User:Louis/sandbox dfli publish test: Difference between revisions
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'''Fact versus opinion.''' A conclusion drawn out loud from facts shown to the audience is opinion, not a false statement of fact.<ref name="milkovich">''Milkovich v. Lorain Journal Co.'', 497 U.S. 1, 18-19, 20 (1990). [https://www.law.cornell.edu/supremecourt/text/497/1 Opinion via Cornell LII].</ref> The controlling Nevada authority on this exact pattern is ''PETA v. Bobby Berosini, Ltd.'', where the claimed defamation came packaged with the videotape that showed the audience the very conduct being criticized, and the statements were protected because the facts were on the tape for the viewer to judge: | '''Fact versus opinion.''' A conclusion drawn out loud from facts shown to the audience is opinion, not a false statement of fact.<ref name="milkovich">''Milkovich v. Lorain Journal Co.'', 497 U.S. 1, 18-19, 20 (1990). [https://www.law.cornell.edu/supremecourt/text/497/1 Opinion via Cornell LII].</ref> The controlling Nevada authority on this exact pattern is ''PETA v. Bobby Berosini, Ltd.'', where the claimed defamation came packaged with the videotape that showed the audience the very conduct being criticized, and the statements were protected because the facts were on the tape for the viewer to judge: | ||
<blockquote>''everyone involved has seen the "movie"; and all the facts upon which opinions were based were "disclosed" in the videotape itself...''</blockquote><ref name="berosini">''PETA v. Bobby Berosini, Ltd.'', 111 Nev. 615, 625, 895 P.2d 1269 (1995). [https://www.courtlistener.com/opinion/2259559/peta-v-bobby-berosini-ltd/ Opinion via CourtListener].</ref> That is Prowse's case almost on all fours. He shows his teardown, his test rig, and his data on camera, then says the pack is unsafe, and a viewer can look at the same footage and disagree, which is the test for protected opinion.<ref name="partington">''Partington v. Bugliosi'', 56 F.3d 1147, 1156-57 (9th Cir. 1995). [https://www.courtlistener.com/opinion/697361/ Opinion via CourtListener].</ref> A technical conclusion drawn from data the speaker put in front of the audience is not the kind of "fact" that can be proven false in a defamation case, as the Second Circuit held for disclosed scientific data in ''ONY, Inc. v. Cornerstone Therapeutics'' and the Third Circuit held for a conclusion drawn from nonfraudulent published data in ''Pacira''.<ref name="ony">''ONY, Inc. v. Cornerstone Therapeutics, Inc.'', 720 F.3d 490, 492, 498 (2d Cir. 2013). [https://law.justia.com/cases/federal/appellate-courts/ca2/12-2414/12-2414-2013-06-26.html Opinion via Justia].</ref><ref name="pacira">''Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc.'', 583 F. Supp. 3d 654, 658 (D.N.J. 2022), aff'd, 63 F.4th 240 (3d Cir. 2023). [https://www.courtlistener.com/opinion/9386553/ Opinion via CourtListener].</ref> Dragonfly's complaint concedes the point in passing when it pleads that ''"Prowse's own published data from the video shows that the battery delivers full-rated capacity under proper conditions,"'' an acknowledgment that the data was published for the audience to weigh.<ref name="complaint" /> | |||
'''Truth, and who has to prove it.''' Truth is a complete defense, and for public-concern speech the burden of proving falsity is the plaintiff's, not the speaker's.<ref name="hepps" /> Dragonfly does not get to demand that Prowse prove his tests were perfect; it has to prove the core message, that these packs can overheat and fail dangerously, is materially false, against the record described above. | |||
'''Actual malice is a state of mind about truth, not a motive.''' Dragonfly's whole narrative rests on financial motive, but the Supreme Court has drawn the line three times. A profit motive does not prove actual malice, or the body of First Amendment libel law ''"would be little more than empty vessels."''<ref name="hartehanks">''Harte-Hanks Communications, Inc. v. Connaughton'', 491 U.S. 657, 667 (1989). [https://www.law.cornell.edu/supremecourt/text/491/657 Opinion via Cornell LII].</ref> Spite and ill will are not actual malice.<ref name="masson">''Masson v. New Yorker Magazine, Inc.'', 501 U.S. 496, 510-11 (1991). [https://www.law.cornell.edu/supremecourt/text/501/496 Opinion via Cornell LII].</ref> And lower courts have rejected the precise profit-and-grudge mix Dragonfly pleads: ''"[e]vidence of a defendant's ill will, desire to injure, or political or profit motive does not suffice."''<ref name="campbell">''Campbell v. Citizens for an Honest Gov't, Inc.'', 255 F.3d 560, 569 (8th Cir. 2001). [https://law.justia.com/cases/federal/appellate-courts/F3/255/560/ Opinion via Justia].</ref> Nevada applies the same definition, requiring that the speaker entertained serious doubts about the truth.<ref name="pegasus">''Pegasus v. Reno Newspapers, Inc.'', 118 Nev. 706, 718-19, 57 P.3d 82 (2002). [https://law.justia.com/cases/nevada/supreme-court/2002/36462.html Opinion via Justia].</ref> | |||
== The deceptive-trade-practices claim is the libel claim relabeled == | |||
The second count, under the Nevada Deceptive Trade Practices Act, fails for three independent reasons. | |||