"Yellow Journalist" Loses Defamation Lawsuit, Showing Need for Anti-SLAPP Statutes

Back in July I wrote about how Lori Kilchermann — an editor at the Ionia, Michigan Sentinel-Standard — filed a defamation lawsuit against local citizens who complained about her reporting and called her a "yellow journalist." As I explained then, the suit was patently frivolous and abusive because it attacked statements of opinion protected under the First Amendment:

The problem is, of course, that statements of opinion are absolutely protected by the First Amendment when, as here, they are premised on known and disclosed facts. "Yellow journalism" is a classic example of rhetorical flair that is self-evidently opinion because its application is based on issues of fairness and bias on which different observers will differ. "Editorializes the news" is another classic example; show a political news story to partisans of two parties and you'll get two opinions on whether it editorializes.

Via the Huffington Post, I see that a judge has agreed and dismissed Kilchermann's censorious lawsuit. Ionia County Circuit Court Judge Suzanne Hoseth-Kreege dismissed the case, but regrettably failed to award sanctions:

After hearing arguments Friday Hoseth-Kreeger ruled that, as editor of the local paper, Kilchermann is a public figure. Kreeger found the statements by the defendants were opinions and were protected speech under the First Amendment. She also denied a request to impose sanctions against Kilchermann for filing what the defendants say was a frivolous lawsuit.

That means that even though the defendants are off the hook now, they are tens of thousands of dollars poorer. In that sense Kilchermann and her lawyer Carrie Gallagher of Duff Chadwick & Associates PC
succeeded in their effort to abuse the legal system to silence critical speech:

Ken Thompson, one of the defendants, with his wife, Darlene, said they plan to file a request with the state Court of Appeals to have Kilchermann cover their attorney fees. They said the cost of defending the lawsuit is around $30,000.

“We had to pay for justice,” Ken Thompson said Monday, Oct. 14.

Michigan doesn't have an anti-SLAPP statute. Anti-SLAPP statutes generally make it mandatory for the court to award fees and costs to the prevailing defendant. In states without anti-SLAPP statutes, judges are generally reluctant to sanction plaintiffs and their lawyers for censorious lawsuits. That may be from ingrained deference to lawyers, or from a judicial tendency to "split the baby" by granting a motion to dismiss but denying sanctions. This kind of case — in which a patently frivolous lawsuit can cost citizens tens of thousands of dollars without ready recourse — highlights the need for robust anti-SLAPP statutes in every state.

People make mistakes. A legal threat in response to an insult could be a mistake, uttered in the heat of the moment. If the threatener later retracts the threat and apologizes, it may be appropriate to forgive and forget. But a lawsuit is not a temporary mistake. It's a deliberate and prolonged course of action. Here, Lori Kilchermann — putatively a journalist, relying on the protections of the First Amendment — attempted to silence critics through a frivolous lawsuit, and stuck to her guns when defendants pointed out the patent flaws in her case. Nobody should ever take Lori Kilchermann seriously as a journalist again, and we should question the judgment of any journalistic institution that employs her.

Last 5 posts by Ken White

Comments

  1. anne mouse says

    I'm all in favor of ditching the "American rule" in general (not just for SLAPP cases) but a $30,000 legal bill in this case is absurd no matter who pays. Filing and arguing a pretrial motion to dismiss in an an open-and-shut case costs a median American earner's yearly salary???
    http://www.ssa.gov/oact/cola/central.html

    That's what, eight hours of work if you've never argued a defamation case before? OK, quadruple that if the lawyer did a thorough job interviewing client and researching facts, attempting to negotiate with plaintiff, and coordinating with co-defendants repeatedly during the inevitable delays. Maybe double again if the plaintiff filed lots of vexatious discovery requests. So this lawyer is charging about $500 an hour?

  2. Shelby says

    anne mouse:

    Not even strong anti-SLAPP statutes automatically award the plaintiff whatever fees they've been billed. You have to prove that the fees were actually incurred, AND that they were reasonable, at least in all instances I'm aware of.

    we should question the judgment of any journalistic institution that employs her

    Asking us to have an opinion on the judgment of the Ionia, Michigan Sentinel-Standard, may be a bit much, Ken.

  3. jimmythefly says

    Shelby, I don't believe you have to actually show that fees were incurred, just what they would have been.

    In that way someone who gets pro-bono representation can still actually recover fees, even though they didn't necessarily incur that much cost.

  4. En Passant says

    People make mistakes. A legal threat in response to an insult could be a mistake, uttered in the heat of the moment. If the threatener later retracts the threat and apologizes, it may be appropriate to forgive and forget. But a lawsuit is not a temporary mistake. It's a deliberate and prolonged course of action.

    It's the civil equivalent of "You might beat the rap, but you can't beat the ride."

  5. says

    @Anne Mouse:

    $500/hour is actually a fairly standard rate for an attorney. Some of the big firms in NYC or other major cities might charge 1.5x-2x that amount for their heaviest-hitting attorneys. Suffice it to say, lawyering up ain't cheap, even if it is necessary, and that's part of why Ken advocates for strong, "loser-pays" anti-SLAPP legislation. It helps deter people from abusing the system if they know they'll have to pay not only their own lawyers, but they other guy's lawyers, too.

    Ken, if I've misconstrued my reading of your past ramblings on the topic I apologize, but that's what I've gotten over the last couple years from reading your work.

  6. says

    $30,000 is not out of line for an experienced attorney to get a SLAPP suit dismissed. Motions can be extremely complex even when a suit is clearly frivolous.

    You may think that's ridiculous, but that's the market.

  7. JTM says

    @Ryan "Can her lawyer be sanctioned or disciplined by her bar association for the lawsuit?"

    Theoretically, yes. Michigan Rule of Professional Ethics 3.1 says that "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous."

    In practice, I'd be shocked if it happened. Attorney behavior usually has to be a lot more egregious than pursuing a frivolous complaint before the Bar will get involved (e.g., neglecting or abandoning the client's case, stealing from the client, commingling client funds with attorney funds, commingling client genitals with attorney genitals).

  8. Matt says

    I'm neither a lawyer nor a constitutional scholar, and I don't play either on TV, nor did I sleep at a Holiday Inn Express last night, so maybe somebody can help me with this: Would each state have to pass its own anti-SLAPP law(s), or can Congress pass one at a Federal level that would also apply to the state courts? (Is there a Federal anti-SLAPP law? I don't remember, although I'm under the impression the answer is "no".)

  9. s says

    You may think that's ridiculous, but that's the market.

    Actually it's not the market, it is the monopoly price premium. The bar monopoly, like all persistent monopolies, requires the frequent and vigorous application of government violence to maintain it. Would-be competitors are robbed, beaten, and caged as required to maintain the monopoly price premium.

    A true market price for a moderately complex motion would almost certainly be a fraction of $30,000. As someone who competes in an unlicensed, non-monopoly marketplace offering professional services, with 15+ years in the business and a new client rate over $300 per hour, I am fairly confident about this statement.

  10. Luke G says

    Piggybacking on Matt, my understanding would be that a Federal Anti-SLAPP would only apply in federal court. I may be full of crap, though. I'm just ever so glad my state sees no reason to fix that little issue…

  11. Shelby says

    jimmythefly: That depends on the statute.

    jackn2: You can sue someone for abuse of the civil process (suing you without any reasonable factual basis) but those cases are tough to win. And if you DON'T win, you're out even more legal fees, plus whether you win or not there's the aggravation and lost days of your life.

  12. says

    @jackn2,

    Yes and no. It wouldn't be damages they'd sue for, but attorney's fees. As far as your question goes, that's a slight quibble, but as far as the law goes it's an important distinction. The problem, though is that such a lawsuit requires yet more expenditures without much guarantee of success, so it's a big gamble.

  13. readering says

    A lot of insurance policies, including homeowner policies, have coverage for defamation, since it's fairly rare, so the defendants here may have insurance. The plaintiff would not have insurance, although maybe her attorney took the case on contingency so she was not out of pocket.

    Most federal courts treat anti-slapp motions as a substantive state law right and act accordingly, although a Ninth Circuit panel recently questioned whether that is the correct way to treat such motions.

  14. Matt says

    @readering

    Most federal courts treat anti-slapp motions as a substantive state law right and act accordingly

    Sorry, can you explain what that means, possibly by example?

  15. anne mouse says

    @matt,

    It means that the statute gives you a right to recover attorney's fees even if the lawsuit is decided in a federal court.

    Generally, federal courts decide all their own procedures but if the case is about a state policy (i.e., "substantive", the opposite of "procedural") then the federal court will apply state law.

    (Suing in federal court over a state right can happen a few ways. You might have a mix of federal and state claims, forcing you into federal court. Or the defendant might "remove" the case to federal court because of "diversity jurisdiction", i.e., the defendant and plaintiff live in different states.)

    Whether a law about attorney's fees is procedural or substantive is the sort of thing that keeps appeals lawyers busy.

  16. C. S. P. Schofield says

    "Nobody should ever take Lori Kilchermann seriously as a journalist again"

    Nobody should ever take ANY journalist seriously. Or not very seriously, anyway.

  17. Dan says

    s,

    I'm curious how you define "monopoly", if a marketplace in which a consumer can choose among tens, if not hundreds, of thousands of vendors meets that definition. Or, in the immortal words of Inigo Montoya, "you keep using that word. I do not think it means what you think it means."

  18. Andrew Timson says

    I'm neither a lawyer nor a constitutional scholar, and I don't play either on TV, nor did I sleep at a Holiday Inn Express last night, so maybe somebody can help me with this: Would each state have to pass its own anti-SLAPP law(s), or can Congress pass one at a Federal level that would also apply to the state courts? (Is there a Federal anti-SLAPP law? I don't remember, although I'm under the impression the answer is "no".)

    I am also neither a lawyer nor a Constitutional scholar. My layman's understanding is that Constitutionally, a federal statute would not apply to the state courts. But given the shit that's been forced to apply even though the feds shouldn't have jurisdiction over the last 150 years, it's even odds whether anybody would pay the Constitution any heed.

  19. AP² says

    @Dan

    The monopoly is on the licensing to practice, which is granted to a single state bar, and which limits the total number of lawyers. Most US states have a single corporation that one must join to practice law without risking sanctions. The fact that they allow thousands of lawyers to practice is irrelevant.

    Now, one can argue this monopoly is justified, but that's a different issue. "s" is correct when claiming that the supply of law counselling is artificially restricted.

    On the other hand, Ken didn't say "free market", so the objection is not necessarily relevant.

  20. Jerry says

    The narrative that licensing organizations produce monopolies and monopolies are the only cause of high prices is one of those things a certain group of economists love to repeat, but reality is rarely so simple.

    The state of the legal business in the US is paradoxical. On the one hand, we are clearly an "over-lawyered" society – something that can be seen either by comparing our per capita number of lawyers to pretty much any country in the world, or to our own historical norms, or by looking at the (not so good) job prospects of the majority of today's law school graduates: For each high-payed associate on a partnership track at a major law firm, there are tens, perhaps hundreds, barely scraping by or unemployed. At the same time, legal representation at reasonable cost is virtually unavailable. If you're rich enough, you can buy incredible legal talent. If you're poor enough, at least in criminal cases, you get a free PD who may or may not be competent, but is certainly grossly overloaded with work. If you're in the vast middle, any encounter with the legal system is likely to leave you seriously damaged economically.

    How can there be plenty of lawyers looking for work, but no lawyers available at reasonable prices to those who need them? The simple economics of supply and demand don't provide an explanation – and yet that's where we are.

    The legal market has always been structured oddly. My wife has, for 20+ years, been in-house counsel at a very large public corporation. Traditionally, in-house counsel handled all the boring, day-to-day stuff; anything important was handed off to some big-name firm kept on retainer. The big-name firm would send a bill reading "$550,220.67 for legal services rendered", and the company would pay it, no questions asked. She started at this company – having come from private practice – at a time when big businesses were starting to question this arrangement. They demanded actual line-by-line accounting of where the money went; and they started bargaining hard on the actual charges. She was in meetings about such bills where the company would look at the now-detailed bill and say "We'll pay you half" or even less – and they'd bargain from there.

    Increasingly, though, the big companies decided to just bring much of this stuff in house. That's why she was hired. While they do use external firms all the time, they always make a judgement as to whether they have the internal expertise and manpower to do it themselves, and the answer is usually "yes" except in some of the largest, most complex or important cases. (I gather litigation, though they have in-house litigators, is the most likely to be sent out. Contract drafting and negotiation – the meat and potatoes of any commercial practice – is almost always done in-house these days, even in really complicated cases.)

    So when you see all the newspaper articles about big law firms going broke – or the more specialized articles that generally don't hit the mainstream press about firms moving almost everyone off the partnership track, and even finding ways to push not-as-productive partners out the door of what was once a life-time office – you know why.

    Why did corporations put up with the old practices for so many years? What finally made them change their minds? How long can the big firms continue to keep prices up by cutting their own staff? (They don't actually *shrink*, in general – the trend is to merge into ever larger behemoths, eliminating "redundant services" along the way.)

    A bizarre and complex system….
    — Jerry

  21. Dan says

    Many, many professions (to pick just a few at random: teachers, doctors, hairdressers, pawnbrokers, gun dealers, taxi drivers, engineers) require a license, and the vast majority of those have only one licensing body within any particular geographic area. This does not create a monopoly in the market for that profession. The licensing scheme may or may not be justified in the interest in consumer protection (I'm an attorney, and I'm skeptical that attorney licensing does anything meaningful to protect the public), but a monopoly in licensing does not translate into a monopoly in the market.

  22. Dion starfire says

    First rule of legal fees: don't talk about legal fees. Second rule of legal fees: don't talk about … you get the idea.

    Fight club reference aside I'll just point out that the phrase "that's the market" is the economic version of "don't hate the player, hate the game". Or, as the politicos would say "that's just how the game is played".

    Of course, in fairness, another factor in raising legal costs is our "common law" (i.e. similar cases should have similar rulings) system. When you've got 100+ years of possible precedents to sort through for every aspect of an issue, deciding or (effectively) advocating an issue can be a LOT of work. Every social system has it's strengths and weaknesses.

  23. Anony Mouse says

    @Dan

    That may be, but many of those are licensed by the state itself, not an independant body.

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