Glad to be an American lawyer & journalist

As much as I love my Italian heritage and being in Italy, two things happened in the last 24 hours which make me happy to practice law and journalism in the good ole USA.

1.  Upon affiliating with an Italian law firm to add some international flair to my practice, I learned that Italian lawyers add a whopping 21% VAT to their hourly rate, which is pretty comparable to that of New York lawyers.  Can you just see a New York lawyer charging $400/hr and then charging the client an extra $84 for tax?  There would be anarchy in the streets.  How does anything get done in that country and it is shocking Italy has not gone bankrupt before now.

2.  The story of an Italian editor who felt compelled to air his views on teen abortion under a pseudonym is now going to jail for stating as much.Alessandro Sallusti will spend the

Alessandro Sallusti/AP-Luca Bruno

next 14 months in jail because he dared to criticize the judge who allowed a 13-year-old to have an abortion.  Views on abortion aside, this journalist feared the consequences of expression so greatly that he disguised himself with a pseudonym and has now been convicted of criminal defamation.  The outcome would be greatly different here where the judge would likely be deemed a public figure and therefore the standard would have to be actual malice.

I love Italy, truly, but when will they come out of the cave they have lived in since the empire fell?  Say what you will about the “liberal media” in the US but at least you have the absolute right to state your mind and not be sent off to jail with killers and other assorted felons.  God bless the good ole USA.

To tweet or not to tweet and why defamation may be all atwitter!

Everyone’s tweeting on Twitter so how much trouble could you really get into in just 140 characters?  It depends on how succinct you can be and how far you can reach.  As an attorney, the best way to advise a corporate clients small business or an individual is to think before you tweet.

Many people are successfully using the social platform to promote a business or product, even themselves.  Some tweeps, as the members are often called, have tens of thousands of followers, while celebs like Demi Moore have over three-million followers.  The reach is far and once you place a sentence into the Twitterverse it can die on the vine or go viral, so let’s explore its implications in light of statements which may disparage someone’s reputation.

The tort of defamation is determined differently by each state  but they each consist of basic elements:

  • publication of a statement to at least one other person other than the person defamed;
  • a false statement of fact (although opinion and hyperbole are excluded);
  • that it is clearly about the person who is defamed with the intention of harming his/her reputation; and
  • if the person is a public figure than actual malice must be proven. (BTW – you should check out the old 1981 Paul Newman flick, “Absence of Malice.” It’s a great movie and gives a more than adequate explanation of defamation and libel v. slander.   Just think:  libel=print and slander=verbal)

The global reach of social networking / Photo: jscreationzs/freedigitalphotos.net

Lawyers know that you can name anyone in a lawsuit but whether the complaint sticks or not is another question.  Someone who believes they are defamed might choose to sue the person writing the offensive tweet, along with Twitter itself.  However, Section 230 of the Communications Decency Act, 47 U.S.C. 230, provides immunity to the content provider that is not an actual publisher or editor (meaning they have no control over the content), so there go the deep pockets.

A handful of these suits have popped up across the country.  There was one filed earlier this year against musician/actress Courtney Love and another involving an Illinois woman who only had 20 followers and tweeted a complaint about mold in her apartment.  The mold suit was dismissed.  The point is that at some point in the near future, someone will defame another person purposefully and their 140 characters will come back to haunt them and this might set a new standard for Twitter defamation.  Therefore, the golden rule of Twitterville should now be “tweeple, beware and think before you type!”

Westchester entertainment attorney says some lawsuits are good for a laugh…..some not so much!

You would think most married people know – “don’t piss off your mother-in-law.”  You would think that’s rule numero uno in the Ten Commandments of Marriage.  But it seems comedian Sunda Croonquist was out the day they covered that in pre-nup class.  You see, Croonquist is a comedian, who often makes fun of her in-laws; that’s how she makes her living.  (Just imagine holiday dinners ’round the Croonquist table!)

Now, Croonquist is half Swedish and half black….she was raised Catholic and married a Jewish attorney (and she converted to Judiasm prior to marriage).  OK, I know, that is just ripe for parody in itself.  Croonquist knows that and she jumped all over it but the in-laws didn’t like it and after sucking it up for 15  years, now they’re suing her in their home state of New Jersey.  They’re seeking damages and want her to remove all references from her blog that make the family readily identifiable.  Are they serious?  As if filing a federal lawsuit, which is a public record, will keep their name a secret!  Sorry, Zafrin family but that horse has left the barn.

It’s going to be tough to win this fight.  The in-laws are seeking damages for the torts of libel and slander.  However, comedians are generally protected under the First Amendment by use of a parody defense.  The U.S. Supreme Court set the standard in 1988 in Hustler Magazine v. Falwell, (485 U.S. 46 (1988) in which the magazine published a false ad claiming evangelical pastor Jerry Falwell had an incestuous relationship with his mother in an outhouse.  The high court, in its infinite wisdom, said the spoof was so ridiculous as to be incredulous and since no one would believe it, the author could not be liable.  True, Falwell was a public figure and had to prove actual malice for a finding of libel, while The Zafrin Family are not public figures and merely have to prove negligence.  However, in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), SCOTUS protected parody under the free speech of the U.S. Constitution, holding that where an assertion is so ridiculous as to actually be believed it is protected “assuring that public debate will not suffer for lack of “imaginative expression.”

There is also a question here as to whether the Zafrin Family is beyond the statute of limitations for libel and slander claims, beyond which point a plaintiff cannot sue.  In New Jersey, the statute of limitations is just one year and that state adheres to the so-called “single publication rule” for Internet content, meaning one-year from the date first posted online, even if it lingers in cyberspace for years.  (Churchill v. State of New Jersey, 378 N.J. Super. 471, 876 A. 2d 311 (NJ Super. Ct. App. Div. 2005)   So, I’m wondering, how do they get over that hump since Croonquist started her routine 15 years ago?

Croonquist’s attorney has filed a motion to dismiss.  The hearing is set for September 8th………oh yeah, did I mention, her husband is defending her against his own family?  I think there’s more to this conflict than just a comedy routine!  Oivay!