Murdaugh Murders Podcast - TSP Bonus Premium Dive #3: Am I Being Defamed (PART ONE): What is Libel and Slander?'

Starting point is 00:00:00 This episode is brought to you by LEGO Fortnite. LEGO Fortnite is the ultimate survival crafting game found within Fortnite. It's not just Fortnite Battle Royale with minifigures. It's an entirely new experience that combines the best of LEGO Play and Fortnite, created to give players of all ages, including kids and families, a safe digital space to play in. Download Fortnite on consoles, PC, cloud services, or Android, play LEGO Fortnite for free. Rated ESRB E10+. Your mom hates it when you leave six half-full glasses on your nightstand. It's a good thing mom lives on the other side of the country. And it's an even better thing that you can get six IKEA 365 plus glasses for just $9.99. So go

Starting point is 00:00:44 ahead, you can afford to hoard because IKEA is priced for student life. Shop everything you need for back to school at IKEA today. I don't know how the Buster Murdoch defamation lawsuit is going to play out. But between the Murdoch case, the Solomon case, and the J.P. Miller story, the word defamation keeps rearing its head.

Starting point is 00:01:09 And I think it is time to do a deep dive into what is defamation, what it isn't, and how defamation claims actually work. Because in the age of the internet, defamation is something we all need to know more about. My name is Manny Matney and this is an exclusive deep dive normally reserved for Lunashark premium members. But today's premium dive will also be released on the public feed because of how important the topic is. This is True Sunlight, a podcast exposing crime and corruption. In today's episode, reporter and producer Sam Berlin sat down with attorney Becky Lindahl to discuss the complexities of defamation cases and what she thinks might happen with Buster's case.

Starting point is 00:02:04 We have had a weird week between traveling and Tropical Storm Debbie at home, so we decided to switch things up on the True Sunlight feed with a deep dive episode with our producer, Sam Berlin. We will be back next week with more shocking developments in the Micah Francis story. Before we get into this special premium dive, I couple quick updates on a few of the cases that we have been following here on True Sunlight. Number one, Marion, Kansas.

Starting point is 00:02:35 I love this update. Remember last year when Marion, Kansas police illegally raided the Marion County Record Newspaper's office and the publisher's home, where the publisher's 98-year-old mother, Joan Meyer, lived. Remember, police took reporters' phones, computers, financial documents, and even Ms. Meyer's Amazon Alexa that she used for emergency purposes. Less than 24 hours after that raid, Joan Meyer died of a heart attack.

Starting point is 00:03:06 Her son said that it absolutely was caused by the unnecessary police raid. Nearly one year later, we are starting to see waves of major accountability in that story. The kind that we have called for in the Murdoch case for years but haven't really seen. Prosecutors announced this week that former police chief Gideon Cody, you know, the guy who led the raids that were based on an absurd allegation that was false, he will face a criminal charge. The report released by prosecutors concluded that Gideon Cody will be charged with obstruction of justice and that is a big deal. I also want to applaud the state of Kansas for how they handled this case and how transparent

Starting point is 00:03:57 they were in their report. To learn more about what Cody did and what the investigation found, I recommend checking out the story in the link by journalist Jessica McMaster. McMaster is the pesky reporter of this story. She is the one who filed all the FOIAs, asked all of the questions, and kept the story alive when it could have gone dark. Please go follow her on social media. She is a true journalism queen. And in another accountability update, Peter Strauss is finally getting sentenced in federal

Starting point is 00:04:33 court. His sentencing hearing is scheduled for 10am on August 27th in Charleston in front of Judge Gergel, who he tried to get removed from the case but was denied. On Season 2 Episode 29, we introduced you to Peter, a Hilton head lawyer who was suspended by the South Carolina Supreme Court in December. In that suspension, the Supreme Court dropped hints that Peter had been charged with a crime. but funny enough, our reporter Beth Braden couldn't find any charges for Peter Strauss, the millionaire attorney who specializes in asset protection. Turns out, Peter pleaded guilty to one felony count of removal of property to prevent seizures

Starting point is 00:05:20 in November after the US government and his attorney came to an agreement in October. We had heard from two independent sources that Peter could be the missing link to the Murdoch money mystery, but we have to say that there have been no indications from law enforcement that that is true. However, the facts of Peter's case sure do point to some significant cooperation from him. You know how we scream over and over on this podcast that there are two systems of justice? One for powerful people like Peter and the Murdochs and one for everyone else?

Starting point is 00:05:58 Well, the federal government proved to us again how the system simply works different for people like Peter Strauss. Like the fact that he was able to fly his plane to Mexico while out on bond and his charges were under seal for months. So Peter pleaded guilty to removal of property to prevent seizure for a case that again has nothing to do with Elick Murdoch. But we are going to watch his case and other federal cases closely in the next few months

Starting point is 00:06:32 as we have seen that the feds have given Peter a whole lot of special treatment. And we are wondering what that's about. If he had good info to trade for better treatment, perhaps on bigger cases, or if he's just another privileged white collar criminal getting the club fed treatment. Listen to episode 38 for more on Peter and his wacky case and stay tuned to our social media for updates on his sentencing.

Starting point is 00:07:07 Finally, Elick Murdoch. There's been a flurry of activity in Elick Murdoch's appeals over the past two weeks. So first, his federal appeal hearing is tentatively scheduled for sometime between October 29th and November 1st. In that appeal, he is claiming that giving him 40 years in his plea deal amounts to, get this, cruel and unusual punishment. The government has until Thursday to file its response to Elick's arguments, which I cannot wait to read.

Starting point is 00:07:40 In his state appeal of Justice Gene Toll's decision denying his motion for a new trial in his murder case, Elick has asked the Supreme Court to take over the case. He wants to skip the line and go straight to the top, likely because he knows that there is little chance of appeal at the state level and he wants to clear the runway to take it through the federal system. Like we've said, Justice Toll's decision was based largely on an established Supreme

Starting point is 00:08:12 Court law, but there is some question about whether ELEC can score a new trial when federal law gets applied. That said, last week he asked the South Carolina Supreme Court of Appeals to suspend his deadline to file a brief until the Supreme Court decides whether to take his case. He also told the appeals court that the state's AG's office was okay with this. The appeals court, though, denied Elex's request. So he is going to be required to file his brief while his wacky legal team is working on his federal appeal.

Starting point is 00:08:51 In his state appeal for his murder conviction, he is now asked for two extensions to file his initial brief. On Tuesday, the court granted his request and he now has until December 10th to tell the state of South Carolina why he thinks he is wrongfully convicted. So that's it for the updates but we will be back next week with our regularly scheduled episodes. But for now, here is Samber Lynn and I'm a producer and researcher with Lunashark Media. If you listened to last month's bonus episode, then we've met before.

Starting point is 00:09:38 But if this is your first time, hey, great to meet you. I'm here to tell you all a little something about defamation, whether that be libel or slander, and how to tell if you are being defamed or if you are defaming someone else. I spoke with defamation attorney Becky Lindahl about the complexities of this legal jargon and she helped me break it all down for you. Here's Becky. So I'm the national practice group leader of the Commercial Litigation Group at Catten. We are a full-service Chicago-based law firm. We have attorneys in Charlotte and Chicago, New York, D.C., Los Angeles, Dallas, and London. I'm based out of Charlotte.

Starting point is 00:10:21 And typically our work is representing businesses in lawsuits against other businesses, but we certainly do represent individuals, including individuals who have been accused of making defamatory statements. And we also have a pro bono practice that has involved representing victims of sexual assault who have been sued by their attackers. So what exactly is defamation and libel? There's libel per se, slander, and too much legal jargon, but let's break it down. By definition, defamation is the action of harming someone's reputation. In order to prove defamation, an individual must be able to prove four elements. The four elements are one, damage or harm, two, false statement of fact that has proven not to be an opinion, three, of and concerning or about the individual, and four,

Starting point is 00:11:20 it has to be published. But what does it mean for something to be published? Here's Becky. There's not sort of a hard and fast rule about how many people you have to publish a defamatory statement to. So it has to be published, right? So you can't just think it out loud or tell it to your husband or whatever

Starting point is 00:11:44 and have that count as defamation. But there's no rule that says, okay, if it's five people, it's not defamation. But if it's 500 people, it is. So I don't necessarily agree with the outcome, but publication is publication. Saying it out loud or writing it down and telling it to another person does count as publication. Defamation can be done in two ways verbally also known as slander and in published written statements known as libel. Within the realm of libel are two subcategories libel per quad and libel per se. Libel per se is a bit more complicated. So let's start with libel per quad. Here's Becky again.

Starting point is 00:12:29 Per quad or all other defamation that's not defamation per se, that would be defamation that's based on context. So in order for you to understand as the as the hearer or reader of information, you would have to know a little bit more or you'd have to read a little bit more to understand that statement as being defamatory. An example of that would be in the business tort context, if you have one business making statements about another business that they, and this is a real life example of something that I've litigated.

Starting point is 00:13:08 So representatives of one business made public statements, public facing that they put out into the world, alleging that another business was undertaking certain lobbying efforts to railroad legislation that their constituents might have preferred to pass. It wasn't true that they were doing that, but because of the specific context within which these two businesses operated and the constituents that they served, those types of statements could have been defamatory if they were true. So that would, but that's an example of a defamatory statement that

Starting point is 00:13:46 you can't just look at it on its face and say, oh yeah, that's defamation. You need to know just a little bit more about why it's harmful to the person who it's being uttered about. So essentially libel per quad is only actionable when the plaintiff can provide additional facts to prove defamation or claim special damages. To win a libel per quad suit, a plaintiff would need to provide evidence to prove how they were harmed by the action. This is also known as special damages. Other types of harm, such as pain or emotional distress, are considered general damages.

Starting point is 00:14:24 But both types can be used to fight for monetary compensation during a lawsuit. But let's go back to special damages. This would include a situation in which an individual loses their job over a defamatory statement or if a parent loses custody over a child because of a defamatory statement. The Solomon defamation case that Liz and Mandy distressed back in True Sunlight episode 11 is an example of a libel per quad case. Mandy and Liz dove deeper into the Grant Solomon case in this episode, including the defamation

Starting point is 00:14:55 case his father Aaron filed against his mother, Angie Solomon. Here's a direct quote from the court filing on May 4th, 2022. Quote, Plaintiffs sued several defendants over social media posts and the unauthorized use of his and his child's name, image, and likeness. Plaintiff requested both damages and injunctive relief. In response, defendants petitioned to dismiss under the Tennessee Public Participation Act. Plaintiff then filed notice of a voluntary non-suit, which defendants opposed. The trial court dismissed the case without prejudice. because we conclude the Nothing in Tennessee Rule of Civil Procedure 41 precludes the voluntary dismissal we affirm." Here's Liz from True

Starting point is 00:15:35 Sunlight episode 11 discussing the specifics of the situation. Grant Solomon was a 6'3", 180 lb star baseball player for his high school, Grace Christian Academy in Franklin, Tennessee. His dad, a former sportscaster, seemed to have high hopes for Grant when it came to his future in baseball, according to more than 2,000 pages of text printed from Grant's phone after his death. A year and a half before his death, Grant had injured his shoulder and, according to reports from his mother and girlfriend, while he loved baseball, he wasn't planning on making it his life.

Starting point is 00:16:15 In the nine months leading up to Grant's death, a few things were happening. One is that Aaron was regularly checking in with him to see whether Grant had done his physical therapy and his prescribed workouts, whether he had time to practice throwing and hitting, and sharing memes and tweets about perseverance and fast pitching. The other is that things were tense between Aaron and Grant's mother, Angie. In our last episode about the Solomon case, we told you about the contentious custody battle between Erin and Angie and how something referred to as the quote shower incident led to Angie being kept from her kids for five months in 2013, led to a judge ordering a mental health evaluation of Angie and led to Erin getting primary custody of Grant and

Starting point is 00:17:02 Gracie. After Angie's mental health report came back, she was allowed supervised visitation with Grant and Gracie. The court ordered that it be with a neutral third party and at Angie's expense. Angie continued to fight for more time with her kids after that and according to the court records and transcripts we've read so far, she seemed to take care that she was operating according to the very precarious parameters put in front of her by the court. Remember we told you about the judge in their custody case, Judge Philip Smith, and how his ego seemed to be dangerously bruised because one of the mental health professionals who submitted an affidavit

Starting point is 00:17:41 about Angie's mental state had the audacity to offer his opinion that the court was being manipulated by Erin into believing that Angie was a danger to herself and, by that rationale, also her children. Judge Smith did not like that one bit and from the transcripts, it's not hard to believe that this affidavit colored his attitude toward Angie. In looking at this case, we can easily see how those initial interactions with Angie and the messiness of her relationship with Aaron compounded over time. One ruling led to another, led to another, and each one was influenced

Starting point is 00:18:16 by the presumptions brought forth by its predecessor. We also told you how Angie's father offered example-free testimony about her allegedly unstable behavior, which Judge Smith noted. He literally noted that her father's testimony was vague while also proclaiming her father's testimony to be, quote, credible. It defies logic. Angie's father literally could not say why he thought Angie was a danger to herself or her children.

Starting point is 00:18:44 Could offer no other instance than Aaron says so. And the judge was like, you noble squire, that sounds most accurate to me. Anyway, the same judge issued some strongly worded orders expressing the court's fear for the children if Angie were to have custody even in a supervised setting, condemning her behavior as disturbing and calling her a liar. The strongly worded orders were reiterated in a 2021 federal defamation claim filed by Erin against Angie, her friend, Grant's friends, and two bunches of John Doe's yet to be named. We'll talk about that case in a future episode because it's fascinating.

Starting point is 00:19:25 But it's worth noting now that according to the complaint, Aaron very strongly denies every accusation that has been made against him by Angie and by the Freedom for Gracie movement to include that he tried to kill Angie prior to the divorce or otherwise physically abused her, that he sexually abused Gracie. That he physically and or emotionally abused Grant and Gracie. That he murdered Grant and used his quote influence to see that no investigation was done. That he bought grave sites for Angie and Gracie without Angie's knowledge as part of some quote murder suicide plan. That he was banned from participating in activity sponsored by the Williamson County Sports and Recreation Department because he was abusive to his wife, children, and others. That he stole money

Starting point is 00:20:09 from Grace Christian Academy and GCA, quote, covered it up. That he has filed, quote, multiple bankruptcies. That he is, quote, swindled, unknown, and unnamed people. That he was fired from Channel 4 because he had, quote, inappropriate content on his computer and phone. That he was fired from Channel 4 because he had quote inappropriate content on his computer and phone That he was a diagnosed narcissist sociopath and or sex addict that he abused some unnamed ex-girlfriend And that he quote drugged certain unnamed women he denies all of that according to the documents We've gone through so far Aaron maintains that he has been publicly accused of murdering Grant and molesting Gracie as part of a commercial scheme to raise money and sell products and to quote

Starting point is 00:20:50 extort, intimidate and harass Mr. Solomon into giving up his valid custody rights. Let's talk about those custody rights. In 2018, after Gracie accused Aaron of sexually abusing her, Grant and Gracie began to live with Angie full time. In August of that year, according to court records, Angie accused Erin of sexual, physical, mental, and verbal abuse, as well as providing an unhealthy atmosphere for Gracie and Grant, including controlling what they ate

Starting point is 00:21:20 and when they could use the bathroom. She told the court that Gracie was terrified of Aaron. In October, the court dismissed Angie's claims, finding that the sexual abuse claim was not proven and that the same claim had previously been made in two other counties and had already been investigated and dismissed. According to Aaron's defamation claim, the court ordered that the children quote be returned to him quote. However, Gracie's counselor recommended that Mr. Solomon not enforce parenting time immediately and instead allow Gracie to stay with Ms. Solomon while Mr. Solomon

Starting point is 00:21:55 improved his relationship with Gracie through counseling. Mr. Solomon followed the counselor's recommendation. In the meantime, Angie appealed that decision. Last day? How about a 4 p.m. late check out? Just need a nice place to settle in? Enjoy your room upgrade. Wherever you go, we'll go together. That's the powerful backing of American Express. Visit amex.ca slash ymx. Benefits vary by card, terms apply. Summer's here, and you can now get almost anything

Starting point is 00:22:38 you need for your sunny days delivered with Uber Eats. What do we mean by almost? Well, you can't get a WellGroom Lawn delivered, but you can get a Chicken Parmesan delivered. A Cabana? That's a no. But a Banana? That's a yes. A nice tan? Sorry, nope. But a box fan? Happily yes. A day of sunshine? No. A box of fine wines? Yes. Uber Eats can definitely get you that. Get almost, almost anything delivered with Uber Eats. Order now. Alcohol in select markets. Product availability may vary by Regency app for details. What was so complex about the lawsuit that Erin filed against Angie was that she was

Starting point is 00:23:10 not protected by litigation privilege. If you have ongoing litigation, there is a thing called the litigation privilege. So anything that you say, so if I was Mrs. Solomon's lawyer, for example, and I made those statements in court, they're privileged. And privileged meaning I can't be sued for defamation as a result of them. But if those same statements are made outside of the judicial proceeding and for purposes not related to actually seeking relief in court, then those same statements can form the basis of defamation outside of court.

Starting point is 00:23:47 So that's all about libel per quad, but what's libel per se? Well, the law defines per se as a statement that is considered to be so harmful on its face that the plaintiff need not prove special damages. AKA, if you can prove libel per se, you don't have to prove damages. AKA, if you can prove libel per se, you don't have to prove damages. You just need to prove that that statement fell into a specific category, which Becky will explain. Defamation per se is defamation that fits into certain categories. So if you're making comments that allege that somebody committed a crime of moral turpitude. So lying, cheating, stealing,

Starting point is 00:24:29 or if someone contracted a loathsome disease. These are very outdated language, by the way. So there's no legal dictionary where you can just look up loathsome disease and it'll list them for you. So that's one of those terms of art that will likely change over time. So for example, you know, the example that always pops into my head when I think of loathsome

Starting point is 00:24:51 disease is leprosy. Although I don't think that's really something that people worry as much about these days. But you know, certainly many, many hundreds of years ago, that would have been quite loathsome. And then the other categories of defamation per se are adultery, unchastity, unchastity, so that's sort of particularly and historically aimed at women, and unfitness in one's business or profession. And that last one from my professional experiences

Starting point is 00:25:22 with dealing with defamation claims, that's the one that tends to come up the most is unfitness in one's business or profession. Because it can really encompass a whole host of types of statements. So you could say someone is a liar and steals money. Well, that would make them unfit to be a lawyer because lawyers handle other people's money all the time. Or if you were to use what we were talking about before about diseases of addiction, if somebody were to say that woman who teaches preschoolers is a drunk, okay, well, that's

Starting point is 00:25:58 probably a statement that could make her unfit to take care of young children. So there's a lot of types of allegations that could fit within that last bullet point. So those types of statements, if they are made, malicious intent by the speaker is presumed. So if you say those types of things about a person, you are presumed to be saying those things with malice. And that malice is an element of the defamation then that the plaintiff doesn't have to prove because it's just presumed. You really cannot begin to attack libel without talking about Times v. Sullivan, a famously cited Supreme Court case that occurred during the Civil Rights Movement. In 1964, the New York Times was sued for posting a paid ad that

Starting point is 00:26:46 quote defamed the Public Safety Commissioner L.B. Sullivan. The paid ad raised awareness of police abuses in the South and asked for donations to a group called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Despite fact-checking, the court found seven minor factual errors in the paid ad, and although the Times was unaware of the fact errors, they argued that nothing published was quote known falsity, end quote. One of the fact errors from the ad stated that MLK was arrested four times in Alabama when it had actually been seven times.

Starting point is 00:27:20 The ad also contained factual inaccuracies involving the police response to protests in Alabama at the time. While Sullivan was not directly named in the article, he sued the New York Times on the grounds of libel per se, because he felt that calling out his subordinates for quote falsely committing a crime reflected poorly on himself. Due to the complexity of this case, the court introduced a new rule in determining label per se. Enter actual malice.

Starting point is 00:27:49 The actual malice rule requires plaintiffs to prove that both known falsity and reckless disregard for the truth weren't involved when the statement was made. One judge, Justice Brennan, said this case was an example of a public figure using the law to silence political critics and famously stated that quote, some form of falsity is necessary for debate, end quote. Because of this case, public figures trying to claim defamation are required to prove actual malice to sustain the claim in court. Times v Sullivan brings into account that private individuals such as you and I, I'm assuming, can claim that a statement is defamatory much easier than a public figure, since public

Starting point is 00:28:31 figures are often subject to public opinion. It kind of just comes with the territory. The case also gives protections to citizens in speaking out against public figures, such as elected officials. Unless there's actual malice involved, publications and individuals are legally able to discuss public issues and figures, making it pretty difficult for public figures such as politicians or celebrities to prove defamation. So how does the law define private and public figures? I'm gonna let Becky explain that one.

Starting point is 00:29:12 Sure, so a public figure is someone who is so well known that many or most people within a particular community would know who they are. So, you know, if you're talking about on a national level, the way that I would look at it is, is there somebody who me, an elder millennial young Gen X and my six year old daughter and my mom, we might all know who this person is, or maybe one of the three of us knows who that person is. That person would likely be a public figure.

Starting point is 00:29:40 Public figure can be scaled depending on which geography you're talking about. So, the mayor of your small town, even though they may not be well known outside of your small town, within your small town, they would be a public figure. A limited public figure is someone who has involved themselves in a public issue, a controversy such that people might know who they are, might have seen them or come across them by reason of their advocacy or their involvement

Starting point is 00:30:08 in a particular issue. And then a private figure that's just, you know, your child's preschool teacher, or your next door neighbor who works at the grocery store, somebody who's not in the public eye. The best way to think about how to put those, put people into one of those three buckets is what their intention is and how they present themselves to the world and then how successful they were at getting their message across.

Starting point is 00:30:35 So obviously, like biggest public figure in the world right now, Taylor Swift. And she intentionally puts herself into the world so that her art can be consumed and people can know who she is and everybody knows who Taylor Swift is. So she's undoubtedly a public figure. A limited purpose public figure is someone who has intentionally involved themselves in a particular issue or controversy

Starting point is 00:31:00 or involve themselves in the public discussion on a certain topic. So for example, say that there was a young person who was involved, a victim of or survivor of a school shooting. On the day that they went to school before the school shooting, they were not a public figure. They were a kid going to school. If they become very involved in advocacy and getting on CNN or getting even on a

Starting point is 00:31:29 smaller scale and advocating for a topic that they care about, which probably say gun control, then maybe that person would become a limited purpose public figure because they have injected themselves into the public discourse with the intent of affecting or influencing the outcome. So what you're looking at is the person's intent. What are they trying to do with their voice? And if they're intentionally trying to use their voice either to become worldwide superstar Taylor Swift or to influence a particular issue,

Starting point is 00:32:05 then they would be either a public figure or a limited public figure. Now, say that that same high school student was a victim and never said a word, went back home and just lived their life. That person by virtue of being the victim of a crime is not a public figure. So you can't accidentally become a public

Starting point is 00:32:27 figure because something bad happened to you. They are still a private citizen until they get involved in the conversation to try to influence a particular issue with respect to that topic or what happened to them. Private figures are people who have not had extensive public attention. A case that sought precedence when it came to matters of public versus private citizens was Gertz v. Robert Welch, which was decided in 1974. The case determined whether freedom of speech allowed the press to publish quote, defamatory falsehoods about a non-public official or figure. Elmer Gertz was an attorney hired to represent a family whose son was killed by a Chicago

Starting point is 00:33:06 police officer. Following the officer's criminal prosecution, the family hired Gertz to bring a civil suit against the officer. While Gertz was representing the family, a magazine called American Opinion published an article by Robert Welch, a member of the political group called the John Birch Society. In the article, Welch accused Gertz of being a quote communist fronter for defending a family attempting to sue a member of law enforcement. Although the lower courts

Starting point is 00:33:34 initially decided that the magazine article did not pass the actual malice test, a district court later reversed this decision. Since Gertz was considered a private individual, the court stated that the precedents set by Times v Sullivan in 1964 did not apply in this case. The court ruled in favor that Welch's comments against Gertz were defamatory and Gertz was later awarded $400,000 in total damages. Alright, so you have private figures and you have public figures, but let's not introduce you to two other subcategories limited and involuntary public figures

Starting point is 00:34:10 Here's Becky to sort of unpack that for us Generally if somebody does Absolutely nothing to involve themselves in the public discourse other than happen to be the victim of a crime, they would become an involuntary public figure. So in most states, not all states, but in most states, they would not be subject to the heightened actual malice standard that applies when public figures are involved in defamation because they didn't do anything to gain the status of public figure. So granting, like say something terrible happens to someone and they grant an interview and then they keep granting interviews with media companies,

Starting point is 00:35:00 they could become a limited purpose public figure because they're allowing access into their lives. But if somebody has something terrible happen to them and they just turtle up and they don't speak to anybody, they don't do anything to inject themselves into the public discourse, it's unlikely that the law of the state would impose a public figure status onto them through no action of their own.

Starting point is 00:35:24 If they just were standing idly by and happened to have something tragic and terrible happen to them, they shouldn't be, you know, painted with the brush of being some public figure. As Becky explained, an individual can still be considered a public figure even if it was not their choice to become a household name. For example, many could argue that Alex Murdoch was a public figure by choice since he was a well-known lawyer who chose to commit heinous crimes. However, his only surviving son Buster Murdoch did not necessarily choose this. So technically Buster is what we would call an involuntary public figure since he was

Starting point is 00:36:00 thrust into the spotlight without his own doing or even wanting that for himself. He was thrust into the spotlight without his own doing or even wanting that for himself. So Buster admitted in the jail call with his dad that he was basically a national figure now I think is how he phrased it. And he was referring, I believe, they went to Vegas, right? Okay, so they went to Vegas and they had some photos taken of them in Vegas and people posted them on the internet and Buster told his dad about that and the jail calls, the jail call ears are always listening. And so that got picked up on the recording. And he said, I guess I'm basically a national figure now or however he phrased it.

Starting point is 00:36:34 Did you get the gambling any? Yeah. Yeah. So I did go gambling. And then the next day there was an article created about how I'm misusing funds. By gambling? Yeah, someone took a picture of me and John Marvin in the casino. You're kidding me.

Starting point is 00:36:51 Uh-uh. How do they recognize me? Man, I guess, I mean, I'm a national figure, I think. Is that dispositive on the issue that he's a public figure? Probably not. Cause I couldn't go stand in the middle of Tryon Street in Charlotte and say, I'm as famous as Taylor Swift and have that be true, right?

Starting point is 00:37:10 It's not true. However, if I were taking his deposition, I would be focusing on that statement. And that would be one that he would not be able to avoid answering some questions about. It's something he will hear in the litigation and he'll probably get tired of hearing it. But does it carry the day? Is it sort of slammed on case closed?

Starting point is 00:37:36 No. It's a good to have, a nice to have for the defendants, but it's not going to win the case for them just with that fact alone, that statement alone. I mean, the household name thing, that's a very interesting way to look at it. And that's why I mentioned before when I'm thinking of whether someone's a household name, the three demographics that I would try to think of are me, I'm like I said, elder, millennial, young, Gen X, but very online. And so I'd look at whether I've heard of the person, whether my mother has heard of the person,

Starting point is 00:38:12 or whether my six-year-old daughter has heard of the person, because you'd be surprised how many household names, even kids who would go to elementary school have heard of. So I would look at those three groups and say, if one of the three of us knows somebody, then they'd be a household name. But one, I think one of the most interesting defamation cases that has been litigated in the past several years is the Kesha Dr. Luke case in New York. And there was a interesting ruling in that case about whether Dr. Luke was a public figure

Starting point is 00:38:42 because I, yeah, I think he is, but I have to dig into the recesses of my brain and say, okay, do I think he's a public figure because I know about him from the lawsuit, or do I think he's a public figure because I knew about him before? I think I did know about him before, but I don't remember. So the court looked at it and said, okay, before all this happened, before Kesha and Dr. Luke got embroiled in litigation, they said his name was certainly a household name within music industry circles, but not in every household. So he was not a public figure for the purpose of that lawsuit, which is interesting.

Starting point is 00:39:19 Mandi, Eric, and Liz also discussed the situation in Cup of Justice episode 87. Here's a clip from that. Mandy, do you think he's a public figure? Like, what do you think the argument can be made there? Because Eric, you mentioned that documentary that he went on Fox, but that was after these documentaries were made. So I think an argument could be made that he went on those to clear the record on him, you know? So it was in response to these other publications. But before that, he was just the son of an accused murderer, right?

Starting point is 00:39:48 Right. And that's hard. And I was also thinking about this when we talk about Buster's reputation. It's also, we have to mention that he is the son of a murderer and that obviously affects his reputation in a huge way. And not only was he, is he the son of a murderer, but he stood behind his dad throughout that six week trial. He didn't publicly support him, but he did pretty much everything to show that he was in support. What he did in his documentary,

Starting point is 00:40:22 he said, my dad didn't do it. And so how do you separate that from Stephen and what the documentaries did and insinuated? I don't know, it's hard. But there's just, I mean... Let us answer the question of do you, if your well-known father is accused of killing your mother and your brother, does that make you fair game? Just regardless of him, let's just say not appearing in the investigation. No.

Starting point is 00:40:52 So no, right? Like him sitting behind his father in trial does not make him a public figure just based on that, right? Correct. Okay. Now let's add something that Mandy and I talk about a lot, how the Murdochs used their last name. To me, that's going to be critical, right? Like they're Murdochs. And Mandy, I mean, you've had sources say to you, I've had sources say to me that of all of the Murdochs, Buster was the most proud of it and most, and certainly Buster himself has pointed out that on our podcast, of course he's blaming Mandy for this joke, but I made a joke or made a comment, I don't even know if it was a joke, about his cummerbund

Starting point is 00:41:29 that he wore to a wedding soon after his, I think it was like when his father got arrested or some somewhere in there. And it had the family like initials on it. Like he it's not just a cummerbund year at this event. It was that you are showing you're proudly displaying your family name at a time when maybe there's some shame that should have been there or some maybe you wouldn't necessarily expect somebody to be celebrating it. So maybe hasn't he always struck you as- Yeah, he said I'm a public figure.

Starting point is 00:41:55 Not only does he admit he was a public figure, he did in a phone call with Alec. Remember that? These people were born on third base and they thought that he had a triple. Right. Okay. Let's just be honest. They have used their family name and prominence to their advantage when it was at their disposal, but at the same time, this I believe is a matter of public interest and reporters have a right to report on it. Now they don't have a right to accuse him of murder unless he puts that at issue.

Starting point is 00:42:28 We should talk about Hampton County. You know, Sean Kent deciding to file that in Hampton County, I think is a benefit not to bust or as much as it is the defendants because I think at this point, 40 to 50% of the people in Hampton County are not pro-Mirdahl. And I don't think it's a given that, you know, like it was 10 years ago, that if you're a Myrdal and you stand before a Hampton County jury, you get whatever you want. I do not believe it now. I think it's going to be tested in federal court first because naming Michael DeWitt individually

Starting point is 00:43:04 busts that diversity jurisdiction. Remember, citizens of one state have to be suing citizens of another state to be in federal court, or you have to have a federal question. Defamation is a state tort, not a federal tort or a federal crime. And so they named Michael DeWitt, who's a South Carolina citizen, and Buster's a South Carolina citizen. And that's why they're in Hampton County. Go back to school with Rogers and get Canada's fastest and most reliable internet. Perfect for streaming lectures all day or binging TV shows all night. Save up to $20 per month on Rogers internet. Visit Rogers.com for details. We got you, Rogers. Summer is like a cocktail.

Starting point is 00:43:46 It has to be mixed just right. Start with a handful of great friends. Now add your favorite music. And then finally, add Bacardi rum. Shake it together. And there you have it. The perfect summer mix. Bacardi.

Starting point is 00:44:03 Do what moves you. Live passionately. Drink responsibly. Copyright 2024. Bacardi. It's trade dress and the bat device are trademarks of Bacardi, do what moves you. Live passionately, drink responsibly. Copyright 2024. Bacardi, it's trade dress and the bat device are trademarks of Bacardi and Company Limited. Rum 40% alcohol by volume. Another interesting thing that can come up when you're involved in these cases

Starting point is 00:44:18 is something called the Streisand effect. It's a pretty interesting phenomenon, but I'm gonna let Becky explain it. The Streisand effect is, effect. It's a pretty interesting phenomenon, but I'm going to let Becky explain it. The Streisand effect is, it describes the unintended consequence of a person's attempt to prevent information from going public, where those efforts actually make the public much more aware of the information. And the term, Stry Sand Effect was coined after Barbara Stry Sand attempted to suppress a picture of her house in California that I think was, you know, there was coastal erosion,

Starting point is 00:44:57 it was falling down the cliff or something like that. And so she had her attorneys attempt to suppress that photograph. But through those efforts, the photograph wound up being circulated much more widely. Another big factor that is considered in defamation cases is whether a statement is fact or opinion. Big difference there. So Supreme Court Justice John Harlan invented the Almond Test. You have five rules. One, can a statement be proven true or false? Two, what is the common or ordinary meaning of the word? For example, calling someone a turkey versus a criminal.

Starting point is 00:45:35 A turkey could be interpreted differently based on the individual, but criminal kind of carries a negative connotation with everyone. Three, what is the journalistic context of the remark? Was it on the front page or the opinion page? Was it labeled properly? And number four, what is the social context of the remark? Words mean different things in different situations and depending on the audience, where you were, when you said it, you get the difference. said it, you get the difference. It definitely is complex and it's complex and it's also a tort and the type of claim that sort of has no winners at the end of the day.

Starting point is 00:46:16 Because if you sue someone for defamation, right, the whole point of suing someone for defamation is that they said something out loud to somebody else or they wrote something down and someone saw it and it damaged your reputation either automatically because what they said was so terrible that it fits into one of these specific categories of the law that we say are automatically defamatory or with additional context people would know it was defamatory and you are so wronged that you're actually bringing litigation to try to make yourself whole. Well, the problem is when you file that lawsuit,

Starting point is 00:46:52 you're saying it again, and you're not only, you're just, you're saying it to the world because the general rule with limited exceptions is that court filings and court proceedings are open to the public and that's an important principle of the American legal system. So you can take what was a conversation or a statement that very few people had seen and had access to and all of a sudden blasted out to the world. So it

Starting point is 00:47:18 doesn't really help the plaintiff in many circumstances. There are some cases where a defamation suit is absolutely the right way to go. One of the things that I always counsel clients on is that litigation is expensive in a lot of different ways. It's expensive in that it costs money to pay a lawyer, but it's also expensive in that it requires your time and your time has a value,

Starting point is 00:47:47 and it requires emotional bandwidth and emotional resiliency that you may not have in your reserves at that particular time. So that, especially in a defamation case that often feel deeply personal, that's something that I think a plaintiff should consider before they bring a case, is do they have the emotional reserves to be the plaintiff in this case.

Starting point is 00:48:09 And then in terms of proving your case, so you have to prove that somebody said something that was false. And now what that means is that they're going to come back at you with discovery and try to prove that it was true. But so you have to prove the falsity, you have to prove publication, you might most likely have a fight about whether you're, I mean, not most likely, but you may have a fight about whether you're a public figure or a limited public figure or a private citizen. But then you also have to prove some measure of damages. So even for those cases where damages are presumed and malice is presumed, so the per se cases, you're

Starting point is 00:48:48 still at the end of the day going to have to stand up and ask a jury or a judge to award you some sum of money. And just as a practical matter, jurors like that sum of money to mean something, right? So they want to usually want to tie it to something compensable. So if you were to say, I was defamed and it caused me to lose job opportunities. And if I hadn't, if this terrible information about me hadn't and false information hadn't been said, I would have gotten all these jobs and they would have paid me X dollars. So you have to go through the rig and roll of actually proving those damages with reasonable certainty. And that's pretty challenging. And that's also an area where you'll be opened up to

Starting point is 00:49:31 painful discovery. This is something that I think I hope that somebody has really talked through with Buster Murdoch, because if you have reputation damages, then all of a sudden your reputation is at issue. And so you could have a squeaky clean reputation, but it's like political oppo research. Like people are going to try and find whatever they can, no matter how silly or false, because for the purpose of showing that you have a bad reputation, what's circling in the air about you doesn't have to be true. If everybody just says, like if everybody's walking around my office saying, oh, Becky doesn't put her dishes in the dishwasher, that's not true. I do put my dishes in the dishwasher, but if that's my reputation, then I can't, you know,

Starting point is 00:50:18 I'm already living in that world where people think I'm a slob. So I would say it's hard. Right. Perception is reality, right? So if you have a bad reputation and you're trying to prove reputational damages, then your damages number is going to go down. And that's what the defendant's always looking at. Liability would be one victory to get out on liability. But then another victory, if you can't get out on liability, is to get that damages number as close to zero as you can. And that's where, you know, a good defense lawyer defending a defamation claim is going to, you know, hire a private investigator to go find out what your reputation is. They're going to look at all your social media. They're going to find the neighbor you pissed off by parking in their driveway once and go and go talk to them. Is that really what you want in your life?

Starting point is 00:51:06 All right, so we just talked about public figures versus private figures. But let me explain why those differences are so important in court. Essentially the law gives more protections to private citizens from libelous or defamatory statements than a public figure or official. But again, it gets kind of complicated when you're dealing with an involuntary figure. Think of people who were filmed and go viral on TikTok unintentionally, or people who did not desire the attention. Again, like Buster Myrdal. But those are topics for another day, when we drop part two of this Premium Deep Dive.

Starting point is 00:51:45 Until then, stay tuned, stay pesky, and stay in the sunlight. I hope this has been helpful and remember that the Lunashark team is a message away if you need a little bit of guidance on your fact-finding journeys. And can I just say, how proud I am of Sam for taking initiative on these premium dive episodes. She is a natural. If you agree, please send Sam some encouragement on Discord or social media. I can tell y'all personally,

Starting point is 00:52:20 the early on support and praise when you start out podcasting is so, so important. If you enjoyed this episode and would like more content like this, please sign up for Lunashark Premium. Before we go, I want to highlight some of the recent bonus episodes that we have produced on Lunashark Premium. In July, we launched Girl Talk, Liz and Mandy's version. These episodes are a behind-the-scenes look at our friendship. Essentially, Liz and I call

Starting point is 00:52:52 each other once a week and y'all get to hear pretty much that unedited, unscripted, and unplanned version of us. Also, in July, we published a mini-sode on the Sonia Massey case out of Illinois, one of the worst cases of police murders in recent history. We plan on doing another follow-up mini-sode on that case as well as another one on the Marion, Kansas case in the near future. On another special premium dive episode, Sam was joined by estate planning and probate attorney Ashley Nelson-Route to explore the financial dealings of various individuals related to the Murdoch saga, including Elick Murdoch, Peter Strauss, and Randolph Murdoch. By joining Lunashark Premium, you are not only getting great content, but you are keeping

Starting point is 00:53:46 our journalism dreams alive by allowing us to do this meaningful work we love. Join Lunashark Premium today by clicking the link in the description. As always, stay tuned, stay pesky, and stay in the sunlight. This episode is a Lunashark production created by me, Mandy Matney. Learn more about our mission and membership at lunasharkmedia.com. Interruptions provided by Luna and Joe Pesky. If you're doing your shopping while working, eating or even listening to this walk, then you know and love the excitement of the store. But are you afraid of getting the best deal?

Starting point is 00:54:51 Rakuten members, yes. They store the brands they like and make important savings, in addition to cash returns. And you can also start making money from your favorite stores, like Old Navy, Best Buy and Expedia, and even accumulate sales and cash returns in your favorite stores, like Old Navy, Best Buy and Expedia, and even to buy and sell cash returns. It's easy to use, and you can get your returns via PayPal or cash.

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Murdaugh Murders Podcast - TSP Bonus Premium Dive #3: Am I Being Defamed (PART ONE): What is Libel and Slander?'

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