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VanderSloot v. Mother Jones – Brennan's Ghost in Rehnquist's Robes?

While it is only a trial court decision from a state court in Idaho, Vandersloot v. Mother Jones occupies a significant place in my thoughts lately.

On its surface, the decision is a wonderful thing. The decision contains more than 50 pages of research and citations, showing that the judge went to great lengths to understand the law before ruling.

However, the case shows how ludicrous American defamation law can be in the absence of an Anti-SLAPP law. In this case, the defendant “prevailed” – but was still $2.5 million poorer as a result. The First Amendment means that you have a free press, but, as they say “freedom isn’t free.” The defendant ran the table both legally and factually, but it cost them dearly — thus making sure that anyone else who might speak ill of the plaintiff is well warned that doing so might mean financial ruin.

Sadly, that is not so unusual. What is unusual is that the otherwise-excellent opinion ends with the judge wagging her finger at the defendant, telling the press that she thinks they’re behaving badly — unlike the press that the Founders envisioned. Unfortunately, she seems to have an inaccurate view of what the press was like back then.

In the end, Mother Jones “won,” but VanderSloot issued a statement saying he had been “absolutely vindicated” in the decision.

Is he right? Well, define “vindicated.”

Under a reasonable interpretation of that word, yes he was.

The case:

The case is essentially a political pissing match. The Idaho Falls Post Register published a series of articles dealing with pedophilia at a Boy Scout camp. Melaleuca, Inc. took out a series of ads attacking the series, and noting that the author of the articles was homosexual, not a fan of the LDS church, and questioned his objectivity.

Mother Jones then steps in and writes an article about VanderSloot (Melaleuca’s CEO) painting him as having outed the journalist and “bashing” him. In all fairness, it does make him look like a mean-spirited nasty ol’conservative.

Good guy or bad guy, Mr. VanderSloot is really really rich. He did not care for what Mother Jones wrote. So, he sued Mother Jones. Not only did he sue Mother Jones, but he sued for $74,999. Why do you suppose he picked such an odd number? The threshold for federal jurisdiction is $75,000.  

Many people believe that because Federal judges do not have to run for re-election, since they get appointed for life, they are removed from political pressure. State court judges, in some of the less civilized states (most states actually) are elected. I’m not saying that a state court judge can be bought, but a state court judge in Idaho knows that sometimes a decision can alter the outcome of an election. So, if you’re plugged in and loaded, it behooves you to stick with your friendly local elected judge. Its just good sense.

The good:

The order in VanderSloot is remarkable in its thorough analysis. I’ve never practiced in Idaho, so maybe that’s normal there. But, looking at the order, it is clear that the judge either knew defamation law really well before the hearing, or she damn well went and learned every corner of it before signing the order. This is heartening stuff to see. Judges should endeavor to make you smarter after you read their orders. This judge did that, in large part.

I’ve handled state court cases where both parties submitted hundreds of pages of evidence and briefing, only to receive one word orders from judges. In one hearing, the judge openly read a magazine. When it was over, he looked up from the magazine to say “denied.” That’s it. Fifty pages of argument on each side. At least eight discrete legal issues. One word. “Denied.” Sadly, that’s what I’ve come to expect in one of my states of licensure. You get to guess which one.

The really good part in the VanderSloot Order is that the judge did what the judge is supposed to do — she made the decisions on matters of law that she is supposed to in a defamation case. She didn’t pass the buck. She didn’t just say “well, I see both sides” despite knowing that it was her job to make a decision. She didn’t kick legal questions to a jury (yeah, that happens too).

She analyzed whether the plaintiff was a public figure (he was). Then, so finding, she also looked at every element of the case properly — understanding that when a defamation plaintiff is a public figure, that defamation plaintiff can not defeat summary judgment unless the plaintiff shows actual malice by clear and convincing evidence.

And, for every idiot out there who thinks that “actual malice” means “did not mean well,” it does not. “Actual malice” means that the defendant knew for a fact that the statements were false, or had a reckless disregard for the truth. Although the term “actual malice” seems to laypeople (and lawyers who have not done their homework) to mean “actually malicious,” this is legally inaccurate (and abjectly stupid). In fact, even if a defamation defendant is driven by malice (in the lay sense) or any other negative emotion, that is constitutionally irrelevant. “The actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term. Rather, actual malice is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.” Lothschuetz v. Carpenter, 898 F.2d 1200, 1206 (6th Cir.1990) citing Harte-Hanks Comm’n v. Connaughton, 491 U.S. 657, 666 (1989).

To sum up the good, the court did her homework. The court showed her work, as if she were sketching out a perfect math proof. The order is pretty damn close to perfect – with all the added pages necessary to be so. The exact opposite of a Billy Madison answer — anyone who reads it is smarter for having done so.

As long as they stop reading halfway down page 51.

The bad:

Here’s the bad about the opinion. When you get to page 51, you get to a section titled “FURTHER DISCUSSION.” Oh boy…

“This decision grants summary judgment in favor of the Mother Jones Defendants. Even so, the Court finds Mother Jones’ reporting styles, an indeed the general trend in political journalism, troubling.”

Ok, to start, its not that I disagree. I’ve been a journalist. I’ve got a BA and an MA in journalism. I’ve taught journalism ethics. I’d give Mother Jones, at best, a C+. (Disclosure, I’m pissy because they referred to me once as a “Conservative”)

Nevertheless, while I had to give the judge an A+ in “judgery,” I must give her a D in history of American journalism. Here, read:

In 1791, The First United States Congress proposed the first twelve amendments to the United States Constitution, including the clause (in what later became the First Amendment) guaranteeing that Congress would make no law abridging the freedom of the press. The Founders of this country expected that democracy would thrive only if the press was not hindered in its reporting upon the actions of government and the governors. James Madison, in 1825, wrote “The diffusion of knowledge is the only guardian of true liberty.”

But the journalistic model revealed to the Court in the record of this lawsuit is anything but a “guardian of true liberty.” Instead, it is little more than mud-slinging, advertised as journalistic fearlessness, which offers very little in the way of a complete or balanced picture for its readers. Instead of being a leader in educating the people about civil discourse in an era of increased political polarization, the press in general, and Mother Jones in particular, leads the way in demonizing, rather than fairly discussing, those whose points of view differ from its own. Instead of the robust debate which characterized the state ratifying conventions in 1787 and 1788, and should have been the beacon for future political discourse, [Mother Jones’ reporter’s] email sheds a sad light upon the media’s bitter practices of ad hominem attacks to boost revenue and to focus the reader’s attention only upon the negative, without any balance of any kind. True fearlessness in reporting would allow the readers of this nation to decide the issues for themselves by being given a well-rounded picture of the issue at hand. Slanted journalism only fuels divisiveness. Unlike the Founders’ dreams for this nation, such journalism does not act as a guardian of the democratic republic which gave the press its freedom. (Op. at 52-53)


I agree that the modern state of American journalism is less than ideal. One might even properly call it “shit.” For the most part, it is corporate shills doing their masters’ bidding. Those on the left, in general, are only marginally better.

And, as I said above, I share the judge’s negative view of Mother Jones. They’re no better (but no worse) than FOX News, The Washington Times, or The National Review.  As the judge found, they present their polarized view of the news rather than engage in fair discussion.

Guess what? That’s what the press has always done, and if you want to see a time when it was much, much, worse, take a look back at the press in 1791 or 1825. At the time, the American press would have made Glenn Beck blush.

And the worst part of all?

This judge sincerely seems to hold a great deal of reverence for the Constitution — I’d say right up there with Justice Brennan. But, then she waxed Rehnquist-ian:

This action was not brought frivolously or without foundation. The First Amendment’s application can be difficult and subject to varying interpretations. This was a proper case to resolve the issues. (Op. at 53)

This is where you do that Scooby Doo voice.


She wrote 50 pages, resolving each and every issue and sub-issue in favor of the defendant, but a closing that sounds like “ah, I dunno, whaddaya-gonna-do?”


One can only speculate.

Maybe she genuinely thought, “this stuff is sorta hard.” Maybe she knew that any other decision would get overturned by the Idaho court of appeals, but throwing this little bone would mean that there wouldn’t be a billionaire donating money to her opponent in her re-election campaign. Maybe I’m just not reading the facts and the law the same way she did.

What I do know is that if I lived in Idaho, I might be happy about the decision – since it ostensibly means that the First Amendment is alive and well in that state. On the other hand, if I didn’t have a multimillion dollar insurance policy, I would be very very very wary about writing anything negative about anyone in Idaho, because Mother Jones just paid $2.5 million for a piece of paper that says they were right on the law, right on the facts, and the First Amendment protects them — just not from defense costs.

That’s what you call a chilling effect. It is very cold in Idaho today.

On balance, I have to agree with Mr. VanderSloot – he might have lost the case, but he was “absolutely vindicated.” Whatever he paid for the privilege of losing, I’m sure it didn’t mean that he was reduced to panhandling to cover the expenses. On the other hand, Mother Jones is running a beg-a-thon to help pay its bills.

Maybe next time they’ll call me for comment before trying to paint me as a “conservative.” I might have donated. I might do so anyway, since I care more about the First Amendment than I do about some dipshit hippie calling me mean names.

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