Joe Arpaio Files Defamation Suit Against The New York Times

Former Arizona Sheriff and Senate candidate Joe Arpaio is suing The New York Times for defamation. He doesn't appear to have much of a case.

Former Maricopa County, Arizona Sheriff Joe Arpaio has filed a lawsuit against The New York Times and Op-Ed columnist Michelle Cottle over the publication of an allegedly defamatory Op-Ed written by Cottle and published by the Times:

Joe Arpaio, the former Arizona sheriff who finished a distant third this year in a Republican Senate primary, filed a libel suit Tuesday night against the New York Times and a member of its editorial board, arguing that they had undercut his chances for another run.

In a complaint filed with the U.S. District Court for the District of Columbia, Arpaio took issue with an opinion piece written after the August GOP primary titled, “Well, at Least Sheriff Joe Isn’t Going to Congress: Arpaio’s loss in Arizona’s Senate Republican primary is a fitting end to the public life of a truly sadistic man.”

Arpaio is seeking $147.5 million in damages from Michelle Cottle, the author of the piece, and the Times, as well as attorneys’ fees and other costs.

In a statement to news organizations, Eileen Murphy, a spokeswoman for the Times, said: “We intend to vigorously defend against the lawsuit.”

Arpaio contends the piece was “carefully and maliciously calculated to damage and injure” his reputation among the law enforcement community as well as the “Republican establishment and donors” in order to undermine another run for political office.

In the suit, Arpaio, 86, says that he intends to run for the Senate again in 2020 for the seat vacated by the late Republican senator John McCain. Sen. John Kyl (R-Ariz.) is temporarily occupying that seat until a special election takes place.

In this year’s GOP primary to replace the retiring Sen. Jeff Flake (R-Ariz.), Arpaio finished third with less than 18 percent of the vote.

Cottle wrote that Arpaio’s “24-year reign of terror was medieval in its brutality” and that his “abuses ranged from the humiliating to the lethal.”

The Op-Ed, published on the day after Arpaio lost the primary for the GOP nomination to succeed Jeff Flake in the Senate, was written by Michelle Cottle, a member of the TimesEditorial Board and titled “ Well, at Least Sheriff Joe Isn’t Going To Congress.” In part, this appears to be the part of the piece that Arpaio considers to be defamatory:

As “America’s toughest sheriff,” as Mr. Arpaio liked to call himself, prepares to ride off into the sunset, it bears recalling that he was so much more than a run-of-the-mill immigrant basher. His 24-year reign of terror was medieval in its brutality. In addition to conducting racial profiling on a mass scale and terrorizing immigrant neighborhoods with gratuitous raids and traffic stops and detentions, he oversaw a jail where mistreatment of inmates was the stuff of legend. Abuses ranged from the humiliating to the lethal. He brought back chain gangs. He forced prisoners to wear pink underwear. He set up an outdoor “tent city,” which he once referred to as a “concentration camp,” to hold the overflow of prisoners. Inmates were beaten, fed rancid food, denied medical care (this included pregnant women) and, in at least one case, left battered on the floor to die.

Indeed, many prisoners died in Mr. Arpaio’s jail — at an alarming clip. The number of inmates who hanged themselves in his facilities was far higher than in jails elsewhere in the country. More disturbing still, nearly half of all inmate deaths on his watch were never explained. Over the years, the county paid out tens of millions in wrongful death and injury settlements.

At the same time, Mr. Arpaio’s department could not be bothered to uphold the laws in which it had little interest. From 2005 through 2007, the sheriff and his deputies failed to properly investigate, or in some cases to investigate at all, more than 400 sex-crime cases, including those involving the rape of young children.

Mr. Arpaio embraced the racist birther movement more energetically than most, starting an investigation aimed at exposing President Barack Obama’s American birth certificate as a forgery. The inquiry ran five years, with Mr. Arpaio announcing his “troubling” findings in December of 2016, just weeks after having been voted out of office. Even many of his own constituents, it seemed, had grown weary of the sheriff’s excesses. No matter, as of early this year, Mr. Arpaio was still claiming to have proved “100 percent” that Mr. Obama’s birth certificate had been faked — to be clear, he has not — and suggesting he would revive the issue if elected to the Senate.

It was no secret that Mr. Arpaio’s methods often crossed the line into the not-so-legal. In 2011, a federal district judge ordered the sheriff to end his practice of stopping and detaining people on no other grounds than suspecting them of being undocumented immigrants. Mr. Arpaio declined to oblige, secure in the rightness of his own judgment. The legal battle dragged on until last summer, when he was found guilty of criminal contempt of court for blatantly thumbing his nose at the law.

As a general rule, a Plaintiff seeking to establish defamation, whether in the form of spoken slander or written libel, must prove several key elements. First, they must prove that the statement was false. Second, they must prove that the statement caused the Defendant some measurable harm, although a Plaintiff need not allege or prove actual monetary loss due to defamation but instead claim reputational damage, leaving it to the finder of fact to determine the compensatory value of that damage. Finally, a Plaintiff must establish that the Defendant made the statement without conducting sufficient research to determine whether or not the statement was true. There’s also a final requirement in cases such as the one Arpaio has filed. In New York Times v. Sullivanthe Supreme Court ruled that a party that the First Amendment requires that individuals who are considered “public figures” must allege and establish that the defamatory statement was made with what the Court called “actual malice.” In the relevant section of its opinion in that 1964 case, the Court put it this way:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” Speiser v. Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Given his decades-long prominence in the media and his campaign for the Senate, it’s clear that Arpaio qualifies as just the kind of “public official” that the Justices in Sullivan Arpaio’s Complaint, filed in the U.S. District Court for the District of Columbia, makes all of the allegations necessary to establish a case of defamation, including the allegation of actual malice. Looking into the details of the complaint, though, and keeping a mind on the applicable law, it appears at least from the allegations set forth in the Complaint and the column that Cottle actually wrote that the former Sheriff and Senate candidate does not have much of a case against either the Times and Cottle and that it’s likely that his case will likely never proceed to trial.

As a preliminary matter, it’s worth noting that Cottle’s column is an opinion piece published on the paper’s Op-Ed page, not a news report put forward as a factual basis. This is important because defamation law generally states that so-called “pure opinion” cannot be the subject of a defamation claim. As a general rule, this means that statements of opinion cannot, by themselves, be the basis for a defamation case unless they are backed up by allegations, and eventually proof, that those opinions are based on, or include, statements that are provably false. The purpose for such an exception is obvious. While defamation law exists to allow people, including public figures such as Arpaio, to seek compensation when false and malicious claims are made against them, those laws should not be permitted to bar people from stating their opinions about those public figures or to allow public officials to use defamation laws to shut down or punish those who express dissenting and critical opinions about them.

The most prominent cases in this particular area were handed down by the Supreme Court in the wake of the Sullivan case. In the first case, Gertz v. Robert Welch Inc. 418 U.S. 323 (1974), the Court held that strict liability is impermissible in defamation cases, meaning that states could not adopt defamation laws that absolved Plaintiffs of the need to allege or prove fault on the part of the Defendant. The case is perhaps more well-known, though, for the statement in Justice Lewis Powell’s majority opinion that “[u]nder the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” This led many observers at the time to believe that the Court was headed down the road toward establishing a near-complete “opinion privilege” in defamation cases. In Milkovich v. Lorain Journal Co. 497 U.S. 1 (1990), though, Court declined to go that far and instead stated that opinion can be protected under traditional First Amendment principles while still leaving the door open for a potential defamation claim in cases where the opinion strays over into being an assertion of false and defamatory facts.

Several states responded to Milkovich by either adopting an opinion privilege into their laws or their Constitution. As a general rule, though, the question of when and whether an opinion can be actionable is something that has to be judged on a case-by-case basis.  An opinion that is based on no facts whatsoever, or based on “facts” that are provably false and defamatory, for example, can still be considered to be defamatory if the other standards to make out a claim of defamation are met. To pick an example, stating something about a public official that is couched as an opinion but also includes factual allegations are quite simply untrue can still be considered actionable even it if is couched in the language of an opinion. Additionally, courts have generally held that statements of opinion that cannot reasonably be interpreted as making a factual statement, such as statements that use hyperbole or obvious satire to make a point would negate the idea that the author of the piece in question was seriously stating an actual fact. Finally, the Courts have held that evaluating whether a statement is a pure opinion or not requires the court to consider the context in which the work is presented. In this case, that would mean include taking into consideration the fact that the piece was published in a space generally reserved for opinion pieces and that it was written by someone whose entire job is to express opinions.

Applying these tests to Cottle’s piece, it seems clear to me that Arpaio doesn’t have much of a case. Before we even get to the opinion v. fact distinction, the case would seem to fail based on the long-standing principle that truth is an absolute defense in defamation cases. If the allegations that Cottle makes against Arpaio are true, then he has no claim whatsoever. This is why it’s helpful that the Times published the piece online with hyperlinks support each and every factual allegation that Cottle makes in support of her opinions about Arpaio. By doing so, they have essentially established that Cottle is basing her opinion on provably true assertions about the former Sheriff and Senate candidate. For this reason alone, the case should be dismissed.

Going beyond the fact that the factual allegations that Cottle makes are true, though, it seems clear to me that the remainder of the piece would be considered a protected opinion that cannot be the subject of a defamation claim. First of all, of course, there is the fact that the facual statements that Cottle bases her opinion on are both clearly stated and demonstrably true. Arpaio may not like the fact that his operation of the Maricopa County Sheriff’s Office was conducted in the manner that Cottle related, but those allegations are true and can be verified both by reference to countless news reports and court documents from the numerous legal proceedings that he and his department were subject to over the years. Second, those portions of Cottle’s Op-Ed that are not backed up by fact clearly fall within those types of assertions that any reasonable person would see as a matter of opinion rather than a factual allegation against the former Sheriff. Finally, it’s clear from the context in which the Op-Ed was published makes clear that this is an opinion piece, not an article claiming to be news. Taking all this into account, it seems fairly clear that even taking all of Arpaio’s factual allegations as true, the Complaint does not state an actionable case of defamation.

This isn’t only defamation suit that the Times has faced from a conservative political figure in recent years. Last year, Sarah Palin filed a defamation suit against the paper over the publication of an Op-Ed piece that repeated allegations that had been made about her in the wake of the January 2011 shooting of former Congresswoman Gabrielle Giffords. At the time the suit was filed, I expressed the belief that Palin had at the very least put forward a claim against the paper that should survive a Motion to Dismiss.  Several months later, though, the New York City-based Federal District Judge to whom the case had been assigned dismissed the case after what many legal observers noted was a procedurally odd pretrial hearing that combined elements of a Motion To Dismiss with those of a Motion for Summary Judgment even though no discovery had taken place in the case and Palin’s lawyers had not been permitted to examine internal communications that could have helped establish intent regarding publication of article. Palin later appealed the case to the Second Circuit Court of Appeals. The case was argued before a three-judge panel of that Court last month and it appears that Palin’s attorneys may have been successful in arguing that the Judge had not followed proper procedure in turning a Motion to Dismiss into a quasi-trial without permitting the Plaintiff to conduct proper discovery. The case is now pending the release of an opinion that could result in it being revived before the end of this year.

In any case, it appears to me that Arpaio has a far weaker case than Palin did. While Cottle’s Op-Ed piece does include statements of fact, those statements are true and, in the online edition of the paper, there are hyperlinks to source material supporting those allegations. As a result, I don’t see this lawsuit going very far at all.

Here’s the Complaint:

Arpaio v. Cottle Et Al by on Scribd

FILED UNDER: Campaign 2018, First Amendment, Law and the Courts, U.S. Constitution, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. reid says:

    Not only is he a nasty person, he’s quite old. He needs to slink off to retirement already and let us forget about him.

  2. Hal_10000 says:

    As was pointed out on Twitter, many of things he’s complaining about are things he has boasted about over the years. His mistreatment of prisoners was part of his entire schtick about how he was America’s toughest sheriff. This lawsuit is going nowhere. And if there a relevant anti-SLAPP provision, he’d end up owing the Times money.

    But convicted felons probably aren’t terribly familiar with the law, so not unexpected.

  3. Kathy says:

    If he retired to spend more time with his family, would his family want him around at all?

    2
    1
  4. Mr. Prosser says:

    Ho-Hum, just another way to raise money for a “Legal Fund.”

  5. Gustopher says:

    There’s also a final requirement in cases such as the one Arpaio has filed. In New York Times v. Sullivan, the Supreme Court ruled that a party that the First Amendment requires that individuals who are considered “public figures” must allege and establish that the defamatory statement was made with what the Court called “actual malice.”

    This seems pretty straightforward to prove.

    “I would direct the jury’s attention towards my client, and ask you to note that he is quite hateful. Everyone who spends any time with him has malice in their heart for him. Everyone who learns of him has malice in their heart for him. Search your heart, and you will find that just during this trial you have grown to strongly dislike him — that’s malice.”

  6. Kathy says:

    We need not a law but a legal principle which states: you cannot defame a contemptible, brutal, nasty, asshole of a jerk.

  7. Just nutha says:

    @Gustopher: That could actually work.

  8. Just nutha says:

    @Kathy: Cannot as in not allowed to or impossible to do?

  9. OzarkHillbilly says:

    Second, they must prove that the statement caused the Defendant some measurable harm,

    First, I doubt that is possible.

    although a Plaintiff need not allege or prove actual monetary loss due to defamation but instead claim reputational damage, leaving it to the finder of fact to determine the compensatory value of that damage.

    Secondly, I wouldn’t be surprised in the least if the judge didn’t loan Cottle the nickle for any damage she might possibly have done, and might even order him to compensate her for enhancing his reputation.

  10. Kathy says:

    @Just nutha:

    It’s not possible.

  11. Spend some time considering what Google’s censor engine means for mankind. https://indomitus.us/executive-order-to-protect-competiton-and-small-businesses-from-bias-in-online-platforms/

  12. JohnMcC says:

    @Censorship Info: Well, my little old desktop can’t find “censorship info” by clicking on the highlighted name.
    ‘Course it’s old and was a cheap computer years ago. Maybe if I tried harder?

    And “indomitus.us” doesn’t seem to exist in the world that I inhabit. Now there is an “indomitus.net” which seem to be a “sovereign citizen’ named Jim Davidson. Who likes his own poetry.

    Hi Vladimir!

    PS-Edit: I did NOT click the link. I do my banking on this machine.

  13. Just nutha ignint cracker says:

    I visited indomitus.us. It appears to be another RWNJ site featuring Mel Gibson on the horse he rode in The Postman (?? or was it Mailman??), but then again, I’ve been told that I need to abandon my Red/Blue prejudices, so I may not be the guy to be offering this information.