Former Las Vegas Chief Deputy District Attorney Mary Brown and her husband, defense attorney Phil Brown, filed a complaint against an anonymous reader who commented on an online newspaper article that Mary Brown “had sexual relations in order to get promoted.” (Source). The Browns claim that the comment is false and harmed their reputations, as well as caused them emotional distress.
The Browns served a subpoena to the newspaper for the identity of the anonymous commenter. An attorney for the anonymous commenter said that anonymous speech is protected by the First Amendment and is looking to quash the subpoena.
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The Legal Satyricon 
I’m not a lawyer, but it seems to me that saying that someone had sexual relations in order to get promoted is, if false, libel per se, and quite possibly also libel per quod, depending on the effect the plaintiff can prove it had. Libel is not protected speech. The right to speak anonymously is indeed protected by the First Amendment, but not when the speech that is being uttered anonymously is itself not protected.
Woops, just to prove that I’m not a lawyer, “libel per quod” was the wrong term for me to use there. What I meant was that in addition to it being libel per se, the plaintiffs might be able to prove actual damages as well.
Since nobody could reasonably expect someone to know (because you would have had to have been present when it happens), wouldn’t this reasonably be interpreted as an opinion/guess?
That’s a highly questionable assertion. I personally obviously have no idea whether the accusations are true in this particular case, but in general, if a woman were to engage in sexual relations with one or more people to further her career, then any number of people could know.
The people she slept with know. The people they told know. The people she told know. The people who saw the two leaving the conference room / hotel / stairway with mussed-up hair and disheveled clothes know. Etc. It’s simply false to claim that no one could know.
There is certainly a principle that something cannot be considered libel if a reasonable person would not find it to be credible. We saw that recently when the judge through out most of the defamation counts against Crystal Cox (but fortunately the one remaining count cost her $2.5 million). Whether that principle applies in any particular case is probably a matter for a judge and/or jury to decide, once legal action commences.
*sigh* that’s “threw out”, not “through out”. Too early in the morning to be expected to spell properly. :-)
While social media and online activity can result in defamation actions, courts will also consider the context in which the alleged defamatory statement was made to determine if it was an “opinion”. As summarized here, the statement was made in the “comment” section so possibly an argument could be made that it was that person’s opinion only.
Sorry not buying it.
Maybe if they wrote the only way they’d get the job was if they slept with the boss I’d say it’s an opinion. But just a flat assertion (as the story makes it sound) isn’t framed as an opinion, but a statement of fact.
Its a bit like me saying So-and-so is so ugly it must have been some botched gender reassignment surgery vs. my just saying so-and-so had a botched gender reassignment surgery.
The former is opinion, the later not.
Jake,
I was an assistant public defender for a year and won all of my trials… so I presented this as a possible argument on an issue of fact… don’t disagree with you but also think the context of the comment at issue is worth considering.
For the curious:
The four articles in question, with the offending comments apparently removed.
1) http://www.lvrj.com/news/family-court-judge-removed-from-child-welfare-case-137930653.html?viewAllComments=y&c=y
2) http://www.lvrj.com/news/second-romance-cover-up-alleged-136645893.html?viewAllComments=y&c=y
3) http://www.lvrj.com/news/family-judge-s-courting-stirs-rift-135565663.html?viewAllComments=y&c=y
4) http://www.lvrj.com/news/feud-puts-court-cases-on-hold-135721003.html?viewAllComments=y&c=y
Copy of motion to quash (interesting reading):
Click to access 2012-04-06-MotionToQuash.pdf
No copy of the complaint yet or the offending comment in full.
I would dearly like to see the actual wording of the comment. I doubt that it said verbatim that Mary Brown “had sexual relations in order to get promoted.”