way up to the Supreme Court. And in 1964, we got a unanimous ruling from the Supreme court. This was the Brennan court at that time. Remember when things used to be unanimous?

0:25:32 Lydia: Mm hmm.

0:25:34 Anne: I don't either actually, but allegedly there was. Overturning the original decision in the case, the opinion of the unanimous court came from Brennan. And that established that now famous actual malice standard. So essentially when it is a public person suing for any type of defamation, you need to prove that a false statement is made knowingly or with reckless disregard for the truth. So that doesn't include minor factual inaccuracies and that sort of thing. This was a policy driven decision in many ways, right? Commitment to the principle that debate on public issues should be uninhibited, robust, robust and wide open. So this is distinct from many other regimes and looked to as the sort of landmark case in terms of establishing really broad free press freedoms, because courts like to talk about the chilling effect, right? You have like sort of a legal regime. And if people are at all unsure about where the zone of potential liability is, you try to just stay well away from that. And so it creates this chilling effect of, in this case, free speech or freedom of the press because they don't, people are trying not to get sued, right? Most places aren't the New York Times. They don't have the resources. Andso they're just like, hey, if we have a question, we just won't publish that

0:26:51 Anne: .And so the interest of the court in this decision was to say, no, no, no. We want that, you know, effect to be as small as possible. Therefore, we're going to have have a pretty small core of the zone where people would be dissuaded from publishing an article and that it needs to be basically a really high standard.

0:27:09 Thomas: Again, that's just for public figures. So private figures, it's just negligence, right? Or roughly speaking, If it's a private figure, there's a lessened standard in terms of winning on libel, where it just has to be negligent. They didn't exercise reasonable care, essentially, in getting something wrong. So they don't have to have sought to specifically misinform. You can kind of accidentally defame a private person. Person but if it's a public figure just to get this clear the actual malice means they have to know they're saying the reporter has to like know they'RE saying something false or at least be so reckless as to like it would have been obvious that it is false but they didn't really I guess you can't get around it that's like a technicality you can'T get around IT by being like I'm just gonna close my ears and go like every time someone says that something's funny you know what I mean so is that roughly what we're talking about here right

0:27:56 Anne: Yeah, correct. Correct. So in this first case, right, they just had it applying to government officials. But then in a case a few years later, in 1967, that was extended to all public figures just beyond government officials and then of course we had cases about where is that distinction between public figures and private individuals. Right.

0:28:16 Thomas: Yeah limited public public figures and all that.

0:28:18 Anne: And like, again, this is aimed at not squelching discussion of matters of public interest. So lots of, you know, fighting around the margins about what is a matter of public interest and therefore what standards should be applied. But those are the basic outlines.

0:28:33 Lydia: And unless I missed it, there's nowhere in this lawsuit where Baldoni's team is making the claim that he's not a public figure, right? That he would not be in that more liberal standard that we're talking about with regard to defamation.

0:28:46 Thomas: Not even Baldoni's lawyer would try to do that. But I will say some of the other plaintiffs down the line might be. So Sarowitz, Jed Wallace, I think very specifically will. I think there's very good evidence that he's not a public figure.

0:28:59 Lydia: Because Jennifer Abel is another example, too, where I would argue she's not a public figure and she's a key person in how all of this came to be because of her text messages. But they all share the same counsel. And yeah. And there's like no distinction of specifically like the suit against the New York Times for defamation. It seems like it's largely from the Baldoni perspective. Yeah, I don't know.

0:29:21 Thomas: Yeah. Interesting. It may get cleaned up and separated off later. Like this is just an initial kind of thing.

0:29:26 Lydia: Yeah yeah. Just something that kind of like caught my eye.

0:29:29 Thomas: What do you think actually to ask you, and what do you Think about someone like Nathan or Abel, who's a publicist, but not, you know, like they work in, you know, I'm sure they've been featured in articles like you'll see articles that are like, hey, this person has this publicist now. So like there's articles about them there, you know, but at the same time, I agree with Lydia that they're not they're not like super public. Where do you think they would fit?

0:29:51 Anne: That's a super interesting line for them, right? Because on on the one hand, to the extent the article is saying Jen Abel is a bad person who is personally a mean human being or something, she could argue, okay, yeah, that's defamation. But to the extent that it's just saying things about the way she did her job, like,

0:30:11 Thomas: Well, that's about if it's defamation and I just meant like would she be considered a public figure because I kind of don't know. I think that would be an interesting fight. But yeah, it's also like I don't know what was said that was defamatory about her per se. I think it's more high stakes that like Baldoni is allegedly starting a retaliatory PR campaign rather than the people who were used to do that thing. Cause I guess I don't know this for sure, but I guess you could sort of say Nathan and Abel and those PR folks were kind of just doing their jobs. So it's like,

0:30:45 Lydia: Then why do you include them in your plaintiffs here? If you're Brian Friedman, why are you including like the whole laundry list of people if they don't really have a claim? Like, it feels like it makes it a messier complaint for him. Like, why? I don't know. Just strange.

0:30:49 Thomas: Yeah, that is interesting. Yeah.

0:31:00 Anne: Yeah. Unless it was just the demand of the Wayfarer group that they were like, hey, you guys need to join this lawsuit with us. We're all doing this together. And they were, like okay, I guess, to keep you as a client? I don't know. As a publicist, I might look at it and go, yeah, okay, so these guys were just like, hey, these guys are pretty ruthless, but good at their jobs, maybe.

0:31:23 Thomas: I'm trying to think, is there anything, I guess there would be advantages to having someone be a party with you rather than a third party. Would that make any difference in terms of, I don't know, discovery or privilege or anything like that? Right.

0:31:37 Anne: I mean, just cost savings.

0:31:39 Thomas: Okay.

0:31:40 Lydia: Interesting.

0:31:41 Thomas: If someone requests discovery of Jen Abel, but she's just a complete third party versus if she's a party to the lawsuit, then the discovery is going to all flow through the same attorneys. Right. And like, there'd be more. I don't know if that, yeah.

0:31:53 Anne: Right, right. I means, so it's very, it's actually a really tricky thing to represent multiple parties like this that might at moments have somewhat misaligned or disaligned interests and incentives. Yeah. So like, obviously, you have to get permission from everybody to do that. But it can be a very tricky thing. And it doesn't become an issue unless one of them comes later and goes like, oh, you breached your duties to me. But yeah, if the primary concern here for Baldoni's lawyers is the Baldoni team, I as a PR people would be concerned that exactly at the kind of moments you're talking about, Thomas, that discovery or whatever, like my interests aren't going to be totally being looked out for in terms of defense.

0:32:04 Lydia: Yeah. Interests.

0:32:36 Thomas: Hmm. Should we

0:32:36 Lydia: Yeah, yeah, yeah.

0:32:45 Ad: [Ad break 2 — ad music]

0:32:45 Thomas: Start with the causes of action libel is the first cause of action just forget everything else what is a real complaint say to try to make their case that they've been libeled is that the correct that someone has committed libel against

0:33:02 Anne: Libelized. Okay. Yes. Let's try to bring some clarity to this and see how it holds up. And maybe we'll see why it's not been made as clear as I know these smart lawyers probably could. Okay, you have to have a false statement of fact. Where do we see that here? It says the article contains fabricated false malicious and defamatory statements. Those are not anywhere more specifically stated what those are.

0:33:26 Thomas: Them yeah so

0:33:33 Anne: Yes, you have to put quotes in there.

0:33:36 Thomas: The point is you can't just say oh yeah it's got false stuff you have to actually point to like what that is yeah

0:33:36 Anne: What specifically, again, this is to, right, we have notice pleading. This is to put the counterparty on notice. What specifically is your position? What are you saying that I said that was false and defamatory? So this doesn't stand up. We're off to a terrible start.

0:33:52 Thomas: Yeah the best Yes, they can do. I see. OK, in paragraph 125 specifically, that's a good start because that sounds like it'll be specific. Specifically, the article falsely attributes negative public sentiment toward Lively to a malicious, premeditated, affirmative smear campaign orchestrated by plaintiffs and not to Lively's longstanding reputational challenges and the whims of a fickle and sometimes cruel online public. Sorry yeah

0:34:20 Anne: Yeah, again if I were a baby attorney and I had handed this into a partner they would be circling this and being like what specifically where are the the words.

0:34:30 Thomas: Okay that didn't work let me try this on you and law professor as I'm trying to pass your class here the article also hold on I wasn't done also falsely portrays plaintiffs as motivated to harm lively as the unlawfully obtained communications demonstrate however that is is flatly false. Well, how's that? Is that specific enough?

0:34:30 Lydia: Yeah yeah

0:34:52 Anne: Again, I need you to give me quotes. You don't, they don't even, they don't have to be a full, you can use ellipses to put together words.

0:35:02 Lydia: And you know what's so odd about that too is they could have they could have just literally I think they could have picked out a sentence and said this insinuates that you know they were it portrays them as motivated to harm lively with this sentence with this particular sentence or this group of sentences and that is libel like I think they could've done something there and just didn't I don't know maybe I'm wrong yeah

0:35:07 Thomas: Could they have though? I don't know if that's true because I think, so let's put it to Anne. Do you think that what's happening is they truly just don't know what the fuck they're doing and they don't that you have to do that? Or I'm leaning slightly toward, I'm not a hundred percent, but I'm leaning slightly more toward if you try to take any quote from this New York Times article, which I have up and I've gone through 47 times, times.

0:35:48 Thomas: Inevitably, you have to grab, well, allegedly, and she said, and all the language that very clearly makes this not defamation. And I just don't even know what you would pick, like what quote you would even pick.

0:35:56 Anne: That's, yeah, that's, that's kind of where I'm leaning is that unless you use ellipses to get around the allegedly and according to lively or whatever, if they could have, they would have, I would think, because I don't think they're incompetent. I think they are bombastic, but I don t think they re incompetent if I were on the lively team and I got this my first thought would be like, great, great. Okay, so we're gonna move to Oh,

0:36:19 Thomas: I'm going to stop you right there. Why would they even get this?

0:36:27 Lydia: Only the New York Times would. Yeah, right.

0:36:27 Thomas: Because right now this is just against the New York Times. Times. Yeah.

0:36:30 Anne: Sorry, I'm on the I'm in the New York Times team. I'm like, I m going to move to dismiss this until they can make a you know, specify their claims better. This is like the lack of specificity or get out.

0:36:43 Thomas: It'll be an interesting decision when you're moving to dismiss if you're The New York Times. There's a lot of ways that The New York Times is going to be able to object to this, I think. And so there's a of choices there. We'll see later. But yeah, point is, point is you need to be specific. There should be, you're saying there should be quotes. It's not enough to be like, well, the gist, you know, the jist of it.

0:36:54 Anne: Oh I'm sure yeah it would be a lot of and another thing yeah yeah you can't just be like yeah the the vibes real mean

0:37:05 Lydia: Vibes.

0:37:08 Thomas: Yeah I didn't like it. Just to tie up that first element, which is a false statement of fact, I'm on paragraph, let's see,

0:37:17 Lydia: I know I'm looking through too.

0:37:17 Thomas: 129. Let's all see. It's a word hunt for any sort of, nope, I don't see anything. I don't think you can win on defamation over general stuff. I don't think that's how it works.

0:37:35 Anne: Like I don't think that's how it works

0:37:36 Thomas: All right. Well, we don't have that.

0:37:36 Anne: Either especially not against not against uh you know the newspaper that's never lost a defamation suit

0:37:42 Thomas: Yep. Yep, yep. Okay. What's the next thing you would hypothetically need if somehow they did that first thing right.

0:37:48 Anne: This one's gonna go so much better for them it's publication to a third party I think no one disputes disputes. Check.

0:37:54 Thomas: Nailed it. They got that one. That's the putting your name on the SAT of defamation suits.

0:37:57 Lydia: Yeah yeah and you get the hundred points or whatever for it.

0:38:01 Thomas: I would go so far as to say every single person who's ever sued the New York Times for defamation has probably gotten that one they probably probably gotten that okay

0:38:02 Anne: That's, that's right. Exactly.

0:38:10 Lydia: It's the it's the free the free space in

0:38:10 Anne: Moving on. That stuff free me. That is the center. That's the center star. Okay. Three, unprivileged statement. The statement must not be protected by any legal

0:38:11 Thomas: Yeah it's a free yeah the free the free space in the center gotcha

0:38:22 Anne: Privilege. They try to make some noises here about like, ah, these were private and blah, blah. I don't think anyone's alleging that there's a privilege issue here.

0:38:30 Thomas: Okay so let's clarify that does that mean because in new york law which is the New York Times so you know I've glanced at some of this stuff that has reporters privilege is different than the thing we're talking about earlier that's like legal complaint privilege what is it called The New York Times is going to say we're reporting on a legal complaint we're reporting on blake lively's legal complaint and that is privileged and is that what this element refers to or does does it refer to a different kind of thing?

0:38:31 Lydia: Bingo yeah

0:38:55 Anne: Generally, Generally, this refers to like if you were testifying in like a closed grand jury, something along those lines where it's like this is a judicial proceeding and it's it's supposed to be like private. It is not for for public consumption.

0:39:10 Thomas: Oh, wait, really? For defamation?

0:39:12 Anne: Well, we're just talking in general in general about all these claims. So I think that one's kind of N/A

0:39:15 Thomas: Yeah. How's that function in a normal defamation suit? I'm confused on that.

0:39:24 Anne: Here, because remember that publication doesn't have to literally mean publication in The New York Times. It can just be like, you said a thing about me, a negative thing about me to another person. So like, if you're,

0:39:32 Lydia: Right to another person yeah mm

0:39:33 Thomas: I see. I gotcha. So it can't be this. So it like can't defame me when you're testifying in front of a grand jury because no one was really supposed to find out about, you know, like that's not supposed to be public. Okay. Okay, I see. So this is sort of just a checkbox and it's sort of an N .A. here. Gotcha.

0:39:51 Anne: This is an element necessary at all, any claim, some sort of injury or damage from the thing you published. And again, of course, they allege,

0:39:56 Thomas: They do say, yeah, Yeah, paragraph 131, direct and proximate result of the above described, each of them plaintiffs have suffered general and special damages in an amount of not less than $250 million, including damage to plaintiffs' reputation, standing in the community, shame, mortification, blah, blah. Okay, are you going to give them a pass on that, or is there something, is there a way they have to do that that's, like, different, or does that cover it?

0:40:23 Anne: That's pretty covered. Now, the thing we have to get to is, and I know you touched on this briefly, but right, right. Again, it's an actual malice standard, not just a general lower standard, because we're talking about an issue of sort of public interest and public person. So the paragraph right before that 130, they try to meet that. And here's where I think that it's pretty weak. Right. They're saying that the New York Times did three things that show that it had actual malice. Let's take them in turn. Number one, decided to publish the article without having afforded the plaintiffs a meaningful opportunity to respond. We've been over that. False. You had that great analogy about like, I'm taking lunch orders.

0:41:08 Anne: You got back to me before the noon deadline. So I figured we were good to go.

0:41:10 Thomas: Yeah. Yeah. And not only that, just to confirm that from what I understand, there isn't even a legal obligation to get any comment from from them. But they do it as a. Yeah.

0:41:18 Lydia: To get comment yeah

0:41:19 Anne: No, no, they could have reached out two minutes beforehand and been like, we reached reached out and they we didn't they didn't respond.

0:41:25 Lydia: We didn't hear back in time yeah mm -hm

0:41:28 Thomas: Is it fair to say this? Is it fare to say that I could see this being something that might contribute to actual malice if there is a bunch of other stuff present, too? Like it's like this could be one part of it, like the fact that they didn't even get our side of it or something, hypothetically.

0:41:43 Anne: Yeah, if they had done the actual thing of like, reaching out and then being like hitting publish 30 seconds later and saying they didn't correspond in time for publication. And then you did respond and they updated their thing or whatever. I would definitely as an art lawyer be like, that's an indicator. That's one of the pieces to say, right, like you set us up for failure there. Sure.

0:42:08 Thomas: OK. Not what happened.

0:42:08 Anne: But that's not what happened. They got a response. They got a denial. They went ahead with that. Yeah.

0:42:14 Thomas: Published it, the whole thing. They linked to the entire thing and quoted from it. Yep. When it came to Kirstie Flaa anyway,

0:42:18 Anne: Yeah, and then when they got additional information, they updated.

0:42:24 Thomas: We don't know if they did any other stuff, but yeah,

0:42:25 Anne: Yeah kind of a fail on that kind of fail on that they tried to create that out of out of whole cloth. I think item two of alleged actual malice is that the New York Times published this article without having verified the authenticity accuracy and completeness of the communications relied upon. I allegedly doctored text messages.

0:42:49 Lydia: Yeah it was criminal what they

0:42:51 Anne: The criminal lack of emojis.

0:42:51 Lydia: Did when they doctored those messages yeah

0:42:57 Thomas: I, this is a tough one. Yeah. I don't know how to even, how do we even talk about this? Because like, okay, we could talk about hypotheticals. Like, all right, if you published an article and someone said here, I got a text message. It's this. And then you didn't even check if it was real or

0:43:13 Lydia: Yeah like I I was going to say, you know, earlier when we were talking, if Blake Lively's team handed them screenshots in a Word document, like what we were looking at in this complaint, and just handed it to them as like, okay, here's this Word doc of things that I copied, I could see the New York Times, I would imagine they would be like, ah, I'd like to see something a little more like firm on this potentially. But it's literally extracted data via a firm and so I

0:43:22 Thomas: Like this complaint. Yeah. Yeah. An actual subpoena that they reviewed.

0:43:45 Lydia: Feel like there's yeah and an actual subpoena that they reviewed and so I feel like the authenticity the accuracy the completeness is baked into the fact that they used a vendor to forensically extract data from this device yes Yeah.

0:43:58 Thomas: Yeah, Stephanie Jones did. Yeah yeah.

0:44:00 Anne: Yeah, Lydia, I totally agree with you. I mean, the fact checkers at places and the legal teams at places like the New York Times are notoriously hard ass. Right? If you have listened to like interviews with authors or anything, they're like, it's insane. They're calling somebody somebody who I haven't talked to since I was seven to be like, but did she fall down at your house?

0:44:10 Thomas: Yeah

0:44:22 Lydia: Yeah.

0:44:22 Anne: So, so this claim just doesn't hold water to me.

0:44:28 Thomas: And I want to make another small point which is they specifically say here verified the authenticity accuracy and completeness of the communications relied upon. Now that's interesting because that's actually different than saying oh hey when you quoted stuff you didn't quote all of it. That's much much different, which maybe you could make an argument for like, I don't think they have a good argument, but like hypothetically one could make a good argument for, hey, you did this first part of the quote, but not the second part where I said, haha, I'm just joking or something, you know, whatever.

0:44:57 Thomas: But like, if you're saying verify the authenticity, accuracy, and completeness of the communications relied upon, I mean, that I feel like they definitely did. They had tens of thousands of things and they're saying we relied upon. We verified, we went through this. The New The New York Times reviewed, I think is the word they use, tens of thousands of things. And they're saying, yeah, that looks pretty fucking complete. And I don't think that Baldoni has a leg to stand on here when he's saying completeness. Well, it's like, yeah. They're not going to be able to publish every single thing they read. Like every text message that they read, but they certainly verified and did, I think, a pretty thorough job of verifying the authenticity, accuracy, and completeness of the communications that they relied upon.

0:45:39 Anne: Right. So we have beaten this up from sort of a factual and logical perspective, but here's the real KO punch from a legal perspective is that as we just discussed, as we earlier in this sentence, right, we're trying to show actual malice right that's what all of this is about but then they're what they're pointing to is that the new york times should have done this verification authenticity blah blah that's not sufficient for the actual malice standard right under the regular person standard it's enough to be negligent about the fact that the thing that you said wasn't true and you should have you know done some legwork to figure that out verified the authenticity and accuracy right so this would apply if we were talking about the regular person standard, but we're talking about the actual malice standard, which means you had to have known that the statement was false or acted with reckless disregard for the truth.

0:46:23 Lydia: Joe Schmo. Yeah, wow.

0:46:41 Anne: They're not even trying to argue that that happened here. They're using the wrong standard.

0:46:41 Thomas: So Wow. I like the way you put that. Yeah, I was going with the kind of normal person understanding. You're like, yeah, yeah. But legally, this is even more bullshit than that.

0:46:55 Anne: Legally, it's even more bullshit.

0:46:56 Thomas: All right. Well, they have a third item, though. Let's see if that's anything. All right. Usually you save your best for last.

0:46:59 Anne: They do have a third. Let's see if that goes better. Okay. Right? Right? Right?

0:47:05 Lydia: Right?

0:47:06 Anne: The third alleged piece of evidence to show the actual malice of the New York Times is that they failed to ensure even a modicum of impartiality, skepticism, or even handedness when covering highly inflammatory allegations that they knew could destroy the reputation and careers of plaintiffs. I mean, it's very, bring me my fainting couch. This is nothing.

0:47:32 Thomas: That's nothing. Okay.

0:47:33 Anne: This this is nothing.

0:47:34 Thomas: That solves that.

0:47:35 Anne: This is nothing, right?

0:47:35 Thomas: Yeah, that's nothing that's good. Cause it sounds like nothing to me.

0:47:38 Anne: You're just throwing, I'm at a loss for words because you're just doing a word salad of like, again, they're not even saying they were reckless that the New York Times had a duty to be impartial or skeptical or even, no, they didn't. They got information. They checked that the information was correct and they published, wow, people are saying these things. This isn't,

0:47:58 Lydia: Hmm. It's not like there was a requirement that the New York Times, right? Or did he like after every single paragraph? Like, yeah, yeah.

0:48:07 Thomas: Well, worse than that. It's not as though Fox news doesn't exist. Do you think this is a real standard? Anyone? Do you think there's some journalistic rule or not, not even journalistic. You think there some law that That means, well, you have to, if it's going to be something that's like super important, then you got to be impartial, even-handed.

0:48:26 Thomas: That's not, it's nothing. I think, and put it best, this isn't anything. Fox News does exist. And they, in lots of places, lots of very biased, highly partial, I guess I would say, outlets exist. And they don't get sued to oblivion for defamation. So clearly this is not the way the standard works.

0:48:44 Anne: Not at all.

0:48:45 Thomas: I will note that as much as this was the actual malice section, because it had actual malice there is some like hand wavy stuff above that like I think tries to get to it that we could consider maybe it says like the plaintiffs are informed and believe and based thereon allege that defendants and each of them portrayed plaintiffs in this manner knowing that the portrayal was false or with reckless disregard for its truth or

0:49:12 Anne: Okay. So they're attempting there to hit that standard.

0:49:16 Lydia: By just putting the definition there.

0:49:17 Thomas: Falsity they

0:49:17 Anne: But yeah, but then they don't give anything. They're just like, this is apparent because allegedly they reviewed thousands of pages of text. But if that was true, they would never have said these things. They would agree with it. Take that.

0:49:27 Thomas: Would agree with us Yeah. Yeah.

0:49:32 Anne: Again, there's no there there.

0:49:35 Thomas: It's almost like you need to quote something and point out very clearly why it's false. Don't you think that's as even to

0:49:40 Anne: It's almost like that. Almost. Right.

0:49:44 Thomas: Start this conversation about actual malice?

0:49:47 Anne: I mean, like literally the next sentence, they were like, defendants therefore had access to, you know, basically plenty of of information to refute its portrayal. Well, again, that's just saying that you disagree with them. But like they, the articles, we take a different view. Okay. Okay, so we're not doing so hot. We didn't do so hot on libel.

0:49:59 Lydia: The article was mean. The article is mean. Yeah.

0:50:05 Thomas: Yeah. No. Is that the end? The actual mouse thing was the last thing we, uh, okay.

0:50:12 Anne: Natural mouth. That's the last one. That's it.

0:50:14 Thomas: And it's not as though we're not talking a bar exam situation where you're shooting for for that 55, 60 percent. This is a you need all those things, right? Like you need to actually pass all those tests.

0:50:23 Anne: You do actually need to hit all of the elements.

0:50:27 Thomas: Damn. So a two out of four or whatever they scored doesn't quite get them there. Darn.

0:50:31 Anne: Yeah, does not quite get in there.

0:50:40 Ad: [Ad break 3 — ad music]

0:50:40 Thomas: OK, well, we're going to call it there for part one. We got through one cause of action, didn't we?

0:50:45 Lydia: Yeah!

0:50:45 Thomas: But it was I mean, it was the most important cause of action, probably.

0:50:48 Lydia: We got some nice history there. A lot that happened in this episode, but not nearly enough time to get into the rest of it. Yeah.

0:50:53 Thomas: Yeah, we got through the probably most important because of action. But there's there are three more. There's one more that is pretty similar to this one and then two more bonus ones. I mean, folks already probably know what they are, but maybe not because it's been, I don't know, 10 hours since we said what they were at the beginning of this whole thing.

0:51:10 Thomas: So maybe they don't even remember who I am, who you are, what's happening, what day it is.

0:51:14 Lydia: They'll have to wait until we intro ourselves in the next episode.

0:51:17 Thomas: All right. Yeah. So in part two, we will conclude. We'll be finishing this complaint. I can't wait.

0:51:22 Lydia: Oh, my God. I can't believe it.

0:51:25 Thomas: Yeah, we'll pick it up with Anne and with the second cause of action, false light invasion of privacy. All All right. Thanks so much for listening, everyone. We'll see you then.

0:51:52 Anne: I'm getting all I'm all excited, I'm waving my hands around, I'm hitting my chords.

0:51:56 Lydia: Whoever smelt it dealt it.

0:51:58 Thomas: They're not even getting to one malice, but they're trying to say two malices.

0:52:03 Anne: This case is emblematic of the times having lost its way.