Blake Lively- Jason Baldoni and NYT - False Light claims

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

[Anonymous]

Anonymous wrote:This one is on my eyes the most problematic given that the reporters made no effort to talk to any of these people, bolding mine:

Mr. Baldoni, Ms. Nathan and others on the team claimed in their text exchanges that Ms. Lively was using her own public relations team to create bad press about Mr. Baldoni but cited no evidence to support those claims.

Also problematic

By mid-August,b the team was reveling in the damage to Ms. Lively’s imageb

And this is in addition to the manipulation of one of the excerpted texts to remove the emoji that indicated sarcasm was intended.

In light of all of this. I believe Baldoni’s team has a decent argument that the NY Times cannot rely on the fair report doctrine where they cite texts as opposed to direct allegations in thr Complaint.

I see zero wrong with the line that the team was "reveling" -- this strikes me as an accurate description of those texts.

I do think the line that the team "provided no evidence" that Lively was doing the same thing with her PR is weird -- people do not usually or vide evidence of stuff they say to colleagues in texts. It's not a deposition. But I view that as sloppy writing, not defamation. It's true, just kind of a silly thing to point out and the piece would be stronger without it. I do think it's on a reader to be able to read critically and recognize that as a bit of editorializing. I see stuff like that in many news reports and know to take them with a grain of salt. This article is far from the worst offender -- it's pretty minor. I certainly don't think it's defamation. If it were, get ready for a future with no news reporting at all because we don't want to be litigating everything like this. Fox News and the NY Post would have to shut down permanently, and the Daily Mail would have to be banned in the US, just for starters.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

[Anonymous]

Anonymous wrote:

Anonymous wrote:This one is on my eyes the most problematic given that the reporters made no effort to talk to any of these people, bolding mine:

Mr. Baldoni, Ms. Nathan and others on the team claimed in their text exchanges that Ms. Lively was using her own public relations team to create bad press about Mr. Baldoni but cited no evidence to support those claims.

Also problematic

By mid-August,b the team was reveling in the damage to Ms. Lively’s imageb

And this is in addition to the manipulation of one of the excerpted texts to remove the emoji that indicated sarcasm was intended.

In light of all of this. I believe Baldoni’s team has a decent argument that the NY Times cannot rely on the fair report doctrine where they cite texts as opposed to direct allegations in thr Complaint.

I see zero wrong with the line that the team was "reveling" -- this strikes me as an accurate description of those texts.

I do think the line that the team "provided no evidence" that Lively was doing the same thing with her PR is weird -- people do not usually or vide evidence of stuff they say to colleagues in texts. It's not a deposition. But I view that as sloppy writing, not defamation. It's true, just kind of a silly thing to point out and the piece would be stronger without it. I do think it's on a reader to be able to read critically and recognize that as a bit of editorializing. I see stuff like that in many news reports and know to take them with a grain of salt. This article is far from the worst offender -- it's pretty minor. I certainly don't think it's defamation. If it were, get ready for a future with no news reporting at all because we don't want to be litigating everything like this. Fox News and the NY Post would have to shut down permanently, and the Daily Mail would have to be banned in the US, just for starters.

I think it is defamatory to say someone has provided no evidence, and actionabke when one has not actually asked for such evidence.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This one is on my eyes the most problematic given that the reporters made no effort to talk to any of these people, bolding mine:

Mr. Baldoni, Ms. Nathan and others on the team claimed in their text exchanges that Ms. Lively was using her own public relations team to create bad press about Mr. Baldoni but cited no evidence to support those claims.

Also problematic

By mid-August,b the team was reveling in the damage to Ms. Lively’s imageb

And this is in addition to the manipulation of one of the excerpted texts to remove the emoji that indicated sarcasm was intended.

In light of all of this. I believe Baldoni’s team has a decent argument that the NY Times cannot rely on the fair report doctrine where they cite texts as opposed to direct allegations in thr Complaint.

I see zero wrong with the line that the team was "reveling" -- this strikes me as an accurate description of those texts.

I do think the line that the team "provided no evidence" that Lively was doing the same thing with her PR is weird -- people do not usually or vide evidence of stuff they say to colleagues in texts. It's not a deposition. But I view that as sloppy writing, not defamation. It's true, just kind of a silly thing to point out and the piece would be stronger without it. I do think it's on a reader to be able to read critically and recognize that as a bit of editorializing. I see stuff like that in many news reports and know to take them with a grain of salt. This article is far from the worst offender -- it's pretty minor. I certainly don't think it's defamation. If it were, get ready for a future with no news reporting at all because we don't want to be litigating everything like this. Fox News and the NY Post would have to shut down permanently, and the Daily Mail would have to be banned in the US, just for starters.

I think it is defamatory to say someone has provided no evidence, and actionabke when one has not actually asked for such evidence.

You would be wrong.

It is not defamatory to say someone has provided no evidence if they have not, in fact, provided evidence. And in the quote in question, there is no implication that the Times asked Wayfarer for this evidence, they just not that there is no evidence of Lively's PR campaign against Baldoni in the texts. It is clear they are talking about the texts and not, for instance, referring to a conversation they had with Wayfarer.

If it's true, it cannot be defamatory. I agree that the statement is bad journalism. But defamation is a higher bar and this does not meet it.

I should also note that Wayfarer doesn't even advance this argument in their complaint.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

I don’t believe the other defenses to be a strong.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

I don’t believe the other defenses to be a strong.

Well ten minutes ago you were claiming the other defenses didn't exist. Perhaps your beliefs aren't particularly useful here.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

Worth remembering that the plaintiff need not prove anything in at the motion to dismiss stage. I disagree that they haven’t pled anything, which if taken as true, as required, establishes actual malice.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

I don’t believe the other defenses to be a strong.

Well ten minutes ago you were claiming the other defenses didn't exist. Perhaps your beliefs aren't particularly useful here.

I never said that. I did say they nothing in the brief addresses their independent review of and manipulation of the texts. That is correct.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

Worth remembering that the plaintiff need not prove anything in at the motion to dismiss stage. I disagree that they haven’t pled anything, which if taken as true, as required, establishes actual malice.

I don't understand the bolded, could you explain? I am an attorney who has worked on defamation issues, I just don't understand what this means. Is there a typo that is causing me to misread it?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

Worth remembering that the plaintiff need not prove anything in at the motion to dismiss stage. I disagree that they haven’t pled anything, which if taken as true, as required, establishes actual malice.

I don't understand the bolded, could you explain? I am an attorney who has worked on defamation issues, I just don't understand what this means. Is there a typo that is causing me to misread it?

What is confusing you?

[Anonymous]

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Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

I don’t believe the other defenses to be a strong.

Well ten minutes ago you were claiming the other defenses didn't exist. Perhaps your beliefs aren't particularly useful here.

I never said that. I did say they nothing in the brief addresses their independent review of and manipulation of the texts. That is correct.

If you said that, you didn't say it in this conversation.

The MTD doesn't get into that because at this stage, an MTD accepts the factual issues alleged in the complaint as true, but argues that on the law, the lawsuit has no merit. So the MTD incorporates that allegation as true (that they independently reviewed the texts, I don't think the lawsuit alleges that the manipulated them but that they "cherry picked" them) but says it doesn't matter. You might think it matters, but this is not the place for that conversation because it's a factual dispute, not a legal one.

We haven't even gotten into the arguments that they make that this is an impermissible group pleading. Which it almost definitely is.

[Anonymous]

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Anonymous wrote:

Anonymous wrote:Truth is a defense to defamation. Those factual statements are correct. They did text those things, the forensic report does say those things (I mean I personally can't verify that but I'm sure Lively provided a copy), Baldoni does say that on Access Hollywood (I assume Twohey watched a clip).

No issue quoting the texts if they reasonably believe the texts are real, not manufactured by Lively. They probably saw that they were received pursuant to a subpoena by Jonesworks and/or Jones verified them. There's no reason to believe NYT acted with actual malice or reckless disregard to the truth by quoting from text messages that were provided to them in the context of a formal legal complaint.

The problem is the motion claims that they only relied upon allegations in the complaint, as the fair report doctrine requires.

DP, but no, it doesn't. This is a misread of the MTD. They are making multiple arguments, one if which is that their reporting of the contents of the complaint cannot be defamatory because they were fairly reporting the contents of a legal filing.

They also address the parts of their reporting based on other sources.

I’ve read the motion to dismiss. They don’t address the specific points I raise. to the contrary, they claim everything in the article is tied back to the complaint. I don’t agree.

You are misreading the MTD. The thing you disagree with is not even being asserted.

The fair report doctrine is not asserted? To the contrary, it’s their primary defense and they assert as to the entire article.

The fair report doctrine is obviously asserted. It is not their only defense. You are reading the section on the fair report doctrine as though it is meant to stand alone as the sole argument in the motion. They make other arguments. They intentionally do not weave these arguments together because that's not how you write an MTD. You assert all your defenses separately as though stand alone so that if the judge disagrees with any one of them, the rest can still stand on their own merit. For a non-lawyer, this can be confusing.

Just for example, they also assert that the description of "smear campaign" to describe the PR campaign against Lively is allowable opinion based on fact, and thus not defamatory.

They also address the additional reporting they did beyond simply reporting out the contents of the complaint, describing this as newsgathering. They cite precedent that engaging in additional news gathering in reporting out litigation under the fair report doctrine does not negate the doctrine, and that, for instance, interviewing the litigant has been previously ruled as not to negate fair report.

They also address Wayfarer's allegation that the NYT has an obligation to report on both sides of the story. This is very well-established -- they don't. As long as what they report is accurate and true, they have no obligation to obtain context or information from "the other side." They are on very solid ground there.

They also point out that there is no evidence of actual malice. Even if fair report doctrine didn't apply (it does), the defamation claim would fail because they have not even alleged evidence of actual malice here. Actual malice is a required element of defamation. You also have to prove the report is false. Wayfare has shown neither.

I could go on, but I'll stop there.

Worth remembering that the plaintiff need not prove anything in at the motion to dismiss stage. I disagree that they haven’t pled anything, which if taken as true, as required, establishes actual malice.

I don't understand the bolded, could you explain? I am an attorney who has worked on defamation issues, I just don't understand what this means. Is there a typo that is causing me to misread it?

What is confusing you?

Who has or hasn't pled what? Did you mean prove instead of pled? What facts has Wayfarer pled that establish actual malice, if true? The sentence seems to lack both a subject and an object so I didn't understand what you were trying to say.