Gossip Column Has No Special Protection From Defamation Suit

Michel, who now lives in Broward County, FL, and focuses on philanthropic efforts in Haiti, denied the article's assertion that he was associated with the Hope for Them Foundation, had committed to perform or that the event had anything to do with the 9/11 anniversary.

Federal District Judge James Cohn in Fort Lauderdale had dismissed the lawsuit under New York law, finding that the tone and placement of the article suggested it was founded on non-actionable statements of opinion. “The New York Post's Page Six traffics in celebrity gossip,” Judge Cohn wrote. “It's reputation is well-known.”

Michel hired Boies, Schiller & Flexner to handle the appeal. His attorneys argued the court should reconsider New York's three-part test for whether a statement is fact or opinion, which the N.Y. Court of Appeals applied in its 2014 ruling in Davis v. Boeheim, 22 N.E.3d 999. The test asks: 1) whether the language used has a precise, readily understood meaning; 2) whether the statements can be proven true or false; and 3) whether the context of the communication signals to readers that the piece is likely to be opinion, not fact.

New York courts have ruled that even statements on the opinion page of the New York Times were not automatically shielded from defamation claims, the attorneys argued. In 1991, the Times published an op-ed piece called “A High-Tech Watergate” that was written by an attorney for a software company who claimed that the Department of Justice made illegal copies of the company's software and called for an investigation into a shareholder from a rival company who was allegedly linked to the scheme. The shareholder sued the attorney for defamation and, in 1995, the N.Y. Court of Appeals ruled that the defendant's statements were not shielded from liability solely by the fact that they were printed in the Times ' opinion pages. Brian v. Richardson, 660 N.E.2d 1126.

“There certainly were some cases that supported our position that no matter where the statements appear in the newspaper, you still have to go through the analysis and figure out whether they're capable of being proved true or false and how a reasonable reader would evaluate them,” says Michel's attorney, Eli Glasser, who is of counsel to Boies Schiller in Fort Lauderdale.

Circuit Judges Marcus, Adalberto Jordan and Susan Black found the language in the article ' such as the statements that Michel “bailed on” the event and it involved “his own” foundation, could be readily understood and proven true or false. But the judges still agreed the complaint as written should have been dismissed because it did not allege adequate facts to show the Post or its reporters acted with actual malice. Because Michel is a public figure, he cannot win his defamation case without showing the Post knew its story was false or published it with reckless disregard for the truth.

The Eleventh Circuit remanded the decision to District Judge Cohn with instructions that Michel be allowed to amend his complaint. “We feel that this was an important issue under New York law in the defamation context,” Glasser says. “If the Eleventh Circuit would have accepted the defendants' arguments, there would have almost been a presumption of immunity for Page Six and other gossip columns.”

Along with Glasser, Boies Schiller partner Michael Gottlieb and associate Greg Dubinsky in Washington represented Michel. Davis Wright Tremaine partners Constance Pendleton and Laura Handman in Washington and associate Yonatan Berkovits in New York, and Dana McElroy of Thomas & LoCicero in Fort Lauderdale, represented the Post and reporters Isabel Vincent and Melissa Klein.

Celia Ampel is a reporter for Entertainment Law & Finance's ALM sibling Daily Business Review.