Friday, September 17, 2004

When the lawyers get involved ... (2)

From defendant's brief, addressing plaintiff's defamation cause of action in Rather and Heyward v. Viacom (2005):

... upon hearing that plaintiffs had allowed the documents to be broadcast despite their own experts' doubts as to their authenticity, at least three members of defendant's Board of Directors stated in loud voices that "those sons of bitches are single-handedly [sic] destroying CBS News," or some close equivalent of similar import. In each such instance plaintiffs were characterized as "sons of bitches."

Once again, defendant brings to the court's attention longstanding precedent with striking parallels to the instant cause. In Blaser v. Krattinger, 195 P. 359 (1921), the Oregon Supreme Court reviewed a slander action brought by a Portland hotel guest against the hotel manager. That court's rendition of the underlying facts: "The defendant came into the men's lounging room, where plaintiff and numerous other men were sitting, and there and then in a loud voice made the following statement: 'Some one has stolen $1,000 worth of my jewelry from my bedroom, and I know who it is and the s-- of a b---- sits here in this room.'" (at 359)

The Blaser court ultimately held for the defendant on the following ground, inter alia: "Unless the plaintiff can show that he belongs to that class whose ancestry is ascribed to a canine of the female sex, he cannot sustain an action, because he is not the particular one ... against whom ... the charge of larceny was directed." (at 360)

In the instant case, neither plaintiff claims descent through a female canine. Furthermore, plaintiff Rather, a native of Texas, could perhaps have met this element by conforming to the standards of the so-called "yellow dog [ie, relatively moderate] Democrats," a voluntary association primarily comprised of Texans, had he only leavened his visceral and unthinking liberalism with the merest trace of moderation. But Rather failed to do so, so the court need not further consider this theory. As neither plaintiff can claim to belong to the class defamed, this cause of action must fail.

As to the other language contained in the communication at issue, ie, that some unidentified persons were "single-handedly" [sic] destroying CBS News, judicial notice can properly be taken of two undisputed facts; to wit, that: (a) until very recently CBS News enjoyed a reputation for integrity and fairness, a reputation which it had developed with painstaking care over nearly eighty years; and (b) that reputation has largely been destroyed. As truth is an absolute defense to any defamation action ...