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Panel 4: Monday Morning Quarterback: Lessons from Recent High-Profile Trials
JORDAN V. DOMINCK’S
Complaint, Jordan v. Dominick’s, Case 1:10-cv-00407, Circuit Court of Cook County, Illinois (Jan. 20, 2010).
Jury Begins Deliberations in Jordan vs. Dominick’s Trial, CBS Chicago (August 21,
2015), http://chicago.cbslocal.com/2015/08/21/jury-begins-deliberations-in-jordan-vs-dominicks-trial/
Judge Exits Michael Jordan Row After Schiff Hardin 'Attack', Alex Lawson, Law 360, (June 17,
2014), http://www.law360.com/articles/548969/judge-exits-michael-jordan-row-after-schiff-hardin-attack
Michael Jordan's $8.9M verdict offers valuable lesson for firms, athletes,
Kim Janssen, Chicago Tribune (August 22, 2015), http://www.chicagotribune.com/business/ct-michael-jordan-dominicksanalysis-0823-biz-20150822-story.html
VENTURA V. KYLE
Justice for Jesse: Ventura Was Right in His Lawsuit/People beating up on The Body are ignoring facts and basic fairness,
A. J. Delgado, National Review (July 30, 2014), http://www.nationalreview.com/article/384176/justice-jesse-ventura-wasright-his-lawsuit-j-delgado
The media bring out the big guns as the Ventura verdict goes to 8th Circuit / They fear a new precedent against freedom
of press, Randy Furst, StarTribune (October 19, 2015), http://www.startribune.com/the-media-bring-out-the-big-guns-asthe-ventura-verdict-goes-to-the-8th-circuit/333959821/
Brief and Addendum of Appellant Taya Kyle, Executor of the Estate of Chris Kyle, Jesse VENTURA a/k/a James G.
Janos, Plaintiff-Appellee v. Taya KYLE, as Executor of the Estate of Chris Kyle, Defendant-Appellant, United States Court
of Appeals, Eighth Circuit (March 4, 2015).
Brief of Amici Curiae The First Amendment Scholars in Support of Defendant-Appellant and Reversal, United States Court
of Appeals, Eighth Circuit (March 17, 2015).
Brief of Amici Curiae of the Thomas More Law Center in Support of Defendant-Appellant Taya Kyle and for Reversal,
United States Court of Appeals, Eighth Circuit (March 17, 2015).
Brief of Amici Curiae of 33 Media Companies and organizations in Support of Appellant Urging Reversal, , United States
Court of Appeals, Eighth Circuit (March 18, 2015).
DONALD TRUMP LICENSING CASE
Trump wins lawsuit over board game, Peg Byron, UPI (May 8, 1991),
http://www.upi.com/Archives/1991/05/08/Trump-wins-lawsuit-over-board-game/7456673675200/
BRUCE SPRINGSTEEN COPYRIGHT CASE
Springsteen Wins Copyright Suit, The Associated Press, Billboard (June 27,
2001), http://www.billboard.com/articles/news/79295/springsteen-wins-copyright-suit
ERIN ANDREWS PRIVACY CASE
Erin Andrews Awarded $55 Million in Lawsuit, Meghan Keneally, ABC News (Mar 7, 2016),
http://abcnews.go.com/US/erin-andrews-jury-set-deliberate-75-million-lawsuit/story?id=37460110
Why Experts Say Erin Andrews Won't End Up With Full $55 Million Payout, Meghan Keneally, ABC News (Mar 8,
2016), http://abcnews.go.com/US/erin-andrews-end-full-55-million-payout-experts/story?id=37487797
HULK HOGAN PRIVACY AND DEFAMATION CASE
Hulk Hogan v Gawker: $100m lawsuit puts first amendment to the test again/A federal court sided with the media
company in a previous clash but the former wrestler continues the battle and claims defamation and loss of privacy, Nicky
Woolf, The Guardian (March 6, 2016), http://www.theguardian.com/media/2016/mar/06/hulk-hogan-gawker-lawsuit-firstamendment-trial
Tom Kludt, Hulk Hogan awarded $115 million in Gawker sex tape case, CNN (March
18), http://money.cnn.com/2016/03/18/media/hulk-hogan-gawker-jury-deliberations/index.html.
JURIES
4 Ways That Juries Award Damages in Civil Cases, Ken Lopez, The Litigation Consulting Report, A2K Consulting
(October 15, 2014), http://www.a2lc.com/blog/bid/72847/4-Ways-That-Juries-Award-Damages-in-Civil-Cases
Do juror pressures lead to unfair verdicts?, Monica K. Miller and Brian H. Bornstein, American Psychological Association,
Vol 39, No. 3 (March 2008), http://www.apa.org/monitor/2008/03/jn.aspx
The Psychology of Voir Dire, Matthew L. Ferrara, The Jury Expert, The American Society of Trial Consultants (November
1, 2010), http://www.thejuryexpert.com/2010/11/the-psychology-of-voir-dire/
TRIAL TACTICS AND STRATEGIES
Prof explains courtroom persuasion strategies, trial tactics, Purdue University (April 1,
2005), http://www.purdue.edu/uns/html4ever/2005/050401.Williams.law.html
Twenty Suggestions to Increase Courtroom Effectiveness of the Inexperienced Trial Attorney, The Hon. Milton Gunn
Shuffield, Beaumont Judge, 136th District Court, State Bar of Texas
(2007), http://www.texasbarcle.com/Materials/Events/6644/79053.htm
The Five Essential Ingredients of Success in the Courtroom, Bill Trine, The Warrior , Gary Spence Trial Lawyers College
(Fall 2003), http://www.triallawyerscollege.org/publications/1800.m.pdf
Litigation: The 5 traits of highly effective trial lawyers / Experience and specialization aren’t always the most important
qualities for a successful lawyer,
Howard Scheer (August 30, 2012), http://www.insidecounsel.com/2012/08/30/litigation-the-5-traits-of-highly-effective-trial
ETHICS
Rule 1.6 Confidentiality of Information
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_
6_confidentiality_of_information.html
Rule 1.7 Conflict of
Interest http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct
/rule_1_7_conflict_of_interest_current_clients.html
Rule 3.6 Trial Publicity
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_
6_trial_publicity.html
Probing the mixed verdict on the Michael Jordan verdict, Eric Zorn, The Chicago Tribune (August 24, 2015)
http://www.chicagotribune.com/news/opinion/zorn/ct-michael-jordan-dominicks-award-verdict-chicago-bulls-perspec-0826jm-20150825-column.html
"There’s a TV news crew in the lobby asking for a partner …," Diane Karpman, California bar Journal (March 2012)
http://www.calbarjournal.com/March2012/EthicsByte.aspx
Case 1:10-cv-00407 Document 1-1
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No. 14-3876
______________________________________________________________
In the
United States Court of Appeals
for the
Eighth Circuit
___________________________________
Jesse Ventura a/k/a James G. Janos,
vs.
Plaintiff-Appellee,
Taya Kyle, as Executor of the Estate of Chris Kyle
Defendant-Appellant.
___________________________________
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
Civ. No. 12-cv-472 (RHK/JJK) – District Judge Richard H. Kyle
___________________________________
BRIEF and ADDENDUM of APPELLANT TAYA KYLE,
EXECUTOR OF THE ESTATE OF CHRIS KYLE
___________________________________
FAEGRE BAKER DANIELS LLP
John P. Borger (Minn. #9878)
Charles F. Webber (Minn. #215247)
Leita Walker (Minn. #387095)
90 South Seventh Street, Suite 2200
Minneapolis, Minnesota 55402
Telephone: (612) 766-7000
Facsimile: (612) 766-1600
Attorneys for Appellant Taya Kyle,
Executor of the Estate of Chris Kyle
Appellate Case: 14-3876
Page: 1
Date Filed: 03/04/2015 Entry ID: 4250867
SUMMARY OF CASE AND REQUEST FOR ARGUMENT
Appellant Taya Kyle, executor of the estate of Chris Kyle (collectively
“Kyle”), asks this Court to reverse the judgment below awarding Jesse
Ventura $500,000 for defamation and $1,345,477.25 for unjust enrichment,
all arising from publication of Chris Kyle’s autobiography AMERICAN
SNIPER. Independent review of the record evidence establishes that Ventura
did not carry his burdens of proving either material falsity or actual malice,
which is fatal to his defamation claim. The court’s unjust enrichment
award—based on allegedly defamatory speech— is unprecedented,
distorts Minnesota common law, and violates the First Amendment. The
judgment, therefore, must be reversed and the case dismissed. At
minimum, a new trial is necessary due both to jury instructions that
conflict with decisions of this Court and the United States Supreme Court
and to the allowance of prejudicial references to insurance—culminating in
statements by Ventura’s counsel in closing argument that the “insurer is on
the hook if you find that Jesse Ventura was defamed.”
Kyle requests oral argument of 30 minutes per side because this case
presents important issues under both the First Amendment and state law.
i
Page: 2
TABLE OF CONTENTS
JURISDICTIONAL STATEMENT ........................................................................1
STATEMENT OF ISSUES ......................................................................................2
STATEMENT OF THE CASE ................................................................................4
A. The Parties ....................................................................................................5
1. Chris Kyle...................................................................................................5
2. Jesse Ventura .............................................................................................5
B.
The Book .......................................................................................................6
C. The Challenged Passage .............................................................................7
D. The Interviews..............................................................................................9
E.
Proceedings Below ....................................................................................10
F.
Trial ..............................................................................................................12
1. Ventura’s Evidence .................................................................................12
2. Kyle’s Evidence .......................................................................................15
a) Kyle’s deposition testimony ...........................................................15
b) Other testimony ................................................................................17
3. References to Insurance .........................................................................20
4. Verdict Form ............................................................................................21
5. Jury Instructions ......................................................................................22
SUMMARY OF ARGUMENT .............................................................................26
STANDARDS OF REVIEW .................................................................................30
ARGUMENT ..........................................................................................................31
i
Page: 3
I. THE DEFAMATION JUDGMENT .................................................................31
A. Ventura’s Burden to Establish Material Falsity ....................................31
1. The district court erred by instructing the jury it could find
liability based on the “story.” ...............................................................31
2. The court erred in failing to instruct the jury Ventura had to
prove falsity by clear and convincing evidence. ................................37
3. Ventura failed to establish by clear and convincing evidence
that the challenged statements were materially false. ......................39
B.
Ventura’s Burden to Establish Actual Malice .......................................44
1. The court erred in refusing to explain the phrase “serious
doubts about the story’s truth” when the jury asked for a
definition. .................................................................................................45
2. Ventura failed to prove Kyle published the challenged
statements with actual malice. ..............................................................47
II. THE UNJUST ENRICHMENT JUDGMENT ...............................................52
A. The Unjust Enrichment Judgment Cannot Stand if the
Defamation Judgment is Reversed. ........................................................52
B.
State Law Bars the Unjust Enrichment Claim. ......................................53
1. Ventura cannot maintain a claim for unjust enrichment
because he had no pre-existing contractual or quasicontractual relationship with Kyle. ......................................................53
2. The existence of an adequate legal remedy bars Ventura from
pursuing an equitable claim for unjust enrichment. .........................56
C. The First Amendment Precludes Recovery for Unjust
Enrichment. ................................................................................................59
D. Ventura Presented No Competent Evidence Kyle Was
Enriched. .....................................................................................................65
ii
Page: 4
III. PREJUDICIAL REFERENCES TO INSURANCE.......................................68
CONCLUSION ......................................................................................................72
iii
Page: 5
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
281 Care Comm. v. Arneson,
638 F.3d 621 (8th Cir. 2011) .............................................................................62
281 Care Comm. v. Arneson,
766 F.3d 774 (8th Cir. 2014) .............................................................................61
Air Wis. Airlines Corp. v. Hoeper,
134 S. Ct. 852 (2014)....................................................................2, 30, 32, 38, 40
Allied Erecting & Dismantling Co. v. Genesis Equip & Mfg., Inc.,
2010 WL 4818367 (N.D. Ohio Nov. 19, 2010) ...............................................66
Aviation Charter, Inc. v. Aviation Research Grp./US,
416 F.3d 864 (8th Cir. 2005) .............................................................2, 30, 32, 35
Beverly Hills Foodland v. United Food & Commercial Workers Union,
39 F.3d 191 (8th Cir. 1994) ...............................................................................60
Boladian v. UMG Recordings, Inc.,
123 Fed. Appx. 165 (6th Cir. 2005) .................................................................53
Bollenbach v. United States,
326 U.S. 607 (1946)............................................................................................46
Bose Corp. v. Consumers Union,
466 U.S. 485 (1984)......................................................................3, 30, 48, 49, 60
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc.,
757 F.3d 1125 (10th Cir. 2014) .........................................................................37
Campbell v. Citizens for an Honest Gov’t, Inc.,
255 F.3d 560 (8th Cir. 2001) .............................................................................46
Cantor v. Perelman,
414 F.3d 430 (3d Cir. 2005) ..............................................................................66
iv
Page: 6
Charter v. Chleborad,
551 F.2d 246 (8th Cir. 1977) .............................................................................70
Chau v. Lewis,
771 F.3d 118 (2d Cir. 2014) ..............................................................................34
DiBella v. Hopkins,
403 F.3d 102 (2d Cir. 2005) ....................................................................2, 37, 38
Garrison v. Louisiana,
379 U.S. 64 (1964)..............................................................................................45
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974)............................................................................3, 32, 63, 64
Griffin v. Hilke,
804 F.2d 1052 (8th Cir. 1986) .......................................................................3, 69
Halladay v. Verschoor,
381 F.2d 100 (8th Cir. 1967) .........................................................................3, 69
Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657 (1989).....................................................................................passim
Hustler Magazine v. Falwell,
485 U.S. 46 (1988)........................................................................................59, 60
Lane v. Random House,
985 F. Supp. 141 (D.D.C. 1995) .......................................................................56
Loftness Specialized Farm Equip., Inc. v. Twiestmeyer,
742 F.3d 845 (8th Cir. 2014) .............................................................................58
Long v. Arcell,
618 F.2d 1145 (5th Cir. 1980) ...........................................................................49
Lundell Mfg. Co. v. ABC, Inc.,
98 F.3d 351 (8th Cir. 1996) ...............................................................................30
Masson v. New Yorker Magazine,
501 U.S. 496 (1991)......................................................................3, 32, 38, 40, 51
v
Page: 7
Michaelis v. CBS Inc.,
119 F.3d 697 (8th Cir. 1997) .............................................................................33
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990)................................................................................................58
Moore v. Weinstein Co.,
2012 WL 1884758 (M.D. Tenn. May 23, 2012),
aff’d, 545 Fed. Appx. 405 (6th Cir. 2013) ..................................................54, 61
New York Times Co. v. Sullivan,
376 U.S. 254 (1964)................................................................................30, 31, 51
Nichols v. Moore,
334 F. Supp. 2d 944 (E.D. Mich. 2004) ...........................................................56
Phila. Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986)............................................................................................38
Pittman v. Dow Jones & Co.,
662 F. Supp. 921 (E.D. La. 1987),
aff’d, 834 F.2d 1171 (5th Cir. 1987)..................................................................61
Price v. Viking Penguin,
881 F.2d 1426 (8th Cir. 1989) ...........................................................................33
Qwest Commc’ns Co. v. Free Conferencing,
990 F. Supp. 2d 953 (D. Minn. 2014) ..............................................................54
Rainbow Play Sys. v. Groundscape Techs., LLC,
364 F. Supp. 2d 1026 (D. Minn. 2005) ......................................................65, 66
Robertson v. McCloskey,
666 F. Supp. 241 (D.D.C. 1987) .......................................................................38
Ruffin-Steinback v. dePasse,
267 F.3d 457 (6th Cir. 2001) .............................................................................53
vi
Page: 8
Ruzicka v. Conde Nast Publ’ns, Inc.,
733 F. Supp. 1289 (D. Minn. 1990),
aff’d, 939 F.2d 578 (8th Cir. 1991)....................................................................55
Seale v. Gramercy Pictures,
949 F. Supp. 331 (E.D. Pa. 1996) .....................................................................56
Secrist v. Harkin,
874 F.2d 1244 (8th Cir. 1989) ...........................................................................46
Sherman v. Winco Fireworks, Inc.,
532 F.3d 709 (8th Cir. 2008) .............................................................................59
Shum v. Intel Corp.,
630 F. Supp. 2d 1063 (N.D. Cal. 2009) ...........................................................66
Snyder v. Phelps,
131 S. Ct. 1207 (2011)..............................................................................3, 59, 60
St. Amant v. Thompson,
390 U.S. 727 (1968)............................................................................................45
Stepnes v. Ritschel,
663 F.3d 952 (8th Cir. 2011) .............................................................................32
Tavoulareas v. Piro,
817 F.2d 762 (D.C. Cir. 1987)...........................................................................36
Thorton v. W. & S. Fin. Grp. Beneflex Plan,
797 F. Supp. 2d 796 (W.D. Ky. 2011) .............................................................57
United States v. Alvarez,
132 S. Ct. 2537 (2012)..............................................................................3, 62, 63
United States v. Bame,
721 F.3d 1025 (8th Cir. 2013) ...............................................................52, 57, 58
United States v. Stevens,
130 S. Ct. 1577 (2010)........................................................................................63
vii
Page: 9
Watkins Inc. v. Chilkoot Distrib.,
719 F.3d 987 (8th Cir. 2013) .............................................................................59
West v. Media Gen. Operations, Inc.,
120 Fed. Appx. 601 (6th Cir. 2005) .................................................................36
Wolfe v. Fayetteville, Ark. Sch. Dist.,
648 F.3d 860 (8th Cir. 2011) .............................................................................32
Young v. That Was The Week That Was,
312 F. Supp. 1337 (N.D. Ohio 1969),
aff’d, 423 F.2d 265 (6th Cir. 1970)..............................................................55, 56
STATE CASES
Bonser v. Shainhotlz,
3 P.3d 422 (Colo. 2000).....................................................................................70
Caldas v. Affordable Granite & Stone, Inc.,
820 N.W.2d 826 (Minn. 2012) ...............................................................3, 53, 57
Chafoulias v. Peterson,
668 N.W.2d 642 (Minn. 2003) .........................................................................46
First Nat’l Bank v. Ramier,
311 N.W.2d 502 (Minn. 1981) .........................................................................52
Georgopolis v. George,
54 N.W.2d 137 (Minn. 1952) ...........................................................................65
In re McDonough,
296 N.W.2d 648 (Minn. 1980) .........................................................................40
In re Miera,
426 N.W.2d 850 (Minn. 1988) .........................................................................40
Kavanaugh v. The Golden Rule,
33 N.W.2d 697 (Minn. 1948) ...........................................................................40
Kinney v. Barnes,
443 S.W.3d 87 (Tex. 2014) ................................................................................58
viii
Page: 10
Lacoff v. Buena Vista Publ’g,
705 N.Y.S.2d 183 (Sup. Ct. 2000) ....................................................................56
Lake v. Wal-Mart Stores, Inc.,
582 N.W.2d 231 (Minn. 1998) ...................................................................57, 64
Mahoney v. Adirondack Publ’g Co.,
517 N.E.2d 1365 (N.Y. 1987)............................................................................49
Mahoney & Hagberg v. Newgard,
729 N.W.2d 302 (Minn. 2007) .........................................................................58
McKee v. Laurion,
825 N.W.2d 725 (Minn. 2013) ...................................................................32, 33
Nev. Indep. Corp. v. Allen,
664 P.2d 337 (Nev. 1983) .................................................................................39
Nguyen v. Taylor,
723 S.E.2d 551 (N.C. App. 2012).....................................................................57
Niska v. Clayton,
2014 WL 902680 (Minn. App. Mar. 10, 2014) ...............................................49
Richie v. Paramount Pictures Corp.,
544 N.W.2d 21 (Minn. 1996) ...........................................................................63
Schumacher v. Schumacher,
627 N.W.2d 725 (Minn. App. 2001) ...............................................................60
ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc.,
544 N.W.2d 302 (Minn. 1996) .........................................................................57
State v. Mechert-Dinkel,
844 N.W.2d 13 (Minn. 2014) ...........................................................................63
FEDERAL STATUTES
28 U.S.C. §1291.........................................................................................................1
28 U.S.C. §1332(a)(1) ...............................................................................................1
ix
Page: 11
RULES
Fed. R. Civ. P. 50 ......................................................................................................1
Fed. R. Civ. P. 59(e) .................................................................................................1
Fed. R. Evid. 411 ....................................................................................................69
CONSTITUTIONAL PROVISIONS
First Amendment ...........................................................................................passim
OTHER AUTHORITIES
R. Sack, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED
PROBLEMS § 16.5 (2d ed., Rel. #4, 4/14) ...................................................30, 37
x
Page: 12
JURISDICTIONAL STATEMENT
Kyle removed this case to the district court, which had diversity
jurisdiction under 28 U.S.C. §1332(a)(1) because Ventura is a Minnesota
citizen and Kyle was a Texas citizen.
This Court has appellate jurisdiction under 28 U.S.C. §1291. The
district court entered final judgment disposing of all claims on August 7,
2014. ADD-7. Kyle filed a timely motion under Fed. R. Civ. P. 50 & 59(e).
APP-38/ECF-404. On November 26, the district court denied those
motions, ADD-8-31, and Kyle filed a timely Notice of Appeal on December
23. APP-39/ECF-417.
US.55811857.10
Page: 13
STATEMENT OF ISSUES
1.
Did the district court erroneously instruct the jury that it could
base defamation liability on its assessment of Kyle’s entire “story” about
Ventura, that Ventura’s burden of proving falsity was only by a
preponderance of the evidence, and that there is no constitutional
definition of the kind of “serious doubts” about the truth necessary to
support a finding of actual malice?
Most apposite authority:
•
Air Wis. Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014)
•
Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864
(8th Cir. 2005)
•
DiBella v. Hopkins, 403 F.3d 102 (2d Cir. 2005)
•
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989)
2.
Did the district court erroneously enter judgment on Ventura’s
defamation claim when an independent review of the record evidence
demonstrates he failed to carry his burdens of proving material falsity and
actual malice?
•
Air Wis. Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014)
-2-
Page: 14
•
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)
•
Masson v. New Yorker Magazine, 501 U.S. 496 (1991)
3.
Did the district court erroneously award damages to Ventura
based on an unjust-enrichment claim that has no basis in Minnesota law,
violates the First Amendment, and is not supported by competent record
evidence?
•
Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826 (Minn.
2012)
•
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
•
Snyder v. Phelps, 131 S. Ct. 1207 (2011)
•
United States v. Alvarez, 132 S. Ct. 2537 (2012)
4.
Did the district court erroneously permit cross examination and
closing argument about defendant’s insurance?
•
Griffin v. Hilke, 804 F.2d 1052 (8th Cir. 1986)
•
Halladay v. Verschoor, 381 F.2d 100 (8th Cir. 1967)
-3Appellate Case: 14-3876
Page: 15
STATEMENT OF THE CASE
This is an appeal from a jury verdict in a defamation action brought
by former Minnesota Governor Jesse Ventura against the estate of Chris
Kyle, an accomplished and decorated Navy SEAL who was murdered
during the pendency of this lawsuit. The case arises from a brief passage in
Kyle’s 379-page autobiography that describes a disagreement he had with a
man, called “Scruff Face” in the book, who Kyle later identified as Ventura.
The passage is contained in a chapter in which Kyle reflects on his own
emotional turmoil and questionable conduct following his return from
combat in Iraq. It recounts how, after “Scruff Face” made disparaging
comments about the SEALs and made aggressive gestures, Kyle reacted by
punching him. Ventura sued Kyle for defamation, unjust enrichment and
misappropriation, alleging it was false and defamatory to state that
Scruff/Ventura made the disparaging comments.
A jury found Kyle liable for defamation and awarded $500,000. It
separately recommended that Kyle be found liable in equity for unjust
enrichment. The jury found no liability for misappropriation. The district
court subsequently entered a $1.345 million verdict against Kyle for unjust
enrichment.
Page: 16
A.
The Parties
1.
Chris Kyle
As a Navy SEAL, Kyle served four tours of duty in Iraq and was
recognized as the most effective sniper in American history. He is officially
credited with 160 confirmed kills in combat. He received two Silver Stars
and five Bronze Medals for valor. APP-2491-92.
During this proceeding, Kyle and another man were murdered while
trying to help a troubled young veteran. APP-15/ECF-135. Ventura
continued his lawsuit against Kyle’s estate, substituting as defendant its
executor, Kyle’s widow and mother of his two young children, Taya Kyle.
APP-17/ECF-151, APP-85-89.
2.
Jesse Ventura
Ventura is the former Governor of Minnesota. He served in the Navy
on both an underwater demolition team and a SEAL reserve unit. APP-90910. Before this lawsuit, Ventura was a vocal critic of both the SEALs and
the military. Among other things, he publicly described the SEALs as “elite
killer squads” that are “forced to be part of illegal gangland operations,”
asserted that we have an Army “run by Christian extremists and an
accompanying cadre of what can only be described as neo-Nazis,”
Page: 17
characterized the military as “contract killers now, contract for hire,” and
referred to the “fascist states of America.” Ventura also espoused his belief
that the U.S. government had a hand in the 9/11 terrorist attacks. APP1092, 1098, 1101-02, 1104-06, and said that he “won’t salute the US flag or
stand for the National Anthem anymore” or otherwise “pay respect to the
country,” APP-1102. He now spends much of each year “off the grid” in
Mexico. APP-1004.
B.
The Book
After retiring from service in 2009, Kyle wrote an autobiography
entitled AMERICAN SNIPER, assisted by a co-author. HarperCollins
published the 379-page book in January 2012. APP-1967-68. It describes in
great detail Kyle’s SEAL training, his combat experiences in Iraq, and his
difficulties adjusting to civilian life. Interspersed with accounts of his
combat assignments, the book discusses Kyle’s relationship with his wife
and children, focusing on the conflicting pulls of home and war, and
includes passages written from his wife’s perspective. The compelling
nature of Kyle’s narrative, exemplified by the popularity of the Oscarnominated movie based on it (which mentions neither Ventura nor Kyle’s
encounter with him), reflects the public’s embrace of those themes.
Page: 18
C.
The Challenged Passage
Chapter 12 of the book, titled “Hard Times,” discusses a particularly
difficult period when Kyle returned to California from Iraq because doctors
believed his daughter had leukemia. The chapter explores the difficulties
Kyle had returning to civilian life, including disagreements with Taya, his
belief that he had abandoned his comrades, and his struggles to deal with
their deaths and injuries.
One brief passage, subtitled “Punching Out Scruff-Face,” discusses
an altercation with a man Kyle identifies only as “Scruff Face” during a
wake for fallen Medal of Honor recipient Michael Monsoor at a bar
frequented by SEALs. The passage reads in full:
AFTER THE FUNERAL WE WENT TO A LOCAL BAR FOR
THE WAKE proper.
As always, there were a bunch of different things going on at
our favorite nightspot, including a small party for some older
SEALs and UDT members who were celebrating the
anniversary of their graduation. Among them was a celebrity
I'll call Scruff Face.
Scruff served in the military; most people seem to believe he
was a SEAL. As far as I know, he was in the service during the
Vietnam conflict but not actually in the war.
I was sitting there with Ryan and told him that Scruff was
holding court with some of his buddies.
Page: 19
“I'd really like to meet him,” Ryan said.
“Sure.” I got up and went over to Scruff and introduced myself.
“Mr. Scruff Face, I have a young SEAL over here who's just
come back from Iraq. He's been injured but he'd really like to
meet you.”
Well, Scruff kind of blew us off. Still, Ryan really wanted to
meet him, so I brought him over. Scruff acted like he couldn’t
be bothered.
All right.
We went back over to our side of the bar and had a few more
drinks. In the meantime, Scruff started running his mouth
about the war and everything and anything he could connect to
it. President Bush was an asshole. We were only over there
because Bush wanted to show up his father. We were doing the
wrong thing, killing men and women and children and
murdering.
And on and on. Scruff said he hates America and that's why he
moved to Baja California. 9/11 was a conspiracy.
And on and on some more.
The guys were getting upset. Finally, I went over and tried to
get him to cool it.
“We're all here in mourning,” I told him. “Can you just cool it?
Keep it down.”
“You deserve to lose a few,” he told me.
Then he bowed up as if to belt me.
I was uncharacteristically level-headed at that moment.
“Look,” I told him, “why don't we just step away from each
other and go on our way?”
Page: 20
Scruff bowed up again. This time he swung.
Being level-headed and calm can last only so long. I laid him
out.
Tables flew. Stuff happened. Scruff Face ended up on the floor.
I left.
Quickly.
I have no way of knowing for sure, but rumor has it he showed
up at the BUD/S graduation with a black eye.
ADD-54-57 (“the Excerpt”). The following pages discuss other altercations
during this same period as well as Taya’s negative reaction to them.
D.
The Interviews
The book was released on January 3, 2012. Thereafter, Kyle gave
several media interviews. Most contain no reference to the Excerpt or to
Ventura. APP-1973-76.
On January 4, Kyle appeared live on the Opie & Anthony radio show.
APP-1979-84, ADD-58-64. The bulk of the 49-minute interview centered on
Kyle’s early life, his military service, and its ramifications for him and his
family. During the interview, a caller told the hosts that Kyle had been in a
bar fight with Jesse Ventura. The hosts asked Kyle whether this was true.
Taken off guard by the question, Kyle described the incident at the
Monsoor wake. Id.
Page: 21
Later that afternoon, Kyle recorded an interview with Bill O’Reilly.
Securing this interview was significant because books featured on his show
typically experience a palpable increase in sales. APP-1976-79. The
interview lasted 20-25 minutes. The next day, The O’Reilly Factor included a
roughly five-minute excerpt. APP-1979, 1985, ADD-65-68, most of which
was devoted to the book’s account of Kyle’s service. During the broadcast,
O’Reilly endorsed the book to his viewers. APP-1977-78. O’Reilly also
asked Kyle about when he “knocked Jesse Ventura to the floor with a
punch.” Kyle again briefly described the encounter. ADD-65-68.
E.
Proceedings Below
Ventura filed this action on January 23, 2012, asserting claims for
defamation, misappropriation, and unjust enrichment based on several
statements made in the book and interviews about “Scruff”/Ventura. By
the end of testimony, the district court had centered the case on three
allegedly false and defamatory statements–namely, Kyle’s assertions that
Ventura had said:
•
“[H]e hates America,”
•
SEALs “were killing men and women and children and
murdering,” and
•
SEALs “deserve to lose a few.”
-10-
Page: 22
APP-2299.
In an early motion for partial summary judgment, Kyle challenged
the claims for misappropriation and unjust enrichment on both state law
and constitutional grounds. APP-4/ECF-11, APP-43-76. The district court
denied that motion, reasoning in significant part that Kyle’s “statements
are not protected by the First Amendment if they were knowingly false and
defamatory.” ADD-37, 39.
After the close of discovery, Ventura moved for leave to add a claim
for punitive damages. Kyle was murdered while that motion was pending.
The district court thereafter denied the motion because, in Minnesota,
punitive damages are not recoverable against a deceased defendant’s
estate. APP-84.
Kyle then moved for summary judgment. His motion asserted that
Ventura, a public figure, could not carry his burden of proving by clear and
convincing evidence that Kyle had published materially false and
defamatory statements with actual malice. As a result, Kyle argued,
Ventura could not recover for defamation and, under the district court’s
stated view of the First Amendment, similarly could not recover for
misappropriation or unjust enrichment. APP-24/ECF-234, APP-26.
Page: 23
The district court denied the motion. Because Kyle’s account of the
event described in the Excerpt differed from Ventura’s, the district court
concluded that there was a question of fact for the jury on the issue of
falsity. ADD-48-50. The court further reasoned that whether Kyle had
“punched out” Ventura was not an ambiguous event and, “if a jury
concludes Kyle fabricated part of the story, it could reasonably conclude he
fabricated the rest of his story” – his descriptions of the comments he
attributed to Ventura. ADD-51-52.
F.
Trial
The defamation and misappropriation claims were tried to a jury in
July 2014. The jury also served in an advisory capacity regarding Ventura’s
equitable claim for unjust enrichment.
1.
Ventura’s Evidence
In his own testimony, Ventura asserted that none of the incidents
described in the book actually happened. According to his testimony, he
spent the evening quietly socializing with friends and posing for
photographs, leaving the bar when his friends left. APP-982, 991, 1076.
Ventura denied saying that SEALs “deserve to lose a few” or anything else
derogatory about the military, and asserted his admiration for the SEALS.
Page: 24
APP-916-17, 952-56, 960-63, 1026-27. He testified that nobody told him he
was offensive, APP-984-85; he denied ever encountering Kyle, APP-986,
1011; and he denied being punched, APP-928, 1027-28, 1075.
Ventura further testified that the use of his name increased sales of
the book, but he conceded that people did not purchase it just to read the
Excerpt. APP-1167. He also acknowledged that Kyle’s account of the
incident was widely available, without charge, on the Internet, APP-1169,
and that he did not know how many of the book’s sales were attributable
to use of his name. APP-1166.
Ventura called three witnesses who testified they were at the bar that
evening—two long-time friends and the wife of one of them. The first, Bill
DeWitt, testified that he did not see or hear any altercation involving
Ventura. APP-687-91. He also testified that he interacted with Ventura only
briefly, early in the evening, that he did not hear anything Ventura said to
anyone thereafter, and that, because of his poor hearing, “I would not have
heard something unless I was right next to him.” APP-682, 687, 733-34.
DeWitt testified that he was unable to observe Ventura at several points
during the evening, APP-727-31, 737-40, that he did not see Ventura leave,
and did not know when he left. APP-740-41.
Page: 25
Charlene DeWitt, Bill’s wife, testified that she did not hear Ventura
say anything she found offensive and did not see him get punched. APP777-79. She recalled that Ventura mingled about for most of the evening, so
she could “only speculate where he was.” She testified that, depending on
where the fight happened, she might have missed it. APP-779-80, 788, 81011. Charlene DeWitt could not say when Ventura left or whether he was
still there when she left. APP-779-80, 788, 802, 805, 809-11.
Rob Leonard, who considers Ventura a “brother[],” APP-828, testified
that he did not see or hear the things Kyle described in the Excerpt, APP836-39. Leonard testified that his interaction with Ventura that evening was
limited and, given the size of the crowd and level of noise, it was certainly
possible he missed the events Kyle recounted. APP-856-57, 860. Leonard
did not see Ventura leave and did not know when he did so. APP-843.
Ventura also called his wife and son to testify about his views of the
military, APP-878, 1206-07, and his love for the SEALs, APP-873-75, 1199200. Neither wife nor son were at the bar that night. APP-875, 1204.
In addition, Ventura questioned Kyle’s witnesses about changes
made to the Excerpt during the drafting process. Specifically, Ventura
established that, although his name appeared in earlier drafts prepared by
Page: 26
a co-author, Kyle removed it from the book after a friend warned that he
might get sued. APP-2234. Ventura also elicited testimony that Kyle or his
co-author had made other changes: qualifying a statement that Ventura
sustained a black eye, removing details about another person being with
Ventura, and deleting a reference to Ventura hitting his head on the
sidewalk. APP-2233-34. In addition, Ventura presented evidence that Kyle
disliked Ventura, and that no police report existed about the altercation.
APP-523, 1931-33.
2.
Kyle’s Evidence
a)
Kyle’s deposition testimony
Although his death precluded him from testifying on his own behalf,
the jury watched on videotape portions of Kyle’s cross-examination at his
deposition. Kyle testified he had attended Monsoor’s memorial service and
burial, and afterwards went to a wake at a local pub named McP’s. Kyle
testified that Ventura was sitting with friends at McP’s when he arrived
and that, throughout the evening, Ventura was “loud and belligerent” and
made statements that offended those who had gathered for Monsoor’s
wake. APP-443. Specifically, Kyle testified that Ventura was “complaining
about the war. That we shouldn’t be there. Complaining about Bush, that,
Page: 27
you know, Bush was a war criminal. How we were killing innocent men
and women and children overseas.” APP-446. Kyle testified that he
approached Ventura twice and asked him to quiet down, because
mourners were present. APP-446, 454-55.
Kyle testified that, as he was leaving McP’s, he passed by Ventura,
and described what happened next:
[H]e was going over his deal again telling us that we
should have not been over there. That we were killing
innocent men, women and children. That, again, Bush
was a war criminal. We should not be involved. About
WMDs, faulty intel. [President Bush] was just trying to
one-up his dad. And that’s when I was informing him
that, you know, there were families here. You were
upsetting them. Basically, letting him know that he was
being a jackass and that I was not happy with him and
that we were here for a wake, and that’s when he said
we deserve to lose a few.
APP-463. At that juncture, Kyle testified, he asked Ventura to leave, and
Ventura responded by “bowing up” or “[s]quaring off.” APP-469.
According to Kyle, he then took a step back and told Ventura “let’s both
just back away,” but Ventura “took a step forward” and Kyle punched
him. APP-470. Kyle testified that Ventura “fell backwards,” and he (Kyle)
promptly “took off.” Id.
Page: 28
b)
Other testimony
Kyle presented eleven additional witnesses who attended the wake.
Rosemary deShazo, a physician at the University of Utah, was a
friend of the Monsoor family and had no connection to Kyle. APP-1346-47.
She testified that she met Ventura on the patio at McP’s and, when she told
him she was there for Monsoor’s wake, Ventura responded: “[H]e probably
deserved it. They die all the time.” APP-1354. She testified that she found
this statement offensive and, as a result, remembered it clearly. APP-135455, 1375. Jeremiah Dinnell, a former SEAL, testified that he too heard
Ventura say that SEALs “deserve to lose some guys.” APP-1658, 1718. He
testified to his certainty about what he heard, because the statement was
“something that sticks with you.” APP-1718.
John Kelly, an active-duty SEAL, testified that he heard Ventura
“bad-mouth[] the war” and say things such as “we shouldn’t be there, you
guys [SEALs] are doing the wrong thing, we don’t have any business being
in Iraq, you’re out there killing women and children, stuff like that.” APP1406. Kevin Lacz, a former SEAL later employed by Kyle’s company,
testified that “I can’t tell you exactly what he said word for word, but when
he was talking to people and me ... I had heard bits and snippets of, you
Page: 29
know, SEALs have it coming, this is not exactly the type of mission profile
that they should be doing.” APP-1863.
Guy Budinscak, a former SEAL and medical device salesman,
testified that Ventura’s comments were “really out there. You know, he
was living in Mexico and he didn’t trust the U.S. Government and Bush
lied. ... I mean, just kind of like wild conspiracy theories, 9/11 was an
inside job.” APP-1763-64. Debbie Lee, the mother of a SEAL killed in the
line of duty, testified that she heard Ventura say the Iraq war was “an
unjust war and we shouldn’t be there” and that the 9/11 terrorist attack
was an “inside job,” APP-1307-08, while Andrew Paul, a reservist SEAL
and bank manager, testified that Ventura was
going on about the war in Iraq, the Bush Administration,
his displeasure with the administration. ... He was
speaking very loudly, and it was, frankly turning people
off who were around him. ... [I]t was of a radical political
ideological ranting, basically. You know, he was saying
things like—like Bush knew that 9/11 was gonna
happen. APP-1480-82.
As for the punch, Dinnell testified that, after he heard Ventura say
“you … deserve to lose some guys”, he saw Kyle punch Ventura. APP1658. He testified that Ventura went down to the ground and then got back
up. APP-1659. He also testified he saw Kyle leave the bar immediately after
Page: 30
punching Ventura. Id. Laura deShazo, Rosemary deShazo’s sister and an
employee of the Utah State Office of Education, APP-1238, testified that she
too saw Ventura get punched at McP’s, although she could not recall a
particular location. APP-1249, 1280. Like Rosemary, Laura did not know
Kyle, so she could not say whether it was Kyle who punched Ventura, but
she was certain that she saw Ventura get hit by a white male, about six feet
tall, with brownish hair. APP-1250. That matches Kyle’s description.
Six other witnesses corroborated material portions of Kyle’s account
of the incident. Budinscak testified he noticed a commotion and saw
Ventura “in the thick of it.” He testified that “people were holding
[Ventura] back or pulling him up” and that, based on “the way that people
were around him, I thought they were lifting him up.” APP-1765-67. John
Jones, Assistant Director/Chief of the Intelligence and Counterterrorism
Division for the Texas Department of Public Safety, APP-2069, testified
that, as the crowd was starting to leave McP’s, he looked toward the
parking lot and saw “Jesse getting up” and “some guys helping Jesse get
up.” APP-2089, 2091-92. Kelly testified that, after he noticed Kyle and
Ventura talking, he turned away for a moment and, when he looked back,
“Ventura is on his back. ... [A]nd I look back and Chris is running towards
Page: 31
me.” APP-1412. He further testified he saw Ventura “[k]ind of like rocking
to his back ... like he got knocked down, punched.” APP-1413. Lacz
testified that he too noticed Kyle and Ventura talking “relatively close,”
and then, when he looked back again, “Ventura was on the ground and
Chris was leaving.” APP-1843-45. Paul testified: “[T]here was a commotion.
... And then I saw Jesse getting up, and he was yelling and screaming at
Chris. ... I do remember at that point somebody kind of helping Jesse up.”
APP-1490.
Four witnesses— Budinscak, Jones, Bob Gassoff, and Debbie Job, an
educational assistant and mother of another SEAL severely wounded in
combat— testified to hearing about the incident while still at McP’s, after
Kyle had left. APP-1577-82, 1607-08, 1731-32, 1767-68, 2089, 2092, 2106-07.
Five other witnesses testified they heard about it that same night or first
thing the next morning. APP-1323, 1414, 1496-97, 1658, 1846.
3.
References to Insurance
Kyle was insured under a policy maintained by his publisher,
HarperCollins. The carrier funded Kyle’s defense, but denied coverage for
any damages awarded for unjust enrichment. APP-358-61, 1888, 2066; APP-
Page: 32
1884. All of this information was revealed to Ventura in pre-trial discovery,
although the policy itself was never admitted in evidence.
At trial, Ventura sought to elicit testimony from HarperCollins
employees (an editor and a publicist) that Kyle was insured under the
publisher’s policy. APP-1889. Although the district court initially declined
to permit him to do so, it later changed its mind, concluding that the fact
that HarperCollins had insurance was necessary for the jury to assess
whether its employees who testified at trial were “bias[ed].” APP-1888-89,
1995. The district court permitted Ventura to ask them if they were aware
their employer maintained insurance and that it provided coverage to
Kyle. Both witnesses denied any such knowledge. APP-1997-98, 2066.
Ventura’s counsel proceeded to discuss the policy in his closing, advising
the jury that “Chris Kyle is an additional insured for defamation under the
publisher’s insurance policy,” and that the “insurer is on the hook if you
find that Jesse Ventura was defamed,” APP-2236-37.
4.
Verdict Form
Kyle proposed that the jury be given a special verdict form. With
respect to each challenged statement, the requested form asked whether
Ventura had carried his burden of proving (1) by a preponderance of the
Page: 33
evidence that it was defamatory, (2) by clear and convincing evidence that
it was materially false, and (3) by clear and convincing evidence that Kyle
either knew it was materially false or had a high degree of subjective
awareness that it was probably false. APP-90-95. The proposed verdict
form would have required the jury to answer each of these questions with
respect to each challenged statement.
The district court declined Kyle’s request. Instead, it instructed the
jury to return a general verdict with respect to each of Ventura’s causes of
action.
5.
Jury Instructions
Several of the district court’s jury instructions are at issue on this
appeal. APP-2270-91. First, in Instruction 8, the district court instructed the
jury that:
In this case, Plaintiff Jesse Ventura claims that Chris
Kyle defamed him by asserting in American Sniper, as
well as on television and radio, that Mr. Ventura said
“he hates America,” the SEALs “were killing men and
women and children and murdering,” and the SEALs
“deserve to lose a few.” To prevail on this defamation
claim, Mr. Ventura must prove:
One, Mr. Kyle’s story about Mr. Ventura was
defamatory;
Two, the story was materially false; and
Page: 34
Three, Chris Kyle published the story knowing it
was false, believing it was false, or having serious
doubts about its truth.
Neither party objected to this instruction.
In Instruction 8B, the jury was instructed that:
The second element is that Mr. Kyle’s story about Mr.
Ventura was materially false or, put another way,
was not substantially accurate. The story may be
substantially accurate even if it contains minor
inaccuracies, as long as the substance or gist of it is
accurate.
Mr. Ventura must prove this element by the greater
weight of the evidence (see Instruction No. 7).
This instruction was given over Kyle’s objection, and his proffered
alternative, which would have advised the jury that Ventura must prove
material falsity “by clear and convincing evidence,” was refused.
In Instruction 8C, the jury was instructed that:
The third element is that Mr. Kyle published the story
about Mr. Ventura despite:
1. Knowing the story was false; or
2. Believing the story was false; or
3. Having serious doubts about the story’s truth.
Mr. Ventura must prove this element by clear and
convincing evidence (see Instruction No. 7).
Page: 35
During its deliberations, these instructions plainly confused the jury.
On their first day of deliberations, the jurors asked whether the reference in
Instruction 8 to “the story” was meant to refer to the entire “Scruff Face”
passage, or just to the three statements specified in that instruction. APP2292. Kyle urged the court to instruct the jury that it was required to
consider whether each statement, not the “story” a whole, was defamatory,
materially false, and published with actual malice. APP-2294-307. The
district court responded that the jurors “are not going to find this thing was
defamatory on anything other than one of those three statements or all of
them, in my mind.” Id. It answered the jurors’ question by instructing them
that:
The “story” … refers to the statements Mr. Kyle made
about Mr. Ventura in the Punching Out Scruff Face
subchapter and on television and radio, which include
the three statements identified in your question. You are
instructed to consider each element of Instruction No. 8
as to the story as a whole.
APP-2310 (italics added; underline in original).
Later in its deliberations, the jury sought guidance on the meaning of
“serious doubt” in the phrase “serious doubts about the story’s truth” in
Instruction 8C. APP-2311, 2328. Over Kyle’s objection, which focused on
Page: 36
the Supreme Court’s consistent guidance that “serious doubt” about the
truth requires “a high degree of subjective awareness of probable falsity,”
the district court answered: “There is no legal definition of ‘serious doubt.’
You will have to rely on your common sense in interpreting and applying
the standard.” APP-2322-26, 2329.
After four days of deliberation, the jurors announced that they could
not reach a verdict. APP-2352. The district court encouraged them to
continue their deliberations. After several more hours, the jury again
announced it was deadlocked, APP-2353, although one juror had a
question for the court: “Do we have to decide if Chris Kyle was telling the
truth based on the evidence OR [d]o we have to believe that Chris Kyle
thought he was telling the truth?” APP-2354. In response, the court referred
the jury to Instructions 8 through 8C. APP-2355-56, 2362-68.
The jurors still could not reach a unanimous decision, and the parties
agreed to accept a verdict by a majority of eight jurors. APP-2357-60, 236877. On July 29, the jury returned such a verdict, finding by an 8-2 vote that
Ventura had proved his defamation claim and awarding $500,000, finding
unanimously that Ventura had not proved his claim of misappropriation,
and finding in an 8-2 advisory verdict that Ventura had proved his unjust
Page: 37
enrichment claim and recommending damages on that claim be set at
$1,345,477.25. APP-2385-86.
After receiving the jury’s verdict, the district court stated it would
take some time to consider the unjust enrichment claim before entering
judgment, and would “probably hear from the parties before I do that.”
APP-2382-83. On August 7, without additional briefing or argument, the
district court entered an order adopting the jury’s unjust enrichment
verdict, finding that the award was “supported by a preponderance of the
evidence” and that $1,345,477.25 was “a reasonable portion (approximately
25%) of Chris Kyle’s and his Estate’s total profits to date and was
supported by substantial evidence.” ADD-1-6. Judgment was entered that
same day. ADD-7.
Kyle filed post-trial motions on September 4, APP-38/ECF-404-07,
and the district court denied them on November 26, ADD-8-31.
SUMMARY OF ARGUMENT
The district court made three significant errors with respect to
Ventura’s defamation claim. First, it erred in instructing the jury that it
should focus on Kyle’s “story” as a whole in determining whether Ventura
had met each element of his burden of proof. The jury should have been
Page: 38
instructed to consider each challenged statement individually and return a
verdict for Ventura only if it found at least one statement to be materially
false, defamatory, and published with actual malice.
Second, the district court erred in failing to instruct the jury that
Ventura was required to demonstrate by clear and convincing evidence
that the statements at issue were materially false. Third, the district court
erred in instructing the jurors that there is no definition of what it means to
have “serious doubts” about the truth in the actual malice context, and in
urging them to rely instead on “common sense” in applying that standard.
There is a definition articulated by the Supreme Court and cited many
times in this Circuit – a finding of actual malice requires clear and
convincing evidence that the defendant published despite “a high degree
of awareness” of the “probable falsity” of a challenged statement.
A properly instructed jury would not have rendered a verdict in
Ventura’s favor. The independent review of the record that is
constitutionally required in this case demonstrates that Ventura failed to
carry his burden of proving, by the requisite clear and convincing
evidence, that any of the three statements at issue were materially false or
Page: 39
published with actual malice. No reasonable jury properly instructed could
have found defamation liability on the record in this case.
The unjust enrichment verdict should be reversed and the claim
dismissed for multiple reasons. First, if the defamation claim is dismissed,
there is no basis on which Ventura could predicate a cause of action for
unjust enrichment, especially after the jury rejected Ventura’s
misappropriation claim.
Second, even if the defamation verdict survives, the unjust
enrichment claim fails as a matter of state law. The Minnesota Supreme
Court has held that no cause of action for unjust enrichment exists in the
absence of a pre-existing implied or quasi-contractual relationship between
the parties. It is undisputed that no such relationship existed between
Ventura and Kyle. Even if such a relationship had existed, Ventura’s claim
would be invalid because, under this Court’s precedent, a plaintiff may
sustain an unjust enrichment claim based on wrongful publication only
where the plaintiff’s name or likeness is used in a commercial
advertisement. Moreover, the equitable remedy of unjust enrichment was
not available to Ventura because he potentially had an adequate remedy at
Page: 40
law to seek the disgorgement of Kyle’s profits – his failed claim for
misappropriation.
Third, the unjust enrichment award violates the First Amendment in
two significant respects. The “unjust” standard on which it is necessarily
based is itself too malleable and expansive a concept on which to penalize
speech about a matter of public concern. Because such an award is
intended solely to disgorge profits derived from allegedly false speech, and
not to compensate a plaintiff for an actual injury, it is precluded by the
constitutional protection that extends even to knowingly false statements
addressing matters of public concern. The unjust enrichment award also
must be reversed because it is the product of speculation and not based on
record evidence demonstrating the extent, if any, to which Kyle was
enriched by the statements at issue.
Finally, this Court at minimum should grant a new trial because the
district court erred when it allowed the jury to hear highly prejudicial
examination and argument about defendant’s insurance.
Page: 41
STANDARDS OF REVIEW
On questions of law, this Court applies de novo review, with no
deference to the district court or fact-finder. Aviation Charter, Inc. v. Aviation
Research Grp./US, 416 F.3d 864, 868 (8th Cir. 2005).
Because this appeal involves claims by a public figure challenging
statements made in a book addressing subjects of public concern, the First
Amendment requires this Court to “‘make an independent examination of
the whole record’ … so as to assure [itself] that the judgment does not
constitute a forbidden intrusion on the field of free expression,” New York
Times Co. v. Sullivan, 376 U.S. 254, 285 & n.26 (1964); see 2 R. Sack, SACK ON
DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS §16.5 (2d ed., Rel. #4,
4/14). Here, the duty of independent review applies to the facts supporting
the jury’s findings of actual malice, Lundell Mfg. Co. v. ABC, Inc., 98 F.3d
351, 357 (8th Cir. 1996), and material falsity, Air Wis. Airlines Corp. v.
Hoeper, 134 S. Ct. 852, 864 (2014). This constitutional duty “cannot be
delegated to the trier of fact, whether the factfinding function be performed
in the particular case by a jury or by a trial judge.” Bose Corp. v. Consumers
Union, 466 U.S. 485, 501 (1984).
Page: 42
ARGUMENT
I.
THE DEFAMATION JUDGMENT
This Court should reverse the defamation judgment because the
district court incorrectly instructed the jury with respect to both the
questions of whether the statements at issue were materially false and
whether Kyle published them with actual malice. Although instructional
error would normally call for a new trial, the First Amendment requires an
appellate court to examine the record independently and enter judgment
for the defendant where, as here, no properly instructed jury could have
found defamation liability. See Sullivan, 376 U.S. at 285.
A.
Ventura’s Burden to Establish Material Falsity
1.
The district court erred by instructing the jury it could find
liability based on the “story.”
The district court erred when, responding to an inquiry, it instructed
the jury it could impose defamation liability based on the entirety of the
“story” Kyle told about Ventura, rather than explaining that its original
instruction required Ventura to prove all of the elements of his defamation
claim with respect to at least one of the three specific statements at issue.
Page: 43
A jury instruction is erroneous if it misstates the law. Wolfe v.
Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 864 (8th Cir. 2011). To establish a
defamation claim, a plaintiff must prove, inter alia, that a specific statement
is both defamatory and false in some material respect. McKee v. Laurion, 825
N.W.2d 725, 729-30 (Minn. 2013). In addition, the First Amendment
requires a public figure such as Ventura to prove that such a statement was
published with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 32728 (1974).
The Supreme Court, this Court, and the Minnesota Supreme Court
have all left no doubt that, to sustain a defamation claim with respect to a
group of allegedly false and defamatory statements, a plaintiff must prove
each of the elements of his cause of action with respect to each such
statement for which he hopes to recover damages. See, e.g., Air Wis., 134 S.
Ct. at 864-65 (evaluating individually each of several challenged
statements); Masson v. New Yorker Magazine, 501 U.S. 496, 502, 522-25 (1991)
(excluding from potential liability challenged statements that were not
actionable and evaluating remaining statements individually); Stepnes v.
Ritschel, 663 F.3d 952, 964-65 (8th Cir. 2011) (same); Aviation Charter, 416
F.3d at 868-71 (“We begin by parsing the seven allegedly defamatory
Page: 44
statements.”); Michaelis v. CBS Inc., 119 F.3d 697, 700-03 (8th Cir. 1997); Price
v. Viking Penguin, 881 F.2d 1426, 1429 (8th Cir. 1989); McKee, 825 N.W.2d at
729-30.
As originally given to the jury, Instruction 8 properly explained that
the only statements at issue were the three specific statements “set forth
above.” APP-2281. The instruction did not reference other aspects of the
“Scruff Face” story, including most significantly whether Kyle had
punched Ventura; the so-called “punch statements” are not defamatory
and Ventura admitted at trial that they did not injure his reputation, APP1112. Relying on the instruction as given, Kyle’s counsel emphasized in
closing argument that the only statements at issue were the three
challenged statements set out in the Instruction, and that the book’s
references to the punch “are not defamatory and ... are already out of this
case.” APP-2189-90.
Only a few hours into their deliberations, however, the jurors asked
whether the “story” referenced in Instruction 8 was meant to refer to the
entire Excerpt, or only to the three statements identified in the instruction.
Over Kyle’s objection, the district court reversed course. It instructed the
jurors that, rather than focusing their deliberations on whether Ventura
Page: 45
had carried his burden of proof with respect to the three challenged
statements, they should instead “consider each element of Instruction No. 8
as to the story as a whole.” APP-2310.
This instruction was plainly incorrect. By giving it, the district court
effectively repudiated its original instruction and left the jury free to
impose liability on portions of the “story” that were not properly at issue,
either because they were true (but not flattering) or false (but not
defamatory). This was especially prejudicial with respect to the nondefamatory “punch statements,” the alleged falsity of which Ventura
emphasized to the jury throughout the trial. See, e.g., APP-202, 2232-33. 1
Although the jury properly could consider whether it believed Kyle
punched Ventura in deciding whether to credit the rest of Kyle’s account, a
conclusion that Kyle did not punch Ventura cannot itself be a basis of
liability. To paraphrase the Second Circuit, the “punch statements”
theoretically might have met “all of the other elements of defamation—be
factual, published, false, and about the plaintiff—but still not be
actionable” because they “fail[] to rise to the necessary level of derogation.”
Chau v. Lewis, 771 F.3d 118, 127 (2d Cir. 2014). Moreover, although the
defamatory import of the three statements at issue is properly assessed in
the context of the publication as a whole, id. at 126, all the required
elements of a defamation claim must be present with respect to any
challenged statement for it to be actionable.
1
Page: 46
This Court’s treatment of the seven statements at issue in Aviation
Charter illustrates the magnitude of the district court’s error. In that case,
this Court held that one of several challenged statements was true, that two
others were “technically incorrect” but not defamatory, and that the
remaining four were derivative of a statement of non-actionable opinion.
The cumulative conclusion—that each challenged statement was nonactionable—meant the case was over, even though the various statements
were each disposed of for three separate reasons. Most significantly, this
Court did not allow the plaintiff in Aviation Charter to pursue a defamation
claim by conflating one statement that was false (but not defamatory) with
another that was defamatory (but true) and claiming that the overall
“story” therefore constituted an actionable defamation. In this case, the
district court permitted the jury to do just that.
The district court’s error was compounded by its failure to provide
the jury with the special verdict form proffered by Kyle that would have
required it to “pars[e] the … allegedly defamatory statements” in the
manner contemplated by Aviation Charter, 416 F.3d at 869, and to determine
whether any of them satisfied all of the elements of a valid defamation
claim. Instead, over Kyle’s objection, the district court employed a general
Page: 47
verdict form that permitted the jury to “mix and match” the alleged falsity
of statements not at issue with the defamatory nature of the challenged
statements. See West v. Media Gen. Operations, Inc., 120 Fed. Appx. 601, 622
(6th Cir. 2005) (“When multiple defamatory statements or matters are
alleged, each element, including actual malice, must be proven as to each
statement or matter.”).
Especially in this context, as now-Justice Ginsburg has explained, the
importance of special verdict forms and clear jury instructions in
safeguarding First Amendment rights cannot be overstated. See Tavoulareas
v. Piro, 817 F.2d 762, 809 (D.C. Cir. 1987) (Ginsburg, J., concurring). In their
absence, this Court cannot properly sustain a defamation verdict on the
uncertain basis of findings the jury may well not have actually made. See
West, 120 Fed. Appx. at 619 (“the failure to give the jury a list of the
defamatory statements alleged by Plaintiffs …, combined with the use of a
general verdict form …, gives this Court no guidance as to how the jury
reached its decision …. Simply put, we cannot tell which statements the
jury found to be made, false, defamatory, and made with actual malice.”).
Page: 48
2.
The court erred in failing to instruct the jury Ventura had to
prove falsity by clear and convincing evidence.
The district court erred further when it failed to instruct the jury that
Ventura was required to prove the challenged statements’ falsity by clear
and convincing evidence. Rather, over Kyle’s objection, it instructed that
Ventura was required to prove material falsity only by a preponderance of
the evidence. APP-2280, 2283.
In Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 661
n.2 (1989), the Supreme Court noted a split in authority on the question of
whether material falsity must be proven by clear and convincing evidence,
but did not decide the question. Neither this Court nor the Minnesota
Supreme Court has addressed the issue. Nonetheless, most jurisdictions
that have considered the matter have held that public figures must prove
material falsity by clear and convincing evidence. See, e.g., DiBella v.
Hopkins, 403 F.3d 102, 110-15 (2d Cir. 2005) (collecting cases); Brokers’ Choice
of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1128 (10th Cir. 2014); see
also 1 R. Sack, supra, §3:4, 3-14 to -15 & n. 52 (citing cases).
These courts correctly recognize that a public figure’s burden of
proving material falsity must, as a matter of both law and logic, require
Page: 49
clear and convincing evidence. For one thing, the Supreme Court has
emphasized that the First Amendment obligates courts “to tip [the scales]
in favor of protecting true speech,” Phila. Newspapers, Inc. v. Hepps, 475 U.S.
767, 776 (1986), and, to that end, the clear and convincing standard
properly “‘resolve[s] doubts in favor of speech when the truth of a
statement is difficult to ascertain conclusively,’” DiBella, 403 F.3d at 114
(quoting Robertson v. McCloskey, 666 F. Supp. 241, 248 (D.D.C. 1987)). For
another, as this case illustrates, the clear and convincing standard
ameliorates what would otherwise be jury confusion: “‘To instruct a jury
that a plaintiff must prove falsity by a preponderance of evidence, but must
also prove actual malice, which to a large extent subsumes the issue of
falsity, by a different and more demanding standard is to invite confusion
and error.’” Id.
Since Harte-Hanks, the Supreme Court twice has emphasized that the
issues of material falsity and actual malice are inextricably intertwined,
such that the very definition of the latter requires a finding of the former.
See Masson, 501 U.S. at 512; Air Wis., 134 S. Ct. at 861 (citing Masson and
noting that Supreme Court has “long held that actual malice requires
material falsity”). In the wake of Masson and Air Wisconsin, there can be no
Page: 50
credible contention that a public figure bears a different, less demanding
burden with respect to proof of material falsity than he does with respect to
actual malice.
Indeed, as a practical matter, “it may be impossible to apply a higher
standard to ‘actual malice’ than to the issue of falsity.” Nev. Indep. Corp. v.
Allen, 664 P.2d 337, 343 n.5 (Nev. 1983). Thus, where the jury is incorrectly
instructed that it may find material falsity by only a preponderance of the
evidence, there is every reason to believe that such a finding will bleed
over into its consideration of the actual malice issue and predetermine that
inquiry, regardless of the plaintiff’s assigned burden of proof. In this case,
given Kyle’s personal involvement in the events he described and the
(understandable) inability of jurors to grasp the difference between the
applicable burdens of proof, a finding of falsity would have led to a finding
of actual malice almost ipso facto.
3.
Ventura failed to establish by clear and convincing evidence
that the challenged statements were materially false.
An independent review of the record demonstrates that Ventura
failed to prove by clear and convincing evidence that the specific
statements at issue were in any material sense false. The “clear and
Page: 51
convincing evidence” standard requires that the version of the facts on
which the plaintiff relies be “highly probable,” In re Miera, 426 N.W.2d 850,
853 (Minn. 1988), and that the evidence supporting it be “unequivocal and
uncontradicted,” Kavanaugh v. The Golden Rule, 33 N.W.2d 697, 700 (Minn.
1948). If nothing else, clear and convincing evidence “require[s] more than
one man’s word against another.” In re McDonough, 296 N.W.2d 648, 694
(Minn. 1980).
A statement is not materially false “unless it ‘would have a different
effect on the mind of the reader from that which the pleaded truth would
have produced.’” Air Wis., 134 S. Ct. at 861 (quoting Masson, 501 U.S. at
517). In other words, “[m]inor inaccuracies do not amount to falsity so long
as the ‘substance, the gist, the sting, of the libelous charge be justified.’” Id.
Ventura’s affirmative evidence of material falsity was limited to:
•
His own denials he made any of the statements and his
attestations of admiration for the SEALs;
•
The testimony of three friends that they did not hear Ventura
make the statements at issue, but who conceded Ventura could
have made them without their knowing;
•
The testimony of Ventura’s wife and son, who were not
present, that Ventura would never have made such statements;
and
•
The lack of a police report of the incident.
-40-
Page: 52
In contrast, Kyle’s evidence included multiple eyewitness accounts
establishing the substantial truth of Kyle’s account, including:
•
Kyle’s testimony that Ventura said the very things he wrote in
the book.
•
One witness who testified unequivocally that he heard Ventura
say that the SEALs “deserved to lose some guys.” Another—
one with no tie to either Kyle or Ventura—who testified
similarly and unequivocally that she heard Ventura say that
Monsoor –the Medal of Honor recipient for whom the wake
was being held—“probably deserved it.”
•
Five witnesses who testified they heard Ventura make
analogous statements conveying an anti-military sting.
•
Admissions by Ventura that, in multiple public statements, he
has been sharply critical of SEALs, the military, and the
country, including making statements that:
o
SEALs are “elite killer squads” who are “forced to be part
of illegal gangland operations,”
o
“[m]ore and more we’re seeing an Army run by Christian
extremists and an accompanying cadre of what can only
be described as neo-Nazis,”
o
“Our military has turned into contract killers now,
contract for hire,”
o
we live in the “fascist states of America,”
o
he “won’t salute the US flag or stand for the National
Anthem anymore” or “pay respect to the country,” and
o
the United States government had a hand in the 9/11
terrorist attacks.
Page: 53
At trial, Ventura sought to undercut Kyle’s evidence by referring to
defense witnesses as “drunken sailors,” APP-2227, and by pointing to
differences in their testimony regarding precisely where and when the
verbal exchange and punch occurred, APP-2220-29. Such contentions
neither survive reasonable scrutiny nor assist Ventura in proving that the
statements at issue are false in any material respect.
First, the differences in testimony among Kyle’s witnesses are minor
and immaterial. The diagram2 below shows that each witness who saw the
exchange and recalled its location remembered it taking place in the same
area on or near McP’s patio (within the oval):
This diagram is based on APP-455-47, 460, 470-71, 473-74, 2434; APP1438-43; APP-1491-95, 2407; APP-1578-79, 2400; APP-1658, 1692-94, 1716-18,
2416; APP-1787-91, 2393; APP-1843-45, 1868, 1870, 2421; APP-2104-05, 2108,
2428.
2
Page: 54
Similarly, those witnesses who said they either heard the key statements or
witnessed either the punch or the related commotion all agreed it
happened well after dark, which was consistent with Kyle’s own memory.
Those able to provide a more precise estimate testified that the punch was
thrown sometime between approximately 9 and 11 p.m., as the evening
was winding down and some SEALs were heading to another bar. APP1273-74, 1437-38, 1487-89, 1578, 1657, 1731-32, 1787-88, 1842-44, 2080, 2083.
Most significantly, there were no discrepancies among witnesses about
Page: 55
whether they actually heard Ventura make the statements about which each
testified.
Second, regarding Ventura’s suggestion that Kyle’s witnesses were
“drunken sailors,” the evidence showed not only that several of them were
not sailors at all but that most of them drank only moderately that evening.
None of Kyle’s witnesses were out of control or unable to observe their
environment. APP-1401, 1834, 2083, 2109.
Ultimately, an independent review of this record reveals that Ventura
failed to demonstrate even by a preponderance of the evidence that he did
not make the statements attributed to him, let alone that it was “highly
probable,” “unequivocal,” or “uncontradicted” that he did not do so. No
reasonable jury—properly instructed to focus squarely on the three
statements at issue and to hold Ventura to his burden of proving their
material falsity by clear and convincing evidence—could have found in his
favor on that dispositive issue.
B.
Ventura’s Burden to Establish Actual Malice
The district court also erred when it refused to provide a further
explanation of Instruction 8C when requested to do so by the jury. An
independent review of the record evidence demonstrates that, if the jury
Page: 56
had been instructed properly, it could not have found actual malice by the
requisite clear and convincing evidence.
1.
The court erred in refusing to explain the phrase “serious
doubts about the story’s truth” when the jury asked for a
definition.
Instruction 8C stated that Ventura had to prove by clear and
convincing evidence that Kyle published the statements at issue despite: “1.
Knowing the story was false; or 2. Believing the story was false; or 3.
Having serious doubts about the story’s truth.” This instruction was based
on settled case law. Specifically, the Supreme Court has explained both that
a finding of “actual malice” requires clear and convincing proof of either
“knowledge of falsity” or “reckless disregard for the truth,” and that
“reckless disregard” requires the same quantum of evidence demonstrating
that “‘the defendant in fact entertained serious doubts as to the truth of his
publication.’” Harte-Hanks, 491 U.S. at 688 (quoting St. Amant v. Thompson,
390 U.S. 727, 731 (1968)). Moreover, the Court has instructed, to sustain a
finding of “serious doubts” about the truth, “there must be sufficient
evidence to permit the conclusion that the defendant actually had a ‘high
degree of awareness of ... probable falsity.’” Harte-Hanks, 491 U.S. at 688
(quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)) (emphasis added).
Page: 57
On its third day of deliberations, the jury asked what Instruction 8C
meant by “serious doubts.” Kyle requested that the court answer the
question (as he had previously asked the court to instruct the jury, APP30/ECF-297 pp.46-47) with the definition provided in Harte-Hanks. APP2322-26. The district court, however, declined to answer the jurors’
question at all, informing them instead that there “is no legal definition of
‘serious doubt’” and that they would have to “rely on [their] common
sense.” APP-2329
The district court was wrong to instruct the jury that there “is no
legal definition of ‘serious doubt’” because there is such a definition – such
a finding requires evidence that the defendant harbored a “high degree of
awareness” of “probable falsity.” Harte-Hanks, 491 U.S. at 688. This Court
and others have applied that definition for decades. See, e.g., Campbell v.
Citizens for an Honest Gov’t, Inc., 255 F.3d 560, 569 (8th Cir. 2001); Secrist v.
Harkin, 874 F.2d 1244, 1251-52 (8th Cir. 1989); Chafoulias v. Peterson, 668
N.W.2d 642, 654-55 (Minn. 2003).
“When a jury makes explicit its difficulties a trial judge should clear
them away with concrete accuracy.” Bollenbach v. United States, 326 U.S.
607, 612-13 (1946). The district court could have done so here, but it
Page: 58
declined. This error forced the jury to draw for itself the line separating
speech protected by the First Amendment from actionable defamation and
left it free to find “actual malice” by reference to a substantive standard
that fell well short of what the Constitution requires.
2.
Ventura failed to prove Kyle published the challenged
statements with actual malice.
An independent review of the record reveals that Ventura failed to
produce clear and convincing evidence either that Kyle knowingly lied
about what he heard Ventura say or that he had the requisite high degree
of awareness that any of the three statements were probably false.
The only direct evidence concerning Kyle’s state of mind necessarily
came from Kyle himself. Though the jury heard only Kyle’s deposition
cross-examination, his testimony was unequivocal. He was certain of the
truth of what he had written about his encounter with Ventura, see, e.g.,
APP-520-21, 527-28, 534, 537-38, 540, even asserting that he was not
concerned about this lawsuit because you “[c]an’t defeat the truth,” APP404. Although a defendant cannot ensure a verdict in his favor merely by
asserting his belief in the truth of his work, Harte-Hanks, 491 U.S. at 690, an
Page: 59
author’s direct testimony is certainly relevant to the constitutional calculus
and to an appellate court’s independent review.
Moreover, significant additional evidence corroborates Kyle’s
testimony. Two eyewitnesses testified that they too heard Ventura make
statements about SEALs “deserv[ing]” to die. Multiple others heard
Ventura make other derogatory statements about the military that night
and it is undisputed that he has repeatedly and loudly made analogous
assertions in a variety of public fora.
In the face of this showing, which itself precludes a finding of actual
malice by clear and convincing evidence, Ventura offered only the thesis
that, because he testified he did not say these things and because
(according to his testimony) Kyle also lied about punching him, Kyle must
have fabricated the three derogatory statements at issue attributed to
Ventura. Ventura’s logic is flawed.
First, the Supreme Court specifically has held that a libel plaintiff
cannot establish actual malice simply by claiming that a defendant who
witnessed an event and described it inaccurately must have lied. See Bose,
466 U.S. at 512-13. “Normally … discredited testimony is not considered a
sufficient basis for drawing a contrary conclusion.” Id. at 512.
Page: 60
Second, a mere conflict between defendant’s and plaintiff’s accounts
of an event does not mean that one of them actually believed his own
account was false or probably false; it may simply mean that one of them is
mistaken. See, e.g., Mahoney v. Adirondack Publ’g Co., 517 N.E.2d 1365, 136970 (N.Y. 1987) (dismissing claim because evidence “suggest[ed] that the
falsity was more the product of misperception than fabrication”); Long v.
Arcell, 618 F.2d 1145, 1148 (5th Cir. 1980) (same). Misinterpretation and
faulty recollection are, as a matter of law, not actual malice. Bose, 466 U.S. at
512; Niska v. Clayton, 2014 WL 902680 at *5 (Minn. App. Mar. 10, 2014)
(unpublished).
In this case especially, ambiguity surrounds what Ventura did or did
not say that evening. People were drinking at a loud, crowded bar,
misunderstandings were likely, and memories understandably fade with
time. Even Ventura’s counsel acknowledged in closing argument that “[w]e
all know that memories fade and over time that things can blend together,
especially when people are trying to recall something that happened a long
time ago.” APP-2218.
The district court itself acknowledged that “it is possible Kyle could
have misinterpreted Ventura’s comments to him and innocently published
Page: 61
a false account of them.” ADD-51. In other words, Kyle could have
honestly gotten what Ventura said wrong, without being aware his
statements were probably false. On this record, as a matter of law, that very
real possibility precludes a finding of actual malice.
In the district court, Ventura argued that two additional factors
supported a finding of actual malice: (1) Kyle’s decision to omit Ventura’s
name from the book, and (2) revisions made to the “Scruff Face” portion
before it was published. Neither argument has merit.
First, testimonial and documentary evidence established that Kyle
omitted Ventura’s name because he did not want to call public attention to
a dispute between two SEALs, APP-559, not because he knew the account
was false and feared litigation, APP-404. Kyle testified he pushed for use of
pseudonyms from the start, APP-528-30, 538-39, 2470-74, and mentioned a
friend’s warning about litigation, see APP-2475-77, only in the hope it
would help him win the argument for using pseudonyms, APP-541-43. In
any event, a desire to avoid defamation litigation has little to do with
whether an author doubts the truth of his work; authors, publishers and
their lawyers devote significant resources to minimizing the risk of
lawsuits challenging what they are confident are entirely truthful accounts.
Page: 62
The actual malice standard is designed to protect authors like Kyle in just
such circumstances. See Sullivan, 376 U.S. at 279 (noting that, under a lesser
standard, speakers “may be deterred from voicing their criticism, even
though it is believed to be true and even though it is in fact true, because of
doubt whether it can be proved in court or fear of the expense of having to
do so”).
As for the challenged revisions, an independent review of the record
demonstrates that all of them were insignificant and involved either
wordsmithing or judgment calls about how much detail to include. None
of the changes reveal Kyle contradicting himself on any material aspect of
his account 3 and Kyle’s co-author testified that such tweaks are a normal
part of the book-writing process. APP-1913-14, 1949, 1962. More to the
point, none of the changes were made to any of the three statements at
issue, which were consistent throughout the drafting process. The fact that
other revisions were made cannot constitute clear and convincing evidence
of actual malice. See Masson, 501 U.S. at 514-15 (“the practical necessity to
The Court can review the de minimis changes by comparing the
relevant portions of the book to APP-515-21, 527-28, 2466-74.
3
Page: 63
edit” requires rejection of contention “that any alteration beyond correction
of grammar or syntax by itself proves falsity in the sense relevant to
determining actual malice under the First Amendment”).
Simply put, no reasonable and properly instructed jury could have
concluded on this record that there was clear and convincing evidence Kyle
knew the three statements were probably false when he published them.
As a result, the jury’s verdict in this regard cannot survive this Court’s
independent review of the record.
II.
THE UNJUST ENRICHMENT JUDGMENT
A.
The Unjust Enrichment Judgment Cannot Stand if the Defamation
Judgment is Reversed.
To maintain a cause of action for unjust enrichment under Minnesota
law, a plaintiff must demonstrate that the defendant not only “benefit[ed]
from the efforts or obligations of others,” but also that he “was unjustly
enriched in the sense that the term ‘unjustly’ could mean illegally or
unlawfully.” First Nat’l Bank v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981);
see also United States v. Bame, 721 F.3d 1025, 1029 (8th Cir. 2013). Here, the
only underlying “illegal” or “unlawful” conduct asserted by Ventura is the
publication of allegedly defamatory statements and the alleged
Page: 64
misappropriation of his name or likeness. The jury rejected Ventura’s
misappropriation claim. His derivative unjust enrichment claim must
therefore fail if the underlying defamation claim is dismissed. See Boladian
v. UMG Recordings, Inc., 123 Fed. Appx. 165, 169 (6th Cir. 2005) (defamation
claim); Ruffin-Steinback v. dePasse, 267 F.3d 457, 462-63 (6th Cir. 2001)
(misappropriation).
B.
State Law Bars the Unjust Enrichment Claim.
All apart from the validity of the defamation judgment, the unjust
enrichment judgment should be reversed and the claim dismissed because
it is inconsistent with Minnesota law.
1.
Ventura cannot maintain a claim for unjust enrichment
because he had no pre-existing contractual or quasicontractual relationship with Kyle.
During the pendency of this action, both the Minnesota Supreme
Court and the District Court of Minnesota squarely addressed the
requirements for a valid unjust enrichment cause of action in Minnesota. In
Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 838 (Minn. 2012),
the Minnesota Supreme Court “limited the application of unjust
enrichment to claims premised on an implied or quasi-contract between the
claimant and the party alleged to be unjustly enriched.” Relying on Caldas,
Page: 65
the District of Minnesota concluded that an unjust enrichment claim cannot
stand where the plaintiff fails to allege “any promise or privity between the
parties” such that the defendant owed him a contract-like pre-existing legal
obligation. Qwest Commc’ns Co. v. Free Conferencing, 990 F. Supp. 2d 953, 982
(D. Minn. 2014); accord, Moore v. Weinstein Co., 2012 WL 1884758, *49 (M.D.
Tenn. May 23, 2012) (rejecting unjust enrichment claim based on
infringement of privacy and trademark rights because it was “unclear why
a quasi-contractual theory would even apply to the circumstances of this
case”), aff’d, 545 Fed. Appx. 405 (6th Cir. 2013).
Here, no pre-existing implied or quasi-contractual relationship
existed between the parties, and Ventura made no such claim at trial. He
actually argued the opposite. Ventura presented this case as one about two
perfect strangers, contending that he (1) had never heard of Kyle before the
book was published and (2) did not remember meeting him at McP’s. APP986, 1011. Ventura presented no evidence of a promise from or privity with
Kyle, but instead argued the royalties Kyle received were “unjust” based
on defamation and/or misappropriation. Those royalties, however, did not
arise from a pre-existing relationship between the two from which the
requisite contractual or quasi-contractual obligation could be said to have
Page: 66
arisen. As a matter of Minnesota law, therefore, Ventura failed to state a
viable claim for unjust enrichment.
Ventura cannot avoid this conclusion by arguing that Minnesota law
recognizes a cause of action for unjust enrichment against the author of a
work “published for profit,” if it unlawfully references the plaintiff. See
Ruzicka v. Conde Nast Publ’ns, Inc., 733 F. Supp. 1289, 1301 (D. Minn. 1990),
aff’d, 939 F.2d 578, 583 n.8 (8th Cir. 1991). In Ruzicka, the predicate cause of
action for breach of contract arose from a pre-existing relationship between
the author and the plaintiff – the former allegedly had promised the latter
she would not be identifiable in the published article. See 733 F. Supp. at
1291-92.
Even in the face of such a relationship, the Court in Ruzicka
recognized an additional state law limitation on a cause of action for unjust
enrichment. As the district court explained in Ruzicka, in a ruling adopted
by this Court, Minnesota law in such circumstances requires a plaintiff to
demonstrate that the benefit unjustly received resulted from “a deliberate
association with the defendant’s products in an advertising or promotional
scheme.” Ruzicka, 733 F. Supp. at 1301; accord, Young v. That Was The Week
Page: 67
That Was, 312 F. Supp. 1337, 1342 (N.D. Ohio 1969), aff’d, 423 F.2d 265 (6th
Cir. 1970).
There is no evidence that Kyle used Ventura’s name in advertising or
to promote a commercial product. The book is an autobiography about a
matter of public concern, not an advertisement or promotion of any sort,
and Ventura’s name does not even appear in it. Ventura’s claim is not
saved by the contention that his name was mentioned in promotional
interviews because, for purposes of an unjust enrichment claim, the
required promotional use must be for a product or service other than the
published work itself. Lacoff v. Buena Vista Publ’g, 705 N.Y.S.2d 183 (Sup.
Ct. 2000) (advertising for book not promotional because the underlying
work was protected expression); accord, Seale v. Gramercy Pictures, 949 F.
Supp. 331, 337 (E.D. Pa. 1996); Nichols v. Moore, 334 F. Supp. 2d 944, 957
(E.D. Mich. 2004); Lane v. Random House, 985 F. Supp. 141, 146 (D.D.C.
1995).
2.
The existence of an adequate legal remedy bars Ventura from
pursuing an equitable claim for unjust enrichment.
Minnesota law bars Ventura from sustaining his unjust enrichment
judgment for the further reason that state law provides an adequate,
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alternative legal remedy. “Unjust enrichment is an equitable doctrine,”
Caldas, 820 N.W.2d at 838, that is not available in Minnesota “where there is
an adequate legal remedy or where statutory standards for recovery are set
by the legislature,” Bame, 721 F.3d at 1030; see ServiceMaster of St. Cloud v.
GAB Bus. Servs., Inc., 544 N.W.2d 302, 305 (Minn. 1996). Here, a cause of
action for the tort of misappropriation, pursuant to which a successful
plaintiff may potentially recover the defendant’s profits, constitutes such a
legal remedy.
Jurisdictions that rely, as Minnesota does, on the Restatement (Second)
of Torts’ rendition of the misappropriation tort, see Lake v. Wal-Mart Stores,
Inc., 582 N.W.2d 231, 236 (Minn. 1998), authorize, in those cases in which
liability has otherwise been established, recovery of the tortfeasor’s profits
as an appropriate measure of the plaintiff’s damages. See, e.g., Thorton v. W.
& S. Fin. Grp. Beneflex Plan, 797 F. Supp. 2d 796, 815 (W.D. Ky. 2011) (“any
monetary benefit that [defendant] received as a result of its alleged
wrongful use of [plaintiff’s] name is an appropriate measure of [plaintiff’s]
actual damages”); Nguyen v. Taylor, 723 S.E.2d 551, 560 (N.C. App. 2012)
(same). Although it has not yet addressed the issue, there is no reason to
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believe the Minnesota Supreme Court would part company with the
Restatement and the body of law construing it in this manner.4
The jury rejected Ventura’s misappropriation claim—but “it is the
existence of an adequate legal remedy that precludes unjust enrichment
recovery;” a successfully asserted remedy is not required. Bame, 721 F.3d at
1031; see Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845,
854-55 (8th Cir. 2014) (same). Consequently, Ventura cannot properly
pursue an equitable theory arising from the same conduct for which he
asserted legal claims. 5
Furthermore, at both common law and under the First Amendment,
courts have refused to award equitable remedies of any sort to defamation
plaintiffs. See, e.g., Kinney v. Barnes, 443 S.W.3d 87, 95-100 (Tex. 2014); see
also Milkovich v. Lorain Journal Co., 497 U.S. 1, 23 (1990) (“[I]mperfect though
it is, an action for damages is the only hope for vindication or redress the law
gives to a man whose reputation has been falsely dishonored.”) (emphasis
added; internal quotation marks omitted). Moreover, in Minnesota,
defamation standards apply to all “claims that arise as a consequence of …
purported defamatory statements,” regardless of how a plaintiff labels
them. Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 310 (Minn. 2007).
Minnesota defamation law permits the recovery of multiple types of
compensatory damages, but it is undisputed that those damages do not
include disgorgement of defendant’s profits. ADD-19.
4
The district court incorrectly held that Kyle waived this contention.
An argument is adequately preserved so long as the issue was “at least
mentioned in [a] party’s summary judgment motion” or presented in a
5
(continued on next page)
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C.
The First Amendment Precludes Recovery for Unjust Enrichment.
Kyle’s autobiography addresses matters of public concern. It explores
significant issues: the experience of American troops serving in foreign
wars, the impact of their service on their families, and their interactions
with the general public. As the Supreme Court has explained:
Speech deals with matters of public concern when it can
be fairly considered as relating to any matter of political,
social, or other concern to the community, … or when it
is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the
public.
Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011).
Where such speech is at issue, the First Amendment does not permit
judges or juries to impose liability under a “highly malleable standard with
‘an inherent subjectiveness about it.’” Id. at 1219 (quoting Hustler Magazine
v. Falwell, 485 U.S. 46, 55 (1988)). Otherwise, fact finders could “impose
liability on the basis of the [their] tastes or views, or perhaps on the basis of
(continued from previous page)
response brief. Watkins Inc. v. Chilkoot Distrib., 719 F.3d 987, 993-94 (8th Cir.
2013); see Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715-16 (8th Cir.
2008). Kyle raised this objection in the 2012 summary-judgment reply brief,
APP-7/ECF-48 p.8, in the 2014 Trial Brief, APP-30/ECF-299 pp.25-26, in
response to Ventura’s Trial Brief, APP-30/ECF-304 p.2, and in post-trial
motions, APP-34/ECF-349), APP-38/ECF-406), APP-39/ECF-414.
Page: 71
their dislike of a particular expression” or speaker. Falwell, 485 U.S. at 55.
An inherently subjective standard presents “a real danger of becoming an
instrument for the suppression of … vehement, caustic, and sometimes
unpleasant[t] expression,” speech at the heart of the First Amendment’s
protections. Snyder, 131 S. Ct. at 1219 (quoting Bose, 466 U.S. at 501)
(internal quotation marks omitted).
The district court’s view of a cause of action for unjust enrichment
flowing from speech about matters of public concern is expressly premised
on an untethered judicial assessment of whether the expression “unjustly”
enriched the defendant, and constitutes the very kind of subjective and
malleable standard rejected by the Supreme Court in Snyder and Falwell. Cf.
Beverly Hills Foodland v. United Food & Commercial Workers Union, 39 F.3d
191, 196 (8th Cir. 1994) (finding in defamation context that “‘[u]nfair’ is a
term requiring a subjective determination” inconsistent with First
Amendment).
Indeed, some Minnesota courts have construed the “unjust”
requirement to permit recovery where it would be “morally wrong” not to
do so. Schumacher v. Schumacher, 627 N.W.2d 725, 729 (Minn. App. 2001).
While such a subjective standard may be entirely appropriate for a
Page: 72
prototypical, contract-based unjust enrichment claim – which does not
implicate speech about public figures or matters of public concern –
permitting such a cause of action based on expression a court deems to be
“morally wrong” cannot be squared with the First Amendment. See Moore,
2012 WL 1884758, at *49 (rejecting unjust enrichment claim that “essentially
overlaps with [plaintiff’s] publicity and trademark claims, which are
subject to the stringent requirements of the First Amendment”); Pittman v.
Dow Jones & Co., 662 F. Supp. 921, 923 (E.D. La. 1987), aff’d, 834 F.2d 1171
(5th Cir. 1987).
In response to Kyle’s invocation of the First Amendment below, the
district court concluded that, because the jury had determined the
challenged statements were “knowingly false and defamatory,” they had
forfeited any claim to constitutional protection. ADD-37, 39. The district
court’s analysis is doubly flawed.
First, given the inherent vagueness of the “unjust enrichment” cause
of action, it does not matter if the speech at issue was false, or even
knowingly false. “[K]nowingly false speech does not fall outside the
protections of the First Amendment.” 281 Care Comm. v. Arneson, 766 F.3d
Page: 73
774, 783 n.9 (8th Cir. 2014); see United States v. Alvarez, 132 S. Ct. 2537, 2545
(2012); 281 Care Comm. v. Arneson, 638 F.3d 621, 636 (8th Cir. 2011).
Thus, even in cases such as Alvarez involving knowingly false speech
(in that case, the defendant’s knowingly false claim that he had received
the Medal of Honor), a cause of action may not be so “sweeping” and
“unprecedented” in its reach that it serves to inhibit speech about public
matters and to penalize expression without regard to whether doing so
serves a compelling governmental interest. 132 S. Ct. at 2547. Here, a
decision to authorize courts to order the disgorgement of profits derived
“unjustly” from speech about a matter of public concern is demonstrably
“sweeping and unprecedented” in both these ways – it opens the door to
such awards whenever a judge determines, for whatever reason, that
“justice” or even “morality” requires it.
To sustain an unjust enrichment claim under these circumstances,
this Court would have to become the first circuit to recognize a new
category of speech entirely outside the First Amendment’s protections –
“knowingly false” speech that “unjustly” benefits the speaker. The
Supreme Court has left no doubt that there is no such category. To the
contrary, the Court has strictly limited the types of unprotected speech “to
Page: 74
the few historic and traditional categories … long familiar to the bar.”
Alvarez, 132 S. Ct. at 2544 (listing categories). Those categories include
neither knowingly false speech, speech that “unjustly” benefits the speaker,
nor any combination of the two. See, e.g., United States v. Stevens, 130 S. Ct.
1577 (2010); State v. Mechert-Dinkel, 844 N.W.2d 13 (Minn. 2014).
Second, the jury’s defamation verdict does not strip the challenged
statements of First Amendment protection with respect to Ventura’s
distinct claim for unjust enrichment. The Supreme Court has emphasized
that the only constitutionally sufficient basis on which a state may afford
recovery for defamatory speech about a matter of public concern is the
compelling governmental interest in compensating plaintiffs for injury to
their reputations. Gertz, 418 U.S. at 348-49 (“we endorse this approach in
recognition of the strong and legitimate state interest in compensating
private individuals for injury to reputation.”); see Richie v. Paramount
Pictures Corp., 544 N.W.2d 21, 28 (Minn. 1996) (“the purpose of a
Page: 75
defamation action is to compensat[e] private individuals for wrongful
injury to reputation”). 6
More importantly, the Supreme Court has emphasized that a state’s
interest in affording its citizens a cause of action for defamation extends
“no further” than compensating them for reputational harm. Gertz, 418 U.S.
at 349 (emphasis added). As the Court expressly cautioned in Gertz, the
states have no substantial interest in securing for defamation plaintiffs
“gratuitous awards of money damages far in excess of any actual injury.”
Id. Ventura received an award of $500,000 for injury to his reputation−that
award fully satisfied the only compelling state interest that justifies
removing defamatory speech about a public figure from the First
Amendment’s protection.
For all of these reasons, even if Minnesota law recognized such a
cause of action in these circumstances, it would violate the First
Amendment.
The Minnesota Supreme Court similarly refused to expand the
damages recoverable for false speech when it declined to recognize the tort
of false-light invasion of privacy. See Lake v. Wal-Mart, 582 N.W.2d at 23536.
6
Page: 76
D.
Ventura Presented No Competent Evidence Kyle Was Enriched.
The unjust-enrichment award also fails because Ventura presented no
competent evidence to support an essential element of his claim. “The
theory of unjust enrichment is based on what the [defendant] allegedly
enriched has received.” Georgopolis v. George, 54 N.W.2d 137, 142 (Minn.
1952). Ventura was required to establish both: (1) that Kyle was unjustly
enriched and (2) the amount of that unjust enrichment. Rainbow Play Sys. v.
Groundscape Techs., LLC, 364 F. Supp. 2d 1026, 1041 (D. Minn. 2005).
First, Ventura introduced no evidence that Kyle was enriched because
of his inclusion of the challenged statements in the book. No witnesses
testified that they purchased the book because of those statements or even
because they had become aware that Ventura was referenced in it. Ventura
relied solely on speculation that the mention of his name on a radio and a
television interview must have increased profits simply because sales of the
book continued to rise following those appearances. Ventura’s speculation
in this regard cannot be reconciled with the undisputed facts that (1) sales
of books promoted on The O’Reilly Factor, and endorsed by O’Reilly
himself, consistently increase dramatically, APP-1976-79; (2) both media
appearances to which Ventura points focused on the remainder of the
Page: 77
book, not the small portion that discusses Scruff Face/Ventura, APP-198083, 1985-89; and (3) a host of promotional efforts undertaken at the same
time had nothing whatever to do with Ventura, APP-1971-76.
Ventura conceded at trial that many readers bought AMERICAN
SNIPER to read Kyle’s account of his experiences in combat and their impact
on him and his family. He further conceded that people did not need to
buy the book to read about the Ventura-Kyle encounter because that
account was available for free on the Internet.
Second, Ventura “failed to bear [his] burden of showing … the extent
of [Kyle’s] enrichment.” Rainbow, 364 F. Supp. 2d at 1041; see Cantor v.
Perelman, 414 F.3d 430, 437 (3d Cir. 2005) (plaintiff must present expert
testimony establishing “extent of any unjust enrichment”); Shum v. Intel
Corp., 630 F. Supp. 2d 1063, 1080 (N.D. Cal. 2009) (plaintiff must “introduce
evidence substantiating the amount by which the defendan[t] w[as]
allegedly unjustly enriched.”). Having conceded that not all sales of the
book were attributable to him, Ventura at least had the burden of proving
how many such sales and how much of Kyle’s royalties were attributable to
it. See Allied Erecting & Dismantling Co. v. Genesis Equip & Mfg., Inc., 2010
WL 4818367, *4 (N.D. Ohio Nov. 19, 2010) (granting post-trial judgment to
Page: 78
defendant because plaintiffs introduced “no evidence which would give
the jury a principled way to find that [defendant] received a benefit …,
much less a manner in which to calculate any such benefit.”). Ventura
conceded at trial that he could not do so.
The district court asserted that its award constituted “approximately
25%” of the $6 million in royalties Ventura claimed the book had
generated. The court, however, offered no basis for its assertion that
“approximately 25%” of the book’s sales were driven by use of Ventura’s
name; it plucked the number from thin air. It is difficult to understand
how, by any reasonable calculus, the author of an autobiography
recounting the horrors of war that he and his family in fact endured in the
course of a 379-page book could be required, lest there be an “unjust
enrichment,” to remit 25% of the proceeds from that effort to a person
mentioned, not even by name, in two of those pages. Even if one accepts
Ventura’s premise that the subsequent media references to him called
additional attention to the book, it strains credulity to conclude that such
attention was responsible for a quarter of the book’s success.
In addition, while the 25% approximation was the product of
speculation, the calculation of $6 million in royalties was flat-out wrong.
Page: 79
That figure was premised on the court’s erroneous assumptions that (1)
each of the approximately 1.5 million copies of the book sold for the
hardcover list price of $26.99, and 2) Kyle received 15% of the book’s
revenues after the first $10,000. ADD-4. It was undisputed at trial that not
every book was sold in hardcover and that the hardcover edition sold at
different prices. Kyle’s contract provided for a 15% royalty only on
hardcover sales, and only after the first 10,000 copies sold, while paperback or
electronic copies carried a smaller 5-10% royalty. Coauthors and literary
agents all received a share of those royalties. APP-2435-65.
Kyle unsuccessfully called each of these errors to the district court’s
attention. APP-38/ECF-406 pp.7-11; ADD-15-16 n.3. At the very least,
therefore, this Court must vacate the unjust enrichment award and require
a new trial with respect to the calculation of that award.
III.
PREJUDICIAL REFERENCES TO INSURANCE
At the very least, Kyle is entitled to a new trial because the district
court allowed Ventura’s counsel to cross-examine witnesses about
Page: 80
insurance coverage and then argue to the jury that insurance would cover
an award. 7 This flatly violated Fed. R. Evid. 411.
The baseline principle underlying Rule 411 is that evidence that a
person was or was not insured is not admissible because such testimony or
argument “will result in an unduly generous award of damages by the
jury.” Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir. 1986); see also Fed. R.
Evid. 411, Advisory Committee Notes, 1972 Proposed Rules. As this Court
has stressed, injecting into a trial evidence “leading to the conclusion that
the damages sued for have been or will be taken care of by an insurance or
indemnity company is utterly repugnant to a fair trial or to the securing of
the rendition of a just verdict.” Halladay v. Verschoor, 381 F.2d 100, 112 (8th
Cir. 1967). Ventura’s argument in closing that “Chris Kyle is an additional
insured for defamation under the publisher’s insurance policy,” and that
the “insurer is on the hook if you find that Jesse Ventura was defamed”
were deliberate, pointed, and plainly prejudicial. APP-2236-37.
Kyle moved for mistrial based on every mention of insurance. APP2046-47, 2066, 2266-67.
7
Page: 81
The district court’s asserted rationale for allowing insurance evidence
was to show witness bias. APP-1888-89, 1995. Courts have held that
insurance information may be admissible to show bias, but only when the
witness is employed by the insurer or has some other substantial connection
with the insurer. See, e.g., Charter v. Chleborad, 551 F.2d 246 (8th Cir. 1977);
Bonser v. Shainhotlz, 3 P.3d 422, 425-26 (Colo. 2000) (collecting cases). This is
because, where the insurer has a direct financial stake in the outcome of the
case, its employees might have incentive to skew their testimony in the
insurer’s favor.
That was not remotely the situation here. The witnesses Ventura
questioned about insurance were employees of non-defendant
HarperCollins, the book’s publisher, not employees of the insurer.
Whatever bias might be attributable to their employment by HarperCollins,
it had nothing to do with insurance coverage. In fact, both witnesses—an
editor and a publicist, employees not normally involved in or
knowledgeable about insurance—testified unequivocally that they had no
knowledge at all concerning insurance coverage. APP-1997-98, 2066. As a
result, the only “evidence” the jury received on the subject came in the
Page: 82
form of counsel’s questions. APP-2237. The policy itself was never
admitted into evidence.
During trial, the district court identified “witness bias” as its only
rationale for allowing references to insurance. After trial, the court asserted
an alternative rationale: Taya Kyle had “opened the door” to such evidence
early in the trial by testifying she had not donated book proceeds to others
because she was concerned about an adverse judgment leaving her family
without assets. APP-341-43.8 The district court had rejected that argument
during the trial, holding that ”Taya Kyle’s testimony did not open the door
to evidence of insurance because her testimony was accurate—the
insurance policy covers only the defamation claim, not unjust enrichment
or misappropriation, and thus proceeds from American Sniper are at risk, as
she testified.” APP-1884. The carrier indeed denied coverage with respect
to the unjust enrichment claim. Nevertheless, the district court performed
an about-face in its post-trial order without even acknowledging its
contrary prior decision. APP-39/ECF-414 p.2. The district court ruled
She so testified only after Ventura accused her of not being
sufficiently generous. APP-321.
8
Page: 83
correctly the first time. This fundamental evidentiary error requires a new
trial.
CONCLUSION
For the foregoing reasons, this Court should reverse the judgment
and direct entry of judgment in Kyle’s favor, or at least remand for a new
trial.
Dated: March 4, 2015
Respectfully submitted,
FAEGRE BAKER DANIELS LLP
/s/ John P. Borger
John P. Borger, #9878
Charles F. Webber #215247
Leita Walker, #387095
2200 Wells Fargo Center
90 South Seventh Street
Telephone: (612) 766-7000
Fax: (612) 766-1600
Attorneys for Appellant Taya Kyle,
Executor of the Estate of Chris Kyle
By:
Page: 84
CERTIFICATE OF SERVICE AND FILING
I hereby certify that on the fourth day of March, 2015, I electronically
filed the forgoing document with the Clerk of Court for the United States
Court of Appeals for the Eighth Circuit by using the appellate CM/ECF
system.
Participants in the case who are registered CM/ECF users will be
served by the appellate CM/ECF system.
/s/ John P. Borger
John P. Borger
Page: 85
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B) because:
The brief contains 13,993 words, excluding the parts of the brief
exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal
Rule of Appellate Procedure 32(a)(6) because:
The brief has been prepared in a proportionally spaced typeface
using Microsoft Word 2007 in 14-point Book Antiqua font.
/s/ John P. Borger
John P. Borger
US.55811857
Page: 86
No. 14-3876
__________________________________________________________________
Inthe
forthe
Eighth Circuit
___________________________________
Jesse Ventura a/k/a James G. Janos,
Plaintiff-Appellee,
vs.
Taya Kyle, as Executor of the Estate of Chris Kyle
___________________________________
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
Civ. No. 12-cv-472 (RHK/JJK) – District Judge Richard H. Kyle
___________________________________
BRIEF OF AMICI CURIAE THE FIRST AMENDMENT SCHOLARS
IN SUPPORT OF DEFENDANT-APPELLANT AND REVERSAL
__________________________________
HONIGMAN MILLER SCHWARTZ AND COHN LLP
Leonard M. Niehoff
130 S. First Street
4th Floor
Ann Arbor, MI 48104
Telephone: (734) 418-4246
Facsimile: (734) 418-4247
Attorneys for the First Amendment Scholars
Page: 1
TABLE OF CONTENTS
IDENTITY AND INTEREST OF AMICI CURIAE ................................................1
STATEMENT OF AUTHORSHIP ...........................................................................2
ARGUMENT .............................................................................................................3
The Sullivan Actual Malice Standard Provides Expansive and Critical
Protection to Freedom of Expression but Poses Challenges in Jury Trials............ 3
The Court Below Erred In Its Instructions to the Jury Regarding Reckless
Disregard............................................................................................................... 12
The Court Below Erred in Its Instructions Regarding the Burden of Proof
as to Falsity ........................................................................................................... 16
CONCLUSION ........................................................................................................21
CERTIFICATE OF COMPLIANCE .......................................................................22
THE FIRST AMENDMENT SCHOLARS .............................................................23
PROOF OF SERVICE .............................................................................................27
i
Page: 2
Cases
Air Wis. Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014) .......................................19
Associated Press v. Walker, 388 U.S. 130 (1967) .....................................................5
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) ........................................6
Bollenbach v. United States, 326 U.S. 607 (1946). .................................................14
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ...........................................11
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).................................................5
Firestone v. Time, Inc., 460 F.2d 712 (5th Cir. 1972) .............................................19
Garrison v. Louisiana, 379 U.S. 64 (1964) ...............................................................6
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .....................................................5
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) .....................10
Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) ...................................8
N.A.A.C.P. v. Button, 371 U.S. 415 (1963)................................................................4
Nev. Indep. Broad. Corp. v. Allen, 664 P.2d 337 (Nev. 1983) ................................20
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................... passim
Robertson v. McCloskey, 666 F. Supp. 241 (D.D.C. 1987) .....................................20
Speiser v. Randall, 357 U.S. 513 (1958) .................................................................18
St. Amant v. Thompson, 390 U.S. 727 (1968)............................................................5
Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) ...............................................10
United States v. Whitehead, 176 F.3d 1030 (8th Cir. 1999) ....................................15
ii
Page: 3
Other Authorities
Geoffrey R. Stone, Justice Brennan and the Freedom of Speech: A First
Amendment Odyssey, 139 U. PA. L. REV. 1333, 1343 (1991). ...............................3
Harry Kalven, The New York Times Case: A Note on
“The Central Meaning of the First Amendment,” 1964 SUP. CT. REV. 191,. ........4
Marc A. Franklin & Daniel J. Bussel, The Plaintiff’s Burden in Defamation:
Awareness and Falsity, 25 WM. & MARY L. REV. 825, 864 (1984).....................18
R. SACK, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS
§3:4 at 3-14 to -15 & n.52 (4th ed. 2010 & Supp. 2013) .....................................17
iii
Page: 4
IDENTITY AND INTEREST OF AMICI CURIAE
Amici Curiae the First Amendment Scholars are law, journalism, and
communications school faculty who research, study, write about, and teach media
law and First Amendment law. They are interested in assisting the courts in
interpreting the First Amendment, and the First Amendment decisions of the
Supreme Court of the United States, in a manner that is conceptually sound,
intellectually coherent, and practically efficacious. They are interested in this
appeal to this court because they believe that the trial court in this case committed
reversible errors of a constitutional magnitude. A list and brief biographical
sketches of all amici appear at the end of this brief.
1
Page: 5
STATEMENT OF AUTHORSHIP
No party’s counsel authored this brief in whole or in part. No party or
party’s counsel contributed money intended to fund preparing or submitting this
brief. No person other than amici curiae and their counsel contributed money
intended to fund preparing or submitting this brief.
2
Page: 6
ARGUMENT
I.
The Sullivan Actual Malice Standard Provides Expansive and
Critical Protection to Freedom of Expression but Poses Challenges in
Jury Trials
In order to appreciate the significance of the errors committed by the court
below, it is essential to understand the constitutional framework established by the
Supreme Court of the United States in New York Times Co. v. Sullivan, 376 U.S.
254 (1964) and its progeny. It is also essential to understand the challenges that
this framework presents in the context of a jury trial.
Sullivan involved a substantial jury verdict that was awarded to a
Montgomery City Commissioner in a defamation action based on an advertisement
published in the New York Times. The Supreme Court of the United States reversed
a decision of the Alabama Supreme Court upholding the jury’s verdict. In the
course of doing so, the Court “revolutionized the law of libel and . . . signaled a
critical shift in our first amendment jurisprudence.” Geoffrey R. Stone, Justice
Brennan and the Freedom of Speech: A First Amendment Odyssey, 139 U. PA. L.
REV. 1333, 1343 (1991).
Sullivan presented the question of whether, and to what extent, the First
Amendment imposes limitations on defamation actions under state law. In deciding
that issue, the Court “considered th[e] case against the background of a profound
national commitment to the principle that debate on public issues should be
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uninhibited, robust, and wide-open” and recognized that such debates may
“include vehement, caustic, and sometimes unpleasantly sharp attacks.” Id. at 270.
Of particular importance here, the Court acknowledged that false statements were
“inevitable in free debate” and that such statements must receive substantial
protection from liability “if the freedoms of expression are to have the ‘breathing
space’ that they ‘need to survive.’ ” Id. at 271–72 (quoting N.A.A.C.P. v. Button,
371 U.S. 415, 433 (1963) (alteration omitted)). The Court repeatedly noted that
“factual error” was insufficient to remove the “constitutional shield” that protects
speech, id. at 272, 273, because drawing the line of protection at the point of falsity
would provide no room for error in public discourse.
In order to afford speech the desired breathing space, Sullivan endorsed an
extraordinarily demanding standard for defamation actions against public
officials. 1 The Court declared that, to prevail in such a case, a public official
plaintiff must prove that the defendant spoke with “actual malice”—that is, with
knowledge that the statement in question was false or with reckless disregard as to
its falsity. Id. at 279–80. Furthermore, the Court held that this constitutional
standard demands that the plaintiff prove actual malice with “convincing clarity”—
a mere preponderance of the evidence does not provide sufficient protection. Id. at
285–86.
1See Harry Kalven, The New York Times Case: A Note on “The Central Meaning
of the First Amendment,” 1964 SUP. CT. REV. 191, 213.
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In the cases that followed Sullivan, the Supreme Court expanded the scope
and clarified the meaning of this standard. Thus, in Curtis Publishing Co. v. Butts,
388 U.S. 130 (1967), its companion case Associated Press v. Walker, 388 U.S. 130
(1967), and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court extended
the actual malice standard to cases involving public figure plaintiffs.
Throughout those public figure cases, the Court echoed the theme sounded
in Sullivan that we can foster and encourage free debate only by allowing space for
error. See, e.g., Butts, 388 U.S. at 152 (“We have recognized ‘the inevitability of
some error in the situation presented in free debate’ and that ‘putting to the preexisting prejudices of a jury the determination of what is ‘true’ may effectively
institute a system of censorship.’ ”) (citation omitted); Gertz, 418 U.S. at 340–41
(“[P]unishment of error runs the risk of inducing a cautious and restrictive exercise
of the constitutionally guaranteed freedoms of speech and press . . . . The First
Amendment requires that we protect some falsehood in order to protect speech that
matters.”); see also St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (“[T]o insure
the ascertainment and publication of the truth about public affairs, it is essential
that the First Amendment protect some erroneous publications as well as true
ones.”).
In the cases following Sullivan, the Court also provided important
clarifications of the concept of “reckless disregard.” Thus, in St. Amant, the Court
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made clear that recklessness is not measured by what a “reasonably prudent
person” would have said; such a standard would not allow adequate protection to
false speech. Id. at 731. Rather, the Court declared, recklessness is established only
where there is “sufficient evidence to permit the conclusion that the defendant in
fact entertained serious doubts as to the truth of his publication.” Id. at 731; see
also Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (“only those false statements
made with the high degree of awareness of their probable falsity demanded by New
York Times” are actionable); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84
(1967) (plaintiff must show “a high degree of awareness of . . . probable falsity”)
(citation omitted).
Any fair reading of these cases makes plain that the two components of
actual malice—knowledge of falsity and reckless disregard of falsity—are getting
at the same thing: protection for false speech ends only at the extreme point of the
“calculated falsehood,” the “lie, knowingly and deliberately published,” the
“known lie,” and their normative equivalent of a high degree of awareness of
probable falsity. Garrison, 379 U.S. at 75. This severe standard can be met only by
evidence of actual knowledge of falsity or by evidence that the speaker had such a
high degree of awareness of contrary facts that he entertained serious subjective
doubts about the truth of what he was saying or believed that what he was saying
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was probably false. And, as noted above, this must be proved by clear and
convincing evidence.
The actual malice standard does not align with where our common-sense
intuitions about prudence and reasonableness might lead us. To the contrary, the
Supreme Court has repeatedly conceded that this standard yields some
counterintuitive incentives and results. Thus, in St. Amant, the Court admitted that
“[i]t may be said that such a test puts a premium on ignorance, encourages the
irresponsible publisher not to inquire, and permits the issue to be determined by the
defendant’s testimony that he published the statement in good faith and unaware of
its probable falsity.” 390 U.S. at 731. And, in Gertz, the Court acknowledged that
“[t]his standard administers an extremely powerful antidote to the inducement to
media self-censorship . . . [a]nd it exacts a correspondingly high price from the
victims of defamatory falsehood.” 418 U.S. at 342. Indeed, the Gertz Court
conceded that “[p]lainly many deserving plaintiffs, including some intentionally
subjected to injury, will be unable to surmount the barrier of the New York Times
test.” Id. at 342. Nevertheless, the Court has consistently held fast to the notions
that we can encourage public discourse only by giving speakers abundant room to
make mistakes within it and that such space can be achieved only through a
standard that protects falsehoods up until that extreme point where it can be
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established, clearly and convincingly, that the speaker was acting with actual
malice.
To compound the complexity, almost none of the language employed to
describe this constitutional standard corresponds to the meanings of ordinary
usage. As discussed above, actual malice is defined narrowly and technically and
has nothing to do with malice in the ordinary sense of “hatred, ill will or enmity or
a wanton desire to injure.” See Garrison, 379 U.S. at 78; see also Masson v. New
Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (“Actual malice . . . should not be
confused with the concept of malice as an evil intent or a motive arising from spite
or ill will.”). In this respect, actual malice is not malice at all, let alone actual in its
literalness.
In the same vein, recklessness is not defined here by reference to familiar
notions of irresponsibility or a lack of proper caution.2 It does not even mean what
it means in other legal settings, as when we use the phrase “reckless driving” or
“reckless handling of a firearm” to describe egregiously negligent conduct. 3
Rather, as noted above, recklessness in this context means someone who has a high
2
MERRIAM-WEBSTER DICTIONARY, http://www.merriamwebster.com/dictionary/reckless (last visited Mar. 2, 2015).
3
For example, Minnesota defines reckless driving as driving with “a willful or a
wanton disregard for the safety of persons or property.” Minn. Stat. Ann. § 169.13
(2015); see also id. at 609.66 (reckless handling of dangerous weapons).
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degree of awareness that what he is saying is probably false and who has serious
doubt about its truth but who says it anyway.
In this setting, “serious doubt” too becomes a term of art with a specific and
distinctive meaning. In common parlance, we often use “doubt”—even “serious
doubt”—to describe a state of uncertainty.4 If John tells Jane a story about his first
date or his last vacation, and Jane asks whether the story is correct in all its details,
John might smile and say that he seriously doubts it. This would not reflect a “high
degree of awareness” of contrary facts indicating “probable falsity” in the
narrative—as the actual malice standard requires. It would, instead, indicate an
eyebrow-raising shoulder-shrugging uncertainty about the story’s accuracy given
the normal failings of human memory. In short, there is a vast and critical
difference between the meaning of “serious doubt” in ordinary conversation
(where it often suggests uncertainty) and in the context of actual malice
recklessness (where it indicates a relatively high level of certainty that the
statement being made is untrue).
That these technical and highly nuanced terms of art can lead to juror
confusion has often been noted—including by the Supreme Court itself. See, e.g.,
Masson, 501 U.S. at 511 (1991) (“[T]he term [actual malice] can confuse as well
4
Indeed, the primary dictionary definition of “doubt” is “to be uncertain about
(something); to believe that (something) may not be true or is unlikely.” MERRIAMWEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/doubt (last
visited Mar. 2, 2015).
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as enlighten. In this respect the phrase may be an unfortunate one.”); see also
Tavoulareas v. Piro, 817 F.2d 762, 807–08 (D.C. Cir. 1987) (Ginsburg, J.,
concurring) (then-D.C. Circuit Judge Ruth Bader Ginsburg cataloging the evidence
that jurors struggle to understand actual malice). Well-intentioned courts therefore
frequently re-cast the actual malice standard into more easily comprehensible
language for purposes of jury instructions. This is consistent with the direction
given by the Supreme Court: “By instructing the jury ‘in plain English’ at
appropriate times during the course of the trial concerning the not-so-plain
meaning of the phrase, the trial judge can help insure that the New York Times
standard is properly applied.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491
U.S. 657, 666 n.7 (1989). It is essential, however, that nothing gets lost in the
translation. A failure to capture the demands of the actual malice standard in the
instructions will deprive the defendant of the protection the First Amendment
affords to him and his speech.
The Supreme Court decisions reflect the immense importance of getting jury
instructions right in this context. Indeed, the Court’s three foundational cases in
this area—Sullivan, Butts, and Walker—all involved errors of law reflected in jury
instructions. Errors in jury instructions matter here because the constitutional
protections afforded by the actual malice standard are robust, but they are also
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fragile. Those protections vaporize if a trial court fails accurately and adequately to
convey them to the jury.
For these reasons, trials of public official and public figure defamation cases
present a trifecta of serious concerns. The stakes are high: the jury must apply
concepts designed to protect central First Amendment freedoms. The standard is
counterintuitive: by design, the actual malice test will immunize speech that the
jury believes to be false, negligent, obnoxious, and injurious. And the complexity
of the standard and the language used to express it create substantial risks of jury
error: malice does not mean malice, recklessness does not mean recklessness, and
doubt does not mean doubt. This helps explain why appellate de novo review plays
such an important role with respect to adverse jury verdicts in these cases. See New
York Times, 376 U.S. at 285; Bose Corp. v. Consumers Union, 466 U.S. 485, 501
(1984).
With this doctrinal framework in mind, we turn now to the issue of how and
why the court below clearly erred and why those mistakes matter.
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II.
The Court Below Erred In Its Instructions to the Jury Regarding
Reckless Disregard
The record below reflects that Appellant proposed a final instruction that
labored to assist the jury in understanding the complex concept of reckless
disregard:
[Reckless disregard] is shown if a defendant actually
recognized that the statement was probably false, but
went ahead and made it ignoring the probability of
falsehood.
In determining whether Chris Kyle acted with subjective
awareness of probable falsity, you should include the
following considerations:
That Chris Kyle was or might have been negligent in
making the statements does not constitute the subjective
awareness of probable falsity. Chris Kyle’s conduct is not
to be measured by whether a reasonably prudent person
would have made the challenged statements, or would
have been more careful in how the statement was
worded, or would have investigated more before making
the challenged statements.
Disapproval, ill will, prejudice, hostility or contempt do
not by themselves amount to knowledge of falsity or
awareness of probable falsity. Evidence of ill will may be
considered by you only if it is connected with evidence
that Chris Kyle published a statement he knew to be false
or published a statement with a high degree of awareness
that the statement was probably false.
Evidence that a party or a witness had a lapse in memory
regarding one event while he clearly recalls other events
is not implausible, nor does it demonstrate that he knew
his statement was false or probably false. Anyone with a
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less-than-perfect memory will recall some things
precisely and other things in a fog.
Appellant’s Proposed Final Instruction 23. This proposed instruction accurately
stated the law and rendered in plain English the complexities of reckless disregard.
It even provided some direction regarding the concept that doubt, in this context,
does not mean uncertainty or fogginess of recollection but rather means an actual
recognition of probable falsity that the speaker disregards.
Unfortunately, the trial court judge rejected that helpful instruction in favor
of this less helpful one:
The third element is that Mr. Kyle published the story
about Mr. Ventura despite:
1. Knowing the story was false; or
2. Believing the story was false; or
3. Having serious doubts about the story’s truth.
Mr. Ventura must prove this element by clear and
convincing evidence (see Instruction No. 7).
ECF-362. Although this bare-bones instruction was not objectionable in itself,
post-instruction questions from the jury demonstrated that it suffered from two
important shortcomings. Unfortunately, the trial court failed to take the steps
necessary to address them.
First, this instruction did not make clear that, to meet the actual malice
standard, Ventura had to prove that Kyle actually believed the statements in
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question were false or actually entertained serious doubts about their truth when he
made them. Second, the instruction left open the possibility that the “serious
doubts” standard could be satisfied by a finding that Kyle was simply uncertain
about the truth of the statements at issue.5
The post-instruction questions that came from the jury to the court confirm
that these flaws troubled the deliberations in this case. One juror asked the court:
“Do we have to decide if Chris Kyle was telling the truth based on the evidence
OR do we have to believe that Chris Kyle thought he was telling the truth?” ECF378 (emphasis added). Of course, this question reflects a basic confusion regarding
the actual malice standard and the requirement of actual knowledge or actual
awareness of probable falsity. Nevertheless, the trial court simply directed the jury
back to the same instructions that had prompted the confusion. ECF-379; see also
T-2122-28. The Supreme Court has declared that “[w]hen a jury makes explicit its
difficulties a trial judge should clear them away with concrete accuracy.”
Bollenbach v. United States, 326 U.S. 607, 612–13 (1946). The trial judge made no
such effort here.
In addition, the jurors asked the court for direction regarding the meaning of
“serious doubts” in the instruction. ECF-371, 373. Over Appellant’s objection—
5
Although we focus on those two flaws here, the instruction was inadequate in
other respects as well, for example in its use of the vague term “the story” and in
its failure to indicate that proof of negligence, spite, ill will, or enmity does not
suffice to establish reckless disregard. See Brief of Appellant at 31-36.
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and disregarding a supplemental instruction proposed by Appellant—the trial court
responded: “There is no legal definition of ‘serious doubt.’ You will have to rely
on your common sense in interpreting and applying the standard.” ECF-374. The
trial court’s direction on this point was, of course, twice wrong. As discussed
above, controlling decisions from the Supreme Court of the United States do,
indeed, provide a definition of reckless disregard that clarifies the meaning of
“serious doubt.” And, as discussed above, the ordinary, “common sense” meaning
of serious doubt differs substantially and importantly from the legal meaning of the
term. If the trial court had urged the jury to use its common sense in determining
the meaning of “actual malice” or “reckless disregard” there is no question that the
jury would have gone astray. How could we possibly expect a jury to divine
independently the technical and nuanced definitions of those terms? Urging the
jury to use its “common sense” with respect to the meaning of the inadequately
framed phrase “serious doubts” was no less an invitation to err. Leaving the jury to
speculate about the meaning of so essential a term created an intolerable risk of
confusion and prejudice. See United States v. Whitehead, 176 F.3d 1030, 1040 (8th
Cir. 1999) (reversing a conviction in a criminal case because the trial court did not
define a critical term and the jury was left to speculate about its meaning).
We do not suggest, and this court need not hold, that in all actual malice
cases an instruction as detailed as that initially offered by the Defendant here must
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be given—although we believe that instruction has much to recommend it. But it is
clear that the instructions the court did offer failed to translate with sufficient
clarity the demands of the actual malice standard. It is equally clear that this failure
of translation confused the jury and pointed them toward the application of a less
demanding test. And it is no less clear that the trial judge failed to take adequate
measures to address these issues.6
III.
The Court Below Erred in Its Instructions Regarding the Burden of
Proof as to Falsity
Kyle proposed a jury instruction that would have required the jury to find
that the statements at issue were false by clear and convincing evidence. See
Kyle’s Proposed Final Instructions 6 and 22. The trial court rejected that request
and instead instructed the jury that it needed to apply a preponderance standard,
finding falsity only by “the greater weight of the evidence.” See Instruction 8B.
The trial court erred in doing so.
The Supreme Court has not definitively and expressly declared which
standard should apply in actual malice cases. Harte-Hanks, 491 U.S. at 661 n.2.
6
One relatively simple measure that would have assisted the jurors, but that the
trial judge declined to employ, is a special verdict form. As then-D.C. Circuit
Judge Ruth Bader Ginsburg observed, “the special verdict . . . may be a
particularly useful check against jury misconstruction or misapplication of a
standard as uncommon as actual malice.” Tavoulareas, 817 F.2d at 808 (Ginsburg,
J., concurring).
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And lower courts have split over the question. See R. SACK, SACK
DEFAMATION: LIBEL, SLANDER,
AND
ON
RELATED PROBLEMS §3:4 at 3-14 to -15 &
n.52 (4th ed. 2010 & Supp. 2013). There are nevertheless at least four persuasive
reasons to conclude that the clear and convincing standard is the better rule.
First, the clear and convincing standard is more consistent with Sullivan’s
approach to placing constitutional limitations on the tort of defamation. In an often
overlooked passage, the Court observed that (in addition to failing to prove actual
malice) Sullivan had also failed to prove that the statements at issue were “of and
concerning” him (i.e., that they identified him with sufficient specificity). Sullivan
had satisfied the quirky and forgiving of-and-concerning requirements of Alabama
state law. Sullivan, 376 U.S. at 290–91. But the Supreme Court held the proofs on
this point to be “constitutionally defective.” Id. at 288; see also id. at 292 (“[T]he
evidence was constitutionally insufficient to support a finding that the statements
referred to respondent.”). It would make little sense to conclude that Sullivan
attached constitutional significance to the fault element and to the of-andconcerning element, but not to the falsity element. This is particularly implausible
given the Court’s emphasis, discussed supra in Section I, on the importance under
the First Amendment of affording latitude to false speech.
This leads to the second argument: the clear and convincing standard is more
consistent with Sullivan’s expressly and repeatedly stated goal of allowing space
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for error in public discourse. Defining falsehood as that which is shown to be
wrong by the marginally greater weight of the evidence does nothing to advance
that goal. As one commentary observes, “Because the demarcation between the
truth and falsity of the statement is of constitutional dimension, imposition of a
preponderance of the evidence standard on the plaintiff is inadequate . . . . Unless
the courts require clear and convincing proof on the issue of the statement’s falsity,
a public plaintiff would be able to prevail in the case simply by creating sufficient
doubt in the jurors’ minds as to the truth of the statement and then persuading those
jurors to disbelieve the defendant’s protestations about honest belief or lack of
recklessness.” Marc A. Franklin & Daniel J. Bussel, The Plaintiff’s Burden in
Defamation: Awareness and Falsity, 25 WM. & MARY L. REV. 825, 864 (1984). A
forgiving preponderance standard would dilute the “extremely powerful antidote”
promised by Gertz into a thin and ineffectual tonic. 418 U.S. at 342; cf. Speiser v.
Randall, 357 U.S. 513, 525 (1958) (noting that “more sensitive tools” are required
when “separat[ing] . . . legitimate from illegitimate speech”).
Third, it is not at all clear that imposing different standards on the falsity and
fault elements holds up logically. Certainly, if we take both elements of the tort in
splendid isolation we can declare that different standards apply to them: “you must
determine falsity by a preponderance of the evidence and fault by clear and
convincing evidence.” But the doctrine does not place the two elements in such
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isolation—it inextricably intertwines them. As a result, any effort to apply different
standards to the two elements yields something bordering on gibberish: “he clearly
and convincingly knew that it was marginally more likely than not that the
statement was false” seems curiously at odds with itself, giving up with one phrase
what it insists upon in the other.
To put the matter differently, a requirement of clear and convincing proof of
falsity is implicit within a requirement of clear and convincing proof of knowledge
about it, and any effort to treat these elaborately entangled concepts as distinct and
unrelated will result in an incoherent doctrine. See Firestone v. Time, Inc., 460
F.2d 712, 722–23 (5th Cir. 1972) (Bell, J., concurring) (the clear and convincing
standard of proof as to falsity “seems implicit . . . in the stated requirement in New
York Times that plaintiff has the burden of showing by clear and convincing proof
that publication was with knowledge of falsity or with reckless disregard as to
falsity”). Indeed, in a number of cases—including one decided just last year—the
Supreme Court has emphasized the close connection between the actual malice and
falsity issues. See Masson, 501 U.S. at 513 (1991) (noting that an evaluation of the
evidence of actual malice “requires [the Court] to consider the concept of falsity;
for we cannot discuss the standards for knowledge or reckless disregard without
some understanding of the acts required for liability”); Air Wis. Airlines Corp. v.
Hoeper, 134 S. Ct. 852, 861 (2014) (“[A]ctual malice entails falsity.”).
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Fourth, and finally, applying different standards to different elements,
particularly such closely associated elements, is a recipe for jury confusion in a
context where the Supreme Court has urged us to try to avoid it. See Robertson v.
McCloskey, 666 F. Supp. 241, 248 (D.D.C. 1987) (“[D]efendants’ argument has
more than merely a logical or symmetrical appeal. To instruct a jury that a plaintiff
must prove falsity by a preponderance of evidence, but must also prove actual
malice, which to a large extent subsumes the issue of falsity, by a different and
more demanding standard is to invite confusion and error.”). In the face of such
confusion, there is a substantial risk that the jury will simply default to the lower
and more easily understood standard. As one state court observed, “[p]ractically
speaking, it may be impossible to apply a higher standard to ‘actual malice’ than to
the issue of falsity.” Nev. Indep. Broad. Corp. v. Allen, 664 P.2d 337, 343 n.5
(Nev. 1983). Instructions that ask a jury to do something that is, at best,
conceptually confounding, and, at worst, practically impossible are obviously
inadequate—particularly when core constitutional rights are at stake.
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CONCLUSION
Jury instructions in public figure and public official defamation actions are
not procedural window dressing. They are essential to the preservation of First
Amendment protections. In this case, the trial court got very wrong two
instructions that it needed to get exactly right.
For these reasons, amici curiae join Appellant in urging this court to reverse
the judgment below in its entirety and to direct entry of judgment in Appellant’s
favor, or, in the alternative, to reverse the judgment and remand for a new trial.
/s/Leonard M. Niehoff
Leonard M. Niehoff
Honigman Miller Schwartz and Cohn, LLP
130 S. First Street
4th Floor
Ann Arbor, MI 48104
Phone: 734-418-4246
Fax: 734-4418-4267
Email: lniehoff@honigman.com
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CERTIFICATE OF COMPLIANCE
I certify that the attached brief complies with the type-volume limitations of
Federal Rules of Appellate Procedure, 29(d), and Rule 32, because it is
proportionately spaced, has a typeface of 14 points, and contains 4,579 words,
excluding the parts of the brief exempted by Federal Rule of Appellate Procedure,
Rule 32(a)(7)(B)(iii).
Dated:
March 9, 2015
Leonard M. Niehoff
Attorney for The First Amendment
Scholars
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THE FIRST AMENDMENT SCHOLARS
VINCENT BLASI is the Corliss Lamont Professor of Civil Liberties at Columbia Law
School. He has also taught law at the University of Virginia, the University of
Texas, the University of Michigan, Stanford, and the University of California
(Berkley). He also served as visiting professor at the College of William & Mary.
He is the author of many publications in the First Amendment field, including the
casebook Ideas of the First Amendment. He received his B.A. from Northwestern
University and his J.D. from the University of Chicago.
CLAY CALVERT is Professor and Brechner Eminent Scholar in Mass
Communication at the University of Florida in Gainesville, where he also directs
the Marion B. Brechner First Amendment Project. He teaches both undergraduate
and graduate-level courses on communications law and media law issues.
Professor Calvert has authored or co-authored more than 120 published law journal
articles on freedom of expression-related topics. He is co-author, along with Don
R. Pember, of the undergraduate media law textbook, Mass Media Law, 19th
Edition (McGraw-Hill), and is author of the book Voyeur Nation: Media, Privacy,
and Peering in Modern Culture (Westview Press). Professor Calvert received his
J.D. from the University of the Pacific’s McGeorge School of Law and later earned
a Ph.D. in Communication from Stanford University, where he also completed his
undergraduate work in Communication.
ERWIN CHEMERINSKY is Dean of the School of Law, Distinguished Professor of
Law, and Raymond Pryke Professor of First Amendment Law at the University of
California Irvine School of Law, with a joint appointment in Political Science. He
has also taught at Duke Law School, the University of Southern California School
of Law, the UCLA School of Law, and DePaul University College of Law. He is
the author of eight books and more than 200 articles in top law reviews. He
frequently argues cases before the nation’s highest courts, including the United
States Supreme Court, and also serves as a commentator on legal issues for
national and local media. In January 2014, National Jurist magazine named Dean
Chemerinsky as the most influential person in legal education in the United States.
Chemerinsky holds a law degree from Harvard Law School and a bachelor’s
degree from Northwestern University.
LUCY A. DALGLISH is Dean and Professor at the University of Maryland Philip
Merrill College of Journalism. From 2000 to 2012, she served as Executive
Director of the Reporters Committee for Freedom of the Press. Dean Dalglish has
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received several prestigious awards, including the Kiplinger Award of the National
Press Foundation, and serves on the boards and advisory committees of several
organizations, including the American Society of News Editors. She holds a
bachelor of arts in journalism from the University of North Dakota, a juris doctor
from Vanderbilt University Law School, and a master’s degree from Yale Law
School.
DON HERZOG is the Edson R. Sunderland Professor of Law at the University of
Michigan Law School. His main teaching interests are the First Amendment; torts;
political, moral, legal, and social theory; and constitutional interpretation. He is the
author of numerous books, including a forthcoming book on defamation. He holds
an A.B. from Cornell University and an A.M. and Ph.D. from Harvard University,
where he studied government. He joined the Political Science Department at the
University of Michigan in 1983 and holds a joint appointment with that department
and the Law School.
M.A. (MIKE) KAUTSCH is Professor of Law at the University of Kansas School of
Law and former Dean of the University’s William Allen White School of
Journalism and Mass Communications. He directs studies in Media, Law, and
Technology, and a Media Law Clinic. He teaches courses on the First Amendment
and copyright, privacy, and tort law. He writes, speaks, and consults on such topics
as defense of press freedom, public access to court records and proceedings, and
freedom-of-information laws. He holds a bachelor’s degree and a J.D. from the
University of Iowa and is a former journalist.
JANE E. KIRTLEY is the Silha Professor of Media Ethics and Law at the School of
Journalism and Mass Communication at the University of Minnesota, where she
directs the Silha Center for the Study of Media Ethics and Law and is an affiliated
faculty member at the University of Minnesota Law School. Professor Kirtley was
Executive Director of the Reporters Committee for Freedom of the Press from
1985–1999, and before that, practiced law in New York and Washington, D.C. She
writes and speaks frequently on media law and ethics issues, both in the United
States and abroad, and her Media Law handbook, published by the U.S. State
Department in 2010, has been translated into nine languages. Professor Kirtley
serves on the boards of Communication Law & Policy, the Journal of Media Law
& Ethics, and the Sigma Delta Chi Foundation. Professor Kirtley’s J.D. is from
Vanderbilt University Law School, and her bachelor’s and master’s of journalism
degrees are from Northwestern University’s Medill School of Journalism.
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LEONARD M. (LEN) NIEHOFF is Professor from Practice at the University of
Michigan Law School, where he teaches Mass Media Law, Problems in Media
Law, Evidence, Civil Procedure, Legal Ethics, and Law & Theology. He is the
author or co-author of more than one hundred publications, many of which address
First Amendment and media law issues. As a practicing attorney, currently Of
Counsel to Honigman Miller Schwartz & Cohn, he has handled dozens of First
Amendment and media law cases in state and federal courts, and for over a decade
he has been listed in The Best Lawyers in America in the First Amendment field.
He is a graduate of the University of Michigan and the University of Michigan
Law School, where he was an editor of the Journal of Law Reform.
AMY KRISTIN SANDERS is an associate professor in residence at Northwestern
University’s campus in Qatar, where she teaches comparative media law and ethics
courses. Before joining the journalism faculty, she earned tenure at the University
of Minnesota and served as an affiliate faculty member in the University of
Minnesota School of Law. She is the author of more than a dozen scholarly articles
in numerous law and mass communication journals and is the co-author of the
widely recognized casebook First Amendment and the Fourth Estate: The Law of
Mass Media. Previously, Professor Sanders worked as a copy editor and page
designer for the Gainesville (Fla.) Sun, a New York Times Co. newspaper. She
holds a Ph.D. in mass communication law from the University of Florida as well as
a J.D. and M.A. in professional journalism from the University of Iowa.
JAMES D. SPANIOLO is the retired president of The University of Texas at
Arlington. He was previously a professor of journalism and dean of the College of
Communication Arts and Sciences at Michigan State University where he taught
courses in communications law and published articles on First Amendment/free
press issues. Mr. Spaniolo served as vice president and chief program officer for
the John S. and James L. Knight Foundation and was the General Counsel of The
Miami Herald. He is a graduate of Michigan State University and the University of
Michigan Law School.
NADINE STROSSEN is the John Marshall Harlan II Professor of Law at New York
Law School. From 1991 through 2008 she served as president of the American
Civil Liberties Union. The National Law Journal twice named Professor Strossen
one of “The 100 Most Influential Lawyers in America.” Professor Strossen’s
writings have been published in many scholarly and general interest publications
(more than 300 published works). Her book, Defending Pornography: Free
Speech, Sex, and the Fight for Women’s Rights (Scribner, 1995), was named by the
New York Times as a “Notable Book” of 1995. Her coauthored book, Speaking of
25
Page: 29
Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (NYU Press,
1995), was named an “outstanding book” by the Gustavus Myers Center for the
Study of Human Rights in North America. Professor Strossen has received
honorary Doctor of Law degrees from the University of Rhode Island, the
University of Vermont, San Joaquin College of Law, Rocky Mountain College, the
Massachusetts School of Law, and Mount Holyoke College. Professor Strossen
graduated Phi Beta Kappa from Harvard College (1972) and magna cum laude
from Harvard Law School (1975), where she was an editor of the Harvard Law
Review.
KYU HO YOUM is the Jonathan Marshall First Amendment Chair and Professor at
the School of Journalism and Communication of the University of Oregon. His
articles on freedom of expression have been cited by American and foreign courts,
including the House of Lords in Great Britain, the High Court of Australia, and the
Supreme Court of Canada. He has contributed to Communication and the Law, a
major media law textbook in the United States, and also to Media Law and Ethics
and Media, Advertising, and Entertainment Law Throughout the World. Since
2008, he has been the Communication Law and Media Policy editor of the 12volume International Encyclopedia of Communication. His research interests
include U.S. communications law, press freedom theories, international and
comparative media law, and digital freedom. His articles have appeared in an array
of publications in the fields of law and communications. He received his degrees
from Southern Illinois University, Yale, and Oxford.
Thanks are extended to THOMAS KADRI, a student at the University of Michigan
Law School, for his assistance in the preparation of this brief.
26
Page: 30
PROOF OF SERVICE
I hereby certify that on March 9, 2015, I served the foregoing documents
described as the Motion of The First Amendment Scholars to File Amici Curiae
Brief in Support of Appellant and For Reversal, and [proposed] Brief of Amici
Curiae The First Amendment Scholars in Support of Defendant-Appellant and
Reversal, by United States First Class Mail, postage fully prepaid, upon the
following:
John P. Borger
Charles F. Webber
Leita Walker
Faegre Baker Daniels LLP
90 South Seventh Street, Suite 2200
David B. Olsen
Court J. Anderson
John N. Bisanz, Jr.
Benjamin J. Hamborg
Henson & Efron, P.A.
220 South Sixth Street, Suite 1800
I hereby certify that on March 9, 2015, I electronically filed the foregoing
document with the Clerk of Court for the United States Court of Appeals for the
Eight Circuit by using the appellate CM/ECF syste.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
I declare under penalty of perjury that the above is true and correct.
Leonard M. Niehoff
27
Page: 31
No. 14-3876
In the
Ilnittb ~tattll Qtourt of ~pptalll
for the
Qfigbtb Qtircuit
JESSE VENTURA, also known as James G. Janos,
Plaintiff-Appellee,
v.
TA YA KYLE, as Executor of the Estate of Chris Kyle,
On Appeal from the U. S. District Court for the District of Minnesota,
No. 12-cv-00472-RHK District Judge Richard H. Kyle
BRIEF OF AMICUS CURIAE OF THE THOMAS MORE LAW CENTER
IN SUPPORT OF DEFENDANT-APPELLANT
TA YA KYLE AND FOR REVERSAL
Richard Thompson
Erin Elizabeth Mersino
Thomas More Law Center
24 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48106
(734) 827-2001
emersino@thomasmore.org
Paul M. Mersino
Butzel Long, P.C.
150 West Jefferson, Suite 100
Detroit, Michigan 48226
(313) 225-7015
mersino@butzel.com
Attorneys for Amicus Curiae
Page: 1
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amicus
Curiae the Thomas More Law Center lnakes the following disclosures:
1.
F or non-governmental corporate parties please list all parent
corporations: None.
2.
For non-governmental corporate parties please list all publicly held
companies that hold 10% or more of the party's stock: None.
THOMAS MORE LAW CENTER
/s/ Erin Elizabeth Mersino
(Michigan Bar P70886)
11
Page: 2
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF AUTHORITIES ..................................................................................... v
STATEMENT OF INTEREST .................................................................................. 1
INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................... 2
ARGUMENT ............................................................................................................. 3
1. CLAIMS AND DAMAGES FOR UNJUST ENRICHMENT
ARE INAPPROPRIATE IN DEFAMATION-STYLE CASES
AND SHOULD NOT BE PERMITTED ............................................................... 6
A. Courts Have Historically, Traditionally, and Universally
Recognized that Adequate Remedies at Law Exist in
Defamation Cases and Refuse to Grant Equitable Relief
of Any Kind in Such Cases ....................................................................... 8
B. It Was IInproper to Pennit Recovery of Damages for
Unjust Enrichment when the Jury Determined that
Defendant was Not Liable for Appropriation ......................................... 14
C. It is the Existence of an Adequate Remedy that Matters;
Not Whether the Plaintiff Prevailed in Receiving that Remedy ............. 17
D. The Trial Court Erred in Deferring to the Jury to Determine
Whether an Adequate Remedy at Law Existed Because Such
Detennination is a Matter of Law that Should be Determined
by the Court. The Jury's and Trial Court's Determination
Should be Reversed as a Matter of Law ................................................. 19
111
Page: 3
II. CLAIMS OF UNJUST ENRICHMENT ARE IMPROPER AS A
MATTER OF LAW IN SIMPLE DEFAMATION CLAIMS AND
mDGMENT ON THAT CLAIM IN THIS MATTER SHOULD BE
REVERSED BECAUSE VENTURA FAILED TO ESTABLISH
ALL OF THE ELEMENTS OF THE CLAIM ................................................... 21
III. THE mDGMENT A WARDED FOR UNJUST ENRICHMENT
AMOUNTS TO A WINDFALL RECOVERY FOR VENTURA AND
SHOULD BE REVERSED ................................................................................ 26
CONCLUSION ........................................................................................................ 27
CERTIFICATE PURSUANT TO Fed. R. App. P. 32(a)(7)(B) and (C) ................. 29
CERTIFICATE OF COMPLIANCE WITH
EIGHTH CIRCUIT RULE 28A(h) .......................................................................... 30
CERTIFICATE OF SERVICE ................................................................................ 31
IV
Page: 4
Cases
Page
Acton Constr. Co. v. State,
383 N.W.2d 416,417 (Minn. App. 1986), rev. denied (Minn. May 22, 1986) ....... 22
Alberti v. Cruise,
383 F.2d 268 (4th Cir. 1965) ................................................................................... 10
Ameritech v. Voices for Choices, Inc.,
No. 03-cv-3014, 2003 WL 21078026 (N.D. Ill. May 12, 2003) ............................. 11
Anderson v. DeLisle,
352 N.W.2d 794,796 (Minn. App. 1984), rev. denied (Minn. Nov. 8, 1984) ........ 23
Anyanwu v. CBS, Inc.,
887 F. Sup. 690 (S.D.N.Y. 1995) ............................................................................. 13
Banken v. Banken,
No. A11-2156, A12-0771, 2013 WL 490677,
* 10 (Minn. App. Apr.
16,2013) ..... 9
Borom v. City of St. Paul,
289 Minn. 3781, 376, 184 N.W.2d 595, 598 (1971) ................................................. 6
Butler v. Delaware Otsego Corp.,
203 A.D.2d 783,610 N.Y.S.2d 663 (3d Dep't 1994) .............................................. 13
Bynog v. SL Green Realty Corp.,
No. 05-cv-305, 2005 WL 3497821 (S.D.N.Y. Dec. 22, 2005) ................................ 11
Cady v. Bush,
166 N.W.2d 358,362 (Minn. 1969) ......................................................................... 18
Caldas v. Affordable Granite & Stone, Inc.,
820 N.W.2d 826, 837 (Minn. 2012) ......................................................................... 21
Castro v. NYT Television,
370 N.J. Super. 282 (2004) ................................................................................ 16, 17
v
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D'Ambrosio v. D'Ambrosio,
45 Va. App. 323 (2005) ........................................................................................... 12
Daugherty v. Allen,
729 N.E.2d 228 (Ind. App. 2000) ............................................................................ 12
E.E.O.C. v. Waffle House, Inc.,
534 U.S. 279, 297 (2002) ......................................................................................... 26
Excel Homes of Minnesota, Inc. v. Ivy Ridge Home Buildings, Inc.,
No. C2-00-1686, 2001 WL 506782 (Minn. App. May 15,2001) ............................. 7
Franklin Chalfont Assocs. v. Kalikow,
392 Pa. Super. 452 (1990) ........................................................................................ 12
Greenberg v. Burglass,
254 La. 1019 (La. 1969) .......................................................................................... 12
Heimbach v. Riedman Corp.,
175 F. Supp. 2d 1167 (D. Minn. 2001) ................................................................ 7, 11
Hommerding v. Peterson,
376 N.W.2d 456,459 (Minn. App. 1985) ................................................................ 22
In re Viagra Prods. Liabl. Litig.,
658 F. Supp. 2d 950,968-69 (D. Minn. 2009) ........................................................ 18
Kramer v. Thompson,
947 F.2d 666 (3d Cir. 1990) ..................................................................................... 10
Kwass v. Kersey,
139 W. Va. 497 (1954) ............................................................................................. 12
Lerman v.Flynt Distrib. Co., Inc.,
745 F.2d 123 (2d. Cir. 1984) .................................................................................... 16
Loftness v. Specialized Farm Equip., Inc. v. Twiestmeyer,
742 F3d 845,854-55 (8th Cir. 2013) ....................................................................... 18
vi
Page: 6
Lundstrom Constr. Co. v. Dygert,
254 Minn. 224, 231, 94 N.W.2d 527 (1959) ............................................................. 6
Margolies v. McCleary, Inc.,
447 F.3d 1115, 1126 (8th Cir. 2006) ....................................................................... 26
Mauzy v. Edward Kraemer & Sons, Inc.,
No. CIV. 02-879 AFB, 2004 WL 611127, at *11 (D. Minn. Mar. 4, 2004) ........... 26
McFadden v. Detroit Bar Ass 'n.,
4 Mich. App. 554, 145 N.W.2d 285 (1966) ............................................................. 12
McMahon v. Kindlarski,
512 F .3d 983 (7th Cir. 2008) ................................................................................... 10
Metro. Opera Assoc 'n, Inc. v. Local 100,
239 F.3d 172 (2d Cir. 2001) ..................................................................................... 10
Modern Computer Systems, Inc. v. Modern Banking Systems, Inc.,
871 F.2d 734 (8th Cir. 1989) ............................................................................... 9, 10
Morey v. Ind. Sch. Dist. No. 492,
312 F. Supp. 1257, 1261 (1969) ................................................................................ 9
Oliver v. Skinner,
No. 09-cv-29, 2013 WL 667664 (S.D. Miss. Feb. 22, 2013) .................................. 11
Qwest Comm 'ns Co. LLC v. Free Conferencing Corp.,
990 F.Supp.2d 953 (D. Minn. 2014) ...................................................... 18, 23, 24, 27
Ramos v. Madison Sq. Garden Corp.,
257 A.D.2d 492 (Sup. Ct. N.Y. First Dep't 1999) ................................................... 12
Reyes v. Lynch,
No. 83-639, 1983 WL 1635 (D. D.C. July 29, 1983) .............................................. 11
ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc.,
544 NW2d 302, 306 (Minn. 1996) ............................................................... 4, 6, 7, 20
Vll
Page: 7
Silvercorp Metals, Inc. v. Anthion Mgt., LLC,
36 Misc. 3d 1231(A), 959 N.Y.S.2d 92 (Sup. Ct. N.Y. 2012) .................... 13, 14,24
Todd v. Bettingen,
124 N.W. 443, 444, 109 Minn. 493 (Minn. 1910) ................................................... 22
United States v. Bame,
721 F.3d 1025,1031 (8th Cir. 2013) ....................................................................... 18
United States Fire Ins. Co. v. Minn. State Zoological Bd.,
307 N.W. 2d 490,497 (Minn. 1981) ....................................................................... 22
Watson v. Matthews,
286 Ga. 784 (2010) .................................................................................................. 12
Wirig v. Kinney Shoe Corp.,
461 N.W.2d 374, 379 (Minn. 1990) ......................................................................... 26
Zimmeran v. Lasky,
374 N.W.2d 212, 214 (Minn. App. 1985) .................................................................. 6
Zinter v. Univ. of Minn. ,
799 N. W.2d 243 (Minn. App. 20 11 ) ........................................................................ 22
Statutes and Rules
42.U.S.C. § 1983 ........................................................................................................ 1
Fed. R. App. P. 29(c)(5) ............................................................................................. 1
Other
Restatement (2d) of Torts, 652 (1977) ..................................................................... 16
Vlll
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STATEMENT OF INTEREST 1
Thomas More Law Center ("TMLC"), a nonprofit public interest law firm,
seeks leave to file this brief for the reasons set forth in the accolnpanying motion.
TMLC is a nationally-recognized organization that defends and prolnotes the First
Amendlnent and freedoln of speech.
TMLC accomplishes its mission through
litigation, appeals (including Amicus Curiae support), education, and related
activities. TMLC has over 60,000 members nationwide, including members and/or
clients in the State of Minnesota. Its members and clients across the country are
involved in media, reporting, and written and oral issue advocacy. TMLC supports
freedom of speech and opposes any unnecessary interference with this timehonored freedom.
Since its founding In 1998, TMLC has consistently defended the First
Alnendment right to free speech, litigating claiIns for both plaintiff and defense,
including the prosecution of claims under 42.U.S.C. § 1983 and the defense of
defamation and copyright infringement actions.
TMLC holds longstanding
interests in protecting adherence to the Constitution as written, prohibiting the
erosion of rights constitutionally granted to Americans, and protecting the
Pursuant to Fed. R. App. P. 29(c)(5), no party's counsel authored this brief in
whole or in part. Neither any party nor any party's counsel contributed money that
was intended to fund the preparation or submission of this brief. No person other
than Amicus Curiae contributed lnoney intended to fund the preparation or
submission of this brief.
J
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expanSIve freedom to speak without unwarranted interference, including
interference from courts and judicial opinions. TMLC, its members, and its clients
are concerned with the potential expansion of damage theories as related to free
speech and the chilling effect that such expansion could have on speech and
expression of all kinds. For these reasons, TMLC has a direct and vital interest in
the issues before this Court.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
Free speech is one of the founding principles of our country, as enshrined in
the First Aluendment. It is a right held in high esteem and to be closely guarded.
Free speech restrictions or sanctions in the form of excessive or unsubstantiated
damages are both dangerous and traditionally subversive. The parameters of our
freedom of speech must be given careful and cautious legal analysis, and new
theories of restriction or sanction-including new or expanded theories of damages
for exercising speech-should not be created or expanded at whim.
This brief focuses on the reversible error of the lower court that allowed the
Plaintiff-Appellee, Jesse Ventura, to pursue an unjust enrichluent claim in a case
that implicates only a traditional defamation claim-an error that could have wideranging and far-reaching implications on First Amendment and defamation
jurisprudence. This error wrongfully weighs upon free speech and is not supported
by case law-either that binding on the lower court or that traditionally and
2
Page: 10
universally upheld and employed across the nation in such cases.
This brief
catalogs and provides an analysis of the treatlnent of unjust enrichlnent claimsparticularly when brought in defaInation cases-in the State of Minnesota and the
8th Circuit, as well as in federal and state courts nationally.
ARGUMENT
In this case Jesse Ventura asserted three claims against Chris Kyle and, after
his untimely murder, pursued those claims against Taya Kyle, Chris Kyle's widow,
as executor of his estate. Ventura recovered damages on two of those claims.
Ventura recovered a damages award of $500,000 on Count I for Defamation. 2 The
jury awarded a verdict of no liability on Count II for Appropriation of Name and
Likeness. The trial court judge, upon recommendation of the jury, found liability
against Kyle's Estate on Count III for Unjust Enrichment and awarded Ventura
judgment in excess of $1.345 lnillion in damages for that count; nearly three times
the amount deemed necessary to remedy his damages for his defamation clailn.
The trial court, denying Taya I(yle's Motion for Judgment as a Matter of Law,
ruled that the damages awarded under the unjust enrichment claim were proper and
necessary in order to "disgorge" the Estate of the proceeds earned for the sale of
the book in question.
While liability and damages should be reversed on all counts, this brief will not
focus on all issues on appeal.
2
3
Page: 11
In ruling on the Motion for Judgment as a Matter of Law, the trial judge
acknowledged that generally equitable relief (such as damages under the theory of
unjust enrichment) is not appropriate "where there is an adequate remedy at law
available." ADD-19; citing ServiceMaster of St. Cloud v. GAB Bus. Servs' Inc.,
J
544 NW2d 302, 306 (Minn. 1996). The trial court believed that "[t]he problem
with this argument," however, "is that it ignores a key word: adequate." ADD-19
(emphasis in original).
The trial court went on to note that "[ a] claim for unjust enrichment is barred
only when a plaintiff has an otherwise adequate legal relTIedy. That was simply
not the case here." ld. (emphasis in original). The Court's reasoning for why
Ventura did not have an adequate remedy at law was because "[i]t is undisputed
[that] the damages available to Plaintiff on his defamation claim were limited to
those necessary to remedy the injury to his reputation." ld.
The trial court judge
then deferred to the jury in holding that because the jury "was expressly advised ..
. that it could not award additional damages for unjust enrichment if it found the
Plaintiff s damages award for defamation . . . provided him with an adequate
remedy," that such "scuttles Defendant's argument" that the equitable relief should
not have been granted due to an adequate remedy at law. ld.
The trial court went on: "Plaintiff s defamation claim provided him with no
means to obtain the disgorgement of Defendant's ill-gotten gainS-lTIOney the jury
4
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found, and the Court agreed, that Defendant made by defaming Plaintiff in
American Sniper." ADD-19-20. The court then rested its decision on the premise
that "[0 ]nly through unjust enrichment could Plaintiff attempt to force Defendant
to yield those improper profits." ADD-20. It was on this basis that the trial court
held that "Plaintiff's legal remedy was inadequate to fully ameliorate Defendant's
wrongful conduct, and the defamation claim did not preclude the unjustenrichment claim as a matter of law." Id.
Unfortunately, and respectfully, the trial court committed reversible error in
its holding on several grounds. The holding as to whether Ventura had an adequate
remedy at law is in conflict with established 8th Circuit precedent, Minnesota
precedent, and the longstanding and universal precedent of courts throughout the
nation. The award of damages on the unjust enrichment claim also contradicted
the jury's finding of no liability for appropriation.
Beyond that fact, Ventura
simply failed to establish all of the elements of unjust enrichment-regardless of
his legal relnedies-and this count should have been dislnissed as a matter of law.
Lastly, the damages award for unjust enrichment amount to an impermissible
windfall for Ventura that, if permitted to stand, could create precedent that creates
a chilling effect on free speech by expanding defamation damages.
For the reasons below, we urge this Court to hold that the lower court erred
as a matter of law in adopting the jury's recommendation of damages for unjust
5
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enrichment, reverse the court's holding, and remand this matter back to the lower
court to enter a ruling of no liability and no damages on Count III.
I.
CLAIMS
AND
DAMAGES
FOR
UNJUST
ENRICHMENT
ARE
INAPPROPRIATE IN DEFAMATION-STYLE CASES AND SHOULD NOT BE
PERMITTED.
Research and analysis unveils a dearth of cases in which equitable relief and
damages have been permitted under the theory of unjust enrichment in defalnation
cases. In fact, there are no other known or found cases that do so. This is because
such damages are not cOlnpatible with First Amendlnent analysis, defamation
claims in general, or the historical and traditional acknowledgment of legal
remedies for such claims.
The right of recovery for unjust enrichment is equitable in nature.
Lundstrom Constr. Co. v. Dygert, 254 Minn. 224, 231, 94 N.W.2d 527 (1959).
The equity powers of the court may not be invoked when a plaintiff has an
adequate remedy at law. Borom v. City of St. Paul, 289 Minn. 3781, 376, 184
N.W.2d 595,598 (1971). "Equitable relief is granted only upon a showing of the
inadequacy of any legal remedy."
Zimmeran v. Lasky, 374 N.W.2d 212, 214
(Minn. App. 1985).
As the trial court acknowledged, under Minnesota law "[ a] party may not
have equitable relief where there is an adequate remedy at law available."
ServiceMaster, 544 NW2d at 305. The District of Minnesota recognized this rule
6
Page: 14
in Heimbach v. Riedman Corp., 175 F. Supp. 2d 1167 (D. Minn. 2001), holding
that "recent authority froin the Minnesota Court of Appeals has explained that
where the plaintiff has an adequate legal remedy, he cannot bring an equitable
clailn for unjust enrichment." Id.; citing Excel Homes of Minnesota, Inc. v. Ivy
Ridge Home Buildings, Inc., No. C2-00-1686, 2001 WL 506782 (Minn. App. May
15, 2001). The question of whether or not an adequate remedy at law exists is a
legal determination for the court to make. ServiceMaster, 544 N.W.2d at 305.
As noted above, the lower court circumvented this legal obstacle for Ventura
to recover additional damages under his unjust enrichment clahn by pointing to
one word: adequate. The court began by acknowledging that the jury awarded
Ventura damages "necessary to remedy the injury to his reputation," but held such
to be inadequate because they "provided him with no means to obtain the
disgorgement of' I(yle's gains from the publication of his book. Thus, the court
awarded damages under the unjust enrichinent claim that were nearly three times
the amount of the defamation claim damages.
This reasoning, however, conflates or confuses two separate and distinct
things: on one hand, Ventura has his damages that he alleges to have sustained; on
the other hand, Chris Kyle, using the trial court's words, "made [money] by
defaming Plaintiff." But those two things are not the same and the latter does not
affect the adequacy of the former. Tellingly, the lower court concedes that the
7
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jury's damages award on the defamation claim was a sufficient cure "necessary to
remedy the injury to [Plaintiff's] reputation."3 ADD-19. The court did not explain
how money damages that are wholly necessary to cure a plaintiff's only actual or
presulned damages can sOlnehow not be an adequate legal remedy. That is: how
can a remedy be inadequate if it is the amount determined to be necessary to
wholly remedy the injury that Ventura sustained?
Moving beyond this common-sense, logical, and semantic dissonance in the
lower court's opinion, a significant legal deficiency stands out. Courts throughout
the country, including this Court, have long held that money damages in
defamation claims are an "adequate ren1edy at law." The lower court, therefore,
cOlnlnitted reversible error in holding to the contrary. This error could have farreaching consequences if not corrected.
A. Courts Have Historically, Traditionally, and Universally Recognized
that Adequate Remedies at Law Exist in Defamation Cases and
Refuse to Grant Equitable Relief of Any Kind in Such Cases.
Courts throughout this nation have historically, traditionally, and nearly
universally held that monetary damages for actual or presulned damage to one's
reputation are an adequate remedy at law for a defalnation claim. While the State
of Minnesota does not appear to have definitively addressed the question, it has
acknowledged that it is "probably correct" that a plaintiff has "an adequate remedy
3
Unless otherwise stated, all emphasis herein is added by the authors of this Brief.
8
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through a defamation action." Banken v. Banken, No. All-2156, A12-0771, 2013
WL 490677,
* 10
(Minn. App. Apr. 16, 2013). This Court has held in Modern
Computer Systems, Inc. v. Modern Banking Systems, Inc., 871 F .2d 734 (8th Cir.
1989) that Plaintiff "will have an adequate remedy at law if it is successful in
establishing the merits of its substantive allegations of antitrust, violation . . .,
wrongful termination, defamation, breach of contract, et cetera." The District of
Minnesota, from which this case arose, has noted that there is "no apparent reason
why money damages would not constitute an adequate remedy" for a plaintiff.
Morey v. Ind. Sch. Dist. No. 492, 312 F. Supp. 1257, 1261 (1969). The trial court's
ruling that damages for the defamation claim were not "adequate" was not
substantiated by the precedent binding on it.
In fact, as addressed more thoroughly below, the very jury that granted the
damages for the defamation claim believed that those damages were adequate. In
its Jury Verdict Form the jury was asked "What amount of money, if any, will
fairly and adequately compensate Plaintiff Jesse Ventura for damages directly
caused by the defamation?" ADD-5. The fact that the jury granted $500,000 (far
less than the even lTIOre onerous and imposing alTIOunt the court awarded for unjust
enrichment) denotes that the jury believed that the lesser amount was an
"adequate" remedy, even if it wasn't the greatest possible remedy.
9
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State and federal courts throughout the country have long held that plaintiffs
have an adequate remedy at law for defamation claims by way of monetary
damages. While courts may have reached this conclusion for varying reasons-in
determining whether or not to enjoin defalnatory speech, whether a party has an
adequate avenue for review of an opinion, or whether a claim for unjust
enrichment should stand in the face of a defamation claim-courts have
resoundingly, if not universally, held that an adequate remedy at law exists.
Circuit courts throughout the country are in agreement on this point. See,
e.g., Modern Computer Systems, Inc., supra (8th Circuit holding that a plaintiff
"will have an adequate remedy at law if it is successful in establishing the merits of
its substantive allegations" including a claim for defamation); Metro. Opera
Assoc 'n, Inc. v. Local 100, 239 F .3d 172 (2d Cir. 2001) (holding that equity will
only enjoin "rights that are without an adequate remedy at law," and because
defamation has such adequate remedies, equity should not be imposed); Kramer v.
Thompson, 947 F.2d 666 (3d Cir. 1990) (upholding and following Pennsylvania's
"adequate remedy rationale" for denying injunctive relief in defamation claims);
Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1965) ("There is usually an adequate
remedy at law which may be pursued in seeking redress from harassment and
defamation."); McMahon v. Kindlarski, 512 F.3d 983 (7th Cir. 2008) (implying
that defamation claims provide adequate remedies at law in saying "we need not
10
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consider whether state remedies available to him are adequate. But it must be said
that, from where we stand, it seems that the facts he alleges fit best into a state
claim for defamation."); Reyes v. Lynch, No. 83-639, 1983 WL 1635 (D. D.C. July
29, 1983) (finding that equity jurisdiction is not present "because plaintiff has an
adequate relnedy at law where plaintiff demands money damages for defamation ..
. .").
Federal district courts are also in agreement. See, Heimbach v. Riedman
Corp., 175 F. Supp. 2d 1167 (D. Minn. 2001) (where a plaintiff alleged defamation
and several other claims, the court flatly held that "plaintiff has adequate legal
remedies in this case."); Bynog v. SL Green Realty Corp., No. 05-cv-305, 2005 WL
3497821 (S.D.N.Y. Dec. 22, 2005) ("The long-standing rule in this Circuit is that
equity will not enjoin threatened libel or defamation since there are adequate legal
remedies available for damages arising from hannful speech."); Ameritech v.
Voices for Choices, Inc., No. 03-cv-3014, 2003 WL 21078026 (N.D. Ill. May 12,
2003) (holding that where claims of injury to business, reputation, and goodwill
are asserted in defan1ation cases, "[t]hese types of injuries ... are all amenable to
pecuniary valuation and can be adequately compensated with money damages"
there an adequate legal remedy); Oliver v. Skinner, No. 09-cv-29, 2013 WL
667664 (S.D. Miss. Feb. 22, 2013) (plaintiff "has an adequate remedy at law for
defamation: monetary damages.").
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Likewise, most, if not all, state courts routinely hold that in defamation cases
an award of Inonetary damages for dmnage to reputation is an adequate remedy at
law. See, Watson v.Matthews, 286 Ga. 784 (2010) (ruling that plaintiff "had an
adequate remedy at law in the underlying defamation case . . . . "); Franklin
Chalfont Assocs. v. Kalikow, 392 Pa. Super. 452 (1990) ("An action for defamation
was an adequate remedy at law despite defendant's indigence since any other
conclusion would condition the exercise of the constitutional right to express one's
opinion freely on one's econolnic status."); Kwass v. Kersey, 139 W. Va. 497
(1954) (holding that in a defamation case a plaintiff "has an adequate remedy at
law: By action for damages, and as an added deterrent, a prosecution for the
defamation by criminal prosecution."); D'Ambrosio v. D'Ambrosio, 45 Va. App.
323 (2005) (holding that in a defamation suit the plaintiff "has an adequate remedy
at law."); Daugherty v. Allen, 729 N.E.2d 228 (Ind. App. 2000) (even if damages
for injury to reputation are "not easily quantifiable," because such damages can
nonetheless "be ascertained, we believe that [the plaintiff] has an adequate remedy
at law in the form of a suit for money damages .... "); Greenberg v. Burglass, 254
La. 1019 (La. 1969) (in defamation cases, "[t]here is an adequate legal remedy,
either by an action for damages or by criminal prosecution."); McFadden v. Detroit
Bar Ass 'n., 4 Mich. App. 554, 145 N.W.2d 285 (1966) (in defamation claims
"there is an adequate ren1edy at law, i.e., an action for damages."); Ramos v.
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Madison Sq. Garden Corp., 257 A.D.2d 492 (Sup. Ct. N.Y. First Dep't 1999)
(holding that an equitable claim for defamatory statements "fails because plaintiff
has an adequate remedy at law, i.e. post-publication damages" and finding that the
question of whether "some fonn of equitable remedy were appropriate for
defamation" is "a dubious proposition at best.").
One case-non-binding on this Court but nonetheless instructive of how
courts around the nation traditionally treat unjust enrichlnent claims when coupled
with defamation claims-is Silvercorp Metals, Inc. v. Anthion Mgt., LLC, 36 Misc.
3d 1231(A), 959 N.Y.S.2d 92 (Sup. Ct. N.Y. 2012). There, the court held that the
defendants "established that the unjust enrichment claim iInpropedy merges into
the defamation claim."
Id., citing Anyanwu v. CBS, Inc., 887 F. Sup. 690
(S.D.N.Y. 1995) (stating that in a defamation action for an injunction, an apology,
and punitive damages, "a separate cause of action for what are essentially
defamation claims should not be entertained."); Butler v.Delaware Otsego Corp.,
203 A.D.2d 783,610 N.Y.S.2d 663 (3d Dep't 1994) ("facts alleged by plaintiff are,
in essence, inseparable from the tort of defamation and, as such, plaintiff is
relegated to any remedy that would have been available on that basis .").
In Silvercorp, the plaintiff attempted to disgorge the defendants of profits
that the plaintiff alleged the defendants made in connection with their defamatory
statelnents.
But the court noted that "the factual allegations supporting [the
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plaintiffs] unjust enrichment claim are identical to those gIvIng rIse to the
defamation claim." Id. at *13. The Court further noted that "[t]he foundation of
the unjust enrichment claim is the alleged defamation . . .. Because the unjust
enrichment claim has no independent basis, this claim is dismissed." Id.
It is clear that courts throughout the country routinely hold that plaintiffs in
defamation suits have an adequate remedy at law based on the monetary damages
that accompany successful claims. Based on this, trial court's should not entertain
claims for unjust enrichment whose facts giving rise to that claim are identical to
an accompanying defamation claim and that have no independent basis from the
defamation claiIn. The lower court erred in not granting the Kyle Estate judgment
as a matter of law on the unjust enrichment count.
B. It Was Improper to Permit Recovery of Damages for Unjust
Enrichment when the Jury Determined that Defendant was
Not Liable for Appropriation.
Ventura not only had an adequate remedy at law under his defamation claim,
but also had an adequate remedy at law for his claim of appropriation. The jury
was asked to detennine whether Chris Kyle "appropriated to his own use or benefit
the value of Ventura's name," and whether Ventura's name was "used for the
purpose of appropriating to the defendant's benefit the commercial or other value
associated with plaintiffs name." ECF-362, Jury Instruction No.9. Had the jury
found that Chris Kyle or his estate had done so, then they were instructed to
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"award [Ventura] the greater of either the alnount the Defendant Estate has gained
as a direct result of the appropriation or the amount Mr. Ventura has lost as a direct
result of the appropriation." ECF-362, Jury Instruction No 13.
As to the question of whether Chris Kyle (and by extension his estate) used
Ventura's name for his own use or benefit and therefore should be disgorged of the
amount gained as a result, the jury came back with a definitive answer: No, he had
not. The jury found the Estate not liable on that count. Yet the lower court, in its
reasoning for granting the damages for unjust enrichlnent, stated that it did so
because the defamation claim "provided [Ventura] with no means to obtain the
disgorgement of [Kyle's Estate's] ill-gotten gains-money the jury found, and the
Court agreed, that [Kyle's estate] made by defaming [Ventura] in American
Sniper." ADD-19-20. Essentially, the Court gave what the jury took away. The
trial court circumvented the finding of no liability on the appropriation claim in
order to bootstrap the unjust enrichment damages into the defamation claim. 4
The court's very reasoning in its opinion denying the Estate's Motion for
Judgment as a Matter of Law in effect (if inadvertently) concedes that this was
precisely what it did. The court held that "[0 ]nly through unjust enrichment could
Plaintiff attempt to force Defendant to yield those iInproper profits. Under these
It is no defense to the trial court's error that the jury found no liability on the
appropriation claim but still recommended damages under the unjust enrichment
claim. SiInply because the jury held contradicting (and erroneous) views does not
excuse the trial court from adopting the same contradicting views and outcomes.
4
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circumstances, Plaintiffs legal remedy was inadequate to fully ameliorate
Defendant's wrongful conduct, and the defamation clailn did not preclude the
unjust-enrichment claim as a matter of law." ADD-20.
But that is not the case. Ventura's alleged damages to his reputation were
remedied by the money damages granted to him on the defamation claim. Had the
jury believed that the Estate's "wrongful conduct" needed to be "fully ameliorated"
by "forc[ing] Defendant to yield those improper profits," they could have found the
Estate liable for the appropriation claim. Had the jury truly believed, as the court
implied that it did, that Ventura should have "means to obtain the disgorgement of
Defendant's ill-gotten gains," then the jury had adequate means to do so through
the appropriation claim. Because the jury found the Estate not liable on that claim,
neither the jury nor the court should be permitted to say, nonetheless, that Chris
Kyle's widow has to pay the damages that would otherwise have gone with such
liability if there were any.
Defamation provides a legal remedy of money damages.
The tort of
appropriation provides legal dalnages in the way of disgorgement of profits made
by a defendant. Unjust enrichlnent is an equitable remedy that is closely related to
the theory of misappropriation. 5
Ventura, therefore, had two adequate legal
See Restatement (2d) of Torts, 652 (1977) ("appropriation of name and likeness is
silnilar to ilnpairment of a property right and involves an aspect of unjust
enrichment"); Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123 (2d. Cir. 1984) (the
5
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remedies upon which he could recover luonetary damages: one for defamation for
which he did recover all necessary daluages, and one for appropriation for which
the jury determined he was not entitled to daluages. It was reversible error for the
lower court to award damages for unjust enrichment when Ventura had adequate
remedies at law.
c. It is
the Existence of an Adequate Remedy that Matters; Not
Whether the Plaintiff Prevailed in Receiving that Remedy
The lower court held that Ventura's defamation damages were not
"adequate" because they did not permit him to disgorge the Kyle Estate of its
profits.
The court likewise circumvented the finding of no liability on the
appropriation claim, presuluably for the same reason. But it is not a question of
whether a plaintiff prevails in receiving an adequate remedy that bars an equitable
claim for unjust enrichment. It is simply the existence of an adequate remedy that
does so. Here, multiple adequate remedies at law existed; simply because Ventura
did not prevail in receiving them does not open the back door to damages under an
unjust enrichment theory.
tort of appropriation of name or likeness "is one designed to encourage intellectual
and creative works and to prevent unjust enrichment."); Castro v. NYT Television,
370 N.J. Super. 282 (2004) ("one reason for imposition of tort liability for
commercial appropriation of a person's name or likeness ... is to avoid the unjust
enrichment that would result from uncompensated use of the name or likeness of
another person.").
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"More recent case law states that the legal remedy must be available to
prevent unjust enrichment; it does not require that [a plaintiff] took advantage of
the legal remedy." Qwest Comm 'ns Co. LLC v. Free Conferencing Corp., 990
F .Supp.2d 953 (D. Minn. 2014).
"Therefore, regardless of the result of [the
plaintiff's] legal remedy against [defendant] is, it was available to [plaintiff] and an
unjust enrichment claim cannot be maintained." A plaintiff's failure to prevail on
a legal claim does not make the legal claim "unavailable." Loftness v. Specialized
Farm Equip., Inc. v. Twiestmeyer, 742 F3d 845, 854-55 (8th Cir. 2013); citing
Cady v. Bush, 166 N.W.2d 358,362 (Minn. 1969).
While SOlne courts focus on whether or not a plaintiff pursued a legal
reinedy, that is not the correct (or at least only) question. As this Court stated in
United States v. Bame, 721 F .3d 1025, 1031 (8th Cir. 2013), "despite courts'
occasional einphasis on the failure to pursue a legal remedy, it is the existence of
an adequate legal remedy that precludes unjust enrichinent recovery.
District
courts routinely dismiss unjust enrichment claims where the plaintiff pleaded and
pursued both equitable and legal claims simultaneously, as well as where the
plaintiff failed to pursue adequate legal remedies." See, e.g., In re Viagra Prods.
Liabl. Litig., 658 F. Supp. 2d 950, 968-69 (D. Minn. 2009) (explaining that the
plaintiff's unjust enrichment claim failed due to the existence of an adequate legal
remedy where the plaintiff also pleaded tort claims.). As the District of Minnesota
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held in In re Viagra, 658 F. Supp. 2d at 969: "Plaintiffs have an adequate remedy
at law-they pled several causes of action sounding in tort, and there is no
dispute that those causes of action would provide adequate relief if Plaintiffs
succeeded in proving up their claims."
Ventura had an adequate relnedy at law under his defamation claim and was
awarded $500,000 for his damages.
SiInply because those damages did not
disgorge the Kyle Estate of all that they possibly could does not Inake the remedy
inadequate.
More importantly, Ventura had an adequate legal remedy for
appropriation that, had he prevailed on that count, would have permitted him to
recover damages in the form of disgorgement of the Kyle Estate's earnings.
Simply because he failed in "proving up" this claim does not negate the existence
of an adequate legal remedy.
The lower court cOlnmitted reversible error in granting damages under the
unjust enrichment claim.
D. The Trial Court Erred in Deferring to the Jury to Determine
Whether an Adequate Remedy at Law Existed Because Such
Determination is a Matter of Law that Should be Determined
by the Court. The Jury's and Trial Court's Determination
Should be Reversed as a Matter of Law.
The lower court attempted to justify its decision to grant the unjust
enrichment damages because, at least in part, the jury was instructed that "it could
not award additional damages for unjust enrichlnent if it found that Plaintiffs
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'damages award for defamation ... provided him with an adequate remedy. '"
ADD-19.
The lower court held that this single fact "scuttles Defendant's
argument" that Ventura had an adequate remedy at law and should not be awarded
damages under the unjust enrichment theory.6
Simply because the jury was instructed in this manner does not absolve the
trial court from determining whether there were in fact adequate remedies at law.
A trial court's conclusion whether a plaintiff has an adequate remedy at law "is a
legal conclusion" that is to be determined by the court.
Service Master, 544
N.W.2d 302, 305 (Minn. 1996). Moreover, on appeal, such determinations are
"subject to de novo review." Id.
The lower court improperly relied on the jury's alleged or apparent
determination that there were not adequate remedies at law in granting the unjust
enrichment damages. At the very least this matter should be remanded so that the
lower court can give the question the proper legal analysis necessary. But because
this Court can review that legal question de novo, it would be Inore proper to
reverse the lower court's decision and strike down the damages awarded for unjust
enrichment.
Interestingly, however, on its jury form the jury in fact acknowledged that the
$500,000 for the defalnation clahn was an amount that would "fairly and
adequately compensate Plaintiff Jesse Ventura .... " ADD-5.
6
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II.
CLAIMS OF UNJUST ENRICHMENT ARE IMPROPER AS A MATTER OF
LAW IN SIMPLE DEFAMATION CLAIMS AND JUDGMENT ON THAT
CLAIM IN THIS MATTER SHOULD BE REVERSED BECAUSE VENTURA
FAILED TO ESTABLISH ALL OF THE ELEMENTS OF THE CLAIM
Regardless of whether unjust enrichlnent damages are proper in light of the
adequate legal remedies available to Ventura, he did not even establish the
necessary elements for unjust enrichment under the applicable law. This is, in fact,
the case for most plaintiffs in defamation claims. Unjust enrichment damages are
simply not appropriate in most defamation clailns and should not be pennitted.
The Minnesota Suprelne Court has recently held that it has "litnited the
application of unjust enrichment to claims premised on an itnplied or quasicontract between the clailnant and the party alleged to be unjustly enriched."
Caldas v. Affordable Granite & Stone, Inc. 820 N.W.2d 826, 837 (Minn. 2012).
"Thus, to prevail on a claim of unjust enrichlnent, a claitnant must establish an
implied-in-Iaw or quasi-contract in which a defendant received a benefit of value
that unjustly enriched the defendant in a manner that is illegal or unlawful." Id. at
838.
Thus, some sort of contractual, implied-contractual, or quasi-contractual
relationship must exist between the plaintiff and the defendant. Id. (holding that
"we have not extended the theory of unjust enrichment to allow an incidental thirdparty beneficiary to enforce a contract, and we decline to do so in this case.").
Under Minnesota law, "[ u ]njust enrichment requires that: (1) a benefit be
conferred by the plaintiff on the defendant; (2) the defendant accept the benefit; (3)
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the defendant retain the benefit although retaining it without payment is
inequitable." Zinter v. Univ. of Minn., 799 N.W.2d 243 (Minn. App. 2011); citing
Acton Constr. Co. v. State, 383 N.W.2d 416, 417 (Minn. App. 1986), review
denied (Minn. May 22, 1986). Key to this definition and these elements is that in
order to prevail, the plaintiff must have conferred a benefit onto the defendant.
Otherwise, there is nothing retained from the plaintiff and nothing to return.
No case could be found in the District of Minnesota, the 8th Circuit, or
under Minnesota law in which damages have been awarded in a defamation claim
under a theory of unjust enrichment. This makes sense when one considers that
"[a]n action for unjust enrichment is a quasi-contractual agreement implied by law
where there is no contract."
Hommerding v. Peterson, 376 N.W.2d 456, 459
(Minn. App. 1985); citing United States Fire Ins. Co. v. Minn. State Zoological
Bd., 307 N.W. 2d 490, 497 (Minn. 1981). It makes even lTIOre sense when one
considers the traditional reason for granting unjust enrichment damages.
The SUprelTIe Court of Minnesota has long held that claims for unjust
enrichlTIent (which have been held under Minnesota law to be analogous to claims
of lTIOney had and received) are actions "to recover back money, which ought not
to be kept." Todd v. Bettingen, 124 N.W. 443,444, 109 Minn. 493 (Minn. 1910).
This, of course, implies some sort of loss to the plaintiff and/or benefit conferred
by the plaintiff to the defendant.
"The gist of this kind of action is that the
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defendant, upon the circumstances of the case, is obliged by the ties of natural
justice and equity to refund the money." Id.
Similarly, "[a]n action for unjust
enrichment may be based on failure of consideration, fraud, mistake, and situations
where it would be morally wrong for one party to enrich himself at the expense of
another." Anderson v. DeLisle, 352 N.W.2d 794, 796 (Minn. App. 1984), review
denied (Minn. Nov. 8, 1984).
Here, however, Ventura has not even alleged that he has conferred any
benefit on Chris Kyle or his estate, or that there is anything for him to "recover
back" or to be "refunded" to him. Disgorgement of benefits from the Kyle Estate
for the benefit to Ventura would not be returning or refunding anything to Ventura.
There is siInply no argument and no factual development that could be lnade that
anything that Chris Kyle or his estate has received was done at the expense of
Ventura, in the stead of Ventura, or in any way had anything to do with Ventura
that was not already covered by his dalnages under his defalnation claim. This
element has not been met.
In Qwest Comm'ns Co., LLC v.Free Conferencing Corp., 990 F. Supp. 2d
953 (D. Minn. 2014), the district court held that "[t]o make a claim for unjust
enrichment, [the plaintiff] must allege that it conferred a benefit on Defendants."
Jd. at 981. In that case the plaintiff alleged that the defendants "reaped substantial
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and unconscionable profits," and received money "to which they are not entitled,"
and that it would be unjust if the defendants retained that money.
The Qwest court noted that the parties had no contractual or quaslcontractual relationship, that there was no privity between them, and that neither
party had any legal obligation to the other. Thus, the court found that the plaintiff
had "not sufficiently alleged that it conferred a benefit on Defendants." The court
also held that unjust enrichInent claims would be inappropriate where there are
other legal remedies available because "the purpose of prohibiting an equitable
remedy when a legal remedy is available is to prevent the plaintiff from recovering
twice, once in law and once in equity." Id. at 982. Therefore, the court held that
"[b ]ecause the court finds that [the plaintiff] has not alleged it conferred a benefit
on Defendants and because the court finds that [the plaintiff] had a legal remedy ..
. the court finds it is not necessary to reach the additional arguments for the
purposes of disposing of the unjust enrichment claim." Id. at 983.
While Qwest was not a defamation case, it is instructive as to when an unjust
enrichment clailn can and cannot be pursued.
It is also apparent from cases
throughout the country that unjust enrichment claims silnply are not appropriate in
matters alleging defamation. 7 For example, in Silvercorp Metals, Inc. v. Anthion
Mgt., LLC, 36 Misc. 3d 1231(A), 959 N.Y.S.2d 92 (Sup. Ct. N.Y. 2012), the court
This is also clear froln the absence of cases granting damages for such clailns in
defamation cases.
7
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noted that "[t]he Second Amended Complaint alleges the defendants were
'unjustly enriched at [the plaintiff's] expense' through its 'receipt of profits from
their short selling scheme. '" The court, after noting that the unjust enrichment
clailn "derives frOln and is the result of the alleged defamation," noted that "[i]n
any event, [the plaintiff] fails to allege that defendants received a benefit from
[plaintiff]. In seeking disgorgement of defendant's profits, [the plaintiffJ cannot
allege that defendants have been unjustly enriched at [plaintiff's] expense, since
[plaintiff] did not make any payments or financially contribute to the profits
defendants received. The profits defendants received simply did not come from
[the plaintiffJ." Id. In other words, shnply because a plaintiff claims to have been
defamed does not entitle him or her to a share in defendant's profits that the
plaintiff had absolutely no hand in obtaining or earning.
Ventura did not confer any benefit on the Kyle Estate that it improperly
retained. There is no scenario that "but-for" any actions by the Kyle Estate, Jesse
Ventura would have been entitled to the profits he now attelnpts to disgorge.
There was no agreement (quasi or actual) between Kyle and Ventura that was
breached and no expectation on Ventura's behalf that was not met.
As in
Silvercorp, "the profits defendants received simply did not come from" Ventura.
The damages on the unjust enrichment claims should be stricken and the court's
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opinion and ruling should be reversed. Failure to do so simply throws wide open
the doors on defamation claims and on defamation damages analyses.
III.
THE JUDGMENT AWARDED FOR UNJUST ENRICHMENT AMOUNTS TO
A WINDFALL RECOVERY FOR VENTURA AND SHOULD BE REVERSED
Permitting Ventura to receive a portion of the Estate's profits when he had
no part in earning them, when he conferred no benefit onto the Kyle Estate, and
when he never could have had any expectation of payment for the sale of the book
simply result in a double recovery and windfall for Ventura. As the Supreme
Court has noted, "it goes without saying that the courts can and should preclude
double recovery by an individual. '" E.E. O. C. v. Waffle House, Inc., 534 U.S. 279,
297, 122 S. Ct. 754, 766, 151 L. Ed. 2d 755 (2002). This Circuit has held that
courts have properly reduced judgments to preclude a windfall of a double
recovery when the evidence of damages did not differentiate between alternative
claims.
Margolies v. McCleary, Inc., 447 F.3d 1115, 1126 (8th Cir. 2006).
Likewise, the District of Minnesota has held that damages that would result in a
windfall should be denied. Mauzy v. Edward Kraemer & Sons, Inc., No. ClV. 02879 AFB, 2004 WL 611127, at *11 (D. Minn. Mar. 4, 2004). This is what the
lower court should have held in this matter, as well. See also Wirig v. Kinney Shoe
Corp., 461 N.W.2d 374, 379 (Minn. 1990) ("Although we decide parallel actions
can be maintained, we do not uphold double recovery for the same harm").
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In Qwest Comm 'ns Co., LLC., 990 F. Supp. supra, the court looked at the
precise issue of whether damages should be granted under the theory of unjust
enrichment when the plaintiff already had other avenues to legal damages. The
court held that "the purpose of prohibiting an equitable remedy when a legal
remedy is available is to prevent the plaintiff from recovering twice, once in law
and once in equity." Id. at 982. This was one reason the court in Qwest rejected
the unjust enrichment clailn.
Because the damages awarded by the jury on the defalnation claitn were
those "necessary" to cover all damages Ventura allegedly incurred, any recovery
beyond that would be a double recovery and a windfall. Simply because Chris
Kyle and his estate made money on a book that contained one passage pertaining
to the alleged defamatory statement in question has no relation to Ventura's
daInages.
While disgorgement may have been an appropriate remedy for an
appropriation claim, the jury found the Estate not liable for that claitn. To simply
award Ventura those damages in an amount in excess of $1.345 million anyhow
constitutes nothing more than a windfall recovery and should be reversed.
CONCLUSION
This Court should reverse the lower court's decision, declare the damages on
the unjust enrichment claim to have been awarded in error, and remand this case
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for further proceedings consistent with this Court's opinion so that the judgment
can be reduced by at least the amount granted on the unjust enrichment claim.
By:
/s/ Richard Thompson
Richard Tholnpson, Esq.
/s/ Erin Elizabeth Mersino
Erin Elizabeth Mersino, Esq.
BUTZEL LONG, P.C.
By:
/s/ Paul M. Mersino
Paul M. Mersino, Esq.
Attorneys for Amicus Curiae
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CERTIFICATION PURSUANT TO
Fed. R. App. P. 32(a)(7)(B) and (C)
The undersigned hereby certifies as follows:
1.
The foregoing brief cOinplies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B) and (C) because the brief contains 6,699 words of text,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and
2.
The foregoing brief complies with the typeface requirements of Fed.
R. App. P.32(a)(5) and the type style requirements of Fed.R.App.P.32(a)(6)
because this brief was prepared In a proportionally spaced typeface using
Microsoft Word 2007, the word processing system used to prepare the brief, in 14
point sized font in Times New Roman font type.
/ s/ Erin Elizabeth Mersino
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CERTIFICATE OF COMPLIANCE
WITH EIGHTH CIRCUIT RULE 28A(h)
Pursuant to this Court's Rule 28A(h), I hereby certify that the electronic
version of this Brief of Alnicus Curiae Thomas More Law Center in Support of
Defendant-Appellant Taya Kyle and Reversal has been scanned for viruses and is
virus-free.
lsi Erin Elizabeth Mersino
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Page: 38
CERTIFICATE OF SERVICE
I hereby certify pursuant to Eighth Circuit Rule 25A that on March 11, 2015,
I electronically filed the foregoing with the Clerk of the Court for the United States
Court of Appeals for the Eighth Circuit by using the appellate CM/ECF systelTI.
Participants in the case who are registered CMlECF users will be served by the
appellate CM/ECF system. I further certify that all of the participants in this case
are registered CM/ECF users.
Dated: March 11,2015
lsi Erin Elizabeth Mersino
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No. 14-3876
d
IN THE
FOR THE EIGHTH CIRCUIT
JESSE VENTURA, a/k/a JAMES G. JANOS,
Plaintiff-Appellee,
—v.—
TAYA KYLE, as Executor of the Estate of CHRIS KYLE,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
BRIEF AMICI CURIAE OF 33 MEDIA COMPANIES AND
ORGANIZATIONS IN SUPPORT OF APPELLANT
URGING REVERSAL
FLOYD ABRAMS
SUSAN BUCKLEY
MERRIAM MIKHAIL
CAHILL GORDON & REINDEL LLP
80 Pine Street
New York, New York 10005
Telephone: (212) 701-3000
Facsimile: (212) 269-5420
Attorneys for Amici Curiae
(Additional counsel listed following the signature page.)
Page: 1
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate
Procedure, undersigned counsel for amici curiae provide the following disclosures
of corporate identity:
A&E Television Networks, LLC is a joint venture of Disney-ABC
Television Group and Hearst Corporation. No publicly held corporation owns an
interest of 10% or more in A&E Television Networks, LLC with the exception of
The Walt Disney Company, which indirectly holds an interest of 10% or more.
Advance Publications, Inc. has no parent corporation, and no publicly held
corporation owns 10% or more of its stock.
American Society of News Editors is a private, non-stock corporation that
has no parent.
Association of Alternative Newsmedia is a private, non-stock corporation
that has no parent.
The Association of American Publishers, Inc. is a nonprofit organization
that has no parent and issues no stock.
The Authors Guild, Inc. is a nonprofit organization that has no parent and
issues no stock.
Buzzfeed, Inc. is a privately held company. No publicly held company
owns 10% or more of its stock.
Page: 2
The Center for Investigative Reporting, Inc. is a nonprofit public benefit
corporation that does not have a parent corporation; no public or private
corporation holds any interest in the Center for Investigative Reporting.
Cox Media Group, Inc. is owned by Cox Enterprises, Inc., a leading
communications, media and automotive services company.
The E.W. Scripps Company is a publicly traded corporation. It has no
parent corporation and no publicly held company owns 10% or more of its stock.
The First Amendment Coalition is a nonprofit organization that has no
parent and issues no stock.
Forbes Media LLC is owned by Forbes Media Holdings LLC. No publicly
held company holds an interest of 10% or more in Forbes Media LLC.
Gannett Co., Inc. has no parent corporation and no publicly held company
owns 10% or more of Gannett stock.
Gawker Media LLC is privately held and wholly owned by privately held
Gawker Media Group, Inc. No publicly held corporation holds an interest of 10%
or more in Gawker Media LLC.
Hachette Book Group, Inc. is a wholly owned subsidiary of Hachette Livre
USA, Inc. Hachette Livre USA, Inc. is a wholly owned subsidiary of Lagardere
North America Inc. Lagardere North America Inc. is a wholly owned subsidiary of
Page: 3
Lagardere Media (formerly Hachette SAS). Lagardere Media is a wholly owned
subsidiary of Lagardere SCA, which is traded on the Paris stock exchange.
Hearst Corporation is a diversified, privately held company. No publicly
held company owns 10% or more of its stock.
Landmark Media Enterprises, LLC is a privately held media company.
No publicly held corporation holds an interest in Landmark Media Enterprises,
LLC.
The Media Law Resource Center is a nonprofit organization that has no
parent company and issues no stock.
The Minnesota Newspaper Association has no parent corporation, and no
publicly held corporation owns 10% or more of its stock.
Motion Picture Association of America, Inc. is a nonprofit corporation
that has no parent company and issues no stock.
MPA – The Association of Magazine Media has no parent corporation,
and no publicly held corporation owns 10% or more of its stock.
The National Association of Broadcasters has no parent corporation and
no publicly held company owns 10% or more of its stock.
The National Press Photographers Association is a nonprofit organization
that has no parent company and issues no stock.
Page: 4
National Public Radio, Inc. is a privately supported, not-for-profit
membership organization that has no parent company and issues no stock.
New York Media LLC is a wholly owned subsidiary of New York Media
Holdings LLC. There are no publicly owned entities that have any ownership
interest in either company.
The New York Times Company, a publicly held corporation, has no parent
company, and no publicly held corporation owns 10% or more of its stock.
Newspaper Association of America is a nonprofit organization with no
parent corporation or stockholders.
North Jersey Media Group Inc. is a privately held company owned solely
by Macromedia Incorporated, also a privately held company.
Penguin Random House LLC is a limited liability company in which
membership interests are owned in part by Bertelsmann SE & Co. KGaA and in
part by Pearson plc. Pearson plc is a publicly traded company.
The Reporters Committee for Freedom of the Press is an unincorporated
association of reporters and editors that has no parent corporation and issues no
stock.
Time Inc. is a publicly traded corporation. No publicly held corporation
owns 10% or more of its stock.
Page: 5
Tribune Publishing Company, LLC is publicly held. Oaktree Tribune,
L.P. owns 10% or more of its stock.
WP Company LLC (d/b/a The Washington Post) is a wholly owned
subsidiary of its parent corporation, Nash Holdings LLC. Nash Holdings LLC is
privately held and does not have any outstanding securities in the hands of the
public.
Page: 6
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTEREST OF AMICI CURIAE ............................................................................... 1
SUMMARY OF THE ARGUMENT ......................................................................12
STATEMENT OF THE CASE ................................................................................15
ARGUMENT ...........................................................................................................16
I.
THE COMMON LAW DOES NOT RECOGNIZE AND THE
CONSTITUTION DOES NOT PERMIT AN AWARD OF A
BOOK’S PROFITS AS A REMEDY FOR DEFAMATION .......................16
II.
THE AWARD OF PROFITS FROM AMERICAN SNIPER
IS TANTAMOUNT TO AN AWARD OF PUNITIVE
DAMAGES, DAMAGES THAT ARE NOT PERMITTED
AGAINST THE ESTATE .............................................................................24
CONCLUSION ........................................................................................................26
-iAppellate Case: 14-3876
Page: 7
CASES
Page(s)
Cason v. Baskin,
155 Fla. 198 (1944) ...........................................................................................18n
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) ...................................................................................... 20-22
Hart v. E.P. Dutton & Co.,
93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App.
Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950)................passim
Near v. Minnesota,
283 U.S. 697 (1931) ...................................................................................... 17-18
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................................................................12
Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447 (1978) ..........................................................................................22n
Ruzicka v. Conde Nast Publications, Inc.,
733 F. Supp. 1289 (D. Minn. 1990), aff’d, 939 F.2d 578
(8th Cir. 1991)...................................................................................................22n
Thompson v. Petroff’s Estate,
319 N.W.2d 400 (Minn. 1982) ...........................................................................26
United States v. Alvarez,
__ U.S. __, 132 S. Ct. 2537 (2012)...................................................................22n
Wheeler v. Green,
286 Or. 99, 593 P.2d 777 (1979) ........................................................................24
STATUTES
Mass. Ann. Laws c. 231, § 93 ..................................................................................24
Minn. Stat. § 549.20 ........................................................................................... 25-26
-iiAppellate Case: 14-3876
Page: 8
OTHER AUTHORITIES
Bruce W. Sanford, Libel and Privacy § 9,
“The Damage Assessment” (2d ed.) ...................................................................19
Charles Rothfeld, The Surprising Case Against Punitive
Damages in Libel Suits Against Public Figures,
19 Yale L. & Pol’y Rev. 1 (2000) ......................................................................23
Dan B. Dobbs, Law of Remedies: Damages – Equity – Restitution
§ 7.2(13), “Restitution” (2d ed.) ...................................................................18, 21
Ernst P. Seelman, The Law of Libel and Slander in the
State of New York (rev. ed. 1964) .................................................................17, 19
James H. Hulme, Vindicating Reputation: An Alternative to Damages
as a Remedy for Defamation, 30 Am. U. L. Rev. 375 (1981) ............................20
Minnesota Jury Instructions Guides – Civil § 50.65,
“Punitive Damages—Defamation” (6th ed.) ......................................................25
Note, The Constitutionality of Punitive Damages in Libel Actions,
45 Fordham L. Rev. 1382 (1977) .......................................................................23
Note, Punitive Damages and Libel Law, 98 Harv. L. Rev. 847 (1985) .................. 23
Restatement (Second) of Torts § 623, “Special Note on Remedies
for Defamation Other Than Damages” (1977) ...................................................20
Restatement (Third) of Restitution and Unjust Enrichment § 44 (2011)...............18n
Robert D. Sack, Sack on Defamation § 10, “Damages and Other
Remedies” (4th ed.) ......................................................................................19, 24
Rodney A. Smolla, Law of Defamation § 9, “Damages and Other
Remedies” (2d ed. 2014) ....................................................................................19
Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional
Law: Substance and Procedure § 20.33(e)(i), “Punitive
Damages” (5th ed. 2013) ....................................................................................23
Roscoe Pound, Equitable Relief Against Defamation and
Injuries to Personality, 29 Harv. L. Rev. 640 (1916)................................... 19-20
-iiiAppellate Case: 14-3876
Page: 9
INTEREST OF AMICI CURIAE
The amici curiae are media companies and organizations of journalists,
writers and others dedicated to the protection of First Amendment rights. All are
concerned about what they view as the unjustified and potentially crippling awards
in this case and, in particular, the unprecedented award to former Governor
Ventura based upon profits purportedly received by the defendant in the case.
The amici joining in this brief are as follows:
A&E Television Networks, LLC (AETN) is an award-winning, global
media content company organized under the laws of the State of Delaware with its
principal place of business in New York. AETN offers consumers a diverse
communications environment ranging from television networks to websites,
consumer products and educational software.
AETN channels and branded
programming reach more than 330 million households in over 160 countries.
Advance Publications, Inc., directly and through its subsidiaries, publishes
more than 20 print and digital magazines with nationwide circulation, local news in
print and online in 10 states, and leading business journals in over 40 cities
throughout the United States.
Through its subsidiaries, Advance also owns
numerous digital video channels and internet sites and has interests in cable
systems serving more than 2.3 million subscribers.
1
Page: 10
American Society of News Editors (ASNE) is an organization of over 500
members that includes directing editors of daily newspapers throughout the
Americas. Since April 2009, its membership has included editors of online news
providers and academic leaders. Founded in 1922 as the American Society of
Newspaper Editors, ASNE is active in a number of areas of interest to top editors
with priorities on improving freedom of information, diversity, readership and the
credibility of newspapers.
Association of Alternative Newsmedia (AAN) is a not-for-profit trade
association for 130 alternative newspapers in North America. AAN newspapers
and their websites provide an editorial alternative to the mainstream press. AAN
members have a total weekly circulation of seven million and a reach of over 25
million readers.
The Association of American Publishers, Inc. (AAP) is the national trade
association of the U.S. book publishing industry. AAP’s members include most of
the major commercial book publishers in the United States, as well as smaller and
nonprofit publishers, university presses, and scholarly societies. AAP members
publish hardcover and paperback books in every field, including educational
materials for the elementary, secondary, postsecondary and professional markets,
scholarly journals, computer software, and electronic products and services. The
2
Page: 11
Association represents an industry whose very existence depends upon the free
exercise of rights guaranteed by the First Amendment.
The Authors Guild, Inc. (the “Guild”), founded in 1912, is a national
nonprofit association of more than 8,500 professional, published writers of all
genres. The Guild counts historians, biographers, academicians, journalists and
other writers of nonfiction and fiction as members. The Guild works to promote
the rights and professional interests of authors in various areas, including
copyright, freedom of expression, and taxation. Many Guild members earn their
livelihoods through their writing. Their work covers important issues in history,
biography, science, politics, medicine, business and other areas; they are frequent
contributors to the most influential and well-respected publications in every field.
BuzzFeed, Inc. is a leading social news and entertainment media company.
It creates news, original reporting, and entertainment content through its website
buzzfeed.com.
The Center for Investigative Reporting, Inc. (CIR) is a 501(c)(3)
California nonprofit public benefit corporation.
Founded in 1977, CIR is
nationally respected for setting the highest journalistic standards, and for its
signature approach to investigative reporting and collaboration. To reach a broad
and diverse audience worldwide, CIR publishes stories online, as well as via print,
television, radio/audio, and video.
3
Page: 12
Cox Media Group, Inc. (CMG) is an integrated broadcasting, publishing,
direct marketing and digital media company. The company’s operations currently
include 14 broadcast television stations and one local cable channel, 59 radio
stations, seven daily newspapers and more than a dozen non-daily publications,
and more than 100 digital services. CMG currently operates in more than 20
media markets and reaches approximately 52 million Americans weekly, including
more than 31 million TV viewers, more than 3.5 million print and online
newspaper readers, and more than 14 million radio listeners.
The E.W. Scripps Company has interests in newspaper publishing, online
publishing, local broadcast television stations, and licensing and syndication. The
company’s portfolio of locally focused media properties includes: daily and
community newspapers in 14 markets; 21 broadcast TV stations; and the
Washington, D.C.-based Scripps Media Center, home of the Scripps Howard News
Service.
The First Amendment Coalition (FAC) is a section 501(c)(3) nonprofit
organization dedicated to First Amendment freedoms—primarily freedom of
speech and the press—and government transparency. Founded in 1988, FAC
works to enhance and protect these rights through a free legal consultation service,
educational and information services, public advocacy of various kinds, and
4
Page: 13
litigation, including the initiation of litigation in its own name and the filing of
briefs amicus curiae.
Forbes Media LLC is a global media, branding and technology company,
with a focus on news and information about business, investing, technology,
entrepreneurship, leadership and affluent lifestyles.
The company publishes
Forbes, Forbes Asia, Forbes Europe and ForbesLife magazines, as well as
Forbes.com and ForbesLife.com. The Forbes brand today reaches more than 75
million people worldwide with its business message each month through its
magazines and 36 licensed local editions around the globe, Forbes.com, TV,
conferences, research, social and mobile platforms.
Gannett Co., Inc. is an international news and information company that
publishes more than 80 daily newspapers in the United States—including USA
TODAY—which reach more than 10 million readers daily.
The company’s
broadcasting portfolio includes more than 40 TV stations, reaching 30% of all
television households in America. Each of Gannett’s daily newspapers and TV
stations provides digital and mobile products that feature news and advertising
customized for the market served and, along with Gannett’s other digital products,
reach 29% of the U.S. Internet audience.
Gawker Media LLC is the publisher of some of the web’s best-loved
brands and communities, including the eponymous Gawker, the gadget sensation
5
Page: 14
Gizmodo, and the popular sports site Deadspin. Gawker supports the interaction of
uncompromisingly authentic editorial voices, exceptionally opinionated audiences,
and bespoke brand advertising programs. Founded in 2002, Gawker’s sites reach
over 100 million readers around the world each month.
Hachette Book Group, Inc. is a leading trade publisher based in New York
and a division of Hachette Livre, the third largest trade and educational book
publisher in the world. Hachette Book Group publishes about 1,000 books per
year.
Hearst Corporation is one of the nation’s largest diversified media
companies. Its major interests include the following: ownership of 15 daily and 38
weekly newspapers, including the Houston Chronicle, San Francisco Chronicle
and Albany (N.Y.) Times Union; nearly 300 magazines around the world, including
Good Housekeeping, Cosmopolitan and O, The Oprah Magazine; 29 television
stations, which reach a combined 18 percent of U.S. viewers; ownership in leading
cable networks, including Lifetime, A&E and ESPN; business publishing,
including a joint venture interest in Fitch Ratings; and internet businesses,
television production, newspaper features distribution and real estate.
Landmark
Media
Enterprises,
LLC
(formerly
Landmark
Communications) is a privately held media company headquartered in Norfolk,
6
Page: 15
Virginia with interests in print and internet publishing, internet marketing/web
services, and data centers.
The Media Law Resource Center (MLRC) is a nonprofit membership
association for content providers in all media, providing a wide range of resources
on media law and policy issues.
These include news and analysis of legal,
legislative and regulatory developments; litigation resources and practice guides;
and national and international media law conferences and meetings. Today MLRC
is supported by over 115 members, including leading publishers, broadcasters, and
cable programmers, internet operators, media and professional trade associations,
and media insurance professionals in America and around the world.
The Minnesota Newspaper Association (MNA) is a voluntary trade
association of all of the general-interest newspapers and most of the specialinterest newspapers in the state of Minnesota. It is the principal representative of
the organized press in Minnesota, with nearly 400 newspaper members.
Collectively, MNA represents a large percentage of all of the recognized news
organizations and professional journalists in Minnesota.
Motion Picture Association of America, Inc. (MPAA) is a not-for-profit
trade association founded in 1922 to address issues of concern to the United States
motion picture industry. Its members and their affiliates are the leading producers
and distributors of audiovisual entertainment in the theatrical, television and
7
Page: 16
DVD/home video markets. Throughout its history, MPAA has consistently fought
for the First Amendment rights of its members, including by filing amicus briefs
urging courts to properly interpret the law of defamation in light of free speech
concerns.
MPA – The Association of Magazine Media is a national trade association
including in its present membership more than 175 domestic magazine publishers
that publish over 900 magazines sold at newsstands and by subscription. MPA
members provide broad coverage of domestic and international news in weekly
and biweekly publications, and publish weekly, biweekly and monthly publications
covering consumer affairs, law, literature, religion, political affairs, science, sports,
agriculture, industry and many other interests, avocations and pastimes of the
American people. MPA has a long and distinguished record of activity in defense
of the First Amendment.
The National Association of Broadcasters (NAB) is a nonprofit
incorporated trade association that serves and represents radio and television
stations and broadcast networks.
Its members broadcast news, public affairs,
entertainment and other programming to listeners and viewers across the nation,
and NAB seeks to preserve and promote its members’ ability to create and
disseminate freely programming and information of all types.
8
Page: 17
The National Press Photographers Association (NPPA) is a 501(c)(6)
nonprofit organization dedicated to the advancement of visual journalism in its
creation, editing and distribution. NPPA’s approximately 7,000 members include
television and still photographers, editors, students and representatives of
businesses that serve the visual journalism industry. Since its founding in 1946,
the NPPA has vigorously promoted and defended the rights of photographers and
journalists, including intellectual property rights and freedom of the press in all its
forms, especially as it relates to visual journalism.
National Public Radio, Inc. (NPR) is an award-winning producer and
distributor of noncommercial news programming. A privately supported, not-forprofit membership organization, NPR serves a growing audience of more than 26
million listeners each week by providing news programming to 285 member
stations that are independently operated, noncommercial public radio stations. In
addition, NPR provides original online content and audio streaming of its news
programming. NPR.org offers hourly newscasts, special features and 10 years of
archived audio and information.
New York Media LLC owns the ground-breaking magazine New York,
which publishes news, investigative, feature and opinion articles on politics,
culture, business, education, society, film, literature, entertainment and a wide
range of subjects of public interest. It also owns and publishes the up-to-the9
Page: 18
minute news website nymag.com; the Grub Street food site; the entertainment and
culture news site Vulture; the fashion and lifestyle site The Cut; Science of Us, a
window into the latest science on human behavior; and New York Weddings and
New York Design Hunting magazines.
The New York Times Company is the publisher of The New York Times
and the International New York Times and operates various online publications
associated with the two papers.
Newspaper Association of America (NAA) is a nonprofit organization
representing the interests of more than 2,000 newspapers in the United States and
Canada. NAA members account for nearly 90% of the daily newspaper circulation
in the United States and a wide range of non-daily newspapers. The Association
focuses on the major issues that affect today’s newspaper industry, including
protecting the ability of the media to provide the public with news and information
on matters of public concern.
North Jersey Media Group Inc. is an independent, family-owned printing
and publishing company. Its flagship publication is The Record, which serves
Bergen, Passaic and Morris counties.
North Jersey Media Group Inc. also
publishes more than 40 community newspapers and NorthJersey.com, an online
news portal for breaking news, features, columns, and local information pertaining
10
Page: 19
to North Jersey.
The company also publishes several magazines and other
websites.
Penguin Random House LLC publishes adult and children’s fiction and
nonfiction in print and digital trade book form and employs more than 10,000
people globally across almost 250 editorially and creatively independent imprints
and publishing houses that collectively publish more than 15,000 new titles
annually. Its publishing lists include works by more than 70 Nobel Prize laureates
and hundreds of the world’s most widely read authors, including the 2014 Pulitzer
Prize-winner for general non-fiction, Toms River: A Story of Science and Salvation
by Dan Fagin.
The Reporters Committee for Freedom of the Press is a voluntary,
unincorporated association of reporters and editors that works to defend the First
Amendment rights and freedom of information interests of the news media. The
Reporters Committee has provided representation, guidance and research in First
Amendment and Freedom of Information Act litigation since 1970.
Time Inc. is the largest magazine publisher in the United States.
It
publishes over 90 titles, including Time, Fortune, Sports Illustrated, People,
Entertainment Weekly, InStyle and Real Simple. Time Inc. publications reach over
100 million adults, and its websites, which attract more visitors each month than
any other publisher, receive close to two billion page views each month.
11
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Tribune Publishing Company, LLC is one of the country’s leading
publishing companies. Tribune’s leading daily newspapers include the Chicago
Tribune, the Los Angeles Times, The Baltimore Sun, the Sun-Sentinel (South
Florida), the Orlando Sentinel, the Hartford Courant, The Morning Call, and the
Daily Press.
WP Company LLC (d/b/a The Washington Post) publishes one of the
nation’s
leading
daily
print
newspapers,
as
well
as
a
website,
www.washingtonpost.com, that reaches an audience of more than 20 million
unique visitors per month.
Appellant Kyle has consented to the filing of this brief; appellee Ventura has
declined his consent. Amici have therefore moved the Court for leave to file this
brief amici curiae.1
SUMMARY OF THE ARGUMENT
Defamation law has changed greatly in the past half-century as cases
commencing with New York Times Co. v. Sullivan, 376 U.S. 254 (1964) have
taken great care to assure that authors, publishers and speakers would receive a
high level of constitutional protection for their speech. Well before the Supreme
1
No party’s counsel authored this brief in whole or part. No party or its counsel
contributed money that was intended to fund preparing or submitting this brief. No
person—other than the amici curiae, their members or their counsel—contributed
money that was intended to fund preparing or submitting this brief.
12
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Court first addressed such issues, however, the law of libel had been clear that
while damages could be awarded to victims of libel, the awards would be limited
to the recovery of money for the injuries said to have been sustained by plaintiffs
and not for amounts claimed to have been received by defendants.
That proposition has rarely been questioned until this case. Indeed, we
know of only one case, decided more than 65 years ago, that is directly on point:
Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d
773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted
in constitutional concerns and the common law relating to libel, the Hart decision
holds that a claim for profits may not be asserted in the defamation context. We
are aware of no case before or after Hart to the contrary. The ruling below that
sustained a judgment awarding a libel plaintiff over $1.3 million in profits received
from the sale of a book appears to have been the first in American history ever to
have done so.
Libel texts that have examined alternative forms of relief for libel plaintiffs
have not even alluded to the possibility of recovering a defendant’s profits.
Neither have legal commentators and scholars. Nor does either the Restatement of
Torts or the Restatement of Restitution and Unjust Enrichment. The $1.3 million
award of profits entered here finds no foundation in the common law.
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It also cannot be reconciled with the First Amendment. As the Supreme
Court has often cautioned, a state’s interest in providing a remedy for defamation
coexists uncomfortably with the First Amendment’s goal of the assuring the widest
possible dissemination of speech on matters of public concern. In striking the
balance between those interests the Court has made clear that the harm suffered by
the plaintiff must be the focus of the inquiry. An award of profits has nothing to
do with the harm suffered by the plaintiff; it is punishment, plain and simple. And
given the lack of proportion between the offending passage and the book as a
whole, in this case it is clear that it includes punishment of wholly protected
speech.
Minnesota also views an award of profits as punitive in nature. By statute
Minnesota permits the trier of fact to consider a defendant’s profits in the punitive
damage context. But no punitive damage claim was submitted to the jury in this
case and none could have been because punitive damages are not permitted against
an estate. Yet under the guise of an unjust enrichment claim, they were effectively
and improperly awarded here.
For the reasons summarized above and addressed below, this Court should
vacate the award of profits.
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STATEMENT OF THE CASE
In his Complaint in this action, former Governor Ventura advanced three
claims. The first sought damages for defamation, a topic to which he devoted the
bulk of his Complaint. See APP-3/ECF-1, Ex. 1, at ¶¶ 17-44. The jury found for
Ventura on this claim and awarded damages in the amount of $500,000. See Aug.
7, 2014 Order at 5, ADD-5. In his second claim Ventura sought to recover for
commercial misappropriation of his “name and likeness.” See APP-3/ECF-1, Ex.
1, at ¶¶ 45-48. The jury found that Ventura had not proven that claim. See Aug. 7,
2014 Order at 5, ADD-5. The third claim, styled as one for unjust enrichment,
sought recovery of profits allegedly received by the defendant as a result of the
alleged defamation. As phrased in the Complaint, “[e]quity requires that Kyle
make restitution to Governor Ventura for all property and benefits unjustly
received, including but not limited to income from the sale of American Sniper
books and/or any subsidiary or ancillary rights sales.” APP-3/ECF-1, Ex. 1, at
¶ 51. The jury recommended an award of $1,345,477.25 on that claim and the
district court adopted the jury’s recommendation as its own. See Aug. 7, 2014
Order at 1, ADD-1. Ventura’s request for punitive damages was denied on the
ground that such damages are not recoverable against an estate. See Feb. 28, 2013
Order at 8, APP-84.
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This brief addresses the unjust enrichment claim and the award of more than
$1.3 million in alleged profits to Ventura.2
ARGUMENT
I.
THE COMMON LAW DOES NOT RECOGNIZE AND THE
CONSTITUTION DOES NOT PERMIT AN AWARD OF A
BOOK’S PROFITS AS A REMEDY FOR DEFAMATION
The notion that a court may award profits as damages for allegedly
defamatory conduct is all but unknown in American jurisprudence. The only
authority directly on point is the Hart case, which unconditionally rejected such an
effort based on First Amendment concerns. In Hart, plaintiff claimed that he and
others had been falsely accused of being traitors during World War II. Damages
sought were limited to profits allegedly made by the defendant arising from the
sale of the offending book. In the course of dismissing the complaint on statute of
limitation grounds, the court concluded that the claim was at its core nothing but
one for libel, a claim that by its nature did not permit a recovery of profits but one
that was focused on compensating plaintiff for the harm plaintiff suffered. The
court put it this way:
Libel has been [a] field of much litigation both in England and this
country and during the course of the years many judicial decisions
have been handed down in libel actions. It is significant that in none
of these cases has an action such as is brought by the plaintiff in this
2
While the amici find a number of aspects of the trial court judgment below deeply
troubling, in this brief we focus solely on the unjust enrichment claim.
16
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case been instituted. The plaintiff recognizes this fact and states:
“We are undertaking to prove additional facts never before pleaded in
a libel suit, namely, that the defendant had and received money by
virtue of his libellous publication.” The absence of attempts to bring
an action similar to the instant one is evidence of the recognition by
the legal profession and the courts that such an action would not lie
under the common law.
Hart, 93 N.Y.S.2d at 879.
The court then cited and relied upon Near v. Minnesota, 283 U.S. 697
(1931) for the proposition that “[t]he fact that for approximately one hundred and
fifty years there has been almost an entire absence [of prior restraints on the press]
is significant of the deep-seated conviction that such restraints would violate
constitutional right[s]” and thereupon concluded that the historic absence in libel
law of the recovery of profits by a libel plaintiff must similarly be precluded. Id.
As phrased by the court:
The State which guarantees the freedom [of speech] punishes its
abuse, and accords to the individual whose reputation has been
attacked, remedies for the injuries sustained. The remedies thus given
at common law, regulated in certain respects by statute, are called
actions of libel and slander, whose object is the recovery of money for
the injury. Seelman in Law of Libel and Slander, page 1. It is evident
that the right to recover based upon libel has been limited to the
recovery of damages under the common law and statutes applicable
thereto. It would seem, therefore, that the law is so well established
that an innovation such as the plaintiff seeks in this action would
impose new and unnecessary hazards upon publishers and would be
contrary to the policy of our law.
Id. at 880 (emphasis in original). In the 65 years since the ruling in Hart, we are
not aware of a single defamation case until this one that has sustained such a
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recovery. 3 As was the case in Near, such a history may only be read to reflect a
consensus that such “new and unnecessary hazards upon publishers” may not be
constitutionally countenanced since the prospect of adverse defamation rulings
leading to massive awards in unpredictable but potentially staggering amounts can
only lead publishers, movie-makers and the like to avoid the release of works
about important but controversial subjects, especially those involving public
figures or entities known to be litigious.
In his 1993 treatise, Law of Remedies: Damages – Equity – Restitution (2d
ed.), Professor Dan Dobbs addressed the issue of whether profits from a
defamatory work could be awarded as a remedy for defamation. Citing Hart, he
observed that “[t]he very limited authority on point has denied [such a]
restitutionary claim altogether.” Id. § 7.2(13). He concluded that there were two
reasons for rejecting such a remedy, both grounded in the First Amendment:
One reason to deny the restitution claim is the threat it presents to free
speech. Another is the difficulty of apportioning the publisher’s profit
between his own effort and investment and the defamatory material.
The difficulty of making an apportionment is itself an added threat to
free speech rights, because an unapportioned recovery of profits from
3
Five years before the decision in Hart, the Supreme Court of Florida, sitting en
banc, had similarly affirmed the sustaining of a demurrer to a privacy claim that
had sought profits from an offending book. Cason v. Baskin, 155 Fla. 198 (1944).
Both cases—Hart and Cason—are cited with approval and relied upon in the
Restatement (Third) of Restitution and Unjust Enrichment § 44 cmt. d, illus. 14 &
reporter’s note d (2011).
18
Page: 27
a libel would very likely capture profits from socially desirable speech
as well.
Id. The same is true in this case.
A review of the leading treatises and law review articles on libel remedies
reveals an identical consensus on the proposition that, as an older libel text put it,
“[t]he remedies . . . given at common law . . . are called actions of libel and
slander, whose object is the recovery of money for the injury.” Ernst P. Seelman,
The Law of Libel and Slander in the State of New York, at 1 (rev. ed. 1964). More
recent scholars have considered alternatives and additions to money damages, but
none appear even to have raised the possibility of awarding defendant’s profits as
one of them. See Robert D. Sack, Sack on Defamation § 10, “Damages and Other
Remedies” (4th ed.) (discussing injunctions, compulsory retraction, and
declaratory judgment as other approaches to defamation remedies, but making no
mention of the availability of profits or unjust enrichment); Bruce W. Sanford,
Libel and Privacy § 9, “The Damage Assessment” (2d ed.) (making no mention of
the availability of profits or unjust enrichment); Rodney A. Smolla, Law of
Defamation § 9, “Damages and Other Remedies” (2d ed. 2014) (discussing
equitable remedies available for defamation—injunctions, right of reply,
compulsory retraction, and declaratory judgments—but making no mention of the
availability of profits or unjust enrichment); see also Roscoe Pound, Equitable
Relief Against Defamation and Injuries to Personality, 29 Harv. L. Rev. 640
19
Page: 28
(1916) (discussing the legal remedies available for defamation without mention of
the availability of profits or unjust enrichment); James H. Hulme, Vindicating
Reputation: An Alternative to Damages as a Remedy for Defamation, 30 Am. U.
L. Rev. 375 (1981) (assessing nondamage remedies available for defamation
without mention of the availability of profits or unjust enrichment); Restatement
(Second) of Torts § 623, “Special Note on Remedies for Defamation Other Than
Damages” (1977) (concluding that damages, as the traditional remedy for libel and
slander, has inadequacies and recommending consideration of four alternatives—
declaratory relief, retraction, injunctive relief, and self-help—but making no
suggestion of the availability of profits or unjust enrichment).
The paucity of authorities even considering an award of profits in the
defamation context is undoubtedly informed by serious constitutional concerns, as
was the court’s opinion in Hart itself. And for good reason. The Supreme Court
has made clear time and again that the touchstone for balancing the tension
between protecting robust expression on matters of public concern and providing
remedies for those who may be defamed is the requirement that libel plaintiffs be
compensated for the harm that they personally suffered. Gertz v. Robert Welch,
Inc., 418 U.S. 323, 349-50 (1974). This is even more important where the plaintiff
is as public a figure as former Governor Ventura admittedly is. Unlike private
plaintiffs as to whom the Court has shown particular solicitude, id. at 343-45,
20
Page: 29
public officials and public figures have far greater means of communicating their
points of view to the public.
Public officials and public figures usually enjoy significantly greater
access to the channels of effective communication and hence have a
more realistic opportunity to counteract false statements than private
individuals enjoy.
Id. at 344. And unlike private plaintiffs, “public officials and public figures have
voluntarily exposed themselves to increased risk of injury from defamatory
falsehoods concerning them.” Id. at 345.
As Professor Dobbs noted in discussing the Hart case (see supra), an award
of profits in the defamation context also offends the First Amendment because of
the real likelihood, dramatically illustrated by this case, that the task of
apportioning profits allegedly attributable to the defamation will permit juries “to
punish unpopular opinion rather than to compensate individuals for injury
sustained by the publication of a false fact.” See Gertz, 418 U.S. at 349 (discussing
the dangers inherent in an award of presumed damages). More dangerous still is
the likelihood that juries will punish speech that is wholly protected by the First
Amendment and entitled to its most vigorous protection. The passage at issue in
American Sniper ran no more than a page and a half in a 379-page autobiography.
See APP-55-57. Yet the jury recommended an award of more than $1.3 million in
supposed profits, a figure the district judge estimated to be 25% of what was
received by the estate. See Aug. 7, 2014 Order at 4, ADD-4. Such an arbitrary
21
Page: 30
award may not be sustained under the Constitution just as it cannot be
countenanced under the common law. 4
The district judge dismissed the estate’s argument that a book’s profits were
not recoverable in this case with little analysis, citing Gertz.5 Its rationale appears
to have been that because Gertz permitted an award of punitive damages in
defamation suits brought by private figure plaintiffs when actual malice is proven,
an award of profits here is no more threatening under the First Amendment. See
Nov. 26, 2014 Order at 14, ADD-21. This reasoning ignores that Ventura is by his
own admission a very public figure. The issue of whether public figures can obtain
4
In Ruzicka v. Conde Nast Publications, Inc., 733 F. Supp. 1289 (D. Minn. 1990),
plaintiff asserted a claim for unjust enrichment seeking profits from the publication
of a news article that she claimed had invaded her privacy. The district court
dismissed the claim, holding that “[i]n cases involving allegations of wrongful
publication, a publisher is not held to have received a benefit merely because it
referred to plaintiff in a magazine that was published for profit. In such cases,
unjust enrichment requires proof of a deliberate association with the defendant’s
products in an advertising or promotional scheme.” Id. at 1301. This Court
affirmed, saying: “We agree with the district court that [Plaintiff] has not
established the elements of unjust enrichment under Minnesota law.” Ruzicka, 939
F.2d 578, 583 n.8 (8th Cir. 1991). There is no constitutional barrier to an award of
profits in commercial misappropriation cases because such speech receives
significantly less protection under the First Amendment. See Ohralik v. Ohio State
Bar Ass’n, 436 U.S. 447, 456 (1978). Of course in this case the jury specifically
rejected the commercial misappropriation claim. See Aug. 7, 2014 Order at 5,
ADD-5.
5
The court also cited to United States v. Alvarez, __ U.S. __, 132 S. Ct. 2537
(2012) for the unexceptionable proposition that the government may prohibit
fraudulent speech without running afoul of the First Amendment. Nov. 26, 2014
Memorandum Opinion and Order at 13-14, ADD-20-21.
22
Page: 31
punitive damages in defamation cases on a showing of actual malice alone without
violating the First Amendment is an open one that has yet to be addressed by the
Supreme Court or this Circuit. Many legal scholars have opined that punitive
damages may never be recoverable by a public figure consistent with the First
Amendment. As a leading text on constitutional law observes,
The Court has not explicitly ruled that a public official or public
figure cannot collect punitive damages, but a contrary conclusion is
troubling. The Court has condemned the inhibiting effect of damage
awards in excess of any actual injury, so one should expect it to hold
that any punitive damage awards for libels against public officials or
public persons interfere with the “breathing space” required in the
exercise of robust First Amendment debate.
Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance
and Procedure § 20.33(e)(i), “Punitive Damages” (5th ed. 2013); see also Charles
Rothfeld, The Surprising Case Against Punitive Damages in Libel Suits Against
Public Figures, 19 Yale L. & Pol’y Rev. 165 (2000). Other commentators have
posited that public figures must prove a heightened standard of intent at the very
least, such as common law malice, ill will or willful intent to injure, before an
award of punitive damages can survive constitutional scrutiny. See Note, Punitive
Damages and Libel Law, 98 Harv. L. Rev. 847 (1985); Note, The Constitutionality
of Punitive Damages in Libel Actions, 45 Fordham L. Rev. 1382 (1977). Some
states preclude an award of punitive damages to public figures on the ground that
punitive damage awards would violate the free speech provisions of their own
23
Page: 32
constitutions. See, e.g., Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979)
(punitive damages in defamation actions barred under the Oregon constitution).
Other states have precluded or severely limited them by statute. See, e.g., Mass.
Ann. Laws c. 231, § 93 (precluding the allowance of punitive damages in libel
actions). And still others, including Minnesota (see Pt. II, infra), have simply
adopted standards more stringent than the actual malice standard for determining
whether punitive damages may be entertained. See Sack, supra, § 10.3.5. It is
therefore hardly enough to say, as the district court did, that because private figure
plaintiffs can recover punitive damages on a showing of actual malice that public
figure plaintiffs may be awarded a portion of a book’s profits without running
afoul of the First Amendment.
Whether viewed through the prism of the common law or analyzed on
constitutional grounds, the $1.3 million award of profits cannot be sustained.
II.
THE AWARD OF PROFITS FROM AMERICAN SNIPER IS
TANTAMOUNT TO AN AWARD OF PUNITIVE DAMAGES,
DAMAGES THAT ARE NOT PERMITTED AGAINST THE
ESTATE
Consistent with its sister courts across the country, no Minnesota court of
which we are aware had ever permitted an award of profits in a defamation case,
under the guise of an unjust enrichment claim or otherwise, before the trial court
did here. Even assuming, arguendo, that such relief could ever be awarded in a
24
Page: 33
defamation case, it is tantamount to an award of punitive damages under
Minnesota law, damages that are not permitted against an estate.
Minn. Stat. § 549.20 sets forth the standards applicable to an award of
punitive damages in Minnesota. Punitive damages may be awarded in a civil case
“only upon clear and convincing evidence that the acts of the defendant show
deliberate disregard for the rights or safety of others,” a standard even more
stringent than the actual malice standard. See Minn. Stat. § 549.20; Minnesota
Jury Instructions Guides – Civil § 50.65, “Punitive Damages—Defamation” (6th
ed.). The factors to be considered in making such an award are specifically
delineated in Section 549.20:
Factors. Any award of punitive damages shall be measured by those
factors which justly bear upon the purpose of punitive damages,
including the seriousness of hazard to the public arising from the
defendant’s misconduct, the profitability of the misconduct to the
defendant, the duration of the misconduct and any concealment of it,
the degree of the defendant’s awareness of the hazard and of its
excessiveness, the attitude and conduct of the defendant upon
discovery of the misconduct, the number and level of employees
involved in causing or concealing the misconduct, the financial
condition of the defendant, and the total effect of other punishment
likely to be imposed upon the defendant as a result of the misconduct,
including compensatory and punitive damage awards to the plaintiff
and other similarly situated persons, and the severity of any criminal
penalty to which the defendant may be subject.
Minn. Stat. § 549.20(3) (emphasis added).
By permitting juries to evaluate “the profitability of the misconduct to the
defendant” in assessing whether punitive damages should be awarded in a
25
Page: 34
particular case, the Minnesota legislature has made a considered judgment that
only in the most egregious cases, with a concomitantly higher burden of proof,
should profits from alleged misconduct be assessed as a means of punishing the
defendant, even in cases where sensitive issues of free expression are absent. In
this case, of course, Ventura’s motion to amend his complaint to assert a claim for
punitive damages was denied by the district court on the ground that punitive
damages are not available in an action against an estate because they serve no
deterrent or punitive purpose. See Feb. 28, 2013 Order at 8, APP-84 (citing
Thompson v. Petroff’s Estate, 319 N.W.2d 400, 408 (Minn. 1982)). Where, as
here, there was no showing of evil intent sufficient to satisfy Section 549.20,
where, as here, an award of profits can serve no deterrent or punitive purpose, and
where, as here, the First Amendment’s abhorrence of exorbitant damage awards
untethered to a plaintiff’s true injury is clearly in play, this Court should not be the
first to sanction an unprecedented award of a book’s profits.
CONCLUSION
For the reasons set forth above, this Court should vacate the District Court’s
judgment awarding Ventura $1,345,477.25 in profits from the sale of American
Sniper.
26
Page: 35
CAHILL GORDON & REINDEL LLP
By:
/s/ Floyd Abrams
Floyd Abrams
Susan Buckley
Merriam Mikhail
80 Pine Street
New York, New York 10005
(212) 701-3000
Attorneys for Amici Curiae
27
Page: 36
.
ADDITIONAL COUNSEL FOR AMICI CURIAE
ALLISON LUCAS
BUZZFEED, INC.
200 Fifth Avenue, 8th Floor
New York, NY 10010
Counsel for Buzzfeed, Inc.
DARCI J. BAILEY
A&E TELEVISION NETWORKS, LLC
235 East 45th Street
New York, NY 10017
Counsel for A&E Television Networks,
LLC
JUDY ALEXANDER
THE LAW OFFICE OF JUDY ALEXANDER
2302 Bobcat Trail
Soquel, CA 95073
Counsel for the Center for Investigative
Reporting, Inc.
RICHARD A. BERNSTEIN
SABIN, BERMANT & GOULD LLP
One World Trade Center, 44th Floor
New York, NY 10007-2915
Counsel for Advance Publications, Inc.
KEVIN M. GOLDBERG
FLETCHER, HEALD & HILDRETH
1300 N. 17th Street, Suite 1100
Arlington, VA 22209
Counsel for the American Society of
News Editors and the Association of
Alternative Newsmedia
LANCE LOVELL
COX MEDIA GROUP, INC.
6205 Peachtree Dunwoody Road
Atlanta, GA 30328
Counsel for Cox Media Group, Inc.
DAVID M. GILES
THE E.W. SCRIPPS COMPANY
312 Walnut St., Suite 2800
Cincinnati, OH 45202
Counsel for The E.W. Scripps Company
JONATHAN BLOOM
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Counsel for The Association of
American Publishers, Inc.
PETER SCHEER
FIRST AMENDMENT COALITION
534 4th St. #B
San Rafael, CA 94901
Counsel for the First Amendment
Coalition
JAN CONSTANTINE
AUTHORS GUILD, INC.
31 East 32nd Street, 7th Floor
New York, NY 10016
Counsel for The Authors Guild, Inc.
JESSICA BOHRER
FORBES MEDIA LLC
499 Washington Blvd.
Jersey City, NJ 07310
Counsel for Forbes Media, LLC
28
Page: 37
MARK R. ANFINSON
Lake Calhoun Professional Building
3109 Hennepin Avenue South
Minneapolis, MN 55408
Counsel for Minnesota Newspaper
Association
BARBARA W. WALL
GANNETT CO., INC.
7950 Jones Branch Drive
McLean, VA 22107
Counsel for Gannett Co., Inc.
HEATHER L. DIETRICK
GAWKER MEDIA LLC
210 Elizabeth Street
New York, NY 10012
Counsel for Gawker Media LLC
BEN SHEFFNER
MOTION PICTURE ASSOCIATION OF
AMERICA, INC.
15301 Ventura Blvd., Bldg. E
Sherman Oaks, CA 91403
Counsel for Motion Picture Association
of America, Inc.
CAROL FEIN ROSS
HACHETTE BOOK GROUP, INC.
1290 Ave. of the Americas,
New York, NY 10104
Counsel for Hachette Book Group, Inc.
JIM CREGAN
MPA – THE ASSOCIATION OF
MAGAZINE MEDIA
1211 Connecticut Ave. NW, Suite 610
Washington, DC 20036
Counsel for MPA – The Association of
Magazine Media
JONATHAN DONNELLAN
HEARST CORPORATION
300 West 57th Street, 40th Floor
New York, NY 10019
Counsel for Hearst Corporation
RICK KAPLAN
JERIANNE TIMMERMAN
NATIONAL ASSOCIATION OF
BROADCASTERS
1771 N Street NW
Counsel for National Association of
Broadcasters
GUY R. FRIDDELL III
LANDMARK MEDIA ENTERPRISES, LLC
150 Granby Street
Norfolk, VA 23510
Counsel for Landmark Media
Enterprises, LLC
GEORGE FREEMAN
MEDIA LAW RESOURCE CENTER
520 8th Avenue, 20th Fl.
New York, NY 10018
Counsel for Media Law Resource
Center
MICKEY H. OSTERREICHER
NATIONAL PRESS PHOTOGRAPHERS
ASSOCIATION
1100 M&T Center, 3 Fountain Plaza
Buffalo, NY 14203
Counsel for National Press
Photographers Association
29
Page: 38
JONATHAN HART
ASHLEY MESSENGER
NATIONAL PUBLIC RADIO, INC.
1111 North Capitol Street, NE
Counsel for National Public Radio, Inc.
KATHERINE J. TRAGER
PENGUIN RANDOM HOUSE
1745 Broadway, 14th Floor
New York, NY 10019
Counsel for Penguin Random House
LLC
DAVID S. KORZENIK
MILLER KORZENIK SOMMERS LLP
488 Madison Avenue
New York, NY 10022
Counsel for New York Media, LLC
BRUCE D. BROWN
GREGG P. LESLIE
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1250
Washington, D.C. 20005
Counsel for The Reporters Committee
for Freedom of the Press
DAVID E. MCCRAW
THE NEW YORK TIMES COMPANY
620 Eighth Avenue
New York, NY 10018
Counsel for The New York Times
Company
ANDREW LACHOW
TIME INC.
1271 Avenue of the Americas
New York, NY 10020
Counsel for Time Inc.
KURT A. WIMMER
COVINGTON & BURLING LLP
850 10th Street, NW
Counsel for Newspaper Association of
America
KAREN H. FLAX
TRIBUNE PUBLISHING COMPANY, LLC
435 North Michigan Avenue
Chicago, IL 60611
Counsel for Tribune Publishing
Company, LLC
JENNIFER A. BORG
NORTH JERSEY MEDIA GROUP INC.
1 Garret Mountain Plaza
Woodland Park, NJ 07424
Counsel for North Jersey Media
Group Inc.
JAMES A. MCLAUGHLIN
THE WASHINGTON POST
1150 15th St., NW
Counsel for WP Company LLC (d/b/a
The Washington Post)
30
Page: 39
CERTIFICATE OF SERVICE AND FILING
I hereby certify that on March 10, 2015, I electronically filed the foregoing
documents described as the Motion for Leave To File Brief Amici Curiae of 33
Media Companies and Organizations in Support of Appellant Urging Reversal, and
[Proposed] Brief Amici Curiae of 33 Media Companies and Organizations in
Support of Appellant Urging Reversal with the Clerk of Court for the United States
Court of Appeals for the Eighth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
/s/ Floyd Abrams
Page: 40
CERTIFICATE OF COMPLIANCE WITH
FED. R. APP. P. 32(a)(7)(B)
1.
This Brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B) because it contains 6,779 words, exclusive of the matters exempted
by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This Brief also complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirement of Fed. R. App. P. 32(a)(6) because
it has been prepared in a proportional spaced typeface using MS Word 2010 in 14
point Times New Roman font.
/s/ Floyd Abrams
Page: 41
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
VOICE (314) 244-2400
FAX (314) 244-2780
www.ca8.uscourts.gov
Michael E. Gans
Clerk of Court
March 18, 2015
Mr. Floyd Abrams
CAHILL & GORDON
80 Pine Street
New York, NY 10005-0000
RE: 14-3876 Jesse Ventura v. Taya Kyle
Dear Counsel:
The amicus curiae brief of 33 Media Companies and Organizations was filed on March
18, 2015. If you have not already done so, please complete and file an Appearance form. You
can access the Appearance Form at www.ca8.uscourts.gov/all-forms.
Please note that Federal Rule of Appellate Procedure 29(g) provides that an amicus may
only present oral argument by leave of court. If you wish to present oral argument, you need to
submit a motion. Please note that if permission to present oral argument is granted, the court's
usual practice is that the time granted to the amicus will be deducted from the time allotted to the
party the amicus supports. You may wish to discuss this with the other attorneys before you
submit your motion.
Michael E. Gans
Clerk of Court
AMT
Enclosure(s)
cc:
Mr. Court J. Anderson
Mr. John Norbert Bisanz Jr.
Mr. John Philip Borger
Susan Buckley
David Andrew Christenson
Mr. Benjamin J. Hamborg
Ms. Erin Elizabeth Mersino
Mr. Paul Mathew Mersino
Merriam Mikhail
Mr. Leonard M. Niehoff
Mr. David Bradley Olsen
Mr. Richard Thompson
Page: 1
Ms. Mary A. Walker
Mr. Charles F. Webber
District Court/Agency Case Number(s): 0:12-cv-00472-RHK
Page: 2

CLE Materials - University of Kansas School of Law

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