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Let's say you're NYT counsel, and you're arguing this case. You have two arguments: Argument 1) This isn't libel because it's true, and Argument 2) This isn't

Let's say you're NYT counsel, and you're arguing this case. You have two arguments: Argument 1) This isn't libel because it's true, and Argument 2) This isn't libel because we're allowed to lie to our readership. Argument 1 causes you no reputational harm. Arguement 2 is an announcement to the world that you've abdicated all journalistic integrity. Do you make argument 2 if you're confident in argument 1? Regardless, argument 1 must not be bullet proof, because their motion to dismiss was rejected and the suit is moving forward.

deleted 6y ago
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matthewmcg 6y ago
Argument 2 states that the times can’t be liable as a matter of law, regardless of the facts. Argument 1 requires a more detailed inquiry into the facts. If argument 2 works for purposes of a quick motion to dismiss, and argument 1 requires discovery and possibly a trial, you’ll make argument 2 first, and if that fails, mount the much more expensive side defense based on argument 1.
staticman2 6y ago
Corporations are not actually people so it's not clear why the statements of the lawyer should reflect on the reputation of a paper the lawyer didn't produce. If I told you Apple had dirty bathrooms, would you conclude the Iphone engineers are bad at making phones?
ncallaway 6y ago
> Regardless, argument 1 must not be bullet proof, because their motion to dismiss was rejected This shows a misunderstanding of what the motion to dismiss adjudicates. Argument 1 cannot win on a motion to dismiss, because it's an argument over the facts. Argument 1 is absolutely irrelevant in a motion to dismiss. Argument 2 is the only argument you can raise in a motion to dismiss. At the motion to dismiss stage you are only arguing questions of the law. You assume the facts as alleged by the plaintiff in the complaint, and then state that given those facts there is still no legal issue that can be remedied.
seoaeu 6y ago
You just have to phrase them differently: Argument 1) I didn't do what you're accusing me of, or Argument 2) What you're accusing me of isn't illegal If you can establish the second one, I don't see why you wouldn't. It seems like it would save you a bunch of effort for this and any future cases.

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matthewmcg 6y ago

Argument 2 states that the times can’t be liable as a matter of law, regardless of the facts. Argument 1 requires a more detailed inquiry into the facts. If argument 2 works for purposes of a quick motion to dismiss, and argument 1 requires discovery and possibly a trial, you’ll make argument 2 first, and if that fails, mount the much more expensive side defense based on argument 1.

staticman2 6y ago

Corporations are not actually people so it's not clear why the statements of the lawyer should reflect on the reputation of a paper the lawyer didn't produce. If I told you Apple had dirty bathrooms, would you conclude the Iphone engineers are bad at making phones?

ncallaway 6y ago

> Regardless, argument 1 must not be bullet proof, because their motion to dismiss was rejected This shows a misunderstanding of what the motion to dismiss adjudicates. Argument 1 cannot win on a motion to dismiss, because it's an argument over the facts. Argument 1 is absolutely irrelevant in a motion to dismiss. Argument 2 is the only argument you can raise in a motion to dismiss. At the motion to dismiss stage you are only arguing questions of the law. You assume the facts as alleged by the plaintiff in the complaint, and then state that given those facts there is still no legal issue that can be remedied.

seoaeu 6y ago

You just have to phrase them differently: Argument 1) I didn't do what you're accusing me of, or Argument 2) What you're accusing me of isn't illegal If you can establish the second one, I don't see why you wouldn't. It seems like it would save you a bunch of effort for this and any future cases.