Del Arroz Suit Will Go To Trial; Court Rejects Worldcon 76’s Motion for Summary Judgment

Judge Socrates P. Manoukian has denied San Francisco Science Fiction Convention Inc.‘s motion for summary judgment in the defamation lawsuit brought against them by Jon Del Arroz. SFSFC (Worldcon 76) had asked the court to render summary judgment on the record already submitted in hope of getting the case dismissed without trial.

The court’s tentative ruling was posted online this afternoon in advance of the hearing set for May 11. The case will proceed to a jury trial scheduled to start on June 14 unless it is settled beforehand.

SFSFC, Inc. is the parent corporation of Worldcon 76, held in San Jose. Del Arroz sued SFSFC in 2018 after the Worldcon 76 committee announced he would not be allowed to attend the convention (“Del Arroz Files Suit Against Worldcon 76”. In February 2019, the court tossed four of the five causes of action in Del Arroz’s lawsuit against Worldcon 76’s parent corporation. The case continues on the fifth complaint, defamation, which focuses on SFSFC’s statement on social media banning Del Arroz from attending Worldcon 76:

…Thereafter, defendant SFSFC’s official and authorized social media posted on Facebook the following statement about the alleged reason that Plaintiff had been barred from WorldCon76: “Worldcon76 has chosen to reduce [Plaintiff’s] membership from attending to supporting. He will not be allowed to attend the convention in person. [Plaintiff’s] supporting membership preserves his rights to participate in the Hugo Awards nomination and voting process. He was informed of our decision-via email. We have taken this step because he has made it clear that he fully intends to break our code of conduct. We take that seriously. Worldcon76 strives to be an inclusive place in fandom, as difficult as that can be, and racist and bullying behavior is not acceptable at our WorldCon. This expulsion is one step toward eliminating such behavior and was not taken lightly. The senior staff and board are in agreement about the decision and it is final.”

Today’s court ruling addresses five arguments Worldcon 76’s attorney made in moving for summary judgment. Judge Manoukian said that four of the defense’s contentions were not proven, and another would need to be decided by a jury.  

Here are excerpts from the court’s comments on those five points.

  • Non-actionable opinion.

…In looking at the statement by defendant SFSFC at issue, it does not engage in baseless name-calling nor does it simply charge Plaintiff with being racist in some abstract sense. Instead, the average reader would understand Plaintiff has been banned from attendance at WorldCon76 “because [Plaintiff] has made it clear that he fully intends to break our code of conduct” by engaging in “racist and bullying behavior.”

Like in Overhill, defendant SFSFC’s statement accuses Plaintiff of engaging in some actual, concrete, wrongful conduct which led defendant SFSFC to believe Plaintiff would further engage in “racist and bullying behavior.” Whether Plaintiff had done so in the past or was likely to do so in the future must be based on some factual underpinning. As explained in Overhill, “if those [underlying] facts are either incorrect or incomplete, or if [defendant’s] assessment of them is erroneous, the statement may still imply a false assertion of fact.” At the very least, this court is of the opinion that a reasonable fact finder could conclude defendant SFSFC’s statement declares or implies a provably false assertion of fact.

  • Privilege.

As an alternative basis for summary judgment, defendant SFSFC contends its statement was privileged. “If the privilege arises, it is a complete defense.”

… Defendant SFSFC contends its statement was privileged because it was between “interested” parties with a mutual interest in the subject of WorldCon and for the safety of members/ attendees, in particular. Of relevance, defendant SFSFC proffers evidence that it received complaints from people in the science fiction community, including members who planned to attend WorldCon76, who had observed Plaintiff’s behavior and were afraid of confronting such harassing and disruptive conduct at the convention. Due to the ongoing controversy surrounding harassment in the science fiction community and the significant concerns raised by Plaintiff’s activities, the Committee deemed it necessary to make a statement regarding its decision.

 In opposition, Plaintiff proffers evidence which raises a triable issue of material fact with regard to whether the privileged publication was made “to a person interested therein” and/or whether defendant SFSFC lost the privilege by abusing it in sending it to a much wider audience than “interested persons.” Specifically, Plaintiff proffers evidence that WorldCon76’s social media included a website and Facebook page. The readers of WorldCon76’s social media page included people [who] had never heard of [Plaintiff] or who had no concerns about [Plaintiff].

The court concluded this portion with a quote from a precedent case that indicates the issue of privilege is ambiguous enough that it needs to be determined by a jury.

  • Public figure – actual malice.

Defendant SFSFC continues with its motion for summary judgment by arguing that Plaintiff is a public figure or limited purpose public figure and, consequently, must establish actual malice in order to prevail on a claim for defamation.

The court said that it did not find that Del Arroz is an “all purpose public figure” on the evidence presented.

The court also did not find that Del Arroz is a “limited purpose public figure.”

The court is not persuaded that Plaintiff, by thrusting himself into the public eye with regard to a particular controversy (political boycott/ exclusion/ cancel culture), Plaintiff has become a limited purpose public figure with regard to the defamation at issue in this case. Defendant SFSFC apparently suggests that because Plaintiff is, in defendant SFSFC’s assessment, a bad actor or behaves bad with regard to the topic of political boycott/ exclusion/ cancel culture and every topic he discusses, then his private words and acts are fair game in this case because the defamation relates to his bad acting/ bad behavior. If this were to be the case, then Plaintiff would essentially be an all purpose public figure and there would be no meaning to the term “limited purpose” and no need for there to be a nexus to a discrete matter of public controversy.

  • Truth

As a separate basis for summary judgment, defendant SFSFC contends its statement about Plaintiff is true. As noted above, the gist of defendant SFSFC’s statement is that Plaintiff has been banned from attendance at WorldCon76 “because [Plaintiff] has made it clear that he fully intends to break our code of conduct” by engaging in “racist and bullying behavior.” Defendant SFSFC proffers evidence that its code of conduct prohibited harassing behavior and proffers evidence that Plaintiff had previously engaged in harassing behavior online and Plaintiff threatened to wear a body camera into a convention space to film anticipated “hijinx.”

While defendant SFSFC’s argument and evidence addresses the charge that Plaintiff intended to engage in bullying behavior, defendant SFSFC does not address what the court considers to be the primary “sting” of the statement, i.e., that Plaintiff intended to engage in racist behavior. The court does not consider this to be a slight or minor inaccuracy which can be left unjustified.

Consequently, the court is of the opinion that defendant SFSFC has not met its burden of proving the truth, or substantial truth, of the alleged defamatory statement.

  • Libel per se/ Libel per quod.

As a final basis for summary judgment, defendant SFSFC contends the purportedly defamatory statement is libel per quod and, therefore, Plaintiff must prove that he has suffered special damages which he cannot do. Defendant SFSFC cites two examples of libel per se (accusation of crime or being unfit to practice trade, business, or profession) and argues that since neither of those situations exist here, then the alleged defamatory statement must necessarily be libel per quod. The court does not agree with defendant SFSFC’s logic. No extrinsic aid is necessary to perceive an accusation of being racist as tending to injure the subject’s reputation. Consequently, the court need not address whether Plaintiff can or cannot establish that he has suffered special damages…

A copy of the ruling can be downloaded below; the part related to the Del Arroz suit begins on page 21.

33 thoughts on “Del Arroz Suit Will Go To Trial; Court Rejects Worldcon 76’s Motion for Summary Judgment

  1. The court said that it did not find that Del Arroz is an “all purpose public figure” on the evidence presented.

    The court also did not find that Del Arroz is a “limited purpose public figure.”

    That’s gotta rankle him a bit. The case survives (in part) because he’s not a significant or notable individual.

  2. I am quite certain that once the trial is done and Del Arroz’s actions during the convention, which included a blatantly abortive attempt to register himself (that he live streamed as he was doing it!) AND his inflammatory statements leading up to the noisy but small scale demonstration that took place on Saturday afternoon, a reasonable juror will find for the SFSFC. And Del Arroz’s will be stuck with a huge legal bill, the monetary penalties and all of the infamy he can handle. It couldn’t have happened to a more appropriate person, in my humble opinion…

  3. So in order to win, he has to legally admit he is NOT a Prominent Local Author.

    The irony is chef kiss

    @Chris Barkley: You mean “The protest he organized but didn’t bother to attend, as he was yachting 200+ miles away at the time.”

  4. For those who are unclear on this: Summary judgement is a course of action available to a litigant only if counsel can convince the judge that the case can be decided right away on the basis of legal issues only, with no material factual issues needing to be resolved and the legal outcome being clear even if factual issues were decided to the detriment of the moving party. If counsel can meet that heavy burden in the motion for summary judgement — essentially attempting to litigate all the legal issues in one single filing — then there’s no need for a trial to decide how the facts fall out.

    In this case, the judge ruled that none of SFSFC’s several alternative legal theories for why plaintiff’s case could be deemed fatally flawed purely as a matter of law were quite sufficient. Reading the quotations, it looks to me as if the judge’s grounds for saying that seem reasonable.

    None of that has any bearing on whether plaintiff can prove the required factual elements of defamation during the now-pending trial, nor whether plaintiff’s case will survive getting savaged by defence’s challenge on the legal issues during trial, either. And, meeting that standard of proof is a significantly high bar.

    This whole matter should be a lesson to fannish concoms, however, about the need to be incredibly careful about making allegations of fact that can reasonably be asserted in court to be harmful to someone’s reputation (and are made within the hearing of anyone other than that specific someone). A lawsuit that cannot be filed against you (even by someone who powerfully hates the con) for lack of a cause of action is one you don’t have to spend time and money defending.

  5. If anyone needs more clarity about the requirements for summary judgment, then I point them to the very clear explanation given by the judge in his ruling — see page 23 of the PDF available to download here.

  6. This just strikes me as strange. I’ve been following the coverage of the defamation suits filed by Dominion against various bad-acting Trump-adjacent folks, and all the commentary has been about how hard it is to prove a defamation claim against any of these people because you can’t be sued successfully for statements that are considered opinion, rather than fact. Isn’t “racist bully” an opinion? Maybe SFSFCs lawyer should have argued that instead of it being “true” that JDA is a “racist bully” they could have argued that the statement is merely an opinion since there’s no agree-upon legal definition of what makes someone “racist” or “a bully”, so the issue of “truth” is moot?

    I mean Tucker Carlson successfully defended against a defamation suit based on the grounds that no reasonable person could be expected to take anything he says seriously because he’s an “entertainer” not a “journalist”. That seems to make it possible for him to say just about anything about anyone and be immune to suit over it. So why is this judge taking a hard line with SFSFC?

  7. @Maytree I can think of a couple of reasons why that Carlson case wouldn’t be relevant here:

    Maybe, if it goes to trial, the Worldcon’s lawyers will try to use that precedent, but it’s not so cut-and-dried that a judge is going to grant summary justice on that basis.

    However, a ruling in the federal court for the Southern District of NY isn’t binding precedent in a state court in California, or for a federal lawsuit in California, and maybe not even in Brooklyn, because of how the federal court system is organized.

    The federal Ninth Circuit, which includes California, might look at the ruling in the defamation case against Carson and reasonably think that neither Congress nor the Supreme Court had carved out an exception to defamation law for “people know I lie sometimes, therefore nothing I say can be held against me.”

    That’s aside from my cynical thought that what they were really doing was making an exception for “rich right wingers with a large and possibly influential audience can get away with saying anything,” no part of which description applies to Worldcon. I would be surprised if either Trump or Giuliani tried to argue “everyone knows I’m a liar, so it isn’t slander” to defend himself in the Dominion Voting Systems case, and more surprised if a judge bought it.

  8. That’s aside from my cynical thought that what they were really doing was making an exception for “rich right wingers with a large and possibly influential audience can get away with saying anything,” no part of which description applies to Worldcon.

    Well yeah, there is that. But I still wonder what part of “racist bully” transcends basic name-calling, which is not something you can sue someone for defamation over. I’m sorry SFSFC has to continue to be bothered by this garbage, but hopefully they’ll win at trial and JDA will have to pay all their legal expenses (assuming he isn’t broke and therefore judgment-proof.)

  9. @Maytree: if you look up the facts about him given in the previous wodge of documents — I think in his deposition — you will find he’s far from broke, if you go by his expensive house, fancy SUV, and employer.

    Of course, he might be way overextended and underwater on some of that, so you can’t always go by looks. And he might file for bankruptcy like his boy Tr*mp so often does. Or maybe if he loses he still won’t have to pay Worldcon’s expenses, though he ought to.

    (In a truly just world, he ought to have to pay everyone who even went to that Worldcon, but that is not this planet.)

  10. So, if I recall, this “author” went to at least one previous convention, caused trouble by violating the code of conduct, had his membership revoked, and then tried to do the same thing at Worldcon in San Jose, but they wouldn’t let him in, so he threw a protest outside the door, hoping to ruin everyone else’s experience with the convention.

    This isn’t much different than a business having a sign that says, “We reserve the right to refuse service to anyone. Those caught violating the house rules will be asked to leave.” In this case, he’s “anyone.”

    If someone is hell-bent on causing trouble, he shouldn’t be going to SF conventions.

  11. Carl: So, if I recall

    That’s not what happened.

    He applied to be on program at Baycon in 2017. They had a lot of people volunteering to be on program, and they opted to tell some of those people who had been on program before that they would be given a year off in 2017 so that others who had not been on programming recently or at all could have the opportunity.

    JDA threw a huge baby tantrum and tried to claim that he was being discriminated against for political reasons. He then proceeded to spend a year shitposting and trolling conrunners, fan writers, and especially other authors on Twitter and his blog, with fake claims such as how they were pedophiles or supported pedophilia, or were persecuting him because of his political beliefs. He harassed some people quite badly. Toward the end of 2017 he started gleefully bragging about how he was going to go to Worldcon 76 the following year and show up at the SFWA suite and get in their faces while wearing a bodycam.

    A lot of authors and fans who had been victims or witnesses of his abuse told the Worldcon 76 concom that they would not attend if JDA was allowed to attend, because they wouldn’t feel safe. He bought a full Attending membership, but Worldcon 76 reduced that to a Supporting membership and gave him a refund for the difference, telling him that he couldn’t come because promising to come to the convention to continue the harrassing and abusive behavior in which he’d been engaging for a year was a violation of their Code of Conduct.

    He then filed a suit against Worldcon 76 for defamation, and instigated a protest outside the convention which was ostensibly to protest pedophilia but which in reality ended up being a bunch of white supremacists wearing MAGA hats and chanting Nazi slogans. He showed up on the first day of Worldcon 76 and livestreamed himself attempting to buy a membership, but he was refused and escorted out of the convention center by staff. He then spent the rest of the weekend yachting instead of participating in the protest he’d arranged.

    But yes, he’d made it quite clear that he’d intended to continue his harassing behavior at the convention, and yes, they had the right to exclude him from attending to protect the rest of their members.

  12. @Maytree, the problem is, a bright line between opinion and allegation of fact hasn’t been found, here.

    In a defamation case, the case’s judge must decide, based on the evidence admitted, whether or not the statements at issue qualify for dismissal of the entire cause of action on grounds of those statements being opinion. In this particular case, as the judge’s tentative opinion points out, the complaint accuses SFSFC of not merely using the phrase “racist and bullying behavior”, i.e., strictly as a charge of abstract racism and bully-hood (which would be inherently debatable and thus opinion), but also declaring or implying wrongful specific conduct by plaintiff, which thus could thus amount to an expressed or implied claim of fact.

    The judge concludes that that claim of fact can serve as the basis for a defamation trial (where plaintiff would still have to meet some significant burdens to prove required elements of defamation, and establish injury), and overcome opposing counsel’s defences, which are many, and can generically include (1) establishing factual truth, still a complete defence under US defamation law, and (2) bad existing reputation, undermining the required element of demonstrated damages.

    Anyway, that’s part of why I advised, in any contentious situation where an antagonist might be motivated to sue you, to be very careful about statements that might be ruled harmful to someone’s reputation — and that includes statements that, albeit couched as opinion, may be ruled to imply damning claims of fact.

  13. @JJ

    Toward the end of 2017 he started gleefully bragging about how he was going to go to Worldcon 76 the following year and show up at the SFWA suite and get in their faces while wearing a bodycam.

    Yes, he wanted to enter a private suite and film the occupants without their consent(a crime in the state of California).

  14. @rick moen

    In this particular case, as the judge’s tentative opinion points out, the complaint accuses SFSFC of not merely using the phrase “racist and bullying behavior”, i.e., strictly as a charge of abstract racism and bully-hood (which would be inherently debatable and thus opinion), but also declaring or implying wrongful specific conduct by plaintiff, which thus could thus amount to an expressed or implied claim of fact.

    So is the issue this part of SFSFC’s statement?

    We take that seriously. Worldcon76 strives to be an inclusive place in fandom, as difficult as that can be, and racist and bullying behavior is not acceptable at our WorldCon. This expulsion is one step toward eliminating such behavior and was not taken lightly.

    The judge’s denial of summary judgment seems to hinge on this point, which I find confusing:

    As a separate basis for summary judgment, defendant SFSFC contends its statement about Plaintiff is true. As noted above, the gist of defendant SFSFC’s statement is that Plaintiff has been banned from attendance at WorldCon76 “because [Plaintiff] has made it clear that he fully intends to break our code of conduct” by engaging in “racist and bullying behavior.” Defendant SFSFC proffers evidence that its code of conduct prohibited harassing behavior and proffers evidence that Plaintiff had previously engaged in harassing behavior online and Plaintiff threatened to wear a body camera into a convention space to film anticipated “hijinx.”15 While defendant SFSFC’s argument and evidence addresses the charge that Plaintiff intended to engage in bullying behavior, defendant SFSFC does not address what the court considers to be the primary “sting” of the statement, i.e., that Plaintiff intended to engage in racist behavior. The court does not consider this to be a slight or minor inaccuracy which can be left unjustified.Consequently, the court is of the opinion that defendant SFSFC has not met its burden of proving the truth, or substantial truth, of the alleged defamatory statement.”

    Am I right in reading this as the judge saying “Sure, you’ve proven he intended to violate your Code of Conduct, but you said he was going to do it in a RACIST way, and you can’t prove he was going to do that in a RACIST way, so that’s defamatory”? This seems really weak to me. As I said, how do you define what was meant by a “racist” way of bullying someone? And didn’t the SFSFC statement say not “He did this” but “We thought he would do this, so we kicked him out”? It’s a fact that they expected him to behave in a racist and bullying way, but they acknowledged this was a precautionary measure — that is, they weren’t saying that he DID behave this way, but that he MIGHT behave this way. Isn’t that clearly an opinion? Is it defamation to say that someone with a bad reputation might do something bad?

    As an interesting side note, I just went and Googled the Judge in this case, and was intrigued to notice that he himself has literally been accused of being a racist bully numerous times (particularly around 2014) and that his rating on “The Robing Room” is 2.1/10 by lawyers. Complaints stated that he doesn’t read briefs, is racist, and is biased against women. I can’t help but wonder what role any of that played in his decision here. JDA may have lucked out with this judge, unfortunately.

    Also, weirdly, he and his family were on Family Feud decades ago:

  15. Pingback: Del Arroz Suit Will Go To Trial; Court Rejects Worldcon 76’s Motion for Summary Judgment - from File 770 - Amazing Stories

  16. Maytree: …Am I right in reading this as the judge saying “Sure, you’ve proven he intended to violate your Code of Conduct, but you said he was going to do it in a RACIST way, and you can’t prove he was going to do that in a RACIST way, so that’s defamatory”? This seems really weak to me. As I said, how do you define what was meant by a “racist” way of bullying someone? And didn’t the SFSFC statement say not “He did this” but “We thought he would do this, so we kicked him out”? It’s a fact that they expected him to behave in a racist and bullying way, but they acknowledged this was a precautionary measure — that is, they weren’t saying that he DID behave this way, but that he MIGHT behave this way. Isn’t that clearly an opinion? Is it defamation to say that someone with a bad reputation might do something bad?

    Your paraphrase is the point the judge invites us to make for ourselves without having actually said it himself. Because at this stage he’s only denying a motion, not ruling on the case.

    The section you are quoting from is where the judge considers SFSFC’s defense (and justification for summary judgment) that their statement about Del Arroz was true.

    The SFSFC statement refers to “bullying and racist” behavior. The “and” means these are two different types of behavior.

    Having publicly stated that both types of behavior were their concern, they put themselves in a position where the court is now looking for evidence of Del Arroz’ conduct on which the concern about racist behavior could have been based. Conduct that happened before they barred Del Arroz from attending. Conduct that can be characterized as racist.

  17. @Maytree, to be clear, I’m not an attorney, only someone with ongoing interest in the subject. Also, during my long period as Chair and Board member for Bay Area Skeptics, I helped my and other skeptic groups avoid courting trouble by staying far away from any utterance even close to actionable, even by angry and volatile parties — not naming any names, here — and IMO fannish groups should do likewise. (As a reminder, it’s important to observe that precaution in discussion of this ongoing legal case, for starters. That’s one reason why I often address general legal principles rather than case particulars, as any incautious aspersion you don’t make about an individual is one you cannot be sued over.)

    By the way: I spoke in February about a hypothetical defence motion for summary judgement against a hypothetical cause of action that might very closely resemble Del Arroz’s, arguing for dismissal on grounds of privileged opinion and plaintiff being a public figure, and implied that it really ought to succeed. Apparently I was wrong — um, I mean, in the hypothetical. ;->

    You’re asking what SFSFC statement was “the issue” in plaintiff Del Arroz’s (surviving) fifth cause of action? His complaint charges that Incident Response Team area head Lori Buschbaum’s Jan. 2, 2018 social-media statement “Worldcon 76 has chosen to reduce Jonathan Del Arroz’s membership from attending to supporting. He will not be allowed to attend the convention in person. Mr. Del Arroz’s supporting membership preserves his rights to participate in the Hugo Awards nomination and voting process. He was informed of our decision via email. We have taken this step because he has made it clear that he fully intends to break our code of conduct. We take that seriously. Worldcon 76 strives to be an inclusive place in fandom, difficult as that may be, and racist and bullying behavior is not acceptable at our convention. This expulsion is one step towards eliminating such behavior and was not taken lightly. The senior staff and board are in agreement about the decision and it is final.”

    Plaintiff’s complaint contends multiple factual errors (a key necessary element of defamation, but of course not sufficient): 1. He denies having ever expressed intent to violate the CoC — and makes the interesting admission that he claims to have been unaware it existed(!). Weirdly, his legal complaint also alleges that no CoC actually did exist. 2. He denies being either “a racist” or “a bully”, which of course is blatant lawyerly sleight of tongue, as the convention statement merely spoke of the undesirability of eliminating “racist and bullying behavior” and didn’t technically name him as having set out to indulge such behaviour (but, it turns out, in the judge’s provisional, pre-trial view, the statement implied that).

    You are not correct that the judge said SFSFC had proven various factual allegations. No facts have yet been established at all, as that can happen only through trial (and stipulations). The whole concept of a motion for summary judgement is that the moving party is attempting a bravura sudden victory by saying (paraphrasing, obviously) “Let’s imagine that trial were already held, and all the facts under dispute were established (during those proceedings) in a way maximally advantageous to my opponent. I am nonetheless going to establish today in a single pleading that fatal legal defects in my opponent’s position exist, despite those adverse factual findings, that require the court to hand our side victory.”

    The judge was saying that, if facts under dispute (and as-yet undecided) are interpreted today in the fashion most advantageously to Del Arroz, then his case cannot yet be dismissed, as of today, on legal grounds alone.

    No, defamation is not “to say that someone with a bad reputation might do something bad”. As always with torts, there are required elements, all of which plaintiff must demonstrate to the court’s satisfaction. There are standard defences that can be raised if one is hauled into court. I have written about this, back during my days helping the skeptic movement avoid legal problems. Quoting in part: “A defamatory statement is one that injures the reputation of another party, either by lowering the standing of the injured party in the community or by tending to make others refrain from associating with him. However, it’s not just any such statement. […]” (Goes on to detail quite a lot, so please see, but bear in mind it’s the observations of an interested amateur, and also is specific to USA law.)

  18. My reading is the judge took a very narrow read on the filing and did not rule in favor of the ‘author’, but rather could not find a compelling legal argument to warrant their time ruling in favor of SFSFC. It will be interesting to see how this plays out in the current political climate in the bay area. Like it or not the ‘author’ is already in a poor position to garner the sympathies of the public.

  19. @rick Moen

    This is the part I was referring to:

    Defendant SFSFC proffers evidence that its code of conduct prohibited harassing behavior and proffers evidence that Plaintiff had previously engaged in harassing behavior online and Plaintiff threatened to wear a body camera into a convention space to film anticipated “hijinx.”15 While defendant SFSFC’s argument and evidence addresses the charge that Plaintiff intended to engage in bullying behavior, defendant SFSFC does not address what the court considers to be the primary “sting” of the statement, i.e., that Plaintiff intended to engage in racist behavior.

    This seems to say that SFSFC showed evidence that JDA had a CoC, that JDA had a history of harassment, and that he did threaten to bring a camera into the convention, which the judge considered acceptable. But he took specific exception to the fact that he says SFSFC did not show “racist” bullying or harassment in what they filed. There’s an implication that if they had, they might have won summary judgment on the grounds of truth being a complete defense to defamation claims.

    I asked this same question of a lawyer (though not a defamation specialist) and he said he thought the judge’s error was in not determining that JDA was in fact a public individual for the limited purposes of the lawsuit. If he had been determined to be such, JDA would have had to prove “actual malice” on the part of SFSFC, which isn’t quite what it sounds like but is definitely harder to prove than simple defamation of a private individual.

  20. @Maytree: I hope you won’t mind my framing the matter by (once again) stressing the larger context of what is going on, with this or any other pre-trial motion for summary judgement.

    Because there has not yet been a trial, literally no findings of fact have occurred. (If the parties had stipulated any admissions of fact in prior motions, that would have been a minor exception.) So, no, it is not possible for SFSFC to have (yet) shown the court evidence that Mr. Del Arroz had a CoC, or any of the rest, for the simple reason that no trial proceedings have yet occurred. Therefore, there have been no judicial findings of fact — only on matters of law raised in pretrial motions.

    The parties have made plenty of allegations of fact, and used those allegations as the launching pad for sundry arguments favourable to their respective clients. That is, after all, what you pay an attorney to do, when doing gladiator duty in a tort action. Both attorneys have attempted to dazzle the judge with rhetoric, citations, and claims that this-allegation leads logically to that-conclusion. And no, zero “evidence” yet exists — none — as submissions into evidence are permitted only after scrutiny in open court for competence and relevance. And deciding what facts are adjudged to be reliable, and to what degree, will become the job of the judge (or jury, if there is one), during the adversarial civil-litigation process in court — none of which has occurred, yet.

    And yes, I’m also surprised that — for purposes of the summary motion — the judge did not agree that Del Arroz is (at least) a limited-purpose public figure, someone who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues” (Gertz v. Robert Welch, Inc., 418 U.S. 323, 361 (1974)). The thinking is that people who fall into this category have assumed the risk of defamation to a certain extent, and because of their position or notoriety, they generally have greater access to the media than private individuals, so it’s easier for them to rebut falsehoods — and like general-purpose public figures, can prevail in a defamation action only if they can meet the heavy burden of proving “actual malice”, which means either knowing falsity or reckless disregard for facts.

    My understanding (but I’m not a lawyer, just an interested amateur) is that defence remains able to re-raise and substantiate at trial the claim of Mr. Del Arroz being a public figure. If the judge then continues to rule against defence, and SFSFC loses and the judge’s view is believed perverse and wrongheaded, then that would be a logical grounds for appeal.

    But there hasn’t yet even been a trial, so all of that is speculative.

  21. Maytree: During this break in the verbal carpet bombing, I will point out that JDA began by suing Worldcon 76 on five grounds. Four were tossed. But not defamation. In denying the special motion to strike defamation under provisions of the anti-SLAPP statute, Judge Pierce’s decision noted —

    However Defendant has failed to establish that its statement that Plaintiff had been barred from the convention because of “racist” and “bullying” behavior (and this is the only reasonable interpretation of Defendant’s statement) concerned a matter of public interest.

    Because the defendant failed that step, the judge didn’t need to analyze any other of the anti-SLAPP requirements.

    Now Judge Manoukian says the defense failed to satisfy him that any of five different legal contentions whose acceptance would have led him to render summary judgment. In respect to the contention that what Worldcon 76 said is true, this judge again says the defense’s case is lacking:

    While defendant SFSFC’s argument and evidence addresses the charge that Plaintiff intended to engage in bullying behavior, defendant SFSFC does not address what the court considers to be the primary “sting” of the statement, i.e., that Plaintiff intended to engage in racist behavior.

    A jury will start with a clean slate, but let’s not kid ourselves that nothing has been happening here.

  22. OGH said:

    In respect to the contention that what Worldcon 76 said is true, this judge again says the defense’s case is lacking

    The judge didn’t find those contentions convincing as stated in the context of a motion for summary judgement — but the judge has not yet heard any part of either side’s case. (Nor has a jury, if there will be one, and I don’t know if defence has opted for one, in which case the judge’s views will matter less.) Cases get won or lost at trial based on the skill of the lawyering from each side, building a compelling case based on facts submitted into evidence and legal positions based on it.

    So, for example, if it becomes clear that non-actionable opinion is not going to prevail without showing from admittable evidence examples of racist and bullying behaviour deemed to have been implied, defence may be able to adduce some examples sufficient for the judge (or jury’s) satisfaction. We will have to see how the zaftig soprano sings.

  23. Rick Moen: but the judge has not yet heard any part of either side’s case.

    Yes, he had, because that’s the only way the defense could have expected the judge to render judgment on the record already submitted.

  24. Mike, I feel I ought to clarify that, according to my understanding, getting a judge’s ruling on a motion for summary judgement simply is not hearing the case — justifying my characterisation “the judge has not yet heard any part of either side’s case”.

    At this point, there literally has been no evidence presented and either accepted or rejected, no witnesses, no cross-examination, no redirect examination, no opening statement, no closing statement. The judge was required by law to interpret — for the purpose at hand — the few allegations of fact (those stated in the motion for summary judgement) in the fashion maximally advantageous to the non-moving party (Del Arroz) and maximally hostile to the moving party (SFSFC). And now, even those allegations are not part of the evidentiary record, the motion having been dismissed.

    So, literally, really, the judge hasn’t yet heard the case. That will happen in June, it appears. (I just want to make sure Filers are clear on that.)

  25. Rick Moen: Where your argument is breaking down is your attempt to isolate the term “case” so that it cannot mean anything except what has been put in front of a jury (this suit will be heard by a jury). “Case” has a much broader meaning.

    Consider the Wikipedia’s Legal case, and specifically what it says about a civil case:

    A civil case, more commonly known as a lawsuit or controversy, begins when a plaintiff files most a document called a complaint with a court, informing the court of the wrong that the plaintiff has allegedly suffered because of the defendant, and requesting a remedy. The remedy sought may be money, an injunction, which requires the defendant to perform or refrain from performing some action, or a declaratory judgment, which determines that the plaintiff has certain legal rights. The remedy will be prescribed by the court if the plaintiff wins the case. A civil case can also be arbitrated through arbitration, which may result in a faster settlement, with lower costs, than could be obtained by going through a trial.

    The plaintiff must make a genuine effort to inform the defendant of the case through service of process, by which the plaintiff delivers to the defendant the same documents that the plaintiff filed with the court.

    At any point during the case, the parties can agree to a settlement, which will end the case, although in some circumstances, such as in class actions, a settlement requires court approval in order to be binding.

    The word “case” is an umbrella over a whole range of proceedings.

    The parties now have presented what they believe are the persuasive parts of their case to two judges who have both said that — for purposes of the anti-SLAPP standard, and for purposes of rendering summary judgment — they didn’t consider Worldcon 76’s use of the word racist to be either trivial or established to be true.

    The jury is going to be hearing much the same testimony, and seeing other things already presented to the judges. That’s all I’m saying.

  26. What Mike said.

    By the time it gets to a jury, pretty much all the testimony and evidence is already in the public record, or at least available to all the legal wranglers and their clients.

    The only times this doesn’t happen is a) a lawyer hasn’t complied with the rules of discovery or b) a lawyer has COMPLETELY screwed up.

    I mean, it’s got a friggin’ case number, it’s by definition a case.

    TV aside, Sudden Unknown Witnesses Who Change Everything By Dramatic Testimony don’t exist.

    (doink doink) (chung chung) (however you want to represent the L&O noise)

  27. Pingback: JDA Broadcasts His Settlement Demands | File 770

  28. Pingback: Worldcon 76 Settles with Jon Del Arroz: Issues Apology, Will Pay Compensation | File 770

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