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Michigan Law Prof. Niehoff Leads First Amendment Scholars in Brief in Case of American Sniper Chris Kyle and Jesse Ventura Prof. Niehoff Leads First Amendment Scholars in Brief in Case of American Sniper Chris Kyle and Jesse Ventura

By Katie Vloet
April 14, 2015

In the defamation case of Jesse Ventura versus the estate of American Sniper Chris Kyle, a dozen high-profile First Amendment scholars—led by Michigan Law Professor Len Niehoff—have filed an amicus brief in support of the defendant.

The trial court erred in the case by giving inadequate and inaccurate instructions to the jury in regard to the standards for defamation of a public official, the brief says. "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," Niehoff says. "In this case, the trial court got very wrong two instructions that it needed to get exactly right."

Former Minnesota Gov. Ventura (aka James G. Janos) filed a defamation suit in 2012 against Kyle, the late Navy SEAL who wrote the bestselling and movie-inspiring memoir American Sniper. The suit was based on Kyle’s claim that he punched Ventura in a bar in 2006 after the former governor said during a wake for a Navy SEAL that the elite special operations force "deserved to lose a few guys" in war.

Kyle wrote about the incident in his book, referring in print to the person who made the statement as "Scruff Face." In radio and TV interviews, Kyle subsequently identified "Scruff Face" as Ventura, who also is a Navy veteran. The former pro wrestler and governor sued, then continued the suit against Kyle’s estate after Kyle was killed in 2013. Ventura has denied that the incident occurred.

In July 2014, a jury in Minnesota awarded Ventura more than $1.8 million—$500,000 in defamation damages and more than $1.3 million for "unjust enrichment." Kyle’s widow, Taya Kyle, is appealing the ruling in the U.S. Court of Appeals for the Eighth Circuit on behalf of her husband’s estate.

The scholars’ brief, authored by Niehoff with the assistance of Michigan Law student Thomas Kadri, a 3L, points out that the threshold for defamation against a public figure is extremely high. Under the "actual malice" standard, the brief argues, it must be determined that the defendant spoke with knowledge that the statement in question was false or with reckless disregard to its falsity.

Kyle’s attorneys had proposed jury instructions that "accurately stated the law and rendered in plain English the complexities of reckless disregard," the brief notes. "Unfortunately, the trial court judge rejected that helpful instruction" in favor of a "bare-bones instruction" that asked jurors to consider whether "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."

Those instructions, according to the scholars’ brief, "did not make clear that, to meet the actual malice standard, Ventura had to prove that Kyle actually believed the statements in question were false or actually entertained serious doubts about their truth when he made them."

Additionally, the brief points out, "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."

Questions from jurors after they received the instructions "confirm that these flaws troubled the deliberations in this case," the brief states. "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?'" The trial court directed the jury back to the same instructions that prompted the confusion, the brief points out.

When jurors asked for direction regarding the meaning of "serious doubts" in the jury instructions, the trial court responded that "there is no legal definition of 'serious doubt.' You will have to rely on your common sense in interpreting and applying the standard."

This direction was "twice wrong," the brief states, because controlling decisions from the U.S. Supreme Court do provide a definition of reckless disregard that clarifies the meaning of "serious doubt," and because the ordinary, "common sense" meaning of serious doubt differs substantially from the legal meaning of the term.

The trial court also erred in its jury instructions regarding the burden of proof as to the falsity of the statements, the brief states. Kyle’s attorneys proposed jury instructions that would have required the jury to find that the statements at issue were false by clear and convincing evidence, a widely employed standard. Instead, the brief says, the court instructed the jury that it needed to find falsity only by "the greater weight of evidence," which "is a recipe for jury confusion" because of the high standard for proving actual malice and the relatively low standard for proving falsity.

In addition to Niehoff, the brief was signed by Vincent Blasi, the Corliss Lamont Professor of Civil Liberties at Columbia Law School; Clay Calvert, professor and Brechner Eminent Scholar in Mass Communication at the University of Florida, where he also directs the Marion B. Brechner First Amendment Project; Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine, Law School; Lucy Dalglish, dean and professor at the University of Maryland Philip Merrill College of Journalism and former executive director of the Reporters Committee for Freedom of the Press; Don Herzog, the Edson R. Sunderland Professor of Law at Michigan Law whose scholarship focuses on the First Amendment and other constitutional issues; M.A. (Mike) Kautsch, professor at the University of Kansas School of Law and former dean of the university’s William Allen White School of Journalism and Mass Communications; Jane E. Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota School of Journalism and Mass Communication, where she directs the Silha Center for the Study of Media Ethics and Law; Amy Kristin Sanders, associate professor in residence at Northwestern University’s campus in Qatar and co-author of a casebook about the First Amendment and mass media; James D. Spaniolo, retired president of The University of Texas at Arlington and a former professor of journalism and dean of the College of Communication Arts and Sciences at Michigan State University; Nadine Strossen, the John Marshall II Professor of Law at New York Law School and former president of the ACLU; and Kyu Ho Youm, the Jonathan Marshall First Amendment Chair and Professor at the School of Journalism and Communication at the University of Oregon.

Kadri, the 3L who assisted with the brief, learned a great deal from digging through case law. "It was rewarding and very reassuring to me that I enjoyed the nuts and bolts of the process," says Kadri. "This experience has strengthened my interest in media law and affirmed for me that I want to make it part of my practice in the future."

Niehoff—in addition to his role as a professor from practice at Michigan Law—is of counsel at Honigman Miller Schwartz and Cohn LLP, which provided critical support to the project.

Photo: Wikimedia Commons

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