Eric Bolling Suing HuffPo Journalist Over Lewd Photo Allegation
“seeking $50 million in damages for defamation”
Eric Bolling has been suspended from FOX News, as we mentioned in a recent post: FOX News Suspends Eric Bolling for Allegedly Sending Lewd Texts
The whole thing is based on a report from the Huffington Post by Yashar Ali which used multiple anonymous sources. Now Bolling is suing Ali.
Ashley Cullins and Jeremy Barr write at the Hollywood Reporter:
Fox News Host Eric Bolling Sues Journalist for $50M Over Lewd Photo Allegation
Recently suspended Fox News host Eric Bolling is suing journalist Yashar Ali for defamation and is seeking $50 million in damages.
The lawsuit comes just days after Ali wrote an Aug. 4 story for HuffPost claiming that more than a dozen sources told him Bolling sent “an unsolicited photo of male genitalia via text message to at least two colleagues at Fox Business and one colleague at Fox News.”
On Saturday, Fox News suspended Bolling — recently a host on the talk show Fox News Specialists and Cashin’ In and formerly of The Five — amid an investigation into the claims. He has worked at Fox News since 2008.
Ali wrote Wednesday on Twitter that he has received a summons from Bolling and says he stands by his reporting and will protect his sources. In the initial story, Ali says he spoke to 14 sources on the condition of anonymity because they either currently work at the networks, can’t speak to press without permission or signed confidentiality agreements.
The summons, which was filed Wednesday in New York state court, says Bolling is seeking both damages and injunctive relief arising from Ali’s efforts to injure his reputation through “intentional and/or highly reckless publication of actionable false and misleading statements” about his conduct and character.
Bolling seems eager to get this cleared up:
Overwhelmed by all the support I have received. Thank you
I look forward to clearing my name asap
— Eric Bolling (@ericbolling) August 7, 2017
I will continue to fight against these false smear attacks! THANK YOU FOR CONTINUED SUPPORT
— Eric Bolling (@ericbolling) August 9, 2017
Yashar Ali also seems confident:
Just received a summons. Eric Bolling is suing me for defamation – $50 million in damages. I stand by my reporting + will protect my sources
— Yashar Ali (@yashar) August 9, 2017
It’s important to note that Bolling’s summons does not include HuffPost – he is coming after me personally. I’m a big boy…but very telling https://t.co/nvludsIV87
— Yashar Ali (@yashar) August 9, 2017
Hadas Gold of Politico has more on the specifics of the suit:
Eric Bolling initiates lawsuit against reporter behind sexting story
On Wednesday, Bolling filed a “summons with notice” in New York State Supreme Court against Ali, seeking $50 million in damages for defamation. Ali must respond within 20 days, demanding that Bolling file a complaint, after which Bolling will have 20 days to file his response before the suit goes forward.
“The nature of this action is for damages and injunctive relief based on defamation arising from the defendant’s efforts to injure the plaintiff’s reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff’s conduct and character. As a result of the defendant’s actions, the plaintiff has been substantially harmed,” the summons states.
Bolling is represented by Michael Bowe from the same law firm as Marc Kasowitz, who was President Donald Trump’s personal attorney until last month.
“This anonymously sourced and uncorroborated story is false, defamatory, and obviously intended to destroy this good man’s career and family. We will defend Eric aggressively in court, where actual facts, based on evidence, testimony, and cross-examination, will belie these anonymous accusations,” Bowe said.
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Comments
I am not an attorney, but doesn’t the discover phase work in both directions?
Yes. It certainly DOES.
Like cindelicato, I’m not an attorney. My question is, “How do the plaintiff and the defendant make their respective cases when the sources of the (allegedly) false story cannot be compelled to testify?”
Well, because it’s the law…it’s complicated.
To begin, the defense has no burden to prove much of anything. All that belongs to the plaintiff…UNTIL that burden is shifted in whole or some part (which really does not obtain here).
OTOH, a court has the power to grant discovery sanctions where one side does not obey the rules. These can be quite devastating, and in this case…were the witnesses to be undisclosed…could range from a dismissal (striking) of all defensive pleadings (a lay-down victory for the plaintiff) to a ruling that slapped the defendant with money paid to the plaintiff, but no resolution of the issues short of trial. There are several points in between, and judges can be pretty creative here. This is also where you’d find a question of contempt if a party refused to obey a court order.
But, again, the defense needs not put up any evidence in a case like this UNTIL Bolling has produced evidence that the claims are false by a preponderance of the evidence. Even then, it still falls on him to show the publican of stuff was made knowing that it was false or that it was done without regard to its truth or falsity. IIRC…
THEN he has to show how and in what amount he was damaged.
In this case, damages are easy to show – he’s suspended from his job and Ali is the direct cause of it. Damages if the suspension were to become a termination would easily be in the multi-million dollar range.
Since it’s impossible to prove a negative, Bolling will have to show that there are no documented public or private statements available which indicate that he may have done what he stands accused of, and he may allege that Ali and his informants (if any exist) simply made the story up out of whole cloth. At that point, it will be Ali’s turn to rebut Bollings case, and show (if he can) that there are indeed sworn statements which indicate that Bolling engaged in the behavior he is accused of.
Since the story involves an electronically transmitted picture, at the very least that picture really has to be brought into evidence by Ali, and it’s provenance will have to be shown. If Ali cannot produce the alleged picture, in spite of writing about it so extensively, then Bolling will stand a quite good chance of winning.
“…he may allege that Ali and his informants (if any exist) simply made the story up out of whole cloth. At that point it will be Ali’s turn to rebut Bolling’s case.”
Nope. It may be his CHOICE to rebut Bolling’s allegations, but it isn’t on Ali to do anything. Reading the jury, his defense my see they don’t buy Bolling’s story.
“Since the story involves an electronically transmitted picture, at the very least that picture really has to be brought into evidence by Ali, and it’s provenance will have to be shown.”
Nonsense. Bolling has to prove there is no such picture, and that Ali acted out of malice. Ali doesn’t have to produce anything. It would certainly be good if he did, and the picture’s provenance is meaningless. If it exists, it shows Ali did not act out of malice. He could have been duped. Which isn’t a tort under Sullivan. In fact, it’s a defense.
Suppose I were to say that you had sent me a picture of yourself planting a full-mouth kiss on Donald Trump, and I assert that I have a copy of that picture right now, in my possession, and that I have shown it to other people, although I won’t tell you who they are.
How would you go about proving no such picture existed?
Your hypo is profoundly flawed and here’s why…
I can…
1. call you a lying liar who lies and challenge you to produce the picture. You then get to sue me for defamation or tend to prove me right.
2. assuming arguendo that I sue you (why, I can’t imagine, since I’d never win a defamation verdict [how am I damaged, for one]), I simply ask for all documents and things in any form (a request for production) showing or describing any time Der Donald and I were in the same area at the same time. You could object…we’d go to air that out before the judge…and I’d get what you had, maybe with some sanction money or maybe not. Additionally, I’d ask you (in Texas) for “disclosures”, which include specifically all persons with knowledge of the matter in controversy, including their names, addresses, and means by which they can be contacted. This is pretty much non-objectionable in Texas, and if you don’t provide it, it often means you lose at trial because you can’t call an undisclosed witness, and you can’t refer to them, either. We don’t tolerate surprises in court.
3. Then there’s a deposition, where I can ask you many questions while you are under oath, hours on end, often recorded by video. This can…and pretty much WILL…be used at trial if it has anything on it I could use. Impeachment of your trial testimony would be one really good use, but there are others.
So, returning to reality, good lawyers on both sides will conduct very probing discovery. This will include requests for production of all photographs Bolling has ever sent anyone via social media…which is a bit much, so a judge will “help” the sides agree on a reasonable response.
Of course the picture will be demanded by Bolling’s lawyers, and they should get it if it still exists (assuming it did).
If it does not, witnesses can testify as to its existence and what they saw on it.
The jury will weigh the evidence and return a verdict (or a judge may).
I think Bolling has pretty good shot for it “libel per se” seems to be established, unless Yashar Ali can prove it true, New York Times Co. v. Sullivan 376 U.S. 254 (1964) gives him a good shot:
I don’t think Yashar can take the 1st to protect himself on this one and will need to product evidence because actually damages were caused.
The fact that Yashar doubled down and did not retract, actually could add to malice.
So if Ventura can win on a weak case, why not Bolling?
a publication is “libelous per se” if the words “tend to injure a person . . . in his reputation” or to “bring [him] into public contempt”; the trial court stated that the standard was met if the words are such as to “injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust. . . .” The jury must find that the words were published “of and concerning” the plaintiff, but, where the plaintiff is a public official, his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So.2d 441, 457-458 (1960). His privilege of “fair comment” for expressions of opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may, in any event, forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So.2d at 458.
I have no idea why you limited your citations of law to Alabama, which has very little to do with this case.
Also, no. Just no.
Defamation per se exists as a category to delineate from other defamatory statements for their inherently damaging character. If someone falsely alleges you pay for sex with children under the age of 12, THAT would be defamation per se. There is no need to prove several of the other elements of the tort.
For instance, if I allege you have sex with a porn star, you have to prove that that allegation is damaging to you somehow, and that reasonable people believed it. As an illustration, if I allege you have sex with a alien being from space, that will very likely lose in the very earliest stages of litigation. Nobody (reasonable) would believe it, and it can’t cause you damages by wounding your reputation.
Having sex with a porn star might be an untrue allegation, but is it defaming in your case? Would reasonable men in your situation feel the claim hurt your reputation? If you were a guy who ran a FaceBook page bragging about the women you bedded, you’re screwed (so to speak). The statement, though untrue, was not really defaming.
So, all per se jurisprudence does is offer a short cut to LIABILITY. NOT damages. You have to think about tort law in cubby-holes. You can prove all the elements of LIABILITY and still not prove DAMAGES; you go home with a goose-egg. The last element (damages) is part of the formula.
Several people here assume that damages are easily made out in this instance. I don’t know that’s true. Bolling was suspended. I dunno if his pay was stopped.
Since Bolling is sueing Yashar Ali personally does that mean he must pay his own legal expenses? If HuffPo pays them then that would be compensation to Yashar Ali for which he would have to pay taxes.
The old saying is that “it’s not whether or not you win or lose, it’s how much does it cost to play the game”… maybe Bolling is out to bankrupt Yashar Ali.
Bankrupting Ali would be one of the LAST things Bolling wants.
With few exceptions, judgment debts get discharged in bankruptcy. This might be one exception, but that would be a matter for litigation in bankruptcy court.
Under the exceptions to assets the bankruptcy trustee might take would be a lot of good stuff. Bolling would get squat.
I think a lot of journalists have insurance to cover defense, but I could be mistaken. If Ali does, the insurance might offer the limits to settle. That’s pretty common.
This appears to be one of those cases where money is completely inconsequential, although as always it will be the way we keep score at the end. Bolling is on a mission to destroy Ali’s reputation and restore his own; Ali’s goal will be the reverse. Perfect set up for a vicious grudge match.
(and it goes without saying that the cases that trial lawyers love the most dearly are those in which cost is no object to either side)
No. Wrong again. I constantly counsel clients NEVER to sue or maintain a suit out of emotion. They only make sense if they make good business sense. That’s true of most good trial attorneys I know and have known. In large part because your client will never feel satisfied with any outcome (most of which are pretty ambiguous), AND juries kinda hate all the animus.
Correct. Intentional torts are non-dischargeable in Bankruptcy.
I don’t understand what takes so long to know if he sent these pictures. All they have to do is do a search of all pictures he sent and review them. Even if he sent several thousand that can be reviewed in a few hours. He has been suspended for about a week while they continue to investigate.
“They only make sense if they make good business sense. ”
Once again, I’m not a legal professional, but I think Bomking had little choice but to sue. Damned if he doesn’t, rolling the dice now that he has.
OK. Assuming you mean Bolling…
Sure. Likewise a divorce or custody dispute. Sometimes yagotta.
Yes, Bolling. Stupid autocorrect.
It will be interesting to see how this case goes forward. Looks like one of the sexting receiving has a sexually harassment suit against Fox. Might be a plan to push for settlement with Fox.
Caroline Heldman is the one sent the text. If she can show Bolling number sent it, Bolling will have to prove it was not him.
I think electronic proof needs to be established (texting records for phone numbers might help). Even so, I think a picture or other witnesses need to be found since the recipient has a huge financial interest to help push this story.
Personally I could careless about Bolling and only want to see HuffyPost get nailed.
Thank you your very informative posts (especially the one you made in answer to my question [above]).
I used to jump into these arguments and take the side of the victim, Bolling, but after seeing what many big names have done in the past, I no longer get involved with either side. After Bret Favre sent a picture of his junk, I realize that people of all levels of success do not seem immune to stupidity. One note of humor in this kinky stuff is the lady college prof who sent pictures of a vagina to a bunch of men thinking they would react like she and most women do when they receive a male picture from a man. She was shocked to find that most men sent her pictures back of themselves and told her what they would like to do to what was in her picture! She tried it again and the response was even worse! Different strokes.