Dan Snyder is reportedly planning a defamation action against Washington’s City Paper for a scathing story about his controversial time as owner of the Washington Redskins. The case could prove an interesting battle over first amendment rights and defamation law.

Synder is irate about an article written by one of his long-term critics: staff writer Dave McKenna. Synder’s aides has contacted Creative Loafing Inc, which owns the alternative newspaper, and has demanded that McKenna be fired.

Redskins chief operating officer David Donovan made the defamation claim based on the content of the article entitled “The Cranky Redskins Fan’s Guide to Dan Snyder.” The article is linked below and details a long series of gripes with Synder from allegedly selling second-hand peanuts to cutting down trees protected by federal law to improve his view from his mansion. Environmentalists still despise Synder for cutting down the trees — viewed as a premeditated act where Synder simply paid the fine to give him a view of the river.

The case would be interesting since there is a long list of such grievances –each of which might be challenged. However, Synder is a public figure subject to the active malice standard. He would have to show that the newspaper published a false story with either actual knowledge of its falsity or reckless disregard of the truth. That is a tough standard, particularly when some of the article is clearly opinion.

Some of the items are simple demonstrable facts such as “8-3: Record Marty Schottenheimer posted in the last 11 games of the 2001 season, his first as head coach of the Washington Redskins. Snyder fired him anyway.”

Some are straight reporting that you would find in any newspaper where sources are quoted to reinforce the text:

Bankrupt Airline Peanuts: What Snyder was selling to fans at FedExField. During the 2006 season, vendors offered shelled nuts in royal blue and white 5 oz. bags adorned with the Independence Air logo. Problem: The airline had gone under about a year earlier. The supplier told Washington City Paper that it stopped shipping the airline’s nuts “before Independence Air went out of business.” A spokesman for the Peanut Council told City Paper that to prevent rancidity, the recommended shelf life of a foil bag of out-of-shell peanuts was “about three months.”

Others could be viewed as a mix of fact and opinion:

$25: Price Snyder charged for a special group of standing-room-only tickets at FedExField in 2008. The cheap tickets were linked to the high-priced suites; lobbying watchdogs said Snyder was merely attempting to skirt congressional gift limits. Damning evidence: A team brochure for instructing ticket sales personnel to explain lobbying loopholes to suite customers. Snyder denied the charge. SRO tickets now sell for $152.50, with no mention of lobbying in the sales pitch.

Gates, Bill: Formerly world’s richest man. But he’s not as rich as he would be had he not done business with Snyder. One of Six Flags’ biggest stockholders, Gates had 10,210,600 shares worth about $122 million in early 2006, when Snyder began putting his marketing team in place. They were worth $0—zilch, zip, nada—by the time Snyder was tossed off the board last year. “Bill Gates gives away more money than anybody, and his main cause is malaria,” said a representative of Resilient Capital Management, a hedge fund and Six Flags investor, which sued to have Snyder removed from the company for fiduciary irresponsibility. “That was money that could have gone to save kids from malaria.”

A lawsuit might be viewed as a transparent effort to bleed the small newspaper financially with an expensive defamation action. I am not sure whether Synder would be helped or hurt by a local jury of Redskins fans who are pretty sore about poor record of the team and have never been overjoyed with Synder.
The article includes a photo of Synder that has been obviously doctored to add horns and facial hair. That picture is hardly the stuff for a false light charge and would be used to reinforce the opinion aspect of the piece.

Some of the content of the article is clearly factual, but other parts are clearly hyperbolic and opinion. That could raise the type of issue that was address in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece that stated in part:

[t]he proposal to name Bertell Ollman, Professor at New York University, as department head has generated wrong-headed debate. Politicians who jumped in to oppose Ollman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prince Valiants seem arrayed against McCarythite [sic] know-nothings . . . But neither side approaches the crucial question: not Ollman’s beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls ‘the revolution.’ Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing.”

The column goes on to take apart Ollman’s past writings, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.'”

Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

Ironically, football seems to generate libel actions. The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:

[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

Synder would clearly be a public figure and would have to navigate around barriers presented by the actual malice standard and the exception for opinion under defamation law. While the newspaper would be facing significant litigation costs, he would be facing significant risks during discovery where he would have to address each of these allegations in deposition. Truth is a defense to defamation and that means that the scope of discovery in this case would be exceptionally broad.

Here is the Washington City Paper article.

Source: Washington Post