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qwints said:
What it comes down to under Myriad's hypothetical, is the meaning of the word "false." The Digital Media Law Project's summary of California Law mentions "substantial truth" as a defense. Posters, including Myriad, have asserted that calling a sexual encounter "rape" is defamatory unless it conforms to the statutory definition of rape. Even if the encounter didn't meet the statutory definition, I don't see how a woman truthfully reporting that Shermer and she had sex in a way that made her feel violated could ever be defamation, but I don't know this area of law at all. I don't think anyone asserting otherwise does either.

Shermer, in the demand letter, has taken the position that this didn't happen at all, in which case it's clearly defamation.
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I suspect, and I would find it reasonable, if the line is drawn between actions that are criminal and actions that are not. Accusing someone of having had sex with someone who later regretted it, should not be defamation. Accusing someone of rape is a very different matter, because it will likely ruin the accused's career and have severe social repercussions. That accusation had better be true, if it's made.
 
qwints said:
What it comes down to under Myriad's hypothetical, is the meaning of the word "false." The Digital Media Law Project's summary of California Law mentions "substantial truth" as a defense. Posters, including Myriad, have asserted that calling a sexual encounter "rape" is defamatory unless it conforms to the statutory definition of rape. Even if the encounter didn't meet the statutory definition, I don't see how a woman truthfully reporting that Shermer and she had sex in a way that made her feel violated could ever be defamation, but I don't know this area of law at all. I don't think anyone asserting otherwise does either.
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There are all kinds of ways a defamation case can fail. If you read the demand letter closely, you can match each section with one of those possible failure scenarios, as the law firm addresses why they do not believe the case will fail in that particular way. For example, the paragraph on page 4 describing the likelihood of actual documentable damage to Shermer's reputation and livelihood is there because defamation cases will fail if they do not show actual damages. The lawyers are saying, basically, that they are certain they can pass that particular test.

One notable way a defamation case can fail is if the claimed defamation is actually determined to be a statement of opinion rather than of fact.

So, let's put that question out there. When a woman says she's been raped in a specific encounter with a specific individual, should that be considered a statement of personal opinion or a claim of fact?

Another way is if the claimed definition is actually hyperbole or rhetoric, such that a reasonable reader would not mistake it for a statement of fact. An obvious example of this would be accusing an oil company of raping the environment; a less obvious example would be a party in a divorce claiming to have been raped by the other by virtue of the claimed unfairness of the settlement. Neither case would be mistaken by a reasonable reader as a literal rape.

Let's put that one out there too. When a woman says she's been raped in a specific encounter with a specific individual, using words like "coerced" and "unable to consent," should that be considered hyperbole or rhetoric, or taken literally?

I would prefer that when a woman says she was raped, I can confidently interpret that as she was raped, not merely that she "felt violated." Of course there's much less chance of defamation if claims of rape are taken less seriously, but that seems more than a little counterproductive in the larger scheme of things. The more claims of rape are taken seriously, the stronger the case for defamation when such a claim is not factually true.

Respectfully,
Myriad
 
qwints said:
Even if the encounter didn't meet the statutory definition, I don't see how a woman truthfully reporting that Shermer and she had sex in a way that made her feel violated could ever be defamation, but I don't know this area of law at all.
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Wouldn't Myers have to demonstrate to the court that the woman actually exists, then? Otherwise, anyone could sidestep defamation laws by just claiming that the words actually came from some unknown, unseen third person. I don't know the law, either, but I can't see that kind of thing holding up in court.
 
qwints said:
Even if the encounter didn't meet the statutory definition, I don't see how a woman truthfully reporting that Shermer and she had sex in a way that made her feel violated could ever be defamation
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Setting aside the presumption for a moment, it's not the woman who is at issue here. It's Myers. What the woman "truthfully reports" is perhaps relevant but before we even get there we need to understand if Myers is exposed to litigation. I would say that repeating 3rd party allegations of rape clearly exposes anyone to litigation... period. So let's go over what is needed on the part of the plaintiff to prevail in a court of law.

How to Win a Defamation Lawsuit

  1. Prove that the defendant made a defamatory statement about the plaintiff.A defamatory statement is one that damages a plaintiff's reputation for good character. Some statements are so defamatory (e.g., Tim is a pedophile) that the plaintiff does not have to prove harm to his reputation; it is considered "defamation per se." Otherwise, a plaintiff will have to explain how his reputation has suffered as a result of defendant's statement. The defendant will have an opportunity to rebut the plaintiff's argument by submitting evidence that the plaintiff already had a poor reputation or that the statement is true.
  2. Prove that the defendant published the defamatory statement about the plaintiff. The publishing requirement is met by the defamatory statement being spoken to third-party (i.e., not the plaintiff) and does not require publishment in mass media. If, however, the defamatory statement appears in a newspaper, magazine or on social media outlets proving this element will be easy.
  3. Prove that the defendant knew that the defamatory statement was false. The law does not protect defendants who willfully harm the reputation of another. Such clear cut cases of defamation are rare in litigation and a more likely scenario is when a defendant should have known that a defamatory statement. For example, a court will not shield a reporter from defamation liability where it is proven that had she conducted due diligence her research would have revealed the defamatory statement to be false. Courts consider failure to conduct due diligence to be a form of negligence.
    ​
So, Myers easily meets the first 2 requirements. It's the 3rd that is problematic for Shermer. I don't know if Myers meets the requirement for news outlets. The law is still in flux on bloggers. If I were to guess, Myers position as one who is well read could be a deciding factor. I'm not an atty so I'm guessing in the dark. I could think of a few arguments that would go the other way. If Myers sincerely believed the woman and he had no due diligence requirement then I suspect that the case would quite possibly be tossed.


But let me add this, the laws are in flux and the ability to destroy reputations via the internet is pretty powerful. As a lay person I would not say it's a slam dunk for either side. I'm sure Myers has been told not to do anything like this again by his council. I'm sure Myers is sweating bullets at the moment. A person can go to trial, prevail in court, and lose lots and lots and lots of money. And don't forget time. It's a bitch to go to court. Do everything you can to not go. Shermer doesn't want to go either but if his reputation and income take a hit he might feel compelled. He might lash out and be willing to pay for an expensive court battle. I don't think any court would find Shermer's filing (if he ever does so) frivolous.
 
Axiom_Blade said:
Wouldn't Myers have to demonstrate to the court that the woman actually exists, then? Otherwise, anyone could sidestep defamation laws by just claiming that the words actually came from some unknown, unseen third person. I don't know the law, either, but I can't see that kind of thing holding up in court.
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From my reading, Shermer has the right to confront his accuser. And Myers is not the accuser. Sure, he is accusing Shermer but the event didn't happen to him and he can only testify as to what was said to him by the accuser. He cannot testify as to what happened. Myers is no more a trier of fact than a prosecutor is. In court, AIU, Myers cannot be the deciding factor as to whether or not the event took place. He cannot vouch for another person's testimony. He can be a character witness. He can testify what he heard and he can offer his opinion and the events and circumstances that informed his opinion.

However, if the woman is a no show then I would predict that in the event of a law suit Shermer would easily win. Don't go passing off third party defamation if the 3rd party will not vouch for his or her account personally in court. That, IMO, is the height of arrogance and stupidity.
 
RandFan said:
  1. Prove that the defendant knew that the defamatory statement was false. The law does not protect defendants who willfully harm the reputation of another. Such clear cut cases of defamation are rare in litigation and a more likely scenario is when a defendant should have known that a defamatory statement. For example, a court will not shield a reporter from defamation liability where it is proven that had she conducted due diligence her research would have revealed the defamatory statement to be false. Courts consider failure to conduct due diligence to be a form of negligence.
    ​
.
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Disclaimer: I r not law person...

On that third point the reference material you link to in the ehow article elaborates on what the plaintiff can do to show that the defendent failed to take the appropiate precautions before publishing possibly deframatory information.

http://www.abbottlaw.com/defamation.html
III. Practical Methods of Reducing Liability for Defamation
A. Due Diligence
1. Investigate the Facts.
2. Establish Neutral Criteria for Publication.
How do you decide when to publish a story? Establish some guidelines for publication, before you're faced with a controversial situation. Again, the absence of any guidelines for publication might be used as evidence of "reckless disregard for the truth."
3. Follow the Criteria You Establish.
4. Don't Knowingly Use Unreliable Sources.
5. Retain Records of Your Investigation.
B. Confirm the Identity of the Subject of Your Article.
C. Use Quoted Material Whenever Possible.
D. Avoid Conclusory Language.
E. Counteract Any Bias
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I avoided copying everything to say you all a wall of text, and I'm not entirely sure how much of the source material refers to journalists, but it seems that Shermer would have a decent case.

End disclaimer: Returning to normalcy...
 
TheGoldcountry said:
He's getting crucified for that video. His point is sailing over a lot of heads of people who then immediately strawman "Are you calling a rape victim a liar?" No- how can you call someone a liar when you don't know who they are?
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I like how the one commenter suggested going to PZ's blog to see all the arguments....seeming to imply that one would find rational stuff there.
 
PZ may be caught between a rock and a hard place on the 'due diligence' thing. He may have felt that questioning the woman's story, looking for independent confirmation, fact checking, etc, would make him guilty of doubting the victim, and that would make him just another misogynistic rape-apologist.
 
dasmiller said:
PZ may be caught between a rock and a hard place on the 'due diligence' thing. He may have felt that questioning the woman's story, looking for independent confirmation, fact checking, etc, would make him guilty of doubting the victim, and that would make him just another misogynistic rape-apologist.
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That is an excellent point...as that's exactly when they're accusing other of for daring to question...anything.
 
RandFan said:
From my reading, Shermer has the right to confront his accuser. And Myers is not the accuser. Sure, he is accusing Shermer but the event didn't happen to him and he can only testify as to what was said to him by the accuser. He cannot testify as to what happened. Myers is no more a trier of fact than a prosecutor is. In court, AIU, Myers cannot be the deciding factor as to whether or not the event took place. He cannot vouch for another person's testimony. He can be a character witness. He can testify what he heard and he can offer his opinion and the events and circumstances that informed his opinion.

However, if the woman is a no show then I would predict that in the event of a law suit Shermer would easily win. Don't go passing off third party defamation if the 3rd party will not vouch for his or her account personally in court. That, IMO, is the height of arrogance and stupidity.
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This, of course, gives Meyers the ability to back down while appearing to be a martyr. "I retract my previous statements. I want to make it clear, however, that it's not because I don't believe my contact, but because if I don't then she'll have to face Shermer again. I care too much for victims to do that. The law is broken, as it's so easy for those on the side of right and victims to be silenced so easily".

Or something along those lines, perhaps some said by associates, rather than Myers himself.
 
Ocelot said:
I wasn't sure if this was a typo or some term I wasn't familiar with.

So that's how I found out that "bloor" means to ejaculate into someone else's nose.

:jaw-dropp
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No, I definitely meant "blood". :blush:

tsig said:
So all you got is troll accusations?
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I'm quite surprised at your suggestion that police collect more evidence in cases they take less seriously. The fact is that the more serious a crime, the more vigourously it will be defended in court, so more evidence is desired in order to secure a conviction. This is why murder cases use the best investigators and conduct the most thorough forensic examinations.

Squeegee Beckenheim said:
This, of course, gives Meyers the ability to back down while appearing to be a martyr. "I retract my previous statements. I want to make it clear, however, that it's not because I don't believe my contact, but because if I don't then she'll have to face Shermer again. I care too much for victims to do that. The law is broken, as it's so easy for those on the side of right and victims to be silenced so easily".

Or something along those lines, perhaps some said by associates, rather than Myers himself.
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I don't think that this would be satisfactory to Shermer's lawyers. "I still think he did it but I'm not allowed to say so" is not a retraction.
 
squealpiggy said:
I don't think that this would be satisfactory to Shermer's lawyers. "I still think he did it but I'm not allowed to say so" is not a retraction.
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It can be a lot more nudge-nudge wink-wink than I suggested and, as I said, it need not be Myers who says it all. He can retract the statement and others can insinuate the rest of it.
 
Squeegee Beckenheim said:
It can be a lot more nudge-nudge wink-wink than I suggested and, as I said, it need not be Myers who says it all. He can retract the statement and others can insinuate the rest of it.
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Agreed and I think that would be a very rational approach for PZ.

However, that would probably give a big hit to his position of being viewed as Staunch Defender of Women.
 
Lorentz said:
However, that would probably give a big hit to his position of being viewed as Staunch Defender of Women.
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My point is that I don't think it necessarily would. It can just give him a new role as a suppressed victim of rape culture, which seeks to silence advocates of victims while protecting abusers.
 
lopeyschools said:

Disclaimer: I r not law person...

On that third point the reference material you link to in the ehow article elaborates on what the plaintiff can do to show that the defendent failed to take the appropiate precautions before publishing possibly deframatory information.

http://www.abbottlaw.com/defamation.html

I avoided copying everything to say you all a wall of text, and I'm not entirely sure how much of the source material refers to journalists, but it seems that Shermer would have a decent case.

End disclaimer: Returning to normalcy...
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Thanks, I agree.
 
TheGoldcountry said:
He's getting crucified for that video. His point is sailing over a lot of heads of people who then immediately strawman "Are you calling a rape victim a liar?" No- how can you call someone a liar when you don't know who they are?
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I left the other thread for precisely that reason. I said I was taking the null position (not contrary), and I was told, then you must be claiming that the accuser (Ben Radford's accuser and not Shermer's) must be lying.

No. I'm agnostic. I don't know the facts. When I pointed out the Duke Lacrosse rape case and sometimes women lie I was told "only when they lie". As if it is obvious to everyone when they do. Never mind that most people accepted the accuser's allegations in that case.
 
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