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Ventura verdict sends message to writers: Be careful

Courtroom sketch by Ken Avidor

It wasn’t the longest libel trial in history, but it certainly felt that way. After three weeks, Jesse Ventura, whom the late “American Sniper” and former Navy SEAL Chris Kyle referred to in his best-selling autobiography as “Scruff Face,” convinced eight jurors that Kyle made up a story about a fight in a California bar. Kyle claimed he punched the former governor after Ventura said that he “hated America,” that the Navy SEALS “were killing men and women and children and murdering,” and that they “deserved to lose a few” in the war in Iraq. Ventura said the encounter never happened and that Kyle’s account made Ventura sound like a traitor, undermined his career as a professional gadfly and raconteur, and destroyed his reputation among the SEAL community. Although Kyle never identified “Scruff Face” in the book itself, he subsequently told interviewers that he was referring to Ventura.

Jane Kirtley

So Ventura did what any red-blooded American public figure would do: He sued. He sought millions of dollars in damages, not only for Kyle’s alleged defamation, but also for the author’s misappropriation of Ventura’s name and image to promote the book. To top it off, Ventura added a claim for “unjust enrichment.” He argued that proceeds from the book sales, as well as from the sale of the film rights, belonged to him because Kyle’s book would never have taken off without that story about the bar fight.

As a public figure, Ventura had a tough battle ahead of him. He had to convince the jury that Kyle’s story had hurt his reputation among right-thinking people – in this case, his former comrades, the SEALS. In addition, he bore the burden of proving that what Kyle had written was false and that Kyle either made it all up or acted recklessly when he recounted the story. This “actual malice” standard was first articulated 50 years ago by the U.S. Supreme Court in New York Times v. Sullivan, and was intended to promote debate and discussion about matters of public concern, and to short circuit frivolous suits by public figures who can’t take legitimate criticism. The high court’s ruling permits writers to make factual errors and still be protected from liability, as long as the mistake was made in good faith. 

Mindset and motivation are critical

Under the Sullivan standard, the writer’s mindset and motivation are critical. Libel defendants are usually grilled on the witness stand about what steps they took to verify what they wrote and whether they checked with the subject of the story to get his side. But in this case, the author was no longer available, because Kyle was killed in a shooting at a gun range in Texas about a year after Ventura filed his suit in 2012. Although the jury did see a video deposition of Kyle’s testimony taken before his death, most of the evidence about what happened in the bar came from Ventura himself and from a parade of witnesses produced by the attorneys for both sides.

That’s standard procedure in a libel case when the facts are in dispute. But as in Kurosawa’s classic Japanese film, "Rashomon," the accounts differed wildly. This is not surprising when the alleged incident occurred years ago and many of the observers admitted that they were under the influence of alcohol at the time. But if the evidence was inconclusive, Ventura would lose his case.

The jury had to sort through the testimony to decide whom to believe. As hours stretched into days, it became clear that the case was not going to be a slam dunk for either side. Under the federal court rules, the verdict had to be unanimous, so even one holdout on any element of the required proof would mean a deadlocked jury and a mistrial. The jury sent Judge Richard Kyle a message on Monday saying just that. Kyle asked them to try one more time, and then separately met with the lawyers to ask them to agree to a “majority” verdict. 

Decision to accept 8-2 verdict

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Something persuaded the lawyers to accept this option, even though, like the hero in “The Lady or the Tiger,” they couldn’t know what was going on behind the jury room door. Whether it was Judge Kyle’s powers of persuasion, pressure from their clients, or simply the desire to avoid having to try the case all over again, they agreed to accept an 8-2 verdict, which turned out to be in Ventura’s favor. The jury awarded him $500,000 in damages for the defamation claim, and $1.3 million for the unjust enrichment claim, which will have to be paid out of Kyle’s estate.

Based on his triumphant appearance on Wednesday morning, Ventura considers himself vindicated. He told the Star Tribune that he would have “permanently moved to Mexico” had he lost, because he would have had “nothing here to live for.”  That kind of rhetoric, for which Ventura was well known during his governorship, may have convinced the jurors that he was genuinely devastated by his supposed ostracism by the SEALS.

Reputation restored, monetary award

Ventura has said he was only after the truth, and he and his supporters are characterizing the verdict as an official pronouncement that Kyle was a liar. He is like many libel plaintiffs who insist that they go to trial because they have no other option and that it is the principle, not the money, that motivates them. Assuming no appeal – which seems unlikely – Ventura will walk away not only with his reputation restored, but with the additional consolation of a hefty monetary award.

Some would argue that this is exactly the way it should work, and that authors who aren’t able to prove their claims should be prepared to pay the price. But the U.S. Supreme Court in Sullivan feared that legitimate stories would go unreported if that price was a crippling damage award. The jury’s verdict may seem like a vindication to Ventura, but it reminds those who write about public figures, especially in the freewheeling world of the blogosphere, that they do so at their own risk. It’s a sobering way to mark the 50th anniversary of New York Times v. Sullivan.

Jane E. Kirtley is the Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communication, University of Minnesota. She also is the director of the Silha Center for the Study of Media Ethics and Law. 

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Comments (11)

Not so much

The message is not "be careful." The message is "stick to being truthful." Being careful is how were being taught to live these days, and look how well the nation has got on. Being toady has it's price.

I have to disagree, when so

I have to disagree, when so much of media is orientated toward "messaging" in the service of power, it is entirely critical that the "facts" be enforced with serious penalties.

If plagiarism is a firing offense, lying should be more so.

Defamation

Be careful... yes, you never know how dumb a jury is.

Spoken like

someone who has never actually served on a jury.... it's not a popularity contest.

Actually, no

I think in the future defense lawyers will demand unanimous verdicts. This jury was hung, that means Ventura loses. I'm sure the defense is just kicking itself.

On the other hand, Kyle did have dodgy history of making strange claims. For instance he had claimed that he'd gone to Narlin's after Katrina, set up on a rooftop, and shot looters. He also claimed to have killed a couple would be robbers at a gas station in Texas, and the cops just let him go because they knew who he was and decided it was a righteous killing.

I always figured Kyle was in trouble because in a room or patio full of people he couldn't produce a single witness that saw the actual punch. The closest he came was a SEAL who claimed to have overheard Ventura's "lose a few" statement because that made such an impression, but didn't see the punch? The problem is one would expect such an impression making statement would draw ones attention, he heard it, but didn't turn to look at the person making the statement? You can't claim that something really caught your attention but didn't really catch your attention at the same time. When people attend to something, they look at it if they can. I think those ARE fighting words for a SEAL, yet this guy was too busy doing something else? I think if you spoke fighting words in a room full of SEALS within earshot, you'd be surrounded by SEALS in very short order, there would have been half a dozen witnesses who saw the punch.

It does strike me as funny...

As the fallout from this verdict flows so many Lawyers seem to think that evidence is irrelevant. Everyone is shocked because this standard or that precedent stacks up this way or that way, as if strategy and legal reasoning win trials and you don't need evidence to win a case in court. At the end of the day Kyle's team simply could not convince the Jury that this confrontation took place as he described it in the book and in later interviews. When you think about it, it's not that surprising. Two celebrities have big argument leading to a violence in a crowded bar or patio... and no one is watching? I think Kyle only had one out of fifteen witnesses that claimed to have actually seen the punch, and she got the location wrong. It just doesn't track.

And Ventura was there... so... what? This whole thing took place, but Ventura happened to notice that no one was watching and was soooooo convinced that there were no witnesses that he decided to take it to court? What would be the effect on Ventura's reputation if six people showed up and testified that they saw Kyle punch him out because he said what he said? Or did Ventura just roll the dice? "Maybe" no one saw it? It happened but "Maybe" Kyle's team won't be able to prove it? That doesn't track either.

Look, this either happened or it didn't. It couldn't have happened in Kyle's universe but not in Ventura's. I think if a confrontation like this actually happened, Ventura would have been surrounded by SEALS in vary short order, at least one of them would have decked Ventura, and a number of people would have seen it, and Ventura would never want to speak of it again. The last thing Ventura would want is to give anyone a chance to prove in court that such a confrontation actually took place, that would only trash his reputation even more.

Kyle had two careers...

Killer and braggert. People above discuss the difference between being truthful and being careful. How about being modest? It's an old-fashioned virtue you don't hear much about these days.

cautionary tale?

Like many of the other commenters above, I fail to see how this verdict is anything but a robust endorsement of our freedom of the press.
Without recourse to rectifying libel in the courts, there would be no credibility in what we write. By all accounts, the jury took their duty very seriously, Ventura had an enormously high bar to meet to justify his claims and both sides mustered strong and detailed arguments.
Why the pearl-clutching and conjoiing of the word "sobering" with a landmark court case? And why this odd and repeated reluctance to acknowledge that Ventura was "vindicated" in this libel action? Why do I feel an undercurrent agenda that you'd have preferred Ventura lose this case?

The kicker in this case, for

The kicker in this case, for many of us who have watched Jesse Ventura over many years, is that Kyle alleged Ventura cast aspersions on the SEALS at that bar.

Having been a member of the Navy SEALS is the biggest and most emotionally-tinged feather in Ventura's career cap. All his adult life. He loves the SEALS and never would have said about them what Kyle wrote that he said.

In that light, I really feel sorry for Jesse Ventura: He will never again be welcome at a gathering of SEALS. Kyle's claim is out there and can never be washed away.

Much ado about very little.

A few comments to help put this case in perspective, something the media have avoided doing.

First, most public figure cases are not made against a person who claims to have been an eye witness to the events he or she describes, but someone who reports what others have said about the plaintiff. Where the defendant claims to have been a participant, he or she can be expected to know what's true and what isn't. If a jury determines that the claimed conduct didn't occur or the words were not spoken, a finding of actual malice (in the legal sense) is to be expected.

Second, Minnesota district court rules provide for a 5/6 verdict where the parties agree. Such agreements are common there, where parties have spent considerable time and money getting to trial. It appears that Judge Kyle and the parties agreed in this case to allow the two alternate jurors to participate in deliberations, rather than dismiss the alternates and send only six jurors into deliberations. Under those circumstances, and with the disproportionate level of press and pressure this case has generated, I'm not surprised that the parties would agree to a 6/8 verdict. (I doubt that the defendant's insurer, which typically controls the defense, cared to foot the bill for a second trial. Mr. Borger and his firm are not known for low rates.)

As for an appeal: time will tell whether there are any grounds for an appeal. From what I've read of the case, it doesn't appear that there were any significant arguments over jury instructions or evidentiary rulings. Nor do I recall there having been any dispositive motions that were denied.

James Hamilton Reply

There was a dispositive motion brought by Kyle.