There is a bizarre political controversy out of Colorado that may raise some interesting defamation and criminal law questions. Both the Colorado GOP and Rep. Lauren Boebert (R-CO) are calling for Democrat Adam Frisch to withdraw from the race. The basis for the demand is a Breitbart story detailing the claim of a local businessman that he successfully blackmailed Frisch to change his vote on a key bill in order to avoid the disclosure of a sexual affair. Local media has reported a denial from Frisch. If untrue, this businessman could face a major defamation action, but Frisch has not indicated whether he will contest the allegation in court.
This week the conservative site reported that Aspen businessman Todd Gardner claimed that Frisch used a storage unit facility to conduct an affair. Gardner was the owner of the High Mountain Taxi company and rented out two floors of storage units. (He now lives in California).
He reportedly claimed that, after learning of the alleged affair, he blackmailed or pressured Frisch into changing his position on the Aspen City Council to help his business. (Frisch was a member of the Aspen City Council from 2011 to 2019.).
Breitbart claims that Gardner provided emails and surveillance footage of Frisch arriving at the facility on the morning of May 8, 2017, to back up his claim.
What was so striking about this story is that the owner would seem to be incriminating himself in a potentially criminal act, if true. Here is the criminal extortion statute:
18-3-207. Criminal extortion – aggravated extortion
Universal Citation: CO Rev Stat § 18-3-207 (2016)
(1) A person commits criminal extortion if:
(a) The person, without legal authority and with the intent to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person; and
(b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by:
(I) Performing or causing an unlawful act to be performed; or
(II) Invoking action by a third party, including but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat.
Yet, CRS 16-5-401 would seem to set a three-year statute of limitations for extortion cases. (Perhaps our Colorado lawyers can correct me if I am reading this wrong). If it occurred in 2017, the statute of limitations ran by 2020.
However, Gardner could still be sued for defamation since this factual claim was renewed with the Breitbart story. If untrue, the story is alleging per se categories of defamation including moral turpitude (Frisch is married with two teenage children) as well as unethical or possibly criminal conduct.
On his side, Gardner can always claim “truth as a defense” if, as reported, he has proof to support the claim. Moreover, Frisch is clearly a public figure for the purposes of defamation.
In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public figures to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.
The standard was later extended to public figures. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
Frisch would need to show that Gardner and Breitbart knowingly published a false claim or did so with a reckless disregard of the truth. That should be easily done if this story is untrue. The claim is quite specific and alarming: an express quid pro quo arrangement that Gardner would bury the evidence of the affair and Frisch would vote as demanded on the legislation.
Moreover, in the story, Gardner refers to his general manager who he said witnessed the sexual liaison through a slightly opened storage unit door. Again, that can be easily confirmed or refuted in discovery. He also says that the woman involved is a well-known figure in the community (though he has declined to name her).
It is extremely rare to have this degree of specificity in such a claim and it would make this case comparably easy to address in a defamation action.
It will be interesting if Frisch files a defamation case against either Gardner or Breitbart or both. The first step would often be a demand for retraction from Breitbart under a state retraction statute. However, Colorado does not have such a statute.
This is still early in the controversy so Frisch’s counsel may still announce the intention to file such an action.
In the meantime, some of these facts (like the business manager’s account) should be verifiable by the media. If Gardner is telling the truth, Frisch traded a vote for personal benefit. If Frisch is telling the truth, a media site and GOP figures (including his opponent) are pandering a maliciously false story. Someone is lying and I would think that the Colorado media would want to find out.
Of course most of the media doesn’t want to find out the truth. Their mission is to craft public opinion in order to serve the Democrat Party. Truth has nothing to do with it.
Our learned Professor miscued on one statement…..re the Colorado Media wanting to get this story sorted out…..he forgets it is a Democrat that is accused of the more serious crime and we all know the Media runs like scalded dogs from any story that might put a Democrat in a bad light.
I would suggest a criminal investigation be undertaken by the FBI’s Corrupt Public Official Unit…..oh sorry…..they are more gun shy of such investigations of Democrats than the Media.
I think I will wait until an expert like Jeffrey Toobin has watched the tapes on Zoom.
Somewhere in this there must be room for a lack of ‘clean hands’ legal argument.
Lobbying. The second cousin by marriage to blackmail and extortion.
Did this guy literally get caught with his pants down and then voted in a manner to protect himself? Remains to be seen. But he’ll be in good company on both sides of the aisle.
Would be interested in reading a Turley piece discussing a recent Wall Street Journal article. The number of political appointees investing in companies to be affected by pending policy decisions wasn’t surprising, but is still disappointing.
As to whether Prof. Turley should be writing about the Jan 6 morass, a writer has an absolute right to pick his own subject. You might as well criticize him for not writing about the systemic racism of the heteronormative patriarchy, or the oppression of the proletariate, or whatever hobby horse you’re riding.
Jonathan: There are an endless number of defamation suits filed every day in courts around the country. The subject may appeal to your law students–but for the rest of us out here–not so much. Really? Two columns on “defamation” in the same week?
I mention this because some really important news broke this week. First, Trump lost his emergency appeal to the Supreme Court over the Mar-a-Lago documents. Then on Thursday the Jan. 6 panel laid out a devastating case that Trump actually planned the insurrection even before the election. Then the panel authorized a subpoena to compel Trump to appear, bring relevant docs and testify. I know a lot of us on this blog would like your take on the legal ramifications and what legal strategies Trump might advance to resist the subpoena. Then yesterday the DOJ went back to the 11thCircuit to shut down the work of the Special Master, Judge Dearie. A lot of legal experts think the 11th Circuit will do just that. What is your take?
Finally, NARA and the DOJ think Trump is holding onto other important docs not recovered from Mar-a-Lago. There is probable cause to believe Trump has stashed highly sensitive government material at Trump Tower and at his Bedminster golf resort. If the FBI asks will Judge Reinhardt authorize search warrants for those locations?
There are so many legal issues re the above that invite your analysis–but so far you have been silent. Your silence has invited a lot of unwarranted speculation and nonsense in this blog by some of the MAGA and your loyal supporters. So, please, enough of the “defamation” cases. Please address the above issues and help some of us who are trying to restore some sense of sanity on this blog!
“I mention this because some really important news broke this week. First, Trump lost his emergency appeal to the Supreme Court over the Mar-a-Lago documents.”
Dennis, if you consider that important, you are not following the news, nor do you understand the legal dance. I and others mentioned this was of little importance, merely a dance by lawyers that Trump and his lawyers knew they would lose. I guess your understanding of such affairs is severely limited.
“Thursday the Jan. 6 panel laid out a devastating case that Trump actually planned the insurrection”
1) You demonstrate that you do not know what an insurrection is.
2) You prove that propaganda works. We can see how you suck it all in.
3) Trump didn’t want an insurrection. He authorized the National Guard.
4) The question is did Pelosi want an incident created? The National Guard was refused, and Pelosi was at the top of the chain for that decision.
I hope the J6 commission permits Trump to testify live and gives him plenty of time to do so. I don’t think that is something they want. The committee has lied about too many things. All they care about is getting Trump when they should be getting Pelosi and a bunch of others in her party.
Thank goodness Turley recognizes your ideas to be airheaded and doesn’t listen. Pro Tip: When you wish to advise experts, first know what you are talking about.
And, of course, Real President Donald J. Trump cannot lose “…his emergency appeal to the Supreme Court over the Mar-a-Lago documents…” because classification of materials is solely the function of the executive branch, which is the only branch or entity that has the power to classify, declassify, claim or exercise dominion over, and archive materials. The legislative and judicial branches cannot act to “legislate” and/or otherwise usurp the power of the executive branch. No judge or legislator has any power to claim or exercise dominion over classified material.
House GOP probing whether National Archives conspired with Democrats in Trump records dispute
Reps. James Comer and Jim Jordan say they have suspicions there was collusion between NARA and congressional Democrats.
Two powerful House Republicans demanded Friday that the National Archives and Records Administration disclose whether the history-preserving agency collaborated with Democrats to encourage an FBI investigation into Donald Trump’s presidential records.
By John Solomon
https://justthenews.com/government/congress/house-gop-opens-probe-whether-national-archives-conspired-democrats-trump?utm_source=daily&utm_medium=email&utm_campaign=newsletter
They conspired. They are conspirators. They are the direct and mortal enemies of America, the Constitution and Americans.
The Constitution IS conservative.
Liberals are the direct and mortal enemies of the Constitution, America and Americans.
The entire communist America welfare state was constructed by enemy liberals and is wholly unconstitutional.
Liberal – one who prizes individual liberty.
Please do not call these bozo’s on the left liberals.
These are not liberal in any sense of the world.
Progressive, post modern. marxist, radical left. fascist, moron,
these and many other terms are appropriate.
But liberal they are not.
The people who fought to alloww Nazi’s to march through Skokie were liberals.
The people who cancel you for not pretending you do not know what a woman is are not liberal.
There is so much to investigate come January.
The good news is it is likely the GOP will be investigating from both the house and Senate,
and there is really little else of consequence that is going to get done – hopefully.
I read a Volohk review of the appeal who said it was excellent and that as written would win.
But that there was an issue because the appeal was not entirely interlocutory and that therefore SCOTUS was not going to step in.
There is also an issue because there is really no harm to the 11th cir ct of appeals decision – though it is wrong.
DOJ was going to get everything marked classified – whether they should or not. Serious challenges to the classification status, as well as to whether Trump has any possessory interest in those will occur at a trial if there is one.
I think SCOTUS should have stepped in. the 11th cir ct. appl. was out of line.
But SCOTUS is not obligated to take any appeals – even if there is a grievous error to be remedied.
Given the lack of real harm my bet was exactly what occured – SCOTUS could not get 4 votes to hear the appeal.
Dennis thinks SCOTUS decided the issue and concluded Trump was wrong. That is false. They merely decided they had no interest in intervening.
I think SCOTUS needs to do alot more to discipline lower courts. But this case is not the best one to do that.
No one has laid out a case that ANYONE planned an insurrection – or violence of any form
Everytime I am told that there is some great revelation it requires you to read into it far more than what is said, often things that are clearly rejected.
Those on the left are incapable of not seeing in what facts their are confirmation of their personal biases.
I think Biden just blundered colossally with the Saudis, and if democrats in congress are stupid enough they will amplify that blunder.
I would note that getting the Saudi’s to keep up production is a very MAGA propostion – that the US should act in the self interest of americans.
It appears the Saudis may have good reasons to cut production – but not reasons that are good for the US.
Regardless, they Saudis are an ally that we do not want to piss off. Further they are an ally that we WANT to have this military aide.
So Biden has threatened them to get something they were not going to give him – making him and the country look weak, and making good on the threat would be a bad idea for The US and the Saudi’s.
And all this has Biden actually doing (again) what Trump was impeached for but did not do.
And now we have democrats in congress trying to figure out what to do. Do they give Biden cover – which arguably makes the whole party complicit in political corruption, despite the fact that it was a stupid idea to threaten to do something you do not really want to do,
I am not a huge fan of the Saudi’s but it is in the US interest to sell them weapons.
Biden and the left do not understand policy. They have individual desires many based on ideology and politics rather than common sense. Those points conflict with one another.
Biden never considered the fact that the Saudis and Iranians are enemies and Biden is trying hard to resurrect the Iran agreement. That agreement is a great danger to Saudi Arabia and to the rest of the world. Did Biden ever ask himself what he could trade for his political request from the Saudis? Did Biden ever think what his gas policies would do?
Democrats and lefties rarely think longer term than the next talking point or the next election. They only know how to destroy. They do not know how to build.
Has Tulsi Gabbard learned her lesson? She will have to prove herself. The way for her to do that is go back into Congress if she can.
On point two, it has been refuted and demonstrated with evidence that Pelosi did not refuse the national guard and in fact Trump refused to send them. Please stop with the lies.
You are full of schiif and clearly clueless.
The stupid videos recently released show Pelosi calling the wrong people.
No Governor can send his State Guard units accross state lines.
Just can not be done.
If Pelosi wanted the Guard she could have done one of two things:
Called Trump,
or Called the DC NG commander who had already been pre-authorized days before to respond on request.
Regardless, The capital is outside the domain of the executive.
Trump can send the Guard to DC, He can send the VA or MD guard to DC,
But he can not send ANY forces to the capital without a request from Pelosi.
It is unbelievably well documented – multiple different ways that Trump authorized the DC Guard to be available DAYS before.
He wanted them deployed before hand. the Sargent at Arms office refused from the highest levels – that means Schumer of Pelosi.
Further, Pelosi is 3rd in line to be president. She is required to know all this.
The capital is very nearly its own country controlled by the speaker of the house and majority leader of the Senate.
There is absolutely no executive authority over it.
No president can send troops to the capital on his own initiative – just as no governor can send troops out of state on his.
DC is crammed full of police = because of these distinct divisions of control. The mayor controls the metro police, the president controls the park police. The speaker of the house controls the Capital police.
The DC NG was pre-authorized by Trump and were on call. Otherwise it would have taken them longer to get there once they were requested.
The DC NG could head to the capital the moment Pelosi requested them – because they were pre-authorized by Trump DAYS before.
The only thing they needed to move in was a request from the Capital.
Everything else is smoke and mirrors.
But this is typical of you left wing dunces.
You have no understanding of the law and constitution, and you make things up as you go.
If there is a left wing attack on the Capital while Biden is president and MacCarthy is speaker – you willl immediately blame all delays on MacCarthy.
Because you do not give a damn what the law and constitution are you just make up responsibilities and blame to suit your narrative of the moment.
It is interesting Trump considered calling up the Guard to deal with the BLM riots. But there was so much blowback from you left wing nuts – that did not happen and police were radically short on manpower dealing with rioters.
The smallest amount of violence at the Capital – and the National Guard has concertina wire up for months to protect SturmFuhrer Pelosi from the unwashed.
If you have a problem with the facts, go to the time-line provided by the Capitol Police.That is one source proving Trump authorized the National Guard. You can also see the refusals in the time-line, names and dates in sequence.
What is your proof? Zero.
Trump Pentagon first offered National Guard to Capitol four days before Jan. 6 riots, memo shows
https://justthenews.com/government/congress/trump-pentagon-first-offered-national-guard-capitol-four-days-jan-6-riots-memo
Timeline
https://justthenews.com/sites/default/files/2022-06/USCPJan.6Timeline.pdf
Let me know the source of your mistaken data. You should find new sources of news. This one, Just the News takes little time and is extraordinarily accurate. It’s free. The most newsworthy are the one’s by John Solomon. I think the original report on this was from him. He almost always documents what he says with the sources and texts like was done in this article.
“demonstrated with evidence”
Yet again the left’s concept of “evidence” — that which satisfies a desire.
Dennis, I have to admire the way the Democrats always defend their man no matter how corrupt or sleazy or demented he may be. Admirable although corrupt loyalty.
The Republicans should learn a little from it and stop attacking each other for mean Tweets on unPC comments
“[B]ut for the rest of us out here–not so much.”
You know what’s really “not so much?” — the Left’s chronic deflections from the important issues affecting everyday Americans. Why doesn’t the Left want to disucss those? Such as: How its statist policies are impoverishing Americans. That it is establishing censorship. That crime is rampant. That it put a $1-million bounty on Trump’s head. That the DOJ/FBI have become a democrat PAC.
Amazing…..nice way to smear someone but be able to argue..I was just raising a legal issue. How low can this thread go.
I think Professor Turley mentions New York Time v Sullivan frequently because he disapprove of the decision. I think that is quite obvious. I agree. And once again I think he is right and stricter libel and slander enforcement might diminish the hateful conduct in both digital and printed media and in the political realm. This should be possible with well written legislation (I know that is an oxymoron in itself). It might also cool the invective in the political and near-political landscape. Exchanges of large sums of money seems to temper behavior.
As I recall Time v sullivan was a 5-4 decsion, and the minority was close to eliminating defamation entirely.
There is a very good argument for that.
Real damage from false statements derives from the fact that they are beleived.
If you know that no one can be held accountable for smearing people – you will be LESS inclined to beleive defamation,
and therefore there will be no damage.
People should be trusted in what they say – because they have earned that – because they have established a reputation for accuracy and truth.
Britefahrt? Hahahaha.
More accurate than NYT.
Regardless, can you wait to find out if the facts are correct before making presumptions ?
“First, kiss all the lawyers” *Shakespeare
Dear Prof Turley,
You seem to have an unusual fascination with New York Times v Sullivan and the concept of public ‘malice’.
>”Frisch would need to show that Gardner and Breitbart knowingly published a false claim or did so with recklessly disregard of the truth.”
I think I can prove, beyond a shadow of doubt, the NYT publishes false claims about the conflict in Ukraine, e.g., all the time .. . and does so with reckless disregard for the truth.
*All I need is a lawyer. .. with an absence of malice.
You can’t defame a conflict.
It was an attempt to defame the NYT over their coverage of the conflict, such as it is. I can provide specific articles/authors/bilines .. . I have detailed files.
*the conflict should have never happened to begin with. .. it’s a no-brainer.