Beruflich Dokumente
Kultur Dokumente
1 that paperwork, you are going to see that the defense has
2 never been able to disprove or undermine any of the assertions
3 that I have made in the original complaint.
4 I was first contacted on June 23, 2015 by Paul
5 Pringle the reporter and Nicholas Goldberg the editorial page
6 editor about this matter. They decided on June 24 to fire me
7 and on June 28 they published a -- sorry, I'm just trying to
8 make sure I get my timeline correct here. Those should be
9 July. July 23 is when I first got contacted, July 24 is when
10 they decided to fire me and July 28 is when they published an
11 editor's note in which the Times claim there were
12 discrepancies between what I stated in my May 11, 2015, blog
13 and what they published in -- and what the LAPD audio showed.
14 In fact, there are no discrepancies whatsoever and for a
15 simple reason: Because I was telling the truth.
16 Just to go through the broad strokes of this case, I
17 had their audio cleaned up. I sent it to a company in
18 Hollywood. They cleaned up the audio, and what it revealed
19 was that my story was true and that the LAPD's story was
20 false. I used their evidence. They presented something that
21 they said showed that I had lied. But what I was able to show
22 was that their evidence actually showed that I told the truth.
23 But at that point the Times went silent. They
24 refused to discuss my findings and they didn't change course.
25 The only reason that we're here, however, is because three
26 weeks later, after three weeks of controversy, the Times
27 decided to double down. And what I mean by that is that there
28 was massive social media controversy. This became a topic of
1 give a speech to, but this was not an argument that's made in
2 the motion. Whether there is actual malice or not actual
3 malice is not one of the issues before the court. It's not
4 something that's been argued in the briefs. It's not been the
5 subject of evidence on either side. And it's not appropriate
6 for Mr. Rall to interject new issues and new arguments and
7 allege facts into the record that have nothing to do with the
8 arguments before the court.
9 And I think it would short-circuit things if Mr.
10 Rall would confine himself to the record which is what he is
11 here supposed to be arguing about.
12 THE COURT: Go ahead and proceed, counsel, but the
13 objection is taken, I made notes on it.
14 MR. RALL: Thank you, Your Honor.
15 So three weeks into this controversy -- and I should
16 just say, as someone who has been working in the world of
17 journalism since I was 15 years ago old where I started at a
18 small town paper in Kettering, Ohio, I still remain completely
19 gobsmacked at the fact that the paper has still not issued a
20 retraction and offered me my job back in light of these
21 events.
22 One of the fundamental aspects of American
23 journalism is that when you make a mistake, you issue a
24 retraction. In this case, there is no question that they made
25 a mistake. Let me move on.
26 The second article by Deirdre Edgar repeats the
27 lies, stretches them out, and claims that they paid -- the
28 defendants claim that they paid two audio experts in order to,
1 false statement.
2 "Commander Andrew Smith the LAPD spokesman said the
3 department's audio experts analyzed the tape to determine
4 whether Durr might have turned the recorder off and then on
5 again to avoid recording parts of the encounter. They found
6 no indication they had done so, Smith said."
7 It's an absurd statement as to the point of being
8 false. Asking the LAPD to analyze their own evidence is not a
9 newspaper engaged in an act of due diligence.
10 Your Honor, I studied anti-SLAPP decisions over the
11 last few years in the state of California, and most courts
12 have ruled against publication defendants when they exhibited
13 a lack of due diligence. This is an example of that. They
14 never sent it out to audio experts. And certainly not
15 originally and, really, probably not even in time for the
16 Deirdre Edgar publication.
17 "Smith said that LAPD experts later enhanced the
18 recording" -- that's the cleaning up -- "and could not hear
19 anyone complaining about handcuffs." There we go, la la la, I
20 can't hear you. "They found no indication that the tape was
21 spliced or otherwise altered, he said."
22 Where is this enhancement? Why was it not provided
23 embedded along with the other audio files with the online
24 edition of this August 19 piece? It defies credulity to
25 think, first of all, that the LAPD could be trusted to
26 investigate itself if, indeed, the records originated with the
27 LAPD which I assert they do not. But also, I never stated
28 that Officer Durr might have turned the recorder off and then
1 being true unless the Times can show that they're not for the
2 purpose of deciding whether this case survives or the
3 anti-SLAPP motion goes forward.
4 Now, we going from the ridiculous to the absolutely
5 ridiculous when we get to the case of Catalin Grigoras,
6 director of the National Center for Media forensics at the
7 University of Colorado, Denver, also analyzed the recording
8 for the Times. Also, I would remind you, Your Honor, that
9 recording has not been provided by the Times to its readers.
10 "Grigoras, an electrical engineering, has consulted
11 in criminal cases for both the prosecution and the defense and
12 has published numerous peer-reviewed articles on how to
13 authenticate and enhance recordings. Grigoras said his
14 analysis detected no reference to handcuffs. He said a man
15 and a woman can be heard speaking in the background at one
16 point but only a few of their words are intelligible.
17 Grigoras said the man and woman appear to be having a
18 conversation unrelated to the jaywalking stop."
19 I mean, Your Honor, seriously. "It is obvious the
20 police officer is not part of that conversation," he said. He
21 says he can't hear it, but he doesn't know what's being said,
22 but he knows what is not being said. Really?
23 So I mean, this is just a few of the falsehoods and
24 reckless disregard for the truth. Certainly in the article --
25 the Editor's note is bad, but the article is much worse.
26 So there's more, but I'll move on to the ethical
27 standards of the L.A. Times which I think goes to the crux of
28 this case.
1 Hampton, New York. I was coming back and forth to Los Angeles
2 frequently to meet with my editors including Cherry Gee, Susan
3 Brenneman, and I was not offered the opportunity to even speak
4 to my editors. I was not offered the opportunity to explain
5 myself to the editorial board. I was not offered the right to
6 appear on Skype. I offered at on my own expense to take a
7 polygraph test to prove that I was telling the truth.
8 MS. SAGER: I would object to Mr. Rall talking about
9 polygraph tests. Those are not admissible and it's not been
10 in the record.
11 THE COURT: I would sustain that, counsel.
12 MR. RALL: So I was not given any opportunity to
13 meet directly.
14 Again, adverse light. Could there be a more adverse
15 light than the editor's note and the article for anyone to be
16 presented under? It would be hard to imagine. I was not
17 given a good faith effort to give the subject of allegations
18 or criticism time or information to respond substantively.
19 Deirdre Edgar, the person who wrote these ethical
20 guidelines in 2014, she wrote the 2500-word article about me.
21 She never called me. She never e-mailed me. She didn't send
22 a passenger pigeon. I never heard from her before she
23 published that thing. So I didn't really get much
24 opportunity. There is nothing in the filings that indicate
25 that Deirdre Edgar ever even crossed her mind to call me.
26 In fact, after I called in complaint, the Times
27 published a third piece announcing that I had filed the
28 complaint. The reporter didn't call me or e-mail me for
1 it boils down to, both the editor's note and the article, is
2 speculation. Well, maybe Ted lied. Maybe he didn't tell the
3 truth about this jaywalking thing. We don't know. Or to make
4 ad homonym attacks. This wasn't ad homonym attack. It
5 characterized a journalist.
6 And I'm not just a cartoonist and a blogger, Your
7 Honor. I also do straight journalism. I went to Afghanistan
8 to report from the war zone for the Los Angeles Times. That's
9 not just exactly a freelance cartoonist.
10 "And unnamed source should have a compelling reason
11 for insisting on anonymity such as fear of retaliation and we
12 should state those reasons when they are relevant to what we
13 publish."
14 Chief Beck seems like a big boy. I don't think he
15 was afraid of being retaliated against. And the Times did not
16 state the reasons for protecting him in either editor's note
17 or the publisher.
18 "Some sources quoted anonymity might tend to
19 exaggerate or overreach precisely because they will not be
20 named. We should identify sources as completely as
21 possible" -- I'm almost done -- "consistent with the promise
22 of anonymity. In particular, a source's point of view and
23 potential biases should be disclosed as fully as possible.
24 For instance, an adviser to democratic members of the House
25 Foreign Affairs Committee is preferable to a congressional
26 source." Or perhaps in this case a very, very, very high-
27 ranking LAPD official would have sufficed.
28 I will wrap it up and I thank you for giving me this
1 which are the basis for his defamation and also the
2 blacklisting claim against the corporate defendants.
3 This court has already ruled on the content claims
4 on the individual defendants' motions. And the court found
5 based on the content of the article, that the content was
6 protected by the Fair Report Privilege and by the First
7 Amendment, and that there was no basis for those claims to go
8 forward. So the first cause of action and second cause of
9 action for defamation, the eighth cause of action for alleged
10 emotional distress, this court already found were subject to
11 the SLAPP statute and that the plaintiff failed to meet his
12 burden of proof under the SLAPP statute, so those claims were
13 all stricken.
14 There is no different result that Mr. Rall can or
15 attempted to justify with respect to the company. Instead, he
16 simply has an hour-long argument which is largely focused on
17 the very same issues that his counsel argued on June 21 that
18 this court already rejected based on the pile of pleadings
19 that both parties filed and that this court has already
20 considered.
21 So I'm happy to go through each and every one of the
22 things that Mr. Rall talked about. The things that are
23 already in the record before the court have already been
24 responded to and I don't want to take the court's time unless
25 you have questions. Any new evidence or new arguments that
26 were not presented in the papers are inappropriate and the
27 court should not consider them.
28 So Mr. Rall has repeated a lot of the stuff that's
1 addressed in its prior order are the claims that are only
2 against the companies.
3 The blacklisting claim basically arises from the
4 exact same allegation as the defamation claim. The only
5 statement that Mr. Rall is complaining about with his
6 blacklisting claim is the statements that are in the articles.
7 And paragraph 45 of his complaint quotes from the article and
8 it says that they were published to the general public.
9 So we're not talking about a situation where someone
10 at the L.A. Times allegedly called up a future employer of Mr.
11 Rall and gave them bad information and he got fired. That's
12 not what happened. That's not what Mr. Rall is alleging. His
13 lawyers simply took a complaint that they probably filed a
14 million times in employment cases, threw in every single cause
15 of action that they normally throw in with all of the general
16 boilerplate language and tried to shoehorn that into this
17 case.
18 But the blacklisting claim is subject to the very
19 same constitutional defenses and statutory defenses as his
20 defamation claim. As the court has already ruled, those
21 claims, those contents, those statements are constitutionally
22 and statutorily protected. That claim cannot survive either.
23 The other claims that Mr. Rall and his lawyer have
24 thrown into the complaint for wrongful termination and
25 retaliation and so forth, there is no dispute that every
26 single one of those claims arises from the other act at issue
27 which is the Times' decision not to publish Mr. Rall in the
28 future. This isn't disputed. In fact, in their opposition
1 defense they want to pursue. Is the gist and the sting of the
2 story protected as privileged? Or are each of the 32
3 statements protected? Which is it? I can't follow the
4 argument.
5 And then also, if the Los Angeles Times had the
6 right to stop publishing my work, what about the libel and
7 defamation claims. Even if the court strikes the wrongful
8 termination claim, defamation still has to survive because
9 while the Times may or may not have the right to stop
10 publishing my work over no cause whatsoever despite the fact
11 that my editors repeatedly gave me the impression I would
12 continue to work at the Times indefinitely as long as I
13 continued to produce high quality work, it still doesn't give,
14 even under anti-SLAPP, the right of the Los Angeles Times to
15 publish statement after statement after statement that they
16 know is untrue based on a complete willful lack of due
17 diligence compromised by massive conflicts of interest and
18 provided by anonymous sources, none of which have been
19 provided to their readers.
20 As to the statement that I say I'm a freelancer, I
21 can say that I'm a chicken but that doesn't make me a chicken,
22 Your Honor. I'm not a lawyer. It's up to a court to decide
23 whether I was a freelancer or a staffer. But certainly, I
24 repeat, that the Times viewed me as a staffer and treated me
25 as a staffer.
26 The argument that the fact I worked outside of the
27 office holds no water, but the L.A. Times have reporters who
28 work out of foreign bureaus who rarely, if ever, come back
1 by the way, they did not, but even if they had, the case law
2 in California makes clear that would have been
3 constitutionally protected.
4 The Thomas case which is cited in our papers had the
5 same precise argument that Mr. Rall made that oh, well, it
6 makes me look like a liar when you disclose all facts and
7 disclose the discrepancies in the facts it makes me look like
8 I'm liar. That was argued in the Thomas case. And the court
9 rejected that and said that conclusion is a protected
10 subjective conclusion based on facts that are disposed.
11 That's the same ruling here.
12 Mr. Rall wants to go back again to the Ethical
13 Guidelines, but those are not legal requirements. The Times
14 attempts to make things as accurate as possible for news
15 people and to set guidelines with respect to how people are
16 dealing with publications on conflict of interests, et cetera,
17 on the editorial side. Those are their internal guidelines.
18 It doesn't create some legal cause of action for Mr. Rall.
19 And there is not, again, a single case cited that
20 suggests to the contrary. And that's assuming that they
21 violated those guidelines which, for all the reasons we put in
22 our papers, they did not.
23 Mr. Rall was interviewed at length. He complains
24 about the fact that he was interviewed at length by
25 Mr. Pringle and by Mr. Goldberg, and he was subjected to
26 questioning. And they gave him the LAPD records and asked him
27 to explain the discrepancies. He had all those opportunities.
28 So the idea that they didn't follow their own practices is not
1 legally relevant, but the fact is that they did follow their
2 own practices.
3 The last thing I want to mention again, the
4 employment thing. Mr. Rall wants to go back to well, because
5 he lived in New York and worked out of his home he is like a
6 reporter working in a foreign bureau. The key difference
7 being, in a foreign bureau you are actually working in the
8 employer's office wherever that might be. But that's not the
9 only factor. We gave numerous factors to the court including
10 his own admissions as to why he should be considered a
11 freelancer and not an employee. And he wants to refer to a
12 case involving Uber that's never cited in the papers so not
13 before the court.
14 But the factors that are in the cases they cite in
15 addition to the overall manner and mode of achieving the
16 result, those are all things Mr. Rall had control over. The
17 Times decided whether to publish.
18 I may go down to Starbucks every day and order a
19 drink and I may tell them precisely the way I want them to
20 make it and I give them money for that, that doesn't mean the
21 barista is my employee. It means I'm giving specifications
22 for something I want to buy and if they don't meet my
23 specifications, I may choose not to buy that product. The
24 Times may choose not to buy a cartoon from someone. That
25 doesn't make the cartoonist an employee.
26 I think this has probably been dealt with a lot,
27 Your Honor, so I don't want to spend any more time on this
28 unless the court has questions. I think for the same reasons
24 __________________________________
25 MARIA BEESLEY, CSR, RMR, FCRR
Official Pro Tem Court Reporter
26 CSR No. 9132
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