Alarmingly high defamation damages—such as Hulk Hogan's $140 million Florida verdict against Gawker and a broadcast network's reported $177 million settlement with a South Dakota beef producer—are disturbing recent developments for the news industry.

Coupled with a White House relentlessly decrying American journalists as purveyors of "fake news," publishers of information in the public interest may be facing their greatest risk in their history. And the threat to free speech may now extend beyond challenges to the news media. Juries now seem more willing to punish private citizens who speak out on important public issues.

Consider a Fairfax County, Virginia jury's verdict earlier this month awarding $8.4 million in damages to a U.S. Army officer against a woman who accused him of rape. The two were West Point cadets together in 1986. Decades later, she claimed in a blog post that he raped her while she was unconscious. The Colonel contended that the two had a consensual sexual encounter and a short relationship years before the alleged rape.

The woman, Susan Shannon, resigned from West Point in 1986. The officer, David 'Wil' Riggins, rose through the ranks to become a colonel, and the Army in 2013 announced his nomination to become a brigadier general. Ms. Shannon’s blog post shortly after that announcement, "The Rape of a Female Cadet at West Point: Me," discussed recent media reports about sexual assault in the military and revealed that both she and another female classmate had been raped at West Point. Ms. Shannon named Riggins as the person who sexually assaulted her.

An Army investigation found that "there was no testimonial or physical evidence to corroborate Ms. Shannon or Col. Riggins' version." Nevertheless, U.S. Secretary of the Army John McHugh recommended revoking Col. Riggins' promotion to brigadier general. He immediately retired.

In his defamation lawsuit, Col. Riggins accused Ms. Shannon of using her blog to "intentionally derail [his] promotion." The six-day trial ended on August 1, 2017, when, after two-and-a-half hours of deliberation, the jury ordered Ms. Shannon to pay Col. Riggins $3.4 million in compensatory and $5 million in punitive damages. While the punitive award will be capped at $350,000 under state law, Ms. Shannon, a single mother of three, still faces a damages award of more than $2 million.

Seven-figure damages in non-media defamation cases like these are becoming increasingly frequent. Two days after the Virginia verdict, a Texas jury awarded $1 million to a wedding photographer in a defamation suit against a blogger and her husband who launched a social media campaign and told several local television stations that the photographer was withholding their wedding photographs. And earlier this year, First Lady Melania Trump wrested a reportedly substantial settlement and an apology from a Maryland blogger in a $150 million defamation lawsuit.

Charges of "fake news" threaten our constitutionally protected right to free speech and, by extension, our democracy. The calculated effort to erode public confidence in journalists may now be expanding to bloggers and working its way into the jury system.

Defenders of free expression must remain more vigilant than ever.

The attorneys in Ballard Spahr's Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of both groups and individuals. The Group helps clients navigate some of the law’s most challenging issues, whether in court or during the editing process, across platforms and industries.

Copyright © 2017 by Ballard Spahr LLP.
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