Letter To Jennifer Allen Regarding False And Defamatory Statements(uncrunched.com)
uncrunched.com
Letter To Jennifer Allen Regarding False And Defamatory Statements
http://uncrunched.com/2013/04/11/jennifer-allen-false-defamatory/
7 comments
As in all defamation cases, it is Ms. Allen's job to prove that the allegedly defamatory statements (the accusation of rape) were true and the photo is a significant obstacle for her to overcome. From an evidentiary perspective, the facebook page of the photo proves nothing other than that the photo was uploaded from a mobile device on March 6. Nothing else in the information provided indicates when the photo was taken, but it would be reasonable to infer that it was uploaded contemporaneously with being taken.
OTOH, by posting the photos from the "For only you" email chain, Arrington's lawyers may have breached her right to privacy with regards to those photos. (According to the lawyer's bio, he's an expert at business litigation, IP, and unfair competition and those are the firm's primary practice areas...but not defamation or other non-business torts. http://www.bgrfirm.com/attorneys/eric-m-george/.) This is why you hire lawyers that are experienced in their field. Experience in one area of law does not necessarily transfer to other areas of law.
It's also quite odd that Arrington lives in Washington, the events at issue allegedly took place in SF Bay Area, but the lawyer and his firm...are located in LA. Clients rarely, if ever hire non-local attorneys to handle their legal matters--especially non-local attorneys who are not experts at handling the legal issues at hand.
OTOH, by posting the photos from the "For only you" email chain, Arrington's lawyers may have breached her right to privacy with regards to those photos. (According to the lawyer's bio, he's an expert at business litigation, IP, and unfair competition and those are the firm's primary practice areas...but not defamation or other non-business torts. http://www.bgrfirm.com/attorneys/eric-m-george/.) This is why you hire lawyers that are experienced in their field. Experience in one area of law does not necessarily transfer to other areas of law.
It's also quite odd that Arrington lives in Washington, the events at issue allegedly took place in SF Bay Area, but the lawyer and his firm...are located in LA. Clients rarely, if ever hire non-local attorneys to handle their legal matters--especially non-local attorneys who are not experts at handling the legal issues at hand.
> As in all defamation cases, it is Ms. Allen's job to prove that the allegedly defamatory statements (the accusation of rape) were true and the photo is a significant obstacle for her to overcome.
That's not the case under US libel and defamation law. As with any other tort, the plaintiff has the burden of proof (and thus must prove, among other elements of the tort, that the statement was false). The UK and some other jurisdictions have a reversed burden of proof for defamation or libel, but not the US.
That's not the case under US libel and defamation law. As with any other tort, the plaintiff has the burden of proof (and thus must prove, among other elements of the tort, that the statement was false). The UK and some other jurisdictions have a reversed burden of proof for defamation or libel, but not the US.
I left work before I realized I left out the part about truth being Ms. Allen's burden because it is her defense to defamation. (In US law, once the plaintiff has made a prima facie showing of their case, the burden shifts back to the defendant to prove their defense.)
Common elements of defamation in US law: 1) a false statement purporting to be fact concerning another person or entity; 2) publication or communication of that statement to a third person; 3) fault on the part of the person making the statement amounting to intent or at least negligence; and 4) some harm caused to the person or entity who is the subject of the statement.
Mr. Arrington has made a prima facie showing of the elements of defamation. (This doesn't mean that he's proven his case, since that is a factual determination by a judge or jury. It simply means that he appears to have shown sufficient evidence of each element that the factfinder could find for him.) I leave it to you to read the massive of wall of text to see how each element is met.
Truth is a defense to defamation, under American law. Thus, it is now Ms. Allen's job to prove the truth of the allegedly defamatory statements. In this regard, the photo is a significant obstacle to overcome in showing the truth of her statements, if, as suggested, she was several hundred miles away from the plaintiff at the time of the alleged incident.
Common elements of defamation in US law: 1) a false statement purporting to be fact concerning another person or entity; 2) publication or communication of that statement to a third person; 3) fault on the part of the person making the statement amounting to intent or at least negligence; and 4) some harm caused to the person or entity who is the subject of the statement.
Mr. Arrington has made a prima facie showing of the elements of defamation. (This doesn't mean that he's proven his case, since that is a factual determination by a judge or jury. It simply means that he appears to have shown sufficient evidence of each element that the factfinder could find for him.) I leave it to you to read the massive of wall of text to see how each element is met.
Truth is a defense to defamation, under American law. Thus, it is now Ms. Allen's job to prove the truth of the allegedly defamatory statements. In this regard, the photo is a significant obstacle to overcome in showing the truth of her statements, if, as suggested, she was several hundred miles away from the plaintiff at the time of the alleged incident.
Correct that truth is a defense. But, as I understand it, the defendant does not at any point have a burden of proof in a civil case, even if the plaintiff has made a prima facie case. That's just not how burden of proof works for any tort under US law. The burden is essentially always the plaintiff's by a preponderance of the evidence. Many defendants try to prove truth of their claims so that the plaintiff cannot meet their burden of proof to show falsity. But that doesn't mean they have the burden of proof, in the sense in which it's typically used.
Here's the wikipedia article: http://en.wikipedia.org/wiki/United_States_defamation_law
Here's a random scholarly article on the topic: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=22...
I believe they do not support your position.
That being said, I'm not a lawyer and for all I know maybe you are, so perhaps I am failing to understand the issue.
Here's the wikipedia article: http://en.wikipedia.org/wiki/United_States_defamation_law
Here's a random scholarly article on the topic: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=22...
I believe they do not support your position.
That being said, I'm not a lawyer and for all I know maybe you are, so perhaps I am failing to understand the issue.
Yes, you're missing a crucial distinction: there are different types of defamation. Defamation of a public figure (which the linked law journal article you provided discusses) places a higher burden on the plaintiff than defamation of a private individual. A public figure must demonstrate the falsity of statements made against him, and must demonstrate malice. The justification is that a public figure is more readily able to defend himself or has others willing to defend him in the court of public opinion.
For defamation of a private individual, the burden of truth remains with the defendant (once the plaintiff establishes a prima facie case). See, e.g., Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953. There are slight variations from state to state, but this is the general rule. (By the way, in case you are wondering, in the legal field, citing a case or statute trumps a law review article or Wikipedia every time.)
For defamation of a private individual, the burden of truth remains with the defendant (once the plaintiff establishes a prima facie case). See, e.g., Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953. There are slight variations from state to state, but this is the general rule. (By the way, in case you are wondering, in the legal field, citing a case or statute trumps a law review article or Wikipedia every time.)
I looked up th case you cited, a copy of the opinion of the court may be found here: http://law.justia.com/cases/california/caapp4th/30/943.html
As far as I can tell, it doesn't say what you claim it does. There is no mention of burden of proof or prima facile case at all. It merely states that truth is an absolute defense, but that is only the case because it precludes the plaintiff meeting their burden of proof to show falsity.
Since you mention a distinction between private and public indviduals, I suspect you are confusing the issue of burden of proof with the "actual malice" standard, which must be met to establish defamation of a public figure but not a private figure. This is established by Supreme Court precedents Arthur v Sullivan and Getz v Robert Welch Inc, both of which are cited in the law review article I mentioned and both of which maintain falsity as a required element of the offense. (In case you were wondering, Supreme Court precedent trumps Circuit Court precedent in the US, so even if the case said what you claimed it would not be informative about the state of the law of defamation.)
As far as I can tell, it doesn't say what you claim it does. There is no mention of burden of proof or prima facile case at all. It merely states that truth is an absolute defense, but that is only the case because it precludes the plaintiff meeting their burden of proof to show falsity.
Since you mention a distinction between private and public indviduals, I suspect you are confusing the issue of burden of proof with the "actual malice" standard, which must be met to establish defamation of a public figure but not a private figure. This is established by Supreme Court precedents Arthur v Sullivan and Getz v Robert Welch Inc, both of which are cited in the law review article I mentioned and both of which maintain falsity as a required element of the offense. (In case you were wondering, Supreme Court precedent trumps Circuit Court precedent in the US, so even if the case said what you claimed it would not be informative about the state of the law of defamation.)
Don't forget the issue of "false light". The facts appear to speak for themselves, but even a truthful claim is actionable if it casts the plaintiff in a false light that results in reputation damage or public ridicule.
https://en.wikipedia.org/wiki/False_light
https://en.wikipedia.org/wiki/False_light
> It's also quite odd that Arrington lives in Washington, the events at issue allegedly took place in SF Bay Area, but the lawyer and his firm...are located in LA
Arrington grew up in Huntington Beach and went to Claremont.
Arrington grew up in Huntington Beach and went to Claremont.
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Looks very detailed. Let this be another reminder to wait before assuming every accusation is true. Especially in rape cases the damage is done the minute allegations are spread. Mike has made many enemies, and by all accounts he is a d*ck but those ex-friends of his that used this case to get even with him are blacklisted forever in my mind.
Wow...this is pretty damning stuff.
I wonder how all the 'pilers on' will respond. I assume an apology is in order.
Edit: I never knew anything much about this Loren figure, aside from the video....but I definitely will never trust anything he has to say again. As for Calacanis....was never a fan of his to begin with.
I get that Michael is abrasive, pushy and can sometimes be a dick to people he works with. I don't know him personally, but it is just pathetic to see how opportunistic his detractors are. I mean....what grade are these guys in? This is stuff you would expect from a middle school crowd. Only to know that these guys are grown-ass men.
shakes head
I wonder how all the 'pilers on' will respond. I assume an apology is in order.
Edit: I never knew anything much about this Loren figure, aside from the video....but I definitely will never trust anything he has to say again. As for Calacanis....was never a fan of his to begin with.
I get that Michael is abrasive, pushy and can sometimes be a dick to people he works with. I don't know him personally, but it is just pathetic to see how opportunistic his detractors are. I mean....what grade are these guys in? This is stuff you would expect from a middle school crowd. Only to know that these guys are grown-ass men.
shakes head
I'm really wondering how Chen and Gawker will be able to spin this. Really should have done this background work to begin with for such a serious allegation.
Not sure that it's appropriate for you to be commenting without a clear disclaimer that you're a writer for Techcrunch. Conflict of interest perhaps?
Your profile says: 'writer, nbc news & techcrunch'.
Your profile says: 'writer, nbc news & techcrunch'.
I'm not sure any of this is "damning" really. It's mostly nitpicking at facts (e.g. the time of their last contact) which aren't material to a rape accusation. Really I don't understand what Arrington has to gain here. If these are actual facts relevant to a criminal defense, posting them on the internet like this is insane. So clearly they think there will be no trial, so they're slinging mud... just to rub it in? I don't see how this improves his image. It's just a mess all around.
> I'm not sure any of this is "damning" really.
How about the part where he was in another state on the night she says he raped her?
Or the part where she left a comment on Gawker stating that he has been previously charged with rape and went to trial but got off because he knew the judge
Or the part where she deleted evidence on Facebook?
Or the part where she told Gawker that she hadn't been in contact with him since the rape but he shows a large number of messages in a pattern of obsession
Or the part where every other person who is familiar with the two of them denies even seeing a hint of abuse
Or the part where she has previously made a false accusation, of being pregnant, in order to get him to respond to her
Actually, did you read the post? This is as damming as you can get when defending yourself from a false rape accusation.
I can't imagine what else somebody in that situation could do. He is lucky he was able to track down all this information online, otherwise we could have seen an innocent man convicted.
This woman is unreliable. She also accused Arrington of hacking into Robert Scoble's Facebook account and posting as him to defend Arrington. We should have seen through this at that point, that it had to come to this is an indictment of our culture and the willingness of a few to take advantage of an unstable woman to promote their own self interest.
How about the part where he was in another state on the night she says he raped her?
Or the part where she left a comment on Gawker stating that he has been previously charged with rape and went to trial but got off because he knew the judge
Or the part where she deleted evidence on Facebook?
Or the part where she told Gawker that she hadn't been in contact with him since the rape but he shows a large number of messages in a pattern of obsession
Or the part where every other person who is familiar with the two of them denies even seeing a hint of abuse
Or the part where she has previously made a false accusation, of being pregnant, in order to get him to respond to her
Actually, did you read the post? This is as damming as you can get when defending yourself from a false rape accusation.
I can't imagine what else somebody in that situation could do. He is lucky he was able to track down all this information online, otherwise we could have seen an innocent man convicted.
This woman is unreliable. She also accused Arrington of hacking into Robert Scoble's Facebook account and posting as him to defend Arrington. We should have seen through this at that point, that it had to come to this is an indictment of our culture and the willingness of a few to take advantage of an unstable woman to promote their own self interest.
> This woman is unreliable. She also accused Arrington of hacking into Robert Scoble's Facebook account and posting as him to defend Arrington. We should have seen through this at that point, that it had to come to this is an indictment of our culture and the willingness of a few to take advantage of an unstable woman to promote their own self interest.
Exactly, now Calacanis, Loren & Gawker all look silly having staked their reputation with, what is clearly now obvious, this crazy, gold digger.
> I can't imagine what else somebody in that situation could do. He is lucky he was able to track down all this information online, otherwise we could have seen an innocent man convicted.
I was thinking that the entire time....at first when I heard her story, even though I didn't know her I thought it kinda strange that Calacanis and company were just piling on. Given what I know of them, that made everything feel so fishy. But I gave her the benefit of the doubt - given the gravity of the accusations.
But now....there is no doubt in my mind that he was clearly the victim of extortion by a money-grubber.
Glad he aired her dirty laundry to dry - so hopefully no one else gets duped. She seems to be a serial psycho, so hopefully there will be no more victims.
Exactly, now Calacanis, Loren & Gawker all look silly having staked their reputation with, what is clearly now obvious, this crazy, gold digger.
> I can't imagine what else somebody in that situation could do. He is lucky he was able to track down all this information online, otherwise we could have seen an innocent man convicted.
I was thinking that the entire time....at first when I heard her story, even though I didn't know her I thought it kinda strange that Calacanis and company were just piling on. Given what I know of them, that made everything feel so fishy. But I gave her the benefit of the doubt - given the gravity of the accusations.
But now....there is no doubt in my mind that he was clearly the victim of extortion by a money-grubber.
Glad he aired her dirty laundry to dry - so hopefully no one else gets duped. She seems to be a serial psycho, so hopefully there will be no more victims.
All of the posts here with the vitriol turned up to 10 seem like either paid shills or friends / associates. Recent accounts, or accounts that just magically started commenting for the first time a week ago. A few comments on other articles, but strong comments defending Mike and Techcrunch. Sketchy stuff.
If you want to help Mike out, calling the girl a psycho / gold digger etc isn't helpful. All it makes me think is "maybe the guy tormented/manipulated her and drove her a bit nuts."
In her posts, she explained pretty clearly the way she expected Mike and his friends to respond through harassing posts and shill accounts etc. It's sad to think that's what is going on here.
WTF why make things even worse by posting the lawyer's letter, including private pictures etc. Fighting fire with fire? Won't that set yourself up for a defamation counter-claim?
If you want to help Mike out, calling the girl a psycho / gold digger etc isn't helpful. All it makes me think is "maybe the guy tormented/manipulated her and drove her a bit nuts."
In her posts, she explained pretty clearly the way she expected Mike and his friends to respond through harassing posts and shill accounts etc. It's sad to think that's what is going on here.
WTF why make things even worse by posting the lawyer's letter, including private pictures etc. Fighting fire with fire? Won't that set yourself up for a defamation counter-claim?
Did you even look at my profile? I have no interest in this case, just calling it as I see it.
I am an HN regular with enough credibility, I think, to make those types of statements. Not sure where you got your facts from...but maybe you should actually look at the profile of the person you are responding to, before attempting to disparage my credibility.
I am an HN regular with enough credibility, I think, to make those types of statements. Not sure where you got your facts from...but maybe you should actually look at the profile of the person you are responding to, before attempting to disparage my credibility.
While you're correct in the sense that not all rapes end up with the victim and the perpetrator despising each other (many are between two people with an existing relationship, and he may have taken advantage of a situation they were in regardless of previously consented-to encounters), I think uid really hit the nail on the head; she's really going all in on this for someone that has so many allegations, but decided to speak to social media and Gawker before the authorities (ignoring the fact that she waited a year to do so, because in the off-chance that her claims are valid, these actions can damage/guilt someone into not speaking up until much later, if ever).
She's clearly mentally distraught over something, whether or not it actually relates to Arrington or if she's throwing him under the bus in some strange attempt to get/misdirect attention. It's unfortunate because these incidences of falsified rape claims are often leveraged by those that forget that these are the loud minority. I'm really hoping that's not the case, but even in a situation where she was not okay with his actions one night, she shouldn't have been sending him provocative photos the very next (I hope this isn't seen as victim-blaming on my part, since every situation is different and there's always the potential for Stockholm Syndrome-esque effects in these situations, I just don't think this is one of those).
The rest of her communications with him are clearly using him for who he is, and then quickly turn into spiteful posts when she realizes that she can't guilt him with sexy photos to invest in her and introduce her to others in the industry. Instead of informing him of being pregnant, she waits until the day she's "scheduled" to have an abortion to guilt him over it. Months later, when Arrington later asks if she wants to talk about it, she throws it in his face that she's "Facebook official" with someone "if that's what you mean", but is willing to meet up with him "as soon as possible" "near his offices" anyway (maybe in hopes someone would see them together).
On Scoble's status, she races to at the opportunity to insult another woman for being Arrington's new girlfriend (she isn't), drinking his "Kool-aid" and (if her claims turn out to be invalid) ironically accuses her of doing a disservice to victims of rape and abuse.
TL;DR, even if there's something remotely here for her to stand on, she needs some serious help. As such, I would absolutely call this evidence "damning" to the innocence/ignorance she's trying to portray.
She's clearly mentally distraught over something, whether or not it actually relates to Arrington or if she's throwing him under the bus in some strange attempt to get/misdirect attention. It's unfortunate because these incidences of falsified rape claims are often leveraged by those that forget that these are the loud minority. I'm really hoping that's not the case, but even in a situation where she was not okay with his actions one night, she shouldn't have been sending him provocative photos the very next (I hope this isn't seen as victim-blaming on my part, since every situation is different and there's always the potential for Stockholm Syndrome-esque effects in these situations, I just don't think this is one of those).
The rest of her communications with him are clearly using him for who he is, and then quickly turn into spiteful posts when she realizes that she can't guilt him with sexy photos to invest in her and introduce her to others in the industry. Instead of informing him of being pregnant, she waits until the day she's "scheduled" to have an abortion to guilt him over it. Months later, when Arrington later asks if she wants to talk about it, she throws it in his face that she's "Facebook official" with someone "if that's what you mean", but is willing to meet up with him "as soon as possible" "near his offices" anyway (maybe in hopes someone would see them together).
On Scoble's status, she races to at the opportunity to insult another woman for being Arrington's new girlfriend (she isn't), drinking his "Kool-aid" and (if her claims turn out to be invalid) ironically accuses her of doing a disservice to victims of rape and abuse.
TL;DR, even if there's something remotely here for her to stand on, she needs some serious help. As such, I would absolutely call this evidence "damning" to the innocence/ignorance she's trying to portray.
Maybe he doesn't fear a criminal trial, he fears his reputation being lost.
So clearly they think there will be no trial, so they're slinging mud... just to rub it in?
Someone accused him of being a rapist. What should he do, buy a CNN spot hailing the accusations?
So clearly they think there will be no trial, so they're slinging mud... just to rub it in?
Someone accused him of being a rapist. What should he do, buy a CNN spot hailing the accusations?
This is inside-the-echo-chamber logic. People outside the techcrunch bubble aren't going to read that whole thing (seriously: that's a huge page!). What they are going to see is yet another story in the mainstream media about the "controversy" about whether or not Arrington raped this woman. See the very-different-in-tone coverage on sites like talkingpointsmemo.com for a good example.
How does that help his reputation?
How does that help his reputation?
Because someone who does read the story is going to then make a summary and that will spread. Which is the nature of news nowadays where tl;dr is the norm and people summarize nuanced and complex topics into little zingers.
I think a "No names, no reporting, until a conviction" rule would be really good.
It'd encourage more women to report rape. It'd help to protect men from false allegations of rape. (Because here the reputation damage is crippling).
It'd encourage more women to report rape. It'd help to protect men from false allegations of rape. (Because here the reputation damage is crippling).
Currently, at least in my state, the laws are very publicly guilty until proven innocent when it comes to sexual abuse. It is this way to prevent further harm to others or something like that.
Having been through something like this I can say that that would not do anything to protect the majority of wrongfully accused persons.
Having been through something like this I can say that that would not do anything to protect the majority of wrongfully accused persons.
In the US at least you can go to a hospital and have a "rape kit" performed, anonymously and free of charge, where the evidence will be kept on file should you desire to press charges in the future. It's probably a good idea for any woman who has been raped to take advantage of that, regardless of what they may decide to do later.
I went to school in LA (Univ. of So. Calif) which has a lot of connections with the movie business (and Hollywood in general). There were lots of people who were desperate to be "part of the action" and were willing to set aside a number of principles in order to achieve that. I thought it was nice that technical people weren't like that.
Then in the dot.com boom we were overrun with MBAs who had decided we were too stupid to pick the money up off the floor. They went around destroying things with rent-seeking monetization models and other schemes to defraud those who didn't understand what they were buying (or being charged for).
Now we have people more like the Hollywood groupies and less like the MBA types. I guess that is a side effect of hiring "rockstars" (har har har) but really? Is this some weird revenge desire of the socialites in high school trying to make up for the fact they shunned nerds in favor of football players or something?
If you had said you could make a Silicon Valley soap opera I would have laughed at you, but apparently you can make one now (except it would be based in San Francisco I suppose). Strange times indeed.
[1] http://shirls.me/post/41790389190/shirley-hornstein-no-more-...