Posted on 11/10/2007 9:23:11 AM PST by TheRealDBear
ST. LOUIS — A lewd scoreboard message at Busch Stadium has found its way into another arena: a court of law.
An Illinois teen is suing the Cardinals, claiming she was ostracized at school after a crude comment about her landed on a ballpark scoreboard. The message appeared through a program that allows fans to post text messages with their cell phones.
According to the suit, the teen was at a game with her high school in May 2006 when a female classmate sent a message saying the plaintiff "has an STD! Eww!"
The girl, then 16, is identified in the suit only by her initials, A.B. She never had a sexually transmitted disease, according to the suit. Advertisement
The suit was filed Wednesday in St. Louis Circuit Court. It claims the "shame and humiliation" she suffered forced her to stay out of school, take her final exams in a separate office, and seek psychological counseling. Almost all of her friends were at the game, the suit says, and boys avoided her afterward.
The suit claims the teen "had thoughts of injuring herself," forcing her mother to miss work to care for her.
On Thursday, the Cardinals blamed the incident on a high school rivalry.
"We understand that this was an unfortunate prank played on this young woman by one of her own classmates," said Dan Nelson, an attorney representing the team. "We are, frankly, surprised that the matter has even elevated to this level."
The suit accuses the Cardinals of negligence in allowing a defamatory statement to be published. The girl is seeking damages "in excess of $25,000," plus legal fees.
(Excerpt) Read more at stltoday.com ...
“Boys avoided her afterward”
So they really believed that she had an STD and didn’t realize someone was playing a prank on her! Looks like the St. Louis school system might not be the best in the country.
If it could be reasonably said that the display constitutes "publishing", it might be a legitimate interpretation - not that lawyers won't claim it, and possibly win it - but that's a real twisting of the word. At worst it's the equivalent of an attractive nuiscance.
Rather than help the girl cope with giving back as good as she got or standing up to her tormentors (and trust me, that works), it would seem the adults guided her to embrace victimhood - special place to take tests, etc. You can imagine how the pack picked up on the scent of that victory, to scramble a metaphor or two. No, the bulk of her mortification was self-induced and the girl desperately needs coping skills, not a law suit settlement.
You'd probably need to talk to a specialist in Missouri to get the full scoop. This is all I turned up in quickly skimming the statutes: "Libel and slander, averments--defenses.
509.210. In an action for libel or slander, it shall not be necessary to state in the petition any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the claim arose, but it shall be sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be not controverted in the answer, it shall not be necessary to prove it on the trial; in other cases it shall be necessary. The defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances admissible in evidence to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstance. "
One of the purposes of tort actions is to try to make the plaintiff whole; punitive damages, however, would encourage change in behavior by the defendants.
Attractive nuisance doctrine concerns premises liability for personal injury. It has absolutely nothing to do with this type of action.
An illustrative case would be Hustler v. Ashby. In that case someone stole a nude polaroid from a woman, sent it in to Hustler for the $50 for having it published. Given the potential for great harm, and the foreseeability that someone would send in a photo not of themselves, the magazine had a greater duty to ensure that such an event did not occur. In this case the one hosting the scoreboard should have foreseen that such an act would occur, and put in place a means for screening potential posts.
Agreed and understood. That's why I said "equivalent".
My point there is that the Cards did not do anything that would normally be considered "publishing" by a reasonable use of the word. They did create a system which might be attractive to abuse, which the girl's classmate did. In the Hustler case you describe, there was an actual publisher who made a judgement on whether or not to put the image in their magazine. In this case, what you had was the equivalent of an active and unmonitored megaphone.
I do, however, see how the legal part gets more and more intertwined as more and more babies get cut in half.
That is what makes it interesting! I like the megaphone analogy. Perhaps a similar one is a "giant blackboard". VERY interesting question as to whether one is liable for defamation posted on a giant public blackboard. I think the key question is the foreseeability for abuse.
Regarding "publisher": "published" does not only mean printed and distributed. To be "published" it means it has been communicated to at least one 3rd party who understood the language in its defamatory sense. In TN, it is not required that the person who hears the defamation actually believes it to be true, only that they understood the defamatory nature of it. The reason is that the statement itself is injurious to the person. Now if the statement was true, thats a whole nother kettle of fish.
I get that publishing is only loosely media (as in supporting substrate) dependent. "Published", however generally requires some sort of affirmative (meaning active) action. I don't see that here.
That said, I do think that the Cards were grossly naive in expecting people to not abuse such a thing.
That's what the trial is for! I see your argument, and undoubtedly that is what defense counsel will offer. If I was plaintiff counsel, I would say that 1)creating the system that allows these messages to be displayed automatically amounts to publication, and 2) if it did not, then the defendant was negligent in not designing the system in such a way that required it to take a positive action, i.e. screen the potential messages, before they were displayed.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.