CockyTalk

Welcome to Cockytalk!

Thank you for visiting our forum. As a guest, you have limited access to view some discussion and articles. By joining our free community, you will be able to view all discussions and articles, post your own topics, communicate privately with other members (PM), respond to polls, upload photos, participate in Pick'Em contests and access many other special features. Registration is fast, simple and absolutely free, so please join our community today!!

If you have any problems registering or logging in, please contact our Admins. Thanks!

Go Back   CockyTalk > Gamecocks Sports > Fowl Shots

Today's Top 10
Posters (by posts)Threads (by views)Newest Posts Gamecock Headlines 
Captain9Dragons
SanAntonioCock
Spur's Addiction
Three and Out
rt3891
dreammachine
wildwes
Ace Dilcock
TastyLicks
COCKDIESEL
Dickerson medically (1726)
Gamecock Receivers (415)
We Can Beat Them (269)
College football pod (112)
Danny Sheridan: No way U
Can Carolina and Tennesse
Gamecock Receivers
College football podcast?
SEC Media Days
2018 Prediction Thread -
Jovaughn Gwyn is strong
Discussion: 2019 Recruiti
Gamecock Jordan brand?
We Can Beat Them


Reply
 
Thread Tools Display Modes
Old 03-14-2018, 05:39 AM   #61
EAtMoRTaYtErz
Household Name
 
EAtMoRTaYtErz's Avatar
 
Male

Join Date: Sep 2015
Location: Surfside Beach, SC
Posts: 5,005
CockyCash: 7500
EAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot material
Default Re: Dawn Staley Lawsuit

Quote:
Originally Posted by Cock-o-rama View Post
In South Carolina common law defamation, falsity is presumed and truth is an affirmative defense (defendant has the burden to establish an affirmative defense).

It is irrelevant in this case if Dawn is a public figure because the defendant is not a member of the press.

See, for example Parrish v. Allison, section III.

See also, Times v. Sullivan (actual malice requirement for public figures is based on freedom of the press, thus requires media defendant)
Not true on either count. You are talking about "defamation per se." If the court rules this to be defamation per se at the summary level, than yes, presumption of falsity would be established. It's not established yet. And defamation per se aka slander per se exists in all jurisdictions I am just about certain, not just South Carolina. Serk's comments do not seem to fit neatly into the per se categories in my opinion. He didn't accuse her of committing a crime or that she is not fit to hold her position as head wbb coach. Her team might try to stretch it into him saying that but it would be arguing too much for vagueness to make that leap.

You must have read something into the NY Times case that wasn't there when you said it must be a media reporter or organization for the actual malice standard to apply. It's just not true. USUALLY it is a media member that is being sued, but it doesn't have to be. Private citizens have just as much right to talk about someone as major news outlets do. Being a "member of the press" doesn't make you special in any way. The only requirement is that the plaintiff is a public figure by virtue of them being a public official of the government or because they are famous. I think you misunderstand "publish" when it comes to defamation cases. Publish when comes to defamation cases simply means you put out a some kind of verbage and someone else could possibly receive and understand it. That is all that is required for something to be published. If Serk only said this to his niece let's say, and she told just her friend, and the friend told a reporter who put out a piece about him saying it. Serk still is on the hook because he published it when he told his niece. See what I am saying? It's got nothing to do with the press. The actual malice is there to protect freedom of the press, sure, but it extends to everyone.
EAtMoRTaYtErz is offline   Reply With Quote
Old 03-14-2018, 09:23 AM   #62
gamecockphan
1st Team All-American
 
gamecockphan's Avatar
 
Male

Join Date: Jul 2005
Location: Charlotte
Posts: 10,553
CockyCash: 102200
gamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot materialgamecockphan is USC mascot material
Default Re: Dawn Staley Lawsuit

gamecockphan is online now   Reply With Quote
Old 03-14-2018, 09:59 AM   #63
BringBackGarcia
Blue Chip
 
BringBackGarcia's Avatar
 
Male

Join Date: Oct 2017
Location: Lexington
Posts: 539
CockyCash: 3000
BringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot materialBringBackGarcia is USC mascot material
Default Re: Dawn Staley Lawsuit

BringBackGarcia is offline   Reply With Quote
Old 03-14-2018, 09:51 PM   #64
Cock-o-rama
Walk On
 
Cock-o-rama's Avatar
 
Male

Join Date: May 2006
Location: Lexington, SC
Posts: 14
CockyCash: 500
Cock-o-rama has hatched from the shell
Default Re: Dawn Staley Lawsuit

Quote:
Originally Posted by EAtMoRTaYtErz View Post
Not true on either count. You are talking about "defamation per se." If the court rules this to be defamation per se at the summary level, than yes, presumption of falsity would be established. It's not established yet. And defamation per se aka slander per se exists in all jurisdictions I am just about certain, not just South Carolina. Serk's comments do not seem to fit neatly into the per se categories in my opinion. He didn't accuse her of committing a crime or that she is not fit to hold her position as head wbb coach. Her team might try to stretch it into him saying that but it would be arguing too much for vagueness to make that leap.

You must have read something into the NY Times case that wasn't there when you said it must be a media reporter or organization for the actual malice standard to apply. It's just not true. USUALLY it is a media member that is being sued, but it doesn't have to be. Private citizens have just as much right to talk about someone as major news outlets do. Being a "member of the press" doesn't make you special in any way. The only requirement is that the plaintiff is a public figure by virtue of them being a public official of the government or because they are famous. I think you misunderstand "publish" when it comes to defamation cases. Publish when comes to defamation cases simply means you put out a some kind of verbage and someone else could possibly receive and understand it. That is all that is required for something to be published. If Serk only said this to his niece let's say, and she told just her friend, and the friend told a reporter who put out a piece about him saying it. Serk still is on the hook because he published it when he told his niece. See what I am saying? It's got nothing to do with the press. The actual malice is there to protect freedom of the press, sure, but it extends to everyone.
I agree with most of what you said above.

My mistake regarding Times v. Sullivan was thinking that the decision was based just on freedom of the press and not on the broader freedom of speech (both of which come from the first amendment, but they do differ even though they are closely related, as you probably already know). After re-reading Times v. Sullivan, it clearly is based on both freedom of speech and freedom of the press.

However, I think that if Dawn has the burden to prove falsity, it will be because she is a public figure and has to prove actual malice, which includes proving the statement was false.

The part of your post that is not clear to me is the impact of whether or not the statement is defamation per se. As I read Parrish v. Allison, it seemed to indicate that mainly related to damages, e.g., whether Dawn would have to prove "special damages." I don't see where that tied to who has burden of proving the statement true or false. Below are a couple quotes from Parrish that illustrate what I'm thinking of:
"slander is actionable per se only if it charges the plaintiff with one of five types of acts or characteristics ... In all other cases-namely, when slander does not fall into the above-named categories-special damages must be established."
and
"A defamatory communication is presumed to be false under the common law. The plaintiff does not have the burden of proving falsity. However, truth can be asserted as an affirmative defense, the burden of which is on the defendant."

It may be a moot point, in that Dawn will have to prove the statement was false at least because she's a public figure. Nonetheless, I'm curious to understand the link between defamation per se and allocating the burden of proving truth that you're referring to.
__________________
I always tell the truth, even when I lie.
- Tony Montana
Cock-o-rama is offline   Reply With Quote
Old 03-15-2018, 04:40 AM   #65
EAtMoRTaYtErz
Household Name
 
EAtMoRTaYtErz's Avatar
 
Male

Join Date: Sep 2015
Location: Surfside Beach, SC
Posts: 5,005
CockyCash: 7500
EAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot materialEAtMoRTaYtErz is USC mascot material
Default Re: Dawn Staley Lawsuit

Quote:
Originally Posted by Cock-o-rama View Post
I agree with most of what you said above.

My mistake regarding Times v. Sullivan was thinking that the decision was based just on freedom of the press and not on the broader freedom of speech (both of which come from the first amendment, but they do differ even though they are closely related, as you probably already know). After re-reading Times v. Sullivan, it clearly is based on both freedom of speech and freedom of the press.

However, I think that if Dawn has the burden to prove falsity, it will be because she is a public figure and has to prove actual malice, which includes proving the statement was false.

The part of your post that is not clear to me is the impact of whether or not the statement is defamation per se. As I read Parrish v. Allison, it seemed to indicate that mainly related to damages, e.g., whether Dawn would have to prove "special damages." I don't see where that tied to who has burden of proving the statement true or false. Below are a couple quotes from Parrish that illustrate what I'm thinking of:
"slander is actionable per se only if it charges the plaintiff with one of five types of acts or characteristics ... In all other cases-namely, when slander does not fall into the above-named categories-special damages must be established."
and
"A defamatory communication is presumed to be false under the common law. The plaintiff does not have the burden of proving falsity. However, truth can be asserted as an affirmative defense, the burden of which is on the defendant."

It may be a moot point, in that Dawn will have to prove the statement was false at least because she's a public figure. Nonetheless, I'm curious to understand the link between defamation per se and allocating the burden of proving truth that you're referring to.
Defamation, and Defemation Per Se are two separate causes of actions. If Dawn accuses Serk of slander per se, than the burden is on Serk to prove that his comments to do not fall under the categories that would make it slander per se, if not he would have to OVERCOME A PRESUMPTION of damages and falsity in order to avoid liability. Malice is irrelevant in a Slander per se case.

If Dawn loses the Defamation Per Se cause of action, she still has a defamation cause of action of, "defamation per quod." In this COA the plaintiff alleges a statement as defamation but even if false is not clearly damaging without additional evidence. And there ARE NO PRESUMPTIONS. The burden is on Dawn to prove all the elements of defamation, and because she is a public figure there is the added element of having to prove actual malice.

But as I was saying I wouldn't make too big of a deal about who has the burden of proof though, because it's a civil case. The standard of proof is only preponderance of evidence and both parties will get to argue their side so in the end it basically comes down to who do you believe more Staley or Serk? Staley doesn't have to catch Serk in an Ah-ha! moment to win just because she has the burden of proof. She just has to make a good argument and have enough jurors nod their heads at it.
EAtMoRTaYtErz is offline   Reply With Quote
Old 03-15-2018, 09:44 PM   #66
evilpoptart
2nd Team All-SEC
 
evilpoptart's Avatar
 
Male

Join Date: Oct 2007
Location: Columbia, SC
Posts: 2,513
CockyCash: 1000309
evilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot materialevilpoptart is USC mascot material
Send a message via AIM to evilpoptart
Default Re: Dawn Staley Lawsuit

Why hasn't the dumbass just apologized and try to work something to out behind the scenes
evilpoptart is offline   Reply With Quote
Old 03-16-2018, 08:20 AM   #67
Ace Dilcock
1st Team All-American
 
Ace Dilcock's Avatar
 
Male

Join Date: Jan 2008
Location: Mt. Pleasant
Posts: 10,844
CockyCash: 13862
Ace Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot materialAce Dilcock is USC mascot material
Default Re: Dawn Staley Lawsuit

Quote:
Originally Posted by evilpoptart View Post
Why hasn't the dumbass just apologized and try to work something to out behind the scenes
The second part might be happening - the definition of "behind the scenes" is that you don't hear about it. And even if he is inclined to remain a dumbass, I can guarantee that the SEC office is pressuring him to clean up his mess.

I expect a formal apology post-season (no one wants a distraction during the tournament) and the SEC will have Sterk the Jerk on Double Secret Probation for a few years.
Ace Dilcock is offline   Reply With Quote
Old 03-16-2018, 08:38 AM   #68
USCBatgirl21
Official Baseball Chick
 
USCBatgirl21's Avatar
 
Female

Join Date: Jul 2009
Location: Sec 4, Row 1, Seat 16 - Carolina Stadium
Posts: 12,963
CockyCash: 1000500
USCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot materialUSCBatgirl21 is USC mascot material
Send a message via MSN to USCBatgirl21
Default Re: Dawn Staley Lawsuit

Quote:
Originally Posted by evilpoptart View Post
Why hasn't the dumbass just apologized and try to work something to out behind the scenes
Therein lies the answer.
__________________
What can I say...
I swear like a sailor & use please and thank you like a saint...
I'm complicated
USCBatgirl21 is offline   Reply With Quote
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -4. The time now is 08:20 AM.


Powered by vBulletin® Version 3.8.11
Copyright ©2000 - 2018, vBulletin Solutions Inc.
Provided by SLB Development