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Cindy Hill’s Free Speech Follies, Continued

Almost three years ago, amidst the debacle over the notorious Senate File 104 (2013) which removed most of then-Superintendent Cindy Hill’s powers and reassigned them to an appointee of the governor, Hill sent a silly threat letter to certain legislators alleging defamation. Nothing ever came of it. The episode is but a footnote in a saga that ended with an important decision from the Wyoming Supreme Court overturning SF104. However, as reported in the Casper Star Tribune, Hill—again represented by attorney Robert DiLorenzo—recently went so far as to file a defamation lawsuit against state Representative Tim Stubson, who is also a candidate in the race to succeed Rep. Cynthia Lummis in the United States House.

The lawsuit is, to put it mildly, an embarrassing affront to free speech.

First, the allegations against Stubson are probably not actionable as defamation per se, or defamation “in and of itself.” The complaint alleges:

“[Stubson] broadcasted and published to the over 800 persons connected to his Facebook Account that Cindy Hill . . . was not following the law and was out of control.” (Pg. 3)

“[Stubson] declared, broadcasted and published . . . that [Hill] had committed many illegal acts that they [legislators] did not disclose publicly. On the face of the declaration and publication, the statements attributed flagrant and wide spread criminal wrongdoing which was not true.” (Pg. 4)

“[Stubson’s] statements were damaging on their face and and imputed (a) criminal offenses and/or (b) matters incompatible with business, trade, profession or office. As such, the [Stubson] has engaged in defamation per se.” (Pg. 8)

Although it is often unwise to consider common-sense definitions in legal reasoning (especially when it involves Latin), here it is helpful. As far as I can tell, the Wyoming Supreme Court has not addressed this issue specifically, but generally to consider something defamatory per se it must not only claim serious misconduct but do so without requiring references to extrinsic facts. Stubson’s statements (as far as we know—the alleged Facebook statement appears to have been removed) do not name specific acts or crimes, but are generalized. DiLorenzo tries to make a lot out of Stubson’s position as a legislator and his references to undisclosed facts, but this only drives the point home: to establish defamation will require an extensive factual inquiry.

This brings us to Hill’s second hurdle: she remains a public figure. She was Superintendent of Public Instruction and a candidate for governor in 2014, granting everyone (including other public figures like Rep. Stubson) the widest freedom to criticize her. So, as summarized by the Wyoming Supreme Court, to win a defamation suit Hill must “prove with convincing clarity not only the falsity of the statements, but also that [Stubson] uttered them with knowledge of the falsity or in reckless disregard for the truth.” Dworkin v. L.F.P., Inc., 839 P.2d 903, 916 (Wyo. 1992) (emphasis added). The complaint alleges falsity, but puts most of its weight onto Stubson’s alleged knowledge of falsity or reckless disregard. Given the nature of Stubson’s statements, one wonders how Hill can plausibly prove defamation even with an extensive discovery process (that would include breaking past barriers to non-public legislative documents). Imagine, for a moment, Hillary Clinton bringing a defamation suit against a legislator who called her ongoing e-mail fiasco “criminal.” This suit is no different.

Finally, most disturbingly, the complaint seeks a “permanent injunction barring [Stubson] from engaging in defamatory conduct towards [Hill].” That is, a court order requiring Stubson to refrain from speaking. This kind of remedy, long thought dead, has been described as a legal zombie that is, unfortunately, re-appearing in defamation cases nationwide. These cases, however, have not involved public figures like Hill. Again, returning to the generalized nature of Stubson’s statements, even those supportive or sympathetic to Hill generally should see the problem: if she received an injunction, to merely criticize Hill about anything regarding her tenure or character Stubson would risk being hauled back into court for contempt. This is not what the Founders had in mind.

Whatever playbook DiLorenzo is utilizing, it’s definitely not the Bill of Rights. Hill’s complaint broadly claims that “all Wyoming persons are entitled to protection from speech based on untrue rumor and innuendo and deceit.” (Does everyone get a puppy, too?) One would hope Wyomingites are instead entitled to protection from baseless legal harassment. The Casper Star notes that, in addition to Hill’s letter three years ago, DiLorenzo has threatened the paper over a headline about Hill. The lawsuit itself notes that Hill has sought “intervention of the Office of Bar Counsel for the Wyoming Bar Association” against Stubson, which implies she has gone after Stubson’s law license (that is, livelihood) over political disagreements. This political lawfare is disgusting and mercifully rare in Wyoming, and should be subject to far more scrutiny and penalties than mere words about public figures.

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Comments 3

Guest - Marc Smith on Wednesday, 09 March 2016 09:21

I find it quite interesting that a lawyer with the Wyoming Liberty Group is criticizing one of the most liberty minded people in state leadership for utilizing the legal system that we the people have set in place. Imagine, if you will, a lawyer condemning the use of the rule of law. Once the smoke clears one can only conclude that there is a personal political motivation behind this thinly veiled OPED piece. Yes folks, one can only conclude that Mr. Klein isn’t promoting liberty at all! Rather he is endorsing the rule of man. Yep, Wyoming Liberty Group has charted a course that will bring them squarely in line with the establishment politicians who have subverted and will continue to undermine what little liberty Wyomingites have left. Libertarianism is a clear path to destruction – wake up Wyoming.

I find it quite interesting that a lawyer with the Wyoming Liberty Group is criticizing one of the most liberty minded people in state leadership for utilizing the legal system that we the people have set in place. Imagine, if you will, a lawyer condemning the use of the rule of law. Once the smoke clears one can only conclude that there is a personal political motivation behind this thinly veiled OPED piece. Yes folks, one can only conclude that Mr. Klein isn’t promoting liberty at all! Rather he is endorsing the rule of man. Yep, Wyoming Liberty Group has charted a course that will bring them squarely in line with the establishment politicians who have subverted and will continue to undermine what little liberty Wyomingites have left. Libertarianism is a clear path to destruction – wake up Wyoming.
Stephen Klein on Wednesday, 09 March 2016 09:32

Marc,

Frivolous lawsuits undermine the rule of law. If you have any specific critiques of my work and how it has in anyway “undermined” rather than advanced liberty in Wyoming, I’m all ears. Otherwise, your comment is as baseless as Hill’s lawsuit.

Marc, Frivolous lawsuits undermine the rule of law. If you have any specific critiques of my work and how it has in anyway “undermined” rather than advanced liberty in Wyoming, I’m all ears. Otherwise, your comment is as baseless as Hill’s lawsuit.
Guest - Marc Smith on Wednesday, 09 March 2016 09:41

Not a problem Mr. Klein, I correctly assumed you would perceive my comment as baseless. Indeed, it only stands to reason when your opening premise is to delegitimize the very legal system you have pledged to uphold.

Not a problem Mr. Klein, I correctly assumed you would perceive my comment as baseless. Indeed, it only stands to reason when your opening premise is to delegitimize the very legal system you have pledged to uphold.
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