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.
Cherry picking means excluding texts that would give context to the contrary. It is also actually a legal, not a factual, matter. If the article relies upon documents outside of the complaint or presents them is a way different than the complaint, the fair use doctrine is not applicable to those parts of the article.
As you no doubt aware, if the group pleading argument is successful, plaintiff swill be given the opportunity to replead. It isn’t a dispositive argument.
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.
It’s a motion to dismiss. Nothing needs to be proven, just pled. Are you actually a litigator?
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.
It’s a motion to dismiss. Nothing needs to be proven, just pled. Are you actually a litigator?
Yes, are you? I'll repeat: what facts have Wayfarer pled that establish actual malice, if true? I am genuinely not aware of any. Thus I find the MTD argument that the lawsuit fails on these grounds persuasive.
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.
It’s a motion to dismiss. Nothing needs to be proven, just pled. Are you actually a litigator?
Yes, are you? I'll repeat: what facts have Wayfarer pled that establish actual malice, if true? I am genuinely not aware of any. Thus I find the MTD argument that the lawsuit fails on these grounds persuasive.
I am not going to spend an hour going through the brief and picking out specific allegations, but generally manipulating texts and using texts out of context shows malice when used to accuse someone of a smear campaign to cover sexual harassment. Twohey in particular is well aware of the severe consequences that accompany such accusations. Moreover, the allegations were denied and the denial was not investigated at all.
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.
DP. It's been a while since I've looked at Baldoni's complaint. What exactly did he claim with regard to manipulation of texts? Was it the omission of the upside down emoji?
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.
It’s a motion to dismiss. Nothing needs to be proven, just pled. Are you actually a litigator?
Yes, are you? I'll repeat: what facts have Wayfarer pled that establish actual malice, if true? I am genuinely not aware of any. Thus I find the MTD argument that the lawsuit fails on these grounds persuasive.
I am not going to spend an hour going through the brief and picking out specific allegations, but generally manipulating texts and using texts out of context shows malice when used to accuse someone of a smear campaign to cover sexual harassment. Twohey in particular is well aware of the severe consequences that accompany such accusations. Moreover, the allegations were denied and the denial was not investigated at all.
They may also intend to use the fact the Twohey had extensive contacts with Blake outside of the complaint, and that Blake threatened to use The NY Times against them. We’ll see when they file their reply.
My personal opinion is that the fair use argument is their strongest, but it doesn’t apply to important parts of the article. Or at least there is question of fact there that precludes a motion to dismiss.
Anonymous wrote:jesus people it was an article reporting on a legal filing, they don't need to litigate the case internally and take testimony from both sides and determine whether the plaintiff will win before reporting on it. how do you think news gets reported? they asked his view and they reported his denial. get over it. again times will win this MTD 100% as they should
When you are labeling someone a sexual harasser the bar needs to be higher. I agree with you that they will probably win legally, but I don’t think this helped the paper or corporate media and both aren’t doing so great right now.
I don't think they labelled him a sexual harasser. The response to the article was really more focused on the PR angle because of the texts. Even the article was mostly focused on the PR angle because, again, they had the texts. If someone read it and thought "well 100% the sexual harassment in the complaint happened exactly as described," that is a problem with a reader being overzealous, not with the the reporting. Because that's not what they said. Everything about the SH was was couched as an allegation. Only the PR activity in the texts was asserted as something that happened, because the texts were real.
The first few paragraphs of the article (emphasis mine)
Last summer, as the release of “It Ends With Us” approached, Justin Baldoni, the director and a star of the film, and Jamey Heath, the lead producer, hired a crisis public relations expert.
During shooting, Blake Lively, the co-star, had complained that the men had repeatedly violated physical boundaries and made sexual and other inappropriate comments to her. Their studio, Wayfarer, agreed to provide a full-time intimacy coordinator, bring in an outside producer and put other safeguards on set. In a side letter to Ms. Lively’s contract, signed by Mr. Heath, the studio also agreed not to retaliate against the actress.
But by August, the two men, who had positioned themselves as feminist allies in the #MeToo era, expressed fears that her allegations would become public and taint them, according to a legal complaint that she filed Friday. It claims that their P.R. effort had an explicit goal: to harm Ms. Lively’s reputation instead.
Her filing includes excerpts from thousands of pages of text messages and emails that she obtained through a subpoena. These and other documents were reviewed by The New York Times.
They come out with a bang, just being completely 100% factually wrong. They say they agreed to provide an intimacy coordinator. When we find out later, justin hired the intimacy coordinator during reproduction, texted Blake, I’m really excited about the intimacy coordinator I hired! And then proceeded to set up a meeting with her. To which Blake said, I’m good. I’ll wait till I get on set.
Did you gather any of that from this first paragraph or did it look like she had to beg them for an intimacy coordinator? I’m sorry the article was really bad and I understood why he’s suing, even if he doesn’t win. This has not been good for the New York Times even if they prevail legally, and frankly, this is not been good for Megan, and she has weakened her reputation and made it harder for future women who want to come forward.
None of what they write is factually wrong. Regarding the intimacy coordinator, it says they agreed to hire a full-time intimacy coordinator, not that they didn't have one at all before. Even though they had an IC hired before the hiatus, it's not clear that she'd spent a single day on set, be abuse none of the scheduled sex scenes had been filmed yet.
And Blake saying in preproduction she was fine to meet the IC on set doesn't negate the truth of that. It may add context, but that's what a subsequent article was for
Also, if you read the emails Twohey sent to Wayfarer prior to publishing, she includes a ton of detail for verification. Had they wanted to, at that time, they could have offered the context you are talking about. They chose not to -- they chose to offer a single, vague paragraph via Bryan Freedman denying everything entirely and with a bunch of angry invective about Blake. And they made no indication that they had more specific context or that they wanted to provide it. They didn't even say "look, these situations are complex and your reporting is inaccurate, but we need more time to explain how," which might have changed how they framed it. They chose not to.. The allegation that the story was unfairly one sided doesn't work for me because Wayfarer chose to claim up and issue a flat denial immediately. They didn't take their chance to provide another side until they filed their lawsuit, which was duly reported as well.
OK, except there’s no such thing as a full-time intimacy coordinator. They come on days when there are intimate scenes filmed. Do you really think an intimacy coordinator just hangs out on that all the time waiting in case they are needed? It’s just not how these things are done. The article and the complaint implied there was no intimacy coordinator until Blake complained. That was obviously proven to be false.
Blake's 17-point list, which was part of NYT reporting requested to have a full time intimacy coordinator on set to accompany Blake at all times. Because part of her allegation was that Baldoni and Heath added intimacy to scenes not scripted that way, this was needed to protect her. And Wayfarer agreed to provide this.
You can argue that was not necessary, but it's factually accurate. And no, it doesn't "imply" no IC had been hired at all. It just says that Blake requested and the studio agreed to provide a full time IC. Again, that is accurate.
Had Wayfarer wanted to clarify that they engaged an IC in preproduction, they could have done so when specifically asked prior to publication. They didn't. What do you want the NYT to do?
Implication was that there was no I see. All over the Internet people were like what there was no I see that standard now? They have only implied there wasn’t one in it was deceptive. You can argue all you want, but people were confided.
The fact that princess Blake needed an intimacy coordinator on set to protect her at all times is absolutely ludicrous. I actually think that is going to work against her as an unreasonable demand. That is in no way standard and I’ve never heard of any other actors asking for that.
I am waiting for them to come out and blame it on severe postpartum depression. Blake seemed incredibly paranoid and thought that every man on that set was out to get her.
Look, I'm going to give you the benefit of the doubt and assume this word salad is due to voice-to-text on your phone. Next time try typing it out.
The point is that the NYT requested comment from Wayfarer and outlined Lively's allegations and they chose not to say anything like "we hired an IC before production began." That's on them. The NYT can only report what it knows. They did their due diligence. Lively alleged harassment and requested a full time IC, and Wayfarer agreed to provide one. If Wayfarer had more info about the IC, they should have told the NYT when they asked. You can't decline to comment on a situation when you know a newspaper is about to report about it and then say "hey you didn't include additional context that we had access to but failed to provide even when you asked" and call it defamation.
Again, as I said before, legally, you may be right. But it was just not the right thing to do. For Harvey Weinstein, they were working on the story for years, and they had several conference calls with him over the course of months to get his side of the story. It didn’t end up helping him, but that’s how they treated it. I’m just confused as to why one actress coming forward led to them only getting her side. I know that she’s famous and she was willing to put her name out there, but one actress alleging a bad experience on set, when we all clearly saw the power that she had on the film, should have tipped then off that there was more to the story.
Look you saw what happened as well as I did. This article came out and for about 10 days around Christmas time Blake lively was having the upswing of her life. Everyone was on her side. Then 10 days later when Justin’s team was able to put out just a fraction of their side of the story, it was radio silence from Hollywood and all of her supporters. I just don’t understand if they started working on this in October, why they couldn’t have given his team more time. I actually still think it would’ve been a really groundbreaking and huge article with more nuance. And I think it probably would’ve helped Blake too, because she had the 10 days, but look at her now.
The Weinstein comparison doesn't hold up. People only make this comparison because of Twohey. Weinstein took a long time to report because none of the women wanted to go on the record. They had to wait until there were enough women making allegations that they could convince them to come forward together -- no one wanted to be the lone accuser. Lively was not only willing to go on the record, she was filing a lawsuit. So they didn't have to wait around like they did with Weinstein. Also due to the lawsuit, they couldn't wait to publish because once the lawsuit was published, they'd have lost the story.
Also, they didn't interview Weinstein multiple times over the course of months. I believe they had one or maybe two conference calls with him prior to publication, and they absolutely waited to initiate those calls until the rest of the story was pinned down. This is standard practice. You don't give an accused days or weeks or months to spin up a cover story. You get all your details nailed and then you present them to the accused for comment prior to publication. You give them enough time to comment fully but not enough time to (1) leak it in advance to another outlet they think will be more favorable, or (2) invent a cover story.
Freedman DID leak the story to TMZ before NYT could publish, actually. Even with the short lead time, he still managed to leak the complaint to another outlet between the time NYT asked for comment and when the published. Newspapers know people will play these games and you have to time requests for comment to protect your story so that the time you spent reporting doesn't get lost.
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You can argue all you want. Twoey locked down her socials and the public is largely on Baldoni’s side and thinks the times article is trash. But yes, they likely aren’t in legal trouble.
I mean, this is a country that re-elected Donald Trump and Twohey no doubt gets death threats all the time for her reporting. Saying "the public is on Baldoni's side" is not particularly interesting to me because "the public" is regularly wrong about things.
I’m sure that is of great comfort to Blake and Ryan lol.
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.
DP. It's been a while since I've looked at Baldoni's complaint. What exactly did he claim with regard to manipulation of texts? Was it the omission of the upside down emoji?
I recall in addition to the emoji which would’ve showed sarcasm there was another text that was left out that would’ve showed it was obvious sarcasm. Essentially the text in question made it seem like they were very proud of planting a story when the intent was actually they hadn’t planted it and had appeared organically and they were jokingly taking credit for it.
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.
Cherry picking means excluding texts that would give context to the contrary. It is also actually a legal, not a factual, matter. If the article relies upon documents outside of the complaint or presents them is a way different than the complaint, the fair use doctrine is not applicable to those parts of the article.
As you no doubt aware, if the group pleading argument is successful, plaintiff swill be given the opportunity to replead. It isn’t a dispositive argument.
You are just making up a definition of cherry picking. It's not a technical term. NYT can argue they printed the texts most relevant to the article. I think people make too much of this argument. Even when the texts are placed in context, they still describe the situation NYT reports on. There are like two instances where Wayfarer argues that additional context shows a single statement was sarcastic or meant something different. But that's one of two comments out if dozens of texts in the article. Even if you agree the context changes the meaning of those two statements, it's clear from the others that the reporting was accurate. There isn't some gotcha context here where it's like "oh they weren't even talking about Blake" or "oh this whole exchange is an elaborate joke."
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.
Cherry picking means excluding texts that would give context to the contrary. It is also actually a legal, not a factual, matter. If the article relies upon documents outside of the complaint or presents them is a way different than the complaint, the fair use doctrine is not applicable to those parts of the article.
As you no doubt aware, if the group pleading argument is successful, plaintiff swill be given the opportunity to replead. It isn’t a dispositive argument.
You are just making up a definition of cherry picking. It's not a technical term. NYT can argue they printed the texts most relevant to the article. I think people make too much of this argument. Even when the texts are placed in context, they still describe the situation NYT reports on. There are like two instances where Wayfarer argues that additional context shows a single statement was sarcastic or meant something different. But that's one of two comments out if dozens of texts in the article. Even if you agree the context changes the meaning of those two statements, it's clear from the others that the reporting was accurate. There isn't some gotcha context here where it's like "oh they weren't even talking about Blake" or "oh this whole exchange is an elaborate joke."
Anonymous wrote:jesus people it was an article reporting on a legal filing, they don't need to litigate the case internally and take testimony from both sides and determine whether the plaintiff will win before reporting on it. how do you think news gets reported? they asked his view and they reported his denial. get over it. again times will win this MTD 100% as they should
When you are labeling someone a sexual harasser the bar needs to be higher. I agree with you that they will probably win legally, but I don’t think this helped the paper or corporate media and both aren’t doing so great right now.
I don't think they labelled him a sexual harasser. The response to the article was really more focused on the PR angle because of the texts. Even the article was mostly focused on the PR angle because, again, they had the texts. If someone read it and thought "well 100% the sexual harassment in the complaint happened exactly as described," that is a problem with a reader being overzealous, not with the the reporting. Because that's not what they said. Everything about the SH was was couched as an allegation. Only the PR activity in the texts was asserted as something that happened, because the texts were real.
The first few paragraphs of the article (emphasis mine)
Last summer, as the release of “It Ends With Us” approached, Justin Baldoni, the director and a star of the film, and Jamey Heath, the lead producer, hired a crisis public relations expert.
During shooting, Blake Lively, the co-star, had complained that the men had repeatedly violated physical boundaries and made sexual and other inappropriate comments to her. Their studio, Wayfarer, agreed to provide a full-time intimacy coordinator, bring in an outside producer and put other safeguards on set. In a side letter to Ms. Lively’s contract, signed by Mr. Heath, the studio also agreed not to retaliate against the actress.
But by August, the two men, who had positioned themselves as feminist allies in the #MeToo era, expressed fears that her allegations would become public and taint them, according to a legal complaint that she filed Friday. It claims that their P.R. effort had an explicit goal: to harm Ms. Lively’s reputation instead.
Her filing includes excerpts from thousands of pages of text messages and emails that she obtained through a subpoena. These and other documents were reviewed by The New York Times.
They come out with a bang, just being completely 100% factually wrong. They say they agreed to provide an intimacy coordinator. When we find out later, justin hired the intimacy coordinator during reproduction, texted Blake, I’m really excited about the intimacy coordinator I hired! And then proceeded to set up a meeting with her. To which Blake said, I’m good. I’ll wait till I get on set.
Did you gather any of that from this first paragraph or did it look like she had to beg them for an intimacy coordinator? I’m sorry the article was really bad and I understood why he’s suing, even if he doesn’t win. This has not been good for the New York Times even if they prevail legally, and frankly, this is not been good for Megan, and she has weakened her reputation and made it harder for future women who want to come forward.
None of what they write is factually wrong. Regarding the intimacy coordinator, it says they agreed to hire a full-time intimacy coordinator, not that they didn't have one at all before. Even though they had an IC hired before the hiatus, it's not clear that she'd spent a single day on set, be abuse none of the scheduled sex scenes had been filmed yet.
And Blake saying in preproduction she was fine to meet the IC on set doesn't negate the truth of that. It may add context, but that's what a subsequent article was for
Also, if you read the emails Twohey sent to Wayfarer prior to publishing, she includes a ton of detail for verification. Had they wanted to, at that time, they could have offered the context you are talking about. They chose not to -- they chose to offer a single, vague paragraph via Bryan Freedman denying everything entirely and with a bunch of angry invective about Blake. And they made no indication that they had more specific context or that they wanted to provide it. They didn't even say "look, these situations are complex and your reporting is inaccurate, but we need more time to explain how," which might have changed how they framed it. They chose not to.. The allegation that the story was unfairly one sided doesn't work for me because Wayfarer chose to claim up and issue a flat denial immediately. They didn't take their chance to provide another side until they filed their lawsuit, which was duly reported as well.
OK, except there’s no such thing as a full-time intimacy coordinator. They come on days when there are intimate scenes filmed. Do you really think an intimacy coordinator just hangs out on that all the time waiting in case they are needed? It’s just not how these things are done. The article and the complaint implied there was no intimacy coordinator until Blake complained. That was obviously proven to be false.
Blake's 17-point list, which was part of NYT reporting requested to have a full time intimacy coordinator on set to accompany Blake at all times. Because part of her allegation was that Baldoni and Heath added intimacy to scenes not scripted that way, this was needed to protect her. And Wayfarer agreed to provide this.
You can argue that was not necessary, but it's factually accurate. And no, it doesn't "imply" no IC had been hired at all. It just says that Blake requested and the studio agreed to provide a full time IC. Again, that is accurate.
Had Wayfarer wanted to clarify that they engaged an IC in preproduction, they could have done so when specifically asked prior to publication. They didn't. What do you want the NYT to do?
Implication was that there was no I see. All over the Internet people were like what there was no I see that standard now? They have only implied there wasn’t one in it was deceptive. You can argue all you want, but people were confided.
The fact that princess Blake needed an intimacy coordinator on set to protect her at all times is absolutely ludicrous. I actually think that is going to work against her as an unreasonable demand. That is in no way standard and I’ve never heard of any other actors asking for that.
I am waiting for them to come out and blame it on severe postpartum depression. Blake seemed incredibly paranoid and thought that every man on that set was out to get her.
Look, I'm going to give you the benefit of the doubt and assume this word salad is due to voice-to-text on your phone. Next time try typing it out.
The point is that the NYT requested comment from Wayfarer and outlined Lively's allegations and they chose not to say anything like "we hired an IC before production began." That's on them. The NYT can only report what it knows. They did their due diligence. Lively alleged harassment and requested a full time IC, and Wayfarer agreed to provide one. If Wayfarer had more info about the IC, they should have told the NYT when they asked. You can't decline to comment on a situation when you know a newspaper is about to report about it and then say "hey you didn't include additional context that we had access to but failed to provide even when you asked" and call it defamation.
Again, as I said before, legally, you may be right. But it was just not the right thing to do. For Harvey Weinstein, they were working on the story for years, and they had several conference calls with him over the course of months to get his side of the story. It didn’t end up helping him, but that’s how they treated it. I’m just confused as to why one actress coming forward led to them only getting her side. I know that she’s famous and she was willing to put her name out there, but one actress alleging a bad experience on set, when we all clearly saw the power that she had on the film, should have tipped then off that there was more to the story.
Look you saw what happened as well as I did. This article came out and for about 10 days around Christmas time Blake lively was having the upswing of her life. Everyone was on her side. Then 10 days later when Justin’s team was able to put out just a fraction of their side of the story, it was radio silence from Hollywood and all of her supporters. I just don’t understand if they started working on this in October, why they couldn’t have given his team more time. I actually still think it would’ve been a really groundbreaking and huge article with more nuance. And I think it probably would’ve helped Blake too, because she had the 10 days, but look at her now.
The Weinstein comparison doesn't hold up. People only make this comparison because of Twohey. Weinstein took a long time to report because none of the women wanted to go on the record. They had to wait until there were enough women making allegations that they could convince them to come forward together -- no one wanted to be the lone accuser. Lively was not only willing to go on the record, she was filing a lawsuit. So they didn't have to wait around like they did with Weinstein. Also due to the lawsuit, they couldn't wait to publish because once the lawsuit was published, they'd have lost the story.
Also, they didn't interview Weinstein multiple times over the course of months. I believe they had one or maybe two conference calls with him prior to publication, and they absolutely waited to initiate those calls until the rest of the story was pinned down. This is standard practice. You don't give an accused days or weeks or months to spin up a cover story. You get all your details nailed and then you present them to the accused for comment prior to publication. You give them enough time to comment fully but not enough time to (1) leak it in advance to another outlet they think will be more favorable, or (2) invent a cover story.
Freedman DID leak the story to TMZ before NYT could publish, actually. Even with the short lead time, he still managed to leak the complaint to another outlet between the time NYT asked for comment and when the published. Newspapers know people will play these games and you have to time requests for comment to protect your story so that the time you spent reporting doesn't get lost.
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You can argue all you want. Twoey locked down her socials and the public is largely on Baldoni’s side and thinks the times article is trash. But yes, they likely aren’t in legal trouble.
I mean, this is a country that re-elected Donald Trump and Twohey no doubt gets death threats all the time for her reporting. Saying "the public is on Baldoni's side" is not particularly interesting to me because "the public" is regularly wrong about things.
Except that after the Weinstein story, her Instagram wasn’t locked down, it blew up with more followers, she published a very successful book and they made an amazing movie about her where I believe Carey Mulligan, an Oscar winner, played her so you know sometimes the public actually can get it right.
You are doing what Blake and Ryan are doing and this is why the public is against them - treating the public as if they are just too stupid to get this.
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.
Cherry picking means excluding texts that would give context to the contrary. It is also actually a legal, not a factual, matter. If the article relies upon documents outside of the complaint or presents them is a way different than the complaint, the fair use doctrine is not applicable to those parts of the article.
As you no doubt aware, if the group pleading argument is successful, plaintiff swill be given the opportunity to replead. It isn’t a dispositive argument.
You are just making up a definition of cherry picking. It's not a technical term. NYT can argue they printed the texts most relevant to the article. I think people make too much of this argument. Even when the texts are placed in context, they still describe the situation NYT reports on. There are like two instances where Wayfarer argues that additional context shows a single statement was sarcastic or meant something different. But that's one of two comments out if dozens of texts in the article. Even if you agree the context changes the meaning of those two statements, it's clear from the others that the reporting was accurate. There isn't some gotcha context here where it's like "oh they weren't even talking about Blake" or "oh this whole exchange is an elaborate joke."
What you are describing is a factual dispute which would preclude granting a motion to dismiss.
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.
Cherry picking means excluding texts that would give context to the contrary. It is also actually a legal, not a factual, matter. If the article relies upon documents outside of the complaint or presents them is a way different than the complaint, the fair use doctrine is not applicable to those parts of the article.
As you no doubt aware, if the group pleading argument is successful, plaintiff swill be given the opportunity to replead. It isn’t a dispositive argument.
You are just making up a definition of cherry picking. It's not a technical term. NYT can argue they printed the texts most relevant to the article. I think people make too much of this argument. Even when the texts are placed in context, they still describe the situation NYT reports on. There are like two instances where Wayfarer argues that additional context shows a single statement was sarcastic or meant something different. But that's one of two comments out if dozens of texts in the article. Even if you agree the context changes the meaning of those two statements, it's clear from the others that the reporting was accurate. There isn't some gotcha context here where it's like "oh they weren't even talking about Blake" or "oh this whole exchange is an elaborate joke."
What you are describing is a factual dispute which would preclude granting a motion to dismiss.
You can grant an MTD even if there are disputed facts. Their MTD arguments are meant to apply even if this factual dispute was resolved in favor of Wayfarer.
It’s premature to be discussing odds on a motion to dismiss without seeing a reply brief. My opinion at this point is that The NY Times lacks an argument to get the case thrown out in its entirety. They may get in narrowed.
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