FrgMstr said:
Kyle, now you're bringing the armed services into it?....
Here's how it looks to me...Listen, this is the truth in America: free speech is Constitutionally protected *so long as* it is not fraudulent or libelous speech. Lots of speech is not Constitutionally protected. Fraudulent speech, for instance, is not protected and can often land you in jail (try lying to the IRS in your income tax statement, for instance--uh, if you get caught--or try as an auto manufacturer advertising a 4-cylinder car on television as an 8-cylinder car, and see how much protection the Constitution provides--none!...
Writing bad checks, for instance, although rarely prosecuted that way, is considered fraudulent speech ( a check constitutes written notice to a retailer that you have the funds indicated by the check), and can land a person in jail. Then there are things like falsifying employment applications, loan applications, etc. ad infinitum--basically, false speech is not Constitutionally protected speech.) Libel, of course, is not Constitutionally protected speech and while it's not criminal speech--it can, quite Constitutionally, cost you a fortune, should you be sued for libel and lose your case. I am genuinely surprised to even have to mention this, as you ought to know that people were bringing libel suits in the US, and people were losing them and winning them, long before you and I were born. You are not the first sued for libel in the US and certainly will not be the last...
In this kind of case, Kyle, it doesn't make any difference whatever if you believe that what you said is true. Your beliefs are irrelevant in such a case. Rather, if you write an article in which you call John Doe a crook in so many words, but you can't actually prove he's a crook--you just think he is--and John Doe decides to disagree with your assessment and sues you for libel--guess what? You have to then prove that everything you said about John Doe was true, and that you knew it to be true when you printed it. OTOH, John Doe does *not* have the burden of proving anything you said about him to be false. Rather, you have to prove that what you said was true. That's why I said from the start that your preemptive lawsuit based on having IL prove your allegations false was never going to fly--because the statute it relies upon in Texas is absolutely not a shield against libel, nor was it intended to be employed as a shield against libel. Accordingly, I always felt you to be the beneficiary of some poor legal advice at the time, and said so.
So the bottom line is this for you as it seems to me: barring that the two of you fail to settle out of court, then you must prove that what you said about IL and its prinicipals was true when you wrote it. If and when you prove that, you are absolutely off the hook and you will win the case. As well, if you can prove that what you said was based on an honest error or series of errors, and you can demonstrate to the court how you made those errors, then you are also off the hook, as *error* is indeed a total and utter defense against libel charges. "I erred when I called him a crook because I was mislead by this and this and that..." is a watertight defense against libel provided you can convince the court that it was reasonably possible for you to have reached your erroneous conclusions based on erroneous sources. So through either of these two avenues you can completely exonerate yourself provided you can demonstrate them to the court, imo.
Additionally, libel suits by nature are very hard to win. Even if you cannot prove that you had *proof* IL was crooked when you wrote about IL, it's not enough for IL that you can't prove it. IL then has the burden of proving to the court that it was damaged, and to prove by how much it was damaged in dollar amounts by your libelous speech. If cannot prove your speech damaged it, then it doesn't really matter if your speech is considered libelous, IL cannot expect an award from the court related to your libelous speech. However, the adjudication of attorney's fees might well be a horse of a different color.
It's precisely because libel is so hard to prove or to win a judgement on that tabloid newspapers regularly write the kinds of garbage that they write about celebrities. They think, and not without justification, that the complexity and expense of a plaintiff winning a libel suit against them presents such a high bar that they can proceed with impunity. But often celebrities will call their bluff and sue for libel anyway and win--as people like Tom Cruise and Michael Douglas and many others have done in the recent past. So, just because the bar for winning a libel suit is high for the libeled party, that does not mean it cannot be reached and that libel suits cannot be won.
Basically, Constitutionally protected speech is not a license to write negative, damaging commentary about individuals or corporations for which *you have no proof.* Basically, if you can prove it you can write it...
If you write things like that which you cannot prove then you might well wind up on the wrong end of a libel suit, right? I mean, you now unfortunately know this first-hand.Just based on the documents made public by [H] over the course of this matter as I read them, I can see one area of particular difficulty for you in this matter, at least as being able to beg off the whole thing as simply a matter of honest error on your part, error which you fell into from erroneous public sources of information over which you had no control or influence. That is, it appears from those documents that prior to any lawsuits being filed by anyone you were personally invited by the IL principals to visit Florida and tour the IL facilities, perhaps even at their expense, to allow them to show you first hand what they were doing.
Although you might necessarily have had to sign an NDA in the process, you would have at least been able to personally verify whether or not the Phantom was indeed a phantom in reality. But according to those documents I read, it would appear as if you refused all such offers extended you by IL, even though Florida was merely one state away from you geographically. It's possible that a judge might see your refusal as a deliberate refusal to entertain any information which was contrary to your own personal opinion, even information supplied in such a direct and personal fashion by the company itself. Thus, if my impression here is correct, it's going to be very difficult to use the error shield, since you had opportunity to have any such errors of perception on your part corrected prior to any suits being filed, but you chose to ignore the opportunity. (Just my opinion, based solely on what documents [H] has published about this matter.)
That is why since [H] brought this whole thing to light in the beginning I've been saying the same thing: settle this as quickly as possible. If you turn it into a pissing match you may be the one who...gets wet...
A lot of us in the US grow up with an ideal notion about the way courts work--we kind of think they work like Perry Mason where "the truth" always carries the day in the end and the bad guy confesses just in the nick of time...
But I learned decades ago that a wise man stays out of court--even if he has to eat a little crow from time to time... "Pride goeth before the fall," as the Good Book says. When it comes to civil court, no kidding--it's a lot easier to eat your pride than it is to eat a court judgement against you... In court, unfortunately, "the truth" and "the proof" are not always congruent, and it's "the proof" presented that carries the day. Doesn't work like that for Perry Mason, but it unfortunately does for just about everybody else. Again, best wishes, and I hope you guys can settle this out of court, as I've said from the start. Standing by what you write as a journalist is a double-edged sword, never forget. When you stand behind it, you also have to stand behind whatever consequences it brings you, too. That's why the Journalist's First Rule is 'Responsibility': never write what you cannot prove as if you could, but only write what you can prove before you write it. Follow that rule and I guarantee you it will keep such troubles as these at bay in the future--or at least make them far more manageable should they arise.
