But legal experts say Beverly Hills lawyer Charles Harder is facing significant obstacles in his new suit — filed last Wednesday on behalf of life coach Gregory Scherick, who claims that Jezebel published a “false and defamatory article” alleging that Scherick runs a “cult.”
First, First Amendment experts note that publishers have more legal protections in a libel case than they do in an invasion of privacy case like Hogan’s, in which the former wrestler sued over Gawker’s publication of portions of a sex tape.
“Putting aside the general merits of this suit, it’s just tougher to win a libel suit rather than a privacy suit,” University of Minnesota journalism professor Jane Kirtley said.
Scherick must show that Jezebel’s article is materially false, while Jezebel can win if it shows the article is substantially true. If Scherick is found to be a public figure, which is possible given the popularity of his “Superstar Machine” program that prompted Jezebel’s exposé, he must prove Jezebel published with actual malice, publishing with knowledge the article is false or with serious doubts that the article is true.
None of those defenses are available in a privacy suit.
Another key difference between the Jezebel and Gawker lawsuits is the location. Unlike his successful Hogan case, in which a Florida jury last year awarded $140 million to Hogan and forced Gawker into bankruptcy, Harder filed his new suit in New York — where judges have proved to be far more likely to dismiss libel lawsuits.
The sheer number of past suits over alleged press abuses — many media companies are based in the state — has created a strong collection of court decisions that guide judges on First Amendment protections, lawyers in the field say.
“There’s no question it has been historically easier to get a dismissal or summary judgment on libel cases in New York,” University of Maryland journalism school dean Lucy Dalglish told TheWrap. “New York judges generally follow established law and are accustomed to dealing with cases involving media of all types.”
Kirtley added, “All things considered, if I’m libel media defendant, and if I could be sued anywhere, I’d prefer to be sued in New York.”
A recent decision by a New York federal judge to dismiss Sarah Palin’s libel lawsuit against the New York Times is “a great illustration” that both federal and state judges in the Empire state are not afraid to give the boot to libel lawsuits, Kirtley said.
Palin’s lawsuit was dismissed on Aug. 29 by U.S. District Court Judge Jed Rakoff, who ruled that Palin did not prove the Times acted with actual malice when publishing an editorial that mistakenly connected one of her political action committees to the 2011 Arizona shooting that wounded then-Rep. Gabrielle Giffords.
According to Los Angeles media lawyer Lincoln Bandlow, Harder didn’t have much choice on the venue since both Jezebel and Scherick’s company, International Scherick, are based in New York.
“I think the New York court was the best idea,” Bandlow said.
Harder did not respond to requests for comment about the lawsuit.
It’s also unclear if Silicon Valley investor Peter Thiel is bankrolling the Jezebel suit as he did with Hogan’s suit against Gawker — which ultimatelypaid Hogan $31 million to settle the privacy case before declaring bankruptcy.
Gawker’s sister sites, including Jezebel and Gizmodo, were later sold to Univision Communications’ Fusion Media Group.
Reps for Thiel did not respond to requests for comment.