Taya Kyle credit: theblaze.com

Taya Kyle
credit: theblaze.com

Regular readers know I’ve been following Chris Kyle and the aftermath of his death for several years. Most recently, I’ve written about the decision against Kyle’s estate, and his widow, Taya, by a jury in a defamation case brought by Jesse Ventura. The case revolves around an incident, very briefly mentioned in American Sniper. In the book, Kyle relates an incident where a former SEAL made disparaging remarks about contemporary SEALs in a bar. Kyle wrote that he punched the man, who he identified only as “Scruff Face,” knocking him down. It was only much later, during an interview after the publication of the book, that Kyle grudgingly identified the man as Ventura.

At trial, Ventura claimed the story was entirely false, and produced several witnesses who testified that they did not see the incident Kyle described. Kyle’s estate produced several witnesses that supported Kyle’s story to at least some degree, though none saw the whole thing, which, considering the incident consisted of only a few words and a single punch, is reasonable. Prior to his death, Kyle gave a sworn statement to the truth of the incident.

I was surprised to see the jury’s decision and could not find any specific information about it. Defamation suits are hard to win, and reasonably so, for they directly implicate the First Amendment. One normally has to demonstrate malice, that the person making the defamation not only knew their statements to be false, but actually intended they cause harm. This is usually an insurmountable hurdle to clear.

Several recent article, however, have explained a great deal. First, this from Dallas News.com:   

credit: businessinsider.com

credit: businessinsider.com

ST. PAUL, Minn.  — An appeals court indicated Tuesday that it might agree to order a new trial in Jesse Ventura’s defamation lawsuit over the book “American Sniper” because jurors were told the publisher’s insurer would be “on the hook” for the $1.8 million they awarded him.

An attorney for author Chris Kyle’s estate said in oral arguments to a three-judge panel of the 8th U.S. Circuit Court of Appeals that the comments were so prejudicial that the judges should order a new trial at the least. Lawyer Lee Levine also asked the panel to throw out the entire judgment on First Amendment and other legal grounds.

Jurors awarded the former Minnesota governor $500,000 for defamation and $1.3 million for unjust enrichment last year in a trial over a passage in Kyle’s book that Ventura claimed was a complete fabrication. Kyle, the deadliest sniper in U.S. military history, described punching out a man, later identified as Ventura, whom he said made offensive remarks about Navy SEALs and said the SEALs ‘deserve to lose a few’ in Iraq. The book was also made into a hit movie.

Ventura, a former Underwater Demolition Teams/SEAL member, testified that he never made the comments and the altercation never happened. He said the book ruined his reputation in the SEAL community.

During closing arguments, Ventura’s attorney, David Bradley Olsen, told jurors the ‘insurer is on the hook if you find that Jesse Ventura was defamed.’ That followed questions he put to two HarperCollins employees about whether Kyle was covered by the publisher’s policy.

Courts are reluctant to permit such testimony out of concerns that it could taint a jury’s decision. Appeals Judge William Jay Riley challenged Olsen on Tuesday to cite precedents that would have allowed those statements. Olsen could not point to other cases with the exact same circumstances, but Riley gave him time for more research.

‘In my experience this was over the line,’ Riley said.

There it was; the key to Ventura’s victory. Judge Riley was right. Such testimony is inherently prejudicial, inherently clearing away any hesitation a jury might have to an enormous award. After all, an insurance company—nobody likes them—will be paying it. Of course, we all pay such awards in increased premiums, but that’s not something most people understand or acknowledge.

The two other key issues were whether the judgment is allowed under the First Amendment, and whether there’s a legal foundation for the $1.3 million unjust enrichment portion.

Under the landmark Times v. Sullivan case in 1964, a plaintiff in a defamation case who’s a public figure must prove a defendant acted with ‘actual malice’ — meaning that defendant knew the statement in question was false or made it with reckless disregard for whether it was false.

The Kyle estate argued that the jury got faulty instructions. Levine said the jury should have been required to find there was ‘clear and convincing evidence’ that Kyle’s story was ‘materially false,’ rather than the less demanding ‘greater weight of the evidence’ standard the court used.

Olsen said courts have never held public figure defamation plaintiffs to that higher standard, but Riley asked, ‘Why shouldn’t we make it the law?

Why not indeed?

Levine also argued that no court had previously awarded damages for unjust enrichment for allegedly defamatory speech. The $1.3 million amounted to about a fourth of the book’s profits up to then. That award was also unconstitutional under the First Amendment, he said.

Olsen said the estate forfeited its right to raise those arguments on appeal by failing to raise timely objections at trial.

Fox News added a bit more context: 

The Kyle estate is asking the appeals court to throw out the verdict or at least order a new trial because a lawyer for Ventura allegedly told jurors that the $1.8 million judgment would be paid for by the Kyle’s book publisher’s insurance policy, not his estate.

Gallagher reported that the judge agreed the comment was over the line and pressed Ventura’s attorney for a legal precedent that would have allowed that statement.

The attorney couldn’t think of anything off the top of his head, so the judge allowed him more time.

There is no indication the time allowed Olsen has resulted in a citation of precedent. Variety.com notes that a substantial number of media organizations have filed amicus briefs, siding with Kyle’s estate for First Amendment reasons:

Kyle was shot and killed at a shooting range in Texas in 2013.

In an amicus brief that the studios and media companies filed in the U.S. Court of Appeals in Minneapolis, First Amendment attorney Floyd Abrams challenges the jury’s award of profits from the sale of the book ‘American Sniper,’ saying that it has ‘no foundation in the common law.’ The jury awarded $1.3 million in profits from the sale of the book, and $500,000 in damages for the defamation claim.

Abrams argues that the law of libel ‘has been clear that while an award of damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants.’

‘An award of profits has nothing to do with the harm suffered by the plaintiff; it is punishment, plain and simple,’ Abrams wrote in the brief. ‘And given the lack of proportion between the offending passage and the book as a whole, in this case it is clear that includes punishment of wholly protected speech.’

He also noted that the state of Minnesota, where the trial was held, views an award of profits as punitive. Yet no punitive damage claim was submitted to the jury, and ‘none could have been because punitive damages are not permitted against an estate.’

‘Yet under the guise of an unjust enrichment claim, they were effectively and improperly awarded here,’ he wrote.

credit: dmagazine.com

credit: dmagazine.com

These are important points, and I suspect, convincing to the appeals court. The proportionality argument is interesting. The incident is indeed a very small part of the book, one drop of an anecdote in the ocean of the book. Who else is interested?

Companies signing on to the brief include A&E Television Networks, Buzzfeed, Cox Media Group, E.W. Scripps Co., Gannett Media, Gawker, Hachette, Hearst Corp., the New York Times Co. and Time Inc.

In a statement, the MPAA said that the amicus brief ‘aims to insure that the law of defamation does not impinge on First Amendment rights’ and ‘is just another example of our industry’s longstanding commitment to the protection of free speech rights of all creators and storytellers.

Postscript: An outcome to be desired, from Dallas News:

Ventura said he stands by his statement that if he loses he’ll probably move to Mexico, where he now spends his winters.

‘I don’t think I’d want to live in a country where you can profit from wrongdoing and the courts allow that,’ he said.

This article–Chris Kyle and American Sniper: A Critique of a Faux Critique–contains links to all of my articles on Kyle.

I’ll continue to report on this case as pertinent information becomes available.

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