May 21, 2012 Amanda Seef Uncategorized
A wild case of accused sexual abuse has turned into an embittered battle in civil courts, as two people on opposite ends of the Bernie Fine abuse allegations seek justice from libel litigation.
But experts say the defamation suits by both Laurie Fine and Bobby Davis could face a long, complicated road in the court systems.
“The process itself can be onerous. It’s not an easy process, and it’s often not a quick process,” said Sandra Baron, the executive director of the Media Law Resource Center. “It drags out over time. I think that, as a result, both sides may come away feeling that they have taken something of a beating.”
That beating, Baron said, is just beginning for both Laurie Fine and Bobby Davis.
Last week, Davis’s attorney, representative-of-the-stars Gloria Allred, filed an appeal to a dismissed defamation case against Syracuse University basketball coach Jim Boeheim. The suit took aim at Boeheim’s comments after the allegations against Fine hit a national audience when ESPN broadcast the story of Davis and his brother, Mike Lang. The next morning, Laurie Fine, wife to Bernie, declared her intent to file suit against sports media giant ESPN. Pitched in front of the picturesque Seneca Lake, Fine and her attorney, Lawrence Fisher, said ESPN painted a picture that depicted her as a monster. Fine says the recorded phone call between she and Davis was “doctored” in a way that the excerpts libeled her.
Two cases. Two people on opposite ends of the Bernie Fine case — and both using libel litigation in a case where there have not, and likely will not be, criminal charges.
The financial loss is one of the most important requirements because it’s what brings people to civil court. Libel is rarely, if ever, tried in criminal court, Baron said.
“Since we, thank goodness, no longer engage in duels, the court of law is where people go when they think they have been injured over defamatory statements,” she said.
Once the suit is filed in federal court, which is expected in the coming weeks, the case will be assigned to a civil court. Once it makes it to court, they’ll face numerous hurdles, including proving there has been some kind of financial loss stemming from the written or spoken word. Whether that means losing a job or having to move, libel litigation is required to seek related damages.
Fine said the released tape by ESPN meant she has “endured the trauma of being smeared in public as a monster,” meaning she can no longer work, volunteer or have a social life in the Syracuse area.
“She can’t even go to Wegmans,” Fisher, her attorney, said.
The financial loss Fine speaks of will play into the case in court, Baron said.
“She will contend, as any complaintant will, that she has been injured and they are seeking a certain amount of money to compensate them for the amount of harm that has been done,” she said.
Kindergarteners call it name-calling. Those in the legal realm say it’s rhetorical hyperbole.
Courts say it’s not illegal.
“New York courts are pretty savvy about opinion, name-calling, rhetorical hyperbole,” Baron said. “They understand it to be pure opinion and the like. It’s not defamatory, it’s his opinion.”
It’s that feature that had the case against Boeheim dismissed originally — a state Supreme Court judge dismissed the case, saying Boeheim’s statements about Davis and Lang were of opinion, not fact, and protected from defamation claims.
“The content, tone, and purpose of Boeheim’s statements would clearly signal to the reasonable reader that what was being read in the articles published in days after the initial ESPN report were likely to be an opinion — a biased, passionate, and defensive point of view of a basketball coach — rather than objective fact,” DeJoseph wrote in his decision.
A definitive line between fact and opinion can’t be made, Baron said, which means it’s up to the court and how they see the case.
“It’s really how the court concludes reasonable listeners, reasonable readers, would see the statements,” she said. “Name-calling, heated discourse — really reasonable listeners would not understand that to be statements of fact. They would understand that this individual is really articulating their opinion, and I think that’s what the court was getting at in the prior decision. There’s nothing more definitive than that.”
Rochester-turned-Syracuse broadcaster Bob Lonsberry was used as an example in Boeheim’s dismissed case. Radio listeners heard Lonsberry call a man acquitted of homicide a “cold-blooded murderer.” That case was thrown out, citing the difference between fact and opinion and was used in Boeheim’s case.
“People are likely to say things in the heat of the moment that those hearing them, or reading them, will discount because they understand they’re not really statement of fact,” Baron said.
The appeal has been filed in Boeheim’s case.
Fine and her attorneys are calling it “reprehensible” journalism.
She says the actions of Mark Schwarz and Artie Burko were done with malice and strayed from the norms of journalism. The 44-page complaint provided to reporters says Schwarz “obsessed” over the Bernie Fine case, resulting in their breaking the case in November, on the edge of the Penn State scandal with Jerry Sandusky.
“ESPN, Schwarz and Burko knowingly and maliciously published the treacherous lies of Bobby Davis,” Fine said in a brief statement to reporters. “Through the steps I am now taking, I will try to establish both stability I have lost in my own life and journalist credibility that ESPN has so easily abandoned during the indefensible coverage of Bobby’s transparently false story.”
Her attorney called it a “textbook example” of defamation in the journalistic realm. Her reputation hinges on the work done by ESPN, he contends.
But it’s not just Fine’s reputation that’s on the hook here, Baron said.
“In the case of journalists, they’re defending their reputation, too,” she said. “Everyone is defending something that’s important to them. In this case, there’s a lot of reputations at stake. The journalists’ reputation is at stake just as much”
Fine and her attorney spoke of her reputation and how ESPN, Schwarz and Burko’s actions with the Bernie Fine story affected society’s view of her.
“It all hinges on her reputation, and that’s what she’s saying — my fine, upstanding reputation has been damaged,” said Frances Pestello, a professor of sociology at LeMoyne College. “Her reputation has been altered by the news stories that have come out. The story hit papers all over the country, so she is right. Her reputation has been fundamentally altered by the stories. She and her spouse have been redefined by these stories — who they were, what kind of people they were, how others should think about them.”
But the burden of proof is now on Fine to show that ESPN, Schwarz and Burko acted with malice toward her in order to destroy her reputation, Baron said.
“The plaintiff has to prove that the statement was made in a grossly irresponsible fashion,” she said. “That would be a gross departure from journalistic standard.”
The malice component will rely on one other item, though — is Laurie Fine a public figure? If she is deemed a public figure, a case of defamation could be made much more difficult. Her attorney contends she is not. The coverage of her press conference last week, however, could say something different, Baron said.
“By holding press conferences, and being able to attract the media that she did to the press conference, that may be evidence that she is, in fact, a public figure,” Baron said.
Her husband’s notoriety within the basketball program could also play into the public figure role.
“I think it’s going to be a very tough case for Laurie Fine to win,” said Brent Axe, sports director and talk show host for Score 1260. “You have to prove that ESPN and Schwarz was ‘out to get her’ in some way. The smoking gun here is they have to prove the tape was doctored in some way to favor their story. If I had to make a prediction on it, I don’t see Laurie Fine winning this case, but that’s what the legal system is for.”
After Fine’s press conference, ESPN released the tape in its entirety on YouTube.
“ow that we have this 47-minute version of the audiotape, our experts will examine it more fully. I expect that upon further expert examination, Laurie Fine’s defamation suit will be established even further,” Fisher said in an email. “The release of the 47-minute version of this audiotape is an obvious public relations tactic by ESPN aimed at desensitizing the community to the defamation deriving from it.”
The numbers are stacked against Fine and Davis’s defamation suits, Baron said. The majority do not go to trial with a jury — most will settle out of court long before reaching that process. And while even a settlement could be a long way off, Baron says recuperating from defamation cases, as the accused and the accuser, is possible.
“There have been a number of people who have gone on to have successful careers and lives, even after they have contended that in a way they were defamed,” she said.
Cleaning up your reputation after a libel case — whether the accused or the accuser — could be a tricky process, Pestello said. In this day and age, it’s crucial.
“Our reputations are much more public now than they have been,” she said. “With social networks, we’re so much more visible now; it’s almost like small-town feeling again. When it was small town, everyone knew everyone was looking, but that sort of faded. Now, it seems, the whole world is the town.”
Libel litigation is a “vehicle” in which Fine, Davis and Lang can “clean up” their reputation after they feel they’ve been wronged, Pestello said.
“Your reputation is critical and it has always been — it’s how others see you. It shapes how they interact with you, how they think of who you are,” she said. “Your identity is closely tied to those reputation questions.”
The effect on Syracuse Basketball
The season is over, but the biggest story of Syracuse University’s basketball program still carries on.
Now that all is said and done, sports commentator Brent Axe says the Bernie Fine fiasco of 2011-12 didn’t have the impact feared when the news broke.
“It, amazingly, didn’t affect it at all,” Axe, sports director and talk show host at Score 1260, said. “[Head coach Jim] Boeheim got out in front of it and he took all the heat, so to say.”
The season ended 34-3 with Syracuse University, making it halfway through the season undefeated. The microscope on the school didn’t have an effect on the season, Axe said.
“The court became a sanctuary for these guys, where they could escape all of this stuff,” he said. “When you’re on that court, you’re hidden away. It was amazing to see it really didn’t affect them on the court. It was amazing to watch because it really didn’t seem to bother them.”
The biggest impact, Axe said, revolves around opposing fans. They’ve had fun with the Bernie Fine scandal, but the impact isn’t nearly as deep as fans and sports-junkies alike had initially feared.
“I don’t think it has affected the image of Syracuse as much as we had thought it would,” he said. “When you Google it, it comes up, but it just seems that things have kind of moved along. It did not put up the roadblock in front of things that we thought it would have. It’s a very complicated story but it hasn’t really slowed down the train that is Syracuse University.”
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