Graphic
|

Suing Students Who Post Unflattering Reviews to RateMyProfessors.com

by Andrea Anderson

A UW-Whitewater professor is suing her former graduate student, saying the student’s comments on websites are defamatory.

“When you make false statements of fact repeatedly about another person with the intent of harming them, that’s over the line,” said Tim Edwards, attorney for UW-Whitewater communications professor Sally Vogl-Bauer.

“If you truthfully say, ‘In my experience, this isn’t a good teacher, I didn’t have a good experience, she was late’ and that’s your opinion, that’s fair,” Edwards said.

Vogl-Bauer is suing Anthony Llewellyn for defamation.

The lawsuit alleges Llewellyn “engaged in an intentional, malicious and unprivileged campaign to defame Dr. Vogl-Bauer, resulting in substantial economic, reputational and emotional injuries.”

Websites dedicated to students reviewing their instructors have proliferated. The Whitewater case raises the question of when online comments become defamation.

Llewellyn posted videos on YouTube and wrote comments on Blogger.com and TeacherComplaints.com describing what he said Vogl-Bauer did to him while he was in her communication theories class in spring 2013.

A few of Llewellyn’s claims are Vogl-Bauer:

– Said he didn’t belong in college

– Labeled him as a horrible student

– Docked him points on assignments

– Caused him to fail out of school

Llewellyn said he spoke with Vogl-Bauer in April about her behavior before he was notified in June that he failed her class.

After trying to communicate with UW-Whitewater Department of Communication faculty and staff and university administration, Llewellyn sent emails to the Eastern Communication Association, Better Business Bureau and the Federal Trade Commission describing Vogl-Bauer’s behavior as “degrading, demeaning, verbally attacking,” according to court documents.

Edwards declined to comment on the specifics of his client’s case.

“Persistent defamation among one’s peers and within a small professional community can be devastating to the career of a well-respected professional such as Ms. Vogl-Bauer,” Edwards said.

Vogl-Bauer denies all allegations, Edwards said.

Edwards said he and his client agree students should be allowed to express their opinions.

“But when you go so far beyond that, into a concerted effort to attack somebody’s reputation because things didn’t go your way, that’s much different,” Edwards said.

Llewellyn said his goal was to inform the public about the professor’s treatment of him, not to defame her.

Students commonly post reviews of teachers, universities and colleges on websites such as RateMyProfessors.com.

With the same mission as Yelp.com or other review sites, Rate My Professors allows people to rate professors based on easiness, helpfulness, clarity and rater interest.

Makayla McGinnis, a UW-Whitewater sophomore majoring in political science, consults Rate My Professors when deciding between two teachers teaching the same class.

McGinnis said people need to digest comments and realize there are times when comments get out of hand.

“I think you have to take things on Rate My Professors with a grain of salt, because anyone can post anything on there,” McGinnis said. “So, obviously, if someone hates that professor, they can go on there and trash them.”

Llewellyn did not say he posted on Rate My Professors. He posted on Teaching Complaints, a website where people can submit complaints about teachers or schools.

“It is my sincere hope that students in particular will do their homework before getting involved with teachers and universities,” Llewellyn wrote in an email.

Students read online reviews to see what a professor might really be like, McGinnis said, and might base final class decisions on the online reviews.

Students The Gazette interviewed said they prefer making final decisions based on friends’ recommendations, word of mouth and class time.

UNIVERSITY EVALUATIONS

UW-Whitewater has its own systems for gathering student opinions about instructors.

The majority of UW-Whitewater’s college departments ask students to complete course evaluations online near the end of each semester.

Students get an email with a link and deadline. The alternative is to set aside class time for paper evaluations, said David Travis, dean of the UW-Whitewater College of Letters and Sciences.

UW-Whitewater does not post teacher evaluations online, but reviews are public record, and students could request them, he said.

Students prefer online evaluations compared to paper because they can do it at their convenience and instructors won’t recognize their handwriting, Amber Ralston, a UW-Whitewater sophomore majoring in psychology, said.

Travis agrees.

“They’re a little more personal with their feelings in the online approach,” Travis said. “They are more passionate, I guess you could say, about their experience in the classroom. I have to say I’m most pleased by the fact that we get these really glowing comments with the online approach that I didn’t see as much with the handwritten comments.”

Instructors don’t see the reviews until after grades are submitted, Travis said.

Jeremy Colberg, a junior studying business management, said he doesn’t visit websites such as Rate My Professors. He prefers talking with friends. Colberg hopes UW-Whitewater faculty look at the evaluation feedback and take students’ comments to heart.

The university takes evaluations seriously, Travis said. They gauge how well a professor is doing, what can be improved, and how content can be adjusted.

Evaluations can be based on a numerical scale or include comments.

Travis, a former professor, said he read reviews and used both negative and positive comments to improve.

“Negative comments aren’t always necessary to help an instructor improve,” Travis said. “Positive comments are also helpful because they’re reinforcing what we’re doing is working, and we want to do more of that sort of thing.”

The school evaluations are more beneficial for professors, whereas online review sites are more helpful for students, Travis said.

LEGALITIES

Bruce Boyden, a Marquette University law professor specializing in Internet law, sees online commenting and the Internet as a growing cultural phenomenon.

People can distribute information to people they’ve never met, and it creates issues that didn’t exist before, he said.

A picture, article or comment can go viral at any moment.

Controlling commenting online is difficult, Boyden and Edwards said.

The websites and domains have no responsibility for the things posted, Edwards said. That lies with the person who posted it.

Edwards and Vogl-Bauer asked Llewellyn to take down his videos and comments criticizing Vogl-Bauer, but  Llewellyn has not. That’s why he’s being sued, Edwards said.

The law of defamation applies to people posting online just as it does to those publishing statements in print, Boyden said.

Vogl-Bauer is suing Llewellyn for punitive damages and attorney and trial fees, according to documents in the small claims action filed in the Walworth County Court.

Llewellyn said it’s important for the videos and comments to remain online to keep the public informed.

“I don’t feel I’ve went too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me,” Llewellyn wrote.

  

Short URL: http://www.adjunctnation.com/?p=5923

29 Comments for “Suing Students Who Post Unflattering Reviews to RateMyProfessors.com”

  1. A Texas high school teacher is suing two students.

    “Texas Defamation: A Big Tale Of A Teacher & Two Rebellious High School Students…”

    Thursday, February 13th, 2014

    English teacher Elizabeth Ethredge, of the Waller Independent School District, filed a Texas defamation lawsuit against two of her students, Demi Alyssa Gray and Dylan Noble Wells. Ethredge insists Gray and Noble twisted tales about classroom events in retaliation for being disciplined. But Gray and Noble insist the teacher acted inappropriately in class.

    The month was November; the year, 2012. According to Ethredge, she was giving her students a State-mandated lesson in oral storytelling. The seasoned teacher opted to regale her class with a tale about her son being robbed at another school in the district.

    According to two of her students, Gray and Noble, five months after the lesson, Ethredge encouraged students to hone their spy skills, head over to Facebook, and avenge her son’s honor by trying to purchase goods from the person Ethredge believed robbed her [ son ].

    The curious part about this case, though, is that the students waited months to “snitch” on their teacher. Why? Well, if you believe Ethredge’s side of the story, they only did it in retaliation for her sending them to the principal’s office over breaking school dress code rules and being disruptive in class.

    Soon after the two students ratted on their teacher, the school district suspended Ethredge with pay. Soon after that, administrators seriously considered termination. As a result, she decided to file an Internet defamation case.

    Filed at the Harris County Court, Ethredge’s suit is asking for punitive damages, citing defamation and intentional infliction of emotional distress. Ethredge’s claim averred that the students’ actions were a “deliberate and malicious intent to injure plaintiff’s reputation.” To temper any speculation about the nature of what happened in her classroom, Ethredge’s suit explains that the “oral storytelling exercise was directly related to and in compliance with the Texas Essential Knowledge and
    Skills, the State Standards for curriculum in public schools in Texas.”

    In order to win this case, Ethredge will most likely have to prove material harm – as you can’t win a defamation lawsuit over hurt feelings. It’s interesting to note that Texas does not have a false light tort – if it did, Ethredge may have been able to file a stronger case. That’s not to say she doesn’t have a chance at winning this one – especially since administrators are talking termination — but being able to add a false light charge would put more “meat” on the proverbial bone.

    Kelly Warner Law is based in Arizona but also licensed in Texas.

    http://kellywarnerlaw.com/texas-defamation-case-teacher-v-students/

  2. [[ The complaint states that Ethredge "mentioned to her students that they might be able to help recover her son's property." She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him. ]]

    She used school time to recruit for Militia Ethredge?

    • Elizabeth Ethredge has done her own social media review and rating.
      She said this about a restaurant:

      [[ This was a group of prom students that had a horrible experience. The room has peeling wall paper and the table was nasty. They couldn't figure out how to get the bill split for them and made the group an hour late to prom!!! For what they paid, this was not a night to remember for the best. The group reservation was to include a surprise for my son's birthday. OMG, the catering supervisor called and asked him what he would like to do! Sum surprise. This is also the person that called an hour before he was to leave and told me she forgot to run my card for the deposit. So, I have talked to the head chef. He is going to have the Gen. Manager call me. We will see what they would like to do to fix this debacle. ]]
      Posted at https://plus.google.com/116278443587676915828/about

  3. Here’s a detailed report about the Elizabeth Ethredge defamation lawsuit.

    “Refresher Course”
    John Nova Lomax, Houstonia Magazine, August 1, 2013

    It was November 13, 2012, and 12th-grade Waller High School English teacher Elizabeth Ethredge was teaching a class on storytelling when things went off course. By all accounts of the day (taken from a report from the school that was later included in a lawsuit), the teacher started complaining that a Cy-Fair ISD student had stolen a computer from her son.

    It’s murkier from there. In one version of events, the eight-year Waller veteran urged her students to contact the miscreant on Facebook and make bogus offers to buy the computer back. (Ethredge herself is a user not of Facebook but Twitter, where she is a self-described “wife, annoying mom, the Football Lady, and a teacher of literature and life.”) In another version, the teacher told her students that she wouldn’t be opposed to their harassing the thief. And a third version, reportedly corroborated by multiple students, accuses Ethredge of wasting precious class time by giving out the alleged thief’s Facebook information and cellphone number and urging her pupils to put the bandit “on blast” until he coughed up the computer.

    All was calm for more than four months. Then, this past March, according to court documents, student Dylan Wells burst into Ethredge’s classroom ahead of the bell in “a loud and boisterous manner.” Ethredge happened to be chatting on her cell at the time, making the intrusion doubly annoying.

    Wells had long been a burr under his teacher’s saddle, what with his repeated “disruptions of the instructional period.” Wells was sent to the principal.

    Enter another student, Demi Gray, “already hurling insults and exhibiting an extremely flippant attitude” in solidarity with Wells. Unfortunately for Gray, “her inappropriate self-involvement in the discipline situation” drew attention to the fact that she had fallen short of Waller’s dress code.

    In principal Brian Merrell’s office, Gray and Wells sprung what Ethredge and her lawyer Susan Soto have branded a hastily concocted trap. The duo spilled the beans about Ethredge putting her kid’s alleged antagonist “on blast” back in November, spending too much class time on her cell, over-sharing personal info, and working on her grad degree during class time. Principal Merrell launched an investigation. “Multiple students in multiple class periods confirmed,” according to the resulting report, that during class time Ethredge had organized what amounted to a mob of cyber-bullies.

    Ethredge later confessed to telling her students that she “would not be opposed” to them harassing the perp. “But I didn’t tell them they could do it on class time,” the teacher reportedly said. On April 3, Ethredge was suspended with pay, and five days later Waller superintendent Danny Twardowski wrote that Ethredge’s conduct “was a waste of valuable instructional time to further [her] own personal agenda.” Ethredge was terminated.

    “Hey Ethredge,” Gray taunted on Facebook. “I threw stones at your house.” He continued: “what you got for me?” “Hahahaha,” Wells chimed in. “Bitch aint got s***.”

    Exactly a month after she was let go, Ethredge filed suit in Harris County District Court alleging that her former students had defamed her character, libeled her, inflicted emotional distress upon her, subjected her to public hatred and ridicule, and caused her to seek a physician’s care. And those Facebook taunts! What an outrageous breach of acceptable student-teacher relations! She hopes that the kids will be forced to pay court costs and actual and exemplary damages, with interest.

    General Counsel for HISD’s teacher’s union, attorney Chris Tritico, thinks the likelihood of that ever happening is virtually nil. “I usually advise my clients not to file these cases because collecting money from 17-year-old kids is next to impossible,” he says. “You might get a piece of paper saying that you won, but nothing else. It’s a decent case she has, but still, they’re kids.” (The lawyer for Wells and Gray declined to comment.)

    That’s beside the point, according to Ethredge’s attorney Susan Soto, herself a former teacher and principal. A solo practitioner, Soto was drawn to the case because she doesn’t believe that kids should be able to back-talk their teachers, reduce a teaching career to shambles, and then taunt them on Facebook. And like Ethredge, she sees the case as a teachable moment. “She dedicated a lot of time teaching these kids not just English, but also life lessons,” Soto says. “This suit serves as a model for students, shows them the process on how to stand up and do the right thing.”

    http://www.houstoniamag.com/news-and-profiles/people-and-profiles/articles/refresher-course-august-2013

    • “Texas Defamation: A Big Tale Of A Teacher & Two Rebellious High School Students…”

      Thursday, February 13th, 2014

      English teacher Elizabeth Ethredge, of the Waller Independent School District, filed a Texas defamation lawsuit against two of her students, Demi Alyssa Gray and Dylan Noble Wells. Ethredge insists Gray and Noble twisted tales about classroom events in retaliation for being disciplined. But Gray and Noble insist the teacher acted inappropriately in class.

      The month was November; the year, 2012. According to Ethredge, she was giving her students a State-mandated lesson in oral storytelling. The seasoned teacher opted to regale her class with a tale about her son being robbed at another school in the district.

      According to two of her students, Gray and Noble, five months after the lesson, Ethredge encouraged students to hone their spy skills, head over to Facebook, and avenge her son’s honor by trying to purchase goods from the person Ethredge believed robbed her [ son ].

      The curious part about this case, though, is that the students waited months to “snitch” on their teacher. Why? Well, if you believe Ethredge’s side of the story, they only did it in retaliation for her sending them to the principal’s office over breaking school dress code rules and being disruptive in class.

      Soon after the two students ratted on their teacher, the school district suspended Ethredge with pay. Soon after that, administrators seriously considered termination. As a result, she decided to file an Internet defamation case.

      Filed at the Harris County Court, Ethredge’s suit is asking for punitive damages, citing defamation and intentional infliction of emotional distress. Ethredge’s claim averred that the students’ actions were a “deliberate and malicious intent to injure plaintiff’s reputation.” To temper any speculation about the nature of what happened in her classroom, Ethredge’s suit explains that the “oral storytelling exercise was directly related to and in compliance with the Texas Essential Knowledge and
      Skills, the State Standards for curriculum in public schools in Texas.”

      In order to win this case, Ethredge will most likely have to prove material harm – as you can’t win a defamation lawsuit over hurt feelings. It’s interesting to note that Texas does not have a false light tort – if it did, Ethredge may have been able to file a stronger case. That’s not to say she doesn’t have a chance at winning this one – especially since administrators are talking termination — but being able to add a false light charge would put more “meat” on the proverbial bone.

      Kelly Warner Law is based in Arizona but also licensed in Texas.

      http://kellywarnerlaw.com/texas-defamation-case-teacher-v-students/

  4. Voglbauer V. Llewellyn

    Sally Vogel-Bauer apparently had her pre-trial hearing AUG 20, 2014. Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is scheduled for SEP 15 – SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss.

    Visit http://wcca.wicourts.gov/index.xsl . Click agree.
    On next page enter name = Llewellyn,
    County = Walworth,
    Case Number = 2013CV001140.

    You’ll see suit history and public data about Sally Vogl-Bauer and Anthony Llewellyn.

    • Voglbauer V. Llewellyn

      IS A DEAL IN THE MAKING?

      Sally Vogel-Bauer apparently had her pre-trial hearing AUG 20, 2014. It is no longer listed on the pending court docket. Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is still scheduled for SEP 15 – SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss; however, it is hard to find any of Anthony Llewellyn’s videos online. IS HE TAKING THE VIDEOS DOWN?

      Visit http://wcca.wicourts.gov/index.xsl . Click agree.

      On next page enter name = Llewellyn,

      County = Walworth,

      Case Number = 2013CV001140.

      You’ll see suit history and public data about Sally Vogl-Bauer and Anthony Llewellyn.

  5. It is unfortunate that defamatory and untrue statements are made against health care professionals and providers online. The best advice it to be proactive and make sure you are monitoring what is posted about yourself and your practice through different websites, social media sites, and blogs.

  6. Teachers who are suing might not have done so, had they seen the results doctors get. This is another example for Court Watch’s August 16, 2014, post.

    Plastic surgeon’s defamation case thrown out
    Lisa Hutson, COVINGTON, KY (FOX19) , May 23, 2014

    Catherine Nazari of Greendale, Ind. said she posted negative reviews of her plastic surgeon online after she suffered horrible scars and disfigurement from her procedures.

    That surgeon — Dr. Jean Loftus of Fort Wright — took her to court for those comments but the outcome was something neither one of them expected.

    “I had breast implants, breast lift, arm lift and a tummy tuck all in the same day,” said Nazari, 54.

    Nazari said she underwent plastic surgery in 2006 to remedy loose skin caused by losing weight but what she woke up to was not what she expected.

    “My hands were numb. I had no feeling in my arms or my hands and she said it was due to the surgery, that it would come back in time but it never did,” she said.

    Unsightly scars and permanent nerve damage Nazari says are the results of that surgery. Soon after, she took to the Internet to warn others about her plastic surgeon.

    “I just wanted people to know. Be diligent. Do your research,” she said.

    But Loftus has a different view. “I can’t stand by and let someone say absolutely false, disparaging, untrue statements, blatant defamatory accusations about me,” Loftus said. Loftus said the comments Nazari posted online about her practice were not negative reviews. They were lies. She said Nazari had a previous nerve condition that is causing her medical problems. Her incisions were not even deep enough to reach her nerves according to Loftus. That is when she decided to sue Nazari for defamation. “I did not file this suit to make money or to win an award. I filed this suit to bring out the truth,” Loftus said.

    But a U.S. District Court judge in Covington did not agree and dismissed the doctor’s defamation claim and Nazari’s counterclaims citing under the 1st Amendment, Nazari had a right to her opinion.

    Local defamation attorney Rob Linneman isn’t surprised. “This outcome is the outcome most constitutional scholars would have predicted. The consideration that is given to most 1st Amendment cases is what effect will it have on other people who would make comments if we punish this person for making this comment,” Linneman said.

    Loftus disagrees. “It gives everybody the lead way to say whatever they want about anything they want and essentially hide behind the 1st Amendment,” Loftus said, noting she is most concerned about the precedent her case has set.

    Though she is still unhappy with her procedures, Nazari is glad the legal fight is over. “My whole life has been disrupted because of all of this,” she said.

    Nazari filed a medical malpractice suit against Loftus but the case was thrown out. No medical expert could support her claims that the problems she is experiencing are a result of plastic surgery.

    • “Plastic Surgery Practice investigates the real meaning behind Loftus v Nazari”

      June 19, 2014, By William Payton and Alayna Zayas

      “Horrible scars.” “Permanent nerve damage.” “Disfigured.” Patients have every right to describe your surgical results in such terms on Internet review sites. Or so it would appear, if a ruling handed down in federal court last month is deemed instructive to other courts. Loftus v Nazari (ED Ky, May 13, 2014) echoes numerous rulings against service providers who have filed libel suits against the authors of negative customer reviews posted online.

      Loftus v Nazari is not the first such case to be lost by a surgeon, and it won’t be the last. It may be a hard pill for doctors to swallow, but it also highlights how important it is for doctors to familiarize themselves with the principles of defamation and liability, to avoid filing costly and wasteful lawsuits.

      Richard M. Escoffery, an Atlanta-based attorney who helps his clients proactively manage online consumer reviews and address reputation attacks, believes the court conducted a fairly routine analysis to determine whether the statements at issue were defamatory or protected opinion. While not a watershed decision, he says, “What makes the case of interest is that these statements were made online, and the court recognized ‘[i]n the present Internet age’ that opinions made online have some social utility.”

      In 2006, Jean Loftus, MD, a plastic surgeon with practices in Cincinnati and Fort Wright, Ky, performed an arm lift, abdominoplasty, breast augmentation with implants, and breast lift on Catherine Nazari. Unhappy with the results, Nazari posted negative reviews on three separate websites. Most notably, Nazari stated, “I had plastic surgery done by Dr Jean Loftus only to be left with permanent nerve damage in both arms, severe abdominal pain, horrible scars, and disfigurement in both breasts as a result of her mistakes.”

      In response to Nazari’s posts, Dr Loftus filed a lawsuit for defamation and interference with future business prospects. Nazari filed counterclaims for defamation, invasion of privacy, malicious prosecution, and intentional infliction of emotional distress. The court dismissed all claims on summary judgment, meaning the court did not think there was enough evidence to warrant a trial for any of the claims.

      The crux of the case is the defamation claim against Nazari. Defamation is an intentionally false statement which is publicly spoken (slander) or written (libel) that damages another person’s reputation. In general, to establish defamation, a plaintiff has to show: (1) there was a false statement; (2) the statement was communicated to a third party; (3) the statement was negligently or intentionally made without reason to believe it was true; and (4) the plaintiff’s reputation was harmed. Courts will assess the circumstances surrounding the statement and consider its effect upon the average reader or listener.

      The court surmised, “Basically, she says she had the surgery, and she has the unfortunate conditions described. Also, in her opinion, they are the result of the surgery, which also in her opinion involved negligence on the part of Dr Loftus.”

      ” What is more, the court recognized that because the postings were made on ‘opinion websites,’ one would logically presume they were her opinion. “It’s an example of how application of the same law in the context of social media/the Internet can produce somewhat different results,” Escoffery explains.

      Litigating a defamation claim is expensive, risky, and almost always a last resort. “Is it worth it to sue? Probably not,” says Joseph Niamtu III, DMD, a Virginia-based cosmetic facial surgeon who teaches fellow surgeons about managing their reputations online. “If you try to fight fire with fire, it will probably backfire.”

      Escoffery agrees. Even if a physician prevails in a defamation case, “What’s the value of an uncollectable judgment? Winning a lawsuit might not be worth the cost if the defendant doesn’t have deep pockets,” he says.

      Paradoxically, the publicity surrounding a defamation case may bring unwanted attention to the very information the physician sought to be suppressed. Lastly, potential plaintiffs should be aware of anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes. If applicable, the court might dismiss a physician’s claims and award attorney’s fees to the defendant.

      “We might take from this case that some courts are less likely to find statements to be defamatory if they are made in this, rather than another, context,” Escoffery says. In today’s online environment, cosmetic surgeons have no choice but to prevent bad reviews, address them when they happen, and, if all else fails, accept them and move on.

      William Payton and Alayna Zayas are contributing writers for Plastic Surgery Practice magazine. They can be reached via [email protected].

      Full post: http://www.plasticsurgerypractice.com/2014/06/indepth-dispatches-review-wars/

  7. After losing defamation suits, plaintiffs seem to continue to feel defamed but cheated by legal trickery.

    “I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” Dr. David McKee said. “Dennis Laurion is a liar and a bully and a coward,” McKee said.David McKee, a neurologist with Northland Neurology and Myology, said he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

    It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts. “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

    “I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking opportunity and risking this negative exposure is because I feel that this is wrong.”

    “When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said.

    Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public.

    “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

    Sally Vogl-Bauer, a teacher who is suing a former student, has published an essay, “When Disgruntled Students Go to Extremes: The Cyberbullying of Instructors,” summarized at http://www.tandfonline.com/doi/abs/10.1080/03634523.2014.942331#.U-hGBGO9b9M

  8. I believe little consumers hiding behind a computer should be sued as well, for making false negative reviews. It’s a very childish act and if they’re own livelyhood was at stake depending on reviews for income, you know they’d think twice. Sue the little cocaroaches! At least make an example of them.

    • It doesn’t sound like Mr. Llewellyn sat behind a computer and posted anonymously. It sounds like he made his complaints known. And within the universe of the university system professors are demi-gods. What right does the university have to censure Mr. Llewellyn? He is only giving a fair critique of his class with Professor. Bauer. This has more to do with being “thin skinned” and “we will brook no dissension” in the university system than anything else. There is no professor on any campus in any university who can say that such and such a student ‘went too far’ in their critique. I am totally with Mr. Llewellyn on this issue. I hope Professor Bauer loses this case big time and has to pay out $900 plus Mr. Llewellyn’s attorney fees and courts fees. That should teach her she isn’t so big for her britches. There is not one student in the USA who has not been the victim of some university professor ego and we have plenty of complaints from students. It’s time professors were “outed’ for their unprofessional and bullying ways. Mr. Llewellyn has my full support. I know too many victims of ego maniacal professors thinking they do nothing wrong when they do plenty of intimidation on a daily basis. Frankly, university professors have too much power.

  9. A teacher in Texas appears destined to join Professor Sally Vogl-Bauer, Lawyer Timothy Edwards, Dr. David McKee, and Lawyer Marshall Tanick in the Streisand Effect Hall of Fame.

    “Texas teacher sues two students for defamation”
    Posted By Kristen Butler, UPI, May 13, 2013

    [[ May 13 (UPI) -- High school English teacher Elizabeth Ethredge has filed suit against two students claiming she was suspended and may be fired because they told the principal that she had asked her class to stalk a suspected thief on Facebook. Ethredge claims she was giving an "oral storytelling" lesson in November 2012 when she told her class an anecdote about her son having personal property stolen at a high school in another district, reports Courthouse News Service.

    [[ The complaint states that Ethredge "mentioned to her students that they might be able to help recover her son's property." She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him.

    [[ Ethredge claims the two students only brought it up months later, in March of this year, when she sent them to the principal's office for disruptive behavior and a dress code violation.

    [[ "Defendants wrote statements about the oral storytelling exercise that were clearly retaliatory in nature, designed to take the focus off of their inappropriate behavior and to instead focus the principal's attention on plaintiff," the complaint states.

    [[ As further evidence of the students' alleged "deliberate and malicious intent to injure plaintiff's reputation," the complaint shows that one student posted a message to Facebook during school hours that said, "Hey Ethredge, "I threw stones at your house" what you got for me big bada**? Case closed!"

    [[ The second student named in the suit commented on the post, saying "Hahahahah [expletive] ain’t got [expletive]!”

    [[ Days after the cited Facebook posts, the Board of Trustees of the Waller Independent School District proposed termination of Ethredge's employment.

    [[ Ethredge seeks punitive damages for defamation and intentional infliction of emotional distress. ]]

    Source: http://www.upi.com/blog/2013/05/13/Texas-teacher-sues-two-students-for-defamation/3031368455783/

    • Vogl Bauer V Llewellyn

      The Texas teacher probably has a tangible claim for damages if she can prove defamation. Elizabeth Ethredge got fired according to http://www.texednews.com/2013/38/Ethredge_v_Waller_003-R2-09-2013.pdf.

      So far as I know Professor Sally Vogl-Bauer still has tenure at University of Wisconsin, and Dr. David McKee still works for Northland Neurology and Myology, still works for Integrity Health Network, and still sees patients at St. Luke’s Hospital in Duluth MN.

  10. Vogelbauer V. Llewellyn

    To follow the court progress or for information about the plaintiff and defendant – Sally Vogl-Bauer V. Anthony Llewellyn, not David McKee MD V. Dennis Laurion –

    1. Visit http://wcca.wicourts.gov/index.xsl .
    2. Click “I agree” .
    3. You’ll be taken to http://wcca.wicourts.gov/simpleCaseSearch.xsl;jsessionid=640964EA587D052C62E1CAF493A883FA.render6 .
    4. Name = Llewellyn .
    5. County = Walworth .
    6. Case Number = 2013CV001140 .

  11. Tim Edwards’ comments remind me of opposing counsel remarks while I was sued for defamation – David McKee MD V. Dennis Laurion, Minnesota Supreme Court Case A11-1154, 2010 – 2013.

    A Duluth News Tribune article of June 2010 quoted Marshall Tanick, now employed by Hellmuth Johnson law firm, who in a phone interview alleged that Laurion defamed his client in several ways, including posting negative reviews of McKee on various websites. “The basis for
    the lawsuit is the defamatory statements that were made on websites and to
    other sources,” Tanick said. “However, by no means does Dr. McKee want to in any
    way prevent or affect any kind of communications that may be made to the Board
    of Medical Practice or any other regulatory agencies. The purpose of the
    lawsuit is to prevent defamation being made on the websites and through other
    sources.”

    From BuzzFeed, 2014: But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

    Taken from videotaped comments to Minnesota Supreme Court: “He may have been upset at how Dr. McKee treated his father. Apparently he was, and he’s entitled to say that. He can say that “I’m upset. Doctor McKee did not treat my father well. He was insensitive.” He can make
    statements like that: “He didn’t spend enough time in my opinion.” He can make
    factual (sic) statements, he can make them on the Internet, he can make them in
    letters, he can write a letter to the editor, he can stand in front of St.
    Luke’s Hospital with a placard saying those things if they are opinions . . .”

    Both comments sound like a primer for plaintiff remarks in Sally Vogl-Bauer v. Anthony Llewellyn, in my opinion.

    • Trying R Patients

      Here’s a more frightening comment for Anthony Llewellyn.

      August 24, 2001, Toledo Blade article reprinted from the Minneapolis – St. Paul Star
      Tribune:

      . . . If a (plaintiff) sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win, said Marshall Tanick . . . The strategy is to force the other person to incur huge legal expenses that will deter them and others. . . very few cases go all the
      way to trial. Lawyers will seek ways to avoid First Amendment issues because they
      are hard to prove.

    • Timothy Edwards comments about Ms. Sally Vogl-Bauer’s intentions to welcome criticism but sue defamation cause me to think defamation plaintiff lawyers must use templates for talking to the press.

      Professor Sally Vogl-Bauer’s lawyer, Timothy [[ Edwards released a statement: “Students have a right to express their opinion, but when you go so far beyond that, into a concerted effort to attack somebody’s reputation because things didn’t go your way, that’s much different.” ]]

      [[ “When you make false statements of fact repeatedly about another person with the intent of harming them, that’s over the line,” said Tim Edwards, attorney for UW-Whitewater communications professor Sally Vogl-Bauer. “If you truthfully say, ‘In my experience, this isn’t a good teacher, I didn’t have a good experience, she was late’ and that’s your opinion, that’s fair,” Edwards said. ]]

      A Duluth News Tribune article of June 2010 quoted Marshall Tanick, now employed by Hellmuth Johnson law firm, who in a phone interview alleged that Laurion defamed his client in several ways, including posting negative reviews of McKee on various websites. “The basis for the lawsuit is the defamatory statements that were made on websites and to other sources,” Tanick said. “However, by no means does Dr. McKee want to in any way prevent or affect any kind of communications that may be made to the Board of Medical Practice or any other regulatory agencies. The purpose of the lawsuit is to prevent defamation being made on the websites and through other sources.”

      Duluth News Tribune, November 10, 2011: “The doctor maintains he was vilified unjustly and inaccurately on the Internet and in postings and correspondence to colleagues and peers and thinks that Mr. Laurion falsified statements and incidents that did not occur,” Minneapolis attorney Marshall Tanick said outside the courtroom after the hearing. “We maintain the case should be submitted to a jury to ensure that Dr. McKee and Mr. Laurion have their day in court so that the jury may determine this important issue.” Tanick told the panel his client is a highly regarded neurologist who has been defamed by Laurion’s comments, which appear pervasively on the Internet and falsely portray McKee as being insensitive and incompetent.

      From Minneapolis Star Tribune March 25, 2012: McKee’s lawyer, Marshall Tanick, said the doctor felt he had no choice but to sue to protect his reputation and his medical practice. “It’s like removing graffiti from a wall,” said Tanick. He said Laurion distorted the facts — not only on the Internet, but in more than a dozen complaint letters to various medical groups. “He put words in the doctor’s mouth,” making McKee “sound uncaring, unsympathetic or just stupid.”

      Taken from videotaped comments to Minnesota Supreme Court: “He may have been upset at how Dr. McKee treated his father. Apparently he was, and he’s entitled to say that. He can say that “I’m upset. Doctor McKee did not treat my father well. He was insensitive.” He can make statements like that: “He didn’t spend enough time in my opinion.” He can make
      factual (sic) statements, he can make them on the Internet, he can make them in letters, he can write a letter to the editor, he can stand in front of St. Luke’s Hospital with a placard saying those things if they are opinions . . .”

      From BuzzFeed, 2014: But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

  12. Canadian Bacon

    To follow the progress of this case – Sally Vogl-Bauer V. Anthony Llewellyn, not David McKee MD V. Dennis Laurion:

    Visit: http://wcca.wicourts.gov/index.xsl . Click “agree” and enter.

    On page http://wcca.wicourts.gov/simpleCaseSearch.xsl;jsessionid=640964EA587D052C62E1CAF493A883FA.render6 ,

    Name = Llewellyn
    County = Walworth
    Case Number = 2013CV001140

  13. Dr. David McKee did admit to learning about the Streisand Effect, according to an April 4, 2014, article by Jake Rossen on BuzzFeed:

    Insult And Injury: How Doctors Are Losing The War Against Trolls
    BuzzFeed – Jake Rossen

    DAVID MCKEE, M.D., A DULUTH, MINN., NEUROLOGIST, WAS UNAWARE OF THE STREISAND PHENOMENON AT THE TIME HE DECIDED TO SUE DENNIS LAURION. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

    According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

    Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. He fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

    McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events.

    In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. A user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

    McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

    McKee was rated for several years as a top provider in Duluth Superior Magazine, but “FROM NOW UNTIL THE END OF TIME, I’LL BE THE JERK NEUROLOGIST WHO WAS RUDE TO A WORLD WAR II VETERAN,” THE PHYSICIAN SAYS. “I’M STUCK WITH IT FOREVER.”

    See more of article:
    http://www.buzzfeed.com/jakerossen/insult-and-injury-inside-the-webs-one-sided-war-on-doctors

    • As one of the “trolls” detailed in the BuzzFeed article, I have no issue with the accuracy of the text – at least as it pertains to me during the case David McKee MD v. Dennis Laurion – but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

      While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

      The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

      After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

    • Thanks to Oregon’s SLAPP Law, Dentist Mo Saleh got dismissed about three years sooner than Dr. David McKee’s defamation case.

      Dentist loses suit after former patient criticizes him online
      By Lincoln Graves, KATU News, Sep 27, 2012

      A judge decided the critical comments made on review site YELP.com and other sites were free speech.

      “I’m disgusted. I’m actually really disgusted,” said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. “The reason I’m risking opportunity and risking this negative exposure is because I feel that this is wrong.”

      But a judge threw out the suit before it got very far.

      “When we walked into this courtroom, we didn’t walk on equal footing because of the Anti-SLAPP law,” Saleh said.

      The “SLAPP” in the Anti-SLAPP law stands for Strategic Lawsuit Against Public Participation.

      Businesses can sometimes file those suits to quiet criticism. But the Anti-SLAPP law can be a friend to those who are taken to court, giving them free speech protection when they make comments in a public forum and concern a public interest, which a site like YELP seeks to serve.

      “It’s not easy to be sued and dragged into court,” said Jeremiah Ross, the attorney who represented Bailey. “Just as we anticipated, they couldn’t prove their case because it wasn’t a defamatory statement.”

      Still, Saleh may appeal, believing the online criticism was meant to harm him and not simply to inform the public.

      “I teach my kids to stand up when you’ve been wronged, and I think that’s absolutely disgusting what happened today,” he said.

      One of the comments Bailey was accused of making was, “If Saleh finds a cavity, get a second opinion and get it filled by someone else.”

      Saleh was seeking $300,000 in damages.

  14. Gradual Student

    Communications Professor Sally Vogl-Bauer should ask Law Professor Timothy Edwards to explain the Streisand Effect. If he can’t or won’t she should read about a similar effort by Neurologist David McKee, MD, Northland Neurology and Myology, St. Luke’s Hospital, Duluth, Minnesota.

    TWIN CITIES BUSINESS
    The Top Lawsuits Of 2013
    by Steve Kaplan
    December 20, 2013

    Never Shout “He’s a Tool!” On a Crowded Website?

    Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

    Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

    It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

    But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

    But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

    The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

    See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuits-Of-The-Year

    • [[ But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.” ]]

      In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying about David McKee MD v. Dennis Laurion: “The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

      From the American Health Lawyers Association: IN THIS CASE, THE COURT FOUND THE SIX ALLEGEDLY DEFAMATORY STATEMENTS WERE NOT ACTIONABLE BECAUSE THE “SUBSTANCE, THE GIST, THE STING” OF PLAINTIFF’S VERSION FOR EACH OF THE STATEMENTS AS PROVIDED IN DEPOSITION AND DEFENDANT’S VERSION ESSENTIALLY CARRIED THE SAME MEANING, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

      From the Business Insurance Blog: THE MINNESOTA HIGH COURT SAID, FOR INSTANCE, THAT DR. MCKEE’S VERSION OF HIS COMMENT ABOUT THE INTENSIVE CARE UNIT WAS SUBSTANTIALLY SIMILAR TO MR. LAURION’S. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

      From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” THE COURT SAID THE DIFFERENCES BETWEEN THE TWO VERSIONS OF THE STATEMENTS ABOUT DEATH OR TRANSFER BY BOTH PLAINTIFF AND DEFENDANT WERE SO MINOR THAT THERE WAS NO FALSITY IN THE WEBSITE POSTINGS. In other words, the court indicated that the allegation about the statement was true.

      In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

      Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”

      According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

      The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

      In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”

      Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”

      • David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) was in United States Court of Appeals, Eighth Circuit,
        Case Number 12-3625, Dave THOMAS, Plaintiff–Appellant v. UNITED STEELWORKERS LOCAL 1938; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union; John Malek,Defendants–Appellees cited.

        Dave Thomas appealed the district court’s grant of summary judgment in favor of United Steelworkers Local 1938 (Local 1938); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW); and Jon Malek on Thomas’s state-law defamation claim arising out of a fact-finding meeting concerning a workplace dispute. In affirming the dismissal, the United States Court of Appeals, Eighth Circuit, Decision, filed February 20, 2014 stated:

        To satisfy the falsity element of a defamation claim under Minnesota law, “a plaintiff must make an initial demonstration that there is a material dispute as to the truth or falsity of the statements at issue,” Weinberger v. Maplewood Review, 668 N.W.2d 667, 680 (Minn.2003), and “ ‘[o]nly statements that present or imply the existence of fact that can be proven true or false are actionable.’ “ Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147 (8th Cir.2012) (alteration in original) (quoting Schlieman, 637 N.W.2d at 308). For instance, “[i]f it is plain that the speaker is expressing a ‘subjective view, an interpretation, a theory, conjecture, or surmise,’ rather than claiming to be in possession of ‘objectively verifiable facts,’ the statement is not actionable.” Id. (quoting Schlieman, 637 N.W.2d at 308). Whether a statement is an opinion or fact is a matter of law, Lund v. Chi. & Nw. Transp. Co., 467 N.W.2d 366, 369 (Minn.Ct.App.1991), but “the truth or falsity of a statement is inherently within the province of a jury.” Kuechle v. Life’s Companion P.C.A., Inc., 653 N.W.2d 214, 218 (Minn.Ct.App.2002). “ ‘[T]rue statements, however disparaging, are not actionable.’ “ McKee v. Laurion, 825 N.W.2d 725, 730 (Minn.2013)

        We agree with the district court that Malek’s statements that “Thomas is a prick,” “he is tired of [Thomas's] crap,” and he “is not going to put up with his sh-anymore” are all statements of Malek’s subjective view or opinion and, by themselves, are not actionable as a matter of law. See McKee v. Laurion, 825 N.W.2d at 733; see also Lund, 467 N.W.2d at 369 (holding that statements at issue were protected expressions of opinion because they lacked specificity and precision, and the factual implications concerning such statements were unclear). We do not, however, agree with the district court’s conclusion as it relates to the remaining statements.

        Although we are aware that Minnesota courts have held “[m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting,” of the defaming statement can be justified, McKee v. Laurion, 825 N.W.2d at 730 (internal quotation marks omitted)), the inaccuracies here are substantial enough to create a genuine dispute of material fact as to their truth.

        • Sally Vogl-Bauer and Elizabeth Ethredge might get cited in court as often as Dr. David McKee.

          David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) has been cited in State of Minnesota Court of Appeals Case Number A13-1402, Dr. Vibhu Kapoor, Appellant, V. Dr. Ellen Brown, et al., Respondents.

          Dr. Vibhu Kapoor had sued Dr. Ellen Brown and others for defamation. The District Court dismissed the suit. In affirming the dismissal, the Court of Appeals Opinion filed April 21, 2014 stated:

          Private citizen defamation actions are analyzed under state common law principles, and Minnesota common law generally does not distinguish between statements of fact and statements of opinion. Weissman v. Sri Lanka Curry House, Inc., 469 N.W.2d 471, 473 (Minn. App. 1991). But the Minnesota Supreme Court recently reaffirmed that “[t]he First Amendment protects statements of pure opinion from defamation claims.” David McKee MD v. Dennis Laurion, 825 N.W.2d 725, 733 (Minn. 2013).

          In general, “the truth or falsity of a statement is a question
          for the jury. ” David McKee MD v. Dennis Laurion, 825 N.W.2d at 730. Whether a defamatory meaning was reasonably conveyed by the statement is to be determined by the court. Utecht v. Shopko Dep’t Store, 324 N.W.2d 652, 653 (Minn. 1982)

          Further, in context, White’s statement to Cunningham that SCMG felt that Dr. Kapoor had “lost his mind” cannot reasonably be interpreted as stating a fact. The statement cannot be proven true or false; instead, it was “rhetorical hyperbole.” See David McKee MD v. Dennis Laurion, 825 N.W.2d at 733 “[A]n opinion amounting to mere vituperation and abuse or rhetorical hyperbole . . . cannot be the basis for a defamation action.”

          Finally, Dr. Spaulding’s statement to White that Dr. Kapoor reported her to the board of medical practice is an assertion of fact. But “[i]f the statement is true in substance, minor inaccuracies of expression or detail are immaterial.” David McKee MD v. Dennis Laurion, 825 N.W.2d at 730. “A statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”

  15. If the last quotation in the article is verbatim and accurate, then perhaps Vogl-Bauer’s opinion is justified–that this student did not belong in college. (If in fact she said that.

Leave a Reply

Keep in Touch With AdjunctNation

Graphic Graphic Graphic

Graphic

Want to see your advertisement on AdjunctNation.com? Click here.

Graphic

Want to see your advertisement on AdjunctNation.com? Click here.

Recently Commented

  • Ivy Tech Community College Bloomington Library: I believe your numbers are incorrect. Ivy Tech has 23 campuses and...
  • Marnie Tunay: If you don’t mind my asking, what is your dissertation in and what is your field of study? It...
  • Calla Fette: As a former Board member of WCC Foundation, and a donor for multiple fundraising activities, I am...
  • admin: @Malapat, Thanks for stopping by. While lesson plans are crucial, so is taking a break and getting in some...
  • malapat: I’ve been reading these posts instead of working on lesson plans :) I deeply sympathize with the...