Thursday, May 26, 2005
An investigative judge in Bergamo, Italy is ordering prosecutors to proceed with charges against writer Oriana Fallaci for defamation of Islam in her book The Force of Reason under articles 403 and 406 of the Italian Criminal Code, according to news reports in the Italian press. The first step is the drawing up of charges, based on the complaints by Adel Smith, who heads the Italian Muslim Union. If the case proceeds further, the prosecutors will serve Fallaci under the appropriate international agreement.
Professor Alberto Zuppi of the Louisiana State University Law Center, an expert in extradition law, notes that if, once properly served, Fallaci should refuse to appear voluntarily at the trial, the Italian government might have a great deal of difficulty extraditing her. The problem lies in the doctrine of dual criminality. While Italian law criminalizes the defamation of a state-recognized religion, the First Amendment is designed to protect expressions of opinion regarding religion and groups. The only group libel case ever decided by the Supreme Court, Beauharnais v. Illinois (1952) was subsequently seriously questioned by a 7th Circuit panel in Collin v. Smith (578 F. 2d 1197 (1978)). Even if we recognize group libel and group defamation in the U.S., is it a federal criminal offense? Of course, the Italian prosecution will argue that what Fallaci wrote is not opinion, but statement of fact, and that further, it is falsehood.
In addition, Professor Zuppi believes that Italy's four-pronged scheme for handling in absentia trials may have some procedural drawbacks that would also cause problems, further delaying and perhaps completely scuttling any chances that the U. S. would agree to extradite Fallaci to Italy, should she decline to appear.
For news reports see Crispian Balmer's May 25th article and a Washington Times piece. For more on dual criminality see Jonathan O. Hafen, Comment: International Extradition: Issues Arising Under the Dual Criminality Requirement, 1992 B.Y.U. L. Rev. 191.
Wednesday, May 25, 2005
Michigan Court of Appeals Upholds Dismissal of Defamation Suit, Reverses Sanctions Against Plaintiff
A Michigan plaintiff has lost his appeal against a slate of tv stations in a defamation lawsuit but won the appeal for a reversal of the sanctions imposed by the trial court. In George v. Senate Democratic Fund, a physician running for state senate had objected to a campaign ad running on several Kalamazoo-area tv stations that suggested that because his medical practice did not take Blue Cross insurance he would be an unfortunate choice for the legislature. The plaintiff's campaign aid called the opponent's campaign office and "demand[ed] that the advertisement be pulled within fifteen minutes, issu[ed] press releases denouncing the advertisement, [held] a press conference, and [ran] an advertisement defending himself and attack[ed] LaForge in the Kalamazoo Gazette ....Notwithstanding the advertisement, plaintiff won the election."
The trial court "determined as a matter of law that the gist or sting of the advertisement was not defamatory..." and "[p]laintiff conceded that he sustained no actual monetary loss or mental or emotional distress, though he did claim general irritation and concern for his reputation as a physician." Dr. George asserted however that this action involved "defamation per se" because "it concerned plaintiff's profession or employment. We disagree. MCL 600.2911(1) specifically mentions and makes "actionable" two specific types of common law defamation per se: "[w]ords imputing a lack of chastity" and "words imputing the commission of a criminal offense." Defamation regarding one's business or profession is not made specifically actionable, and is therefore governed by the remainder of MCL 600.2911. MCL 600.2911(2)(a) and (b) limit recovery to actual damages, unless the plaintiff gives notice to publish a retraction and allows a reasonable amount of time to do so. Here, plaintiff did not request a retraction....Further, plaintiff demanded that defendant take action within fifteen minutes....
"We conclude, however, that the court erred in imposing sanctions on plaintiff and his attorney for filing this action in violation of MCR 2.111(D)(2)....The court concluded that the action was not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law...."
The appellate court found that since the plaintiff's argument "rests on the legal and factual premises that Michigan recognizes defamation by implication" and that the advertisement actually made certain implications that might have suggested conclusions to its viewers that the defendants knew were false, and that the plaintiff did suffer "adequate damages" according to a prior Michigan case, "none of these positions lacked factual support or were unwarranted by existing law or a good-faith argument for the extension, modification or reversal of existing law."
Read the entire decision here.
Sunday, May 22, 2005
The Media Guardian reports that Hello! has won its appeal against rival OK over publication of the Catherine Zeta-Jones/Michael Douglas wedding pictures, a legal battle that has been going on in various arenas since 2000. For the Guardian's extensive coverage, as well as legal commentary by Dan Tench, see the Guardian's pages beginning here.
Michael McCann and Greg Skidmore's Sports Law Blog has posted an item about sportscaster Bob Lobel's defamation suit against cartoonist Darby Conley. Thanks for Professor McCann for alerting me to this post.