Tag It, Bag It, Put It On The Slab

Blois Olson’s suit against Michael Brodkorb has been tossed on a summary judgement

And the leftybloggers who last year hopped about and screeched like poo-flinging howler monkeys at the notion that their arch-nemesis was getting his comeuppance?

As this is written?

[crickets]

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[snarky crickets who need new material]

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Oh, it’s not complete silence.  Over at Norwegianity (the left’s one-stop shop for calm reasoning), MNob – a lawyer – has the goods.  Or some goods.  (And has them with immense speed.  An emailer offline asks us to “note the speed with which [MNob] obtained the order.  You can’t get court docs over the internet – you have to go down to the courthouse to obtain them.  Meaning either MNob is an obsessed stalker of Brodkorb’s, or she has someone in the Dakota County court clerks office.  I’m betting on both.”

MNob writes:

[Brodkorb’s motion to dismiss] was granted primarily because Blois Olson stipulated that he (Olson) was a limited-purpose public figure. (Par. 2) As a public figure, under the Supreme Court’s ruling in New York Times v. Sullivan, Olson would have had to prove on this summary judgment motion that there is some admissible evidence that Brodkorb acted with actual malice. (Id.) The court found that Olson hadn’t done so. That is, Olson can’t prove that Brodkorb knew the statements to false at the time Brodkorb made them.

Now, I’m no lawyer, but I’ve spent a bit of time in court.  I’ve also worked as a journalist, so I’ve had a bit of experience learning how defamation cases work. 

As I understand it – lawyers, please help me out here – but a summary judgement generally only happens if a judge finds that a case is so utterly devoid of merit that it’d be a waste of the court’s time to pursue it at all.  The rule of summary judgements, in fact, is “There is no genuine issue of material fact, and the movant is entitled judgment as a matter of law.”  In other words, Olson brought no game, and the judge put the entire case out of its misery.

So – again, in my own deeply imperfect understanding of civil procedure – it’s not that Olson didn’t quiiiiiiite git ‘er done; it’s that nothing in any of his original filings convinced the judge that the case had even a smidgen of merit.   

 Nor could Olson prove that Brodkorb made a false statement with “reckless disregard” or with “serious doubts” as to its truth or falsity. Olson simply couldn’t reach the standard of proof for public figure defamation, something that is very difficult under the Sullivan standard.

True – public figures have a harder time of things in defamation cases.  But again, MNob’s paragraph implies that there was a “day in court”, where Olson (or his attorneys) tried, and failed, to make the charge stick.  No.  It was a summary judgement; the judge ruled that there were no material facts at all, absolutely nothing that would justify having the case heard in court.

Nothing.

Nada.

The court determined that the efforts Brodkorb made were sufficient to shield him: “Defendant did enough” to investigate the statements. (Par. 7)

That’s all Brodkorb did: “Enough.”

MNob recites this as if it damns Brodkorb in any way. 

The Colts “did enough” to beat the Bears in the Super Bowl.  There’s no quibbling about how much is “enough” – it’s an emotionless, non-shaded, black and white threshold.

The judge ruled that, since Olson is public enough, the evidence supporting his defamation case was of  so little merit, under the laws governing these things (as opposed to the outrage of offended leftybloggers, or their impassioned yearning for justice) that it didn’t deserve to be heard in court.

MNob’s entire argument, essentially, is “the dog ate Blois’ homework!”.

We can expect Brodkorb to trumpet this very loudly, but given the fact that virtually ALL the evidence is not only subject to a protective order of the court, but an “Attorney’s Eyes Only” protective order, even he doesn’t know all of the evidence that was considered by the court. Nor does Blois Olson.

That is, indeed, possible.

And again, I’m no lawyer.  But as I understand things, if the judge issued a summary judgement dismissing the case, and yet there was plenty of material fact that might have justified a trial, that’d be a reversible error that’d justify an appeal – something lower-court judges really don’t like.  So I’m guessing – again, in my capacity as a goy whose legal experience is representing himself, once (and successfully) – that the judge has a pretty solid reason for doing the legal equivalent of tossing the case in the circular file.
MNob:

Nonetheless, it’s pretty obvious that Brodkorb’s sources are the focus of the protective order, and the fact that he had several sources for the information came into play in the court’s decision. What’s fascinating here is that Brodkorb seeks to claim the protections that any journalist in Minnesota gets in being able to protect sources (“Hey — two different dudes told me”), and be free of liability for defamation when he adheres to the bare minimum of journalistic standards. But in posting things to his “personal blog,” he prints things that no journalist with an ounce of ethics would go near (unless they were quoting Brodkorb himself as some sort of credible source on issues of, say, gastrointestinal diseases).

 Maybe, maybe not, but this is an utterly subjective judgement (“Is Brodkorb a good journalist?” – I’d say generally “yes”, leftybloggers will get kicked out of the club if they don’t chant “Tool Tool Tool Tool Tool” in rigid unison), that has nothing whatever to do with the demise of Blois Olson’s case.

MNob again:

It’s also important to point out that truth is always a defense in a defamation claim and that this court did not make a determination as to the truth or falsity of what Brodkorb said (Par. 8).

“Honest, everyone – the fish I caught was thiiiiiiiiis biiiiiiiiig!

The reason the court did not make a determination was because there were no material facts justifying a trial!  At all! 

 Rather, the court’s focus was on whether he said what he said with “reckless disregard.” That’s hardly a high standard – that the statements might have been utterly false, but Brodkorb did not know that when he said so.

The standard is what it is – but the fact is that the judge ruled that Blois Olson didn’t come close to showing anything like reckless disregard for the truth.   

What does all this mean in the long run? Pick only on public figures? Pick on people who might not be public figures, but whose ego makes them stipulate to being limited purpose public figures? Only run with untruths that two different dudes said were true?

You mean like that whole “Minnesota Democrats Exposed is a paid GOP operation” bit?

No.  What it means is “grow up”, and stop assuming the law means what you want it to, just because you reeeeeeeeeeeeeeallly want it to. 

Learned Foot – an attorney himself – writes:

 1) Blois Olson’s defamation suit against MDE has been thrown out on summary judgment.

2) That’s why Flash, MNPooplius, MNMonitor et al haven’t posted anything yet today.

3) Never go to a blog run by a labor radical from Iowa for insightful legal analysis. Or any legal analysis for that matter.

I’m not a lawyer or anything, but…

(Disclosure:  I’ve known Blois Olson for years.  I disagree with him, natch – but I harbor absolutely no animus toward him at all.  Of course, Brodkorb is a fellow NARN co-host).

13 thoughts on “Tag It, Bag It, Put It On The Slab

  1. Mitch, I drove down there to get it because it was worth it to me to know the results before Mr. Brodkorb heard them. Why? Because we both know exactly what Brodkorb is, a party functionary working closely with Ron Carey. It is WRONG for the local media to constantly “forget” to mention that Brodkorb is, if not at the moment on the Republican party payroll, a paid consultant with a history of not letting his readers know about those relationships in a timely manner.

    As I said yesterday, Brodkorb’s free to publish ANYTHING he likes, but there are laws about disclosures, and unless you think ALL bloggers should be regulated, it would be nice if Brodkorb chose to be upfront about where his money comes from.

    Be honest, if you EVER found out I had taken a nickel from the DFL, wouldn’t it piss you off? Wouldn’t you find that to be deceptive? Likewise, if I had kept blogging last year while anonymously blogging for Ford Bell, wouldn’t that have been dishonest?

    Blois Olson’s suit was meant to force Brodkorb out into the open. It was an open secret that he was writing MDE, but the press corps pretended not to know. Thanks to Olson’s suit, Brodkorb was outed, and now we know that the problem isn’t with Brodkorb, it’s with our local media that thinks its cute to run his stuff without properly identifying him.

    Michael is bending if not breaking the rules. I doubt even you know who all is paying him. I personally suspect that everything he does is paid for by money folks on your side, but who knows?

    I’m sure Blois is sorry to have lost, but I’m glad he filed. I just can’t understand why the Thune bloggers made national news, but Brodkorb being exposed doesn’t.

    Oh, right. Brodkorb’s candidates keep losing….

  2. “leftybloggers will get kicked out of the club if they don’t chant “Tool Tool Tool Tool Tool””

    Let’s everybody remember that “the club” is a paid blogging gig with the Center for Independent Media. A creation of Media Matters and George Soros. They don’t all chant the same thing by happenstance.

  3. Mitch, I drove down there to get it because it was worth it to me to know the results before Mr. Brodkorb heard them. Why? Because we both know exactly what Brodkorb is, a party functionary working closely with Ron Carey.

    So?

    It is WRONG for the local media to constantly “forget” to mention that Brodkorb is, if not at the moment on the Republican party payroll, a paid consultant with a history of not letting his readers know about those relationships in a timely manner.

    In my experience – at least since his “outing” – Michael has been pretty scrupulously up-front and timely in his disclosures. Certainly moreso than, say, the MNPublius kidz or the MNMoney kidz.

    As I said yesterday, Brodkorb’s free to publish ANYTHING he likes, but there are laws about disclosures, and unless you think ALL bloggers should be regulated, it would be nice if Brodkorb chose to be upfront about where his money comes from.

    Hep me here, Wege. How has he not been upfront?

    the next three in order:

    Be honest, if you EVER found out I had taken a nickel from the DFL, wouldn’t it piss you off?

    If you’d disclosed it immediately and fully? No! I could gauge your work accordingly.

    Likewise, if I had kept blogging last year while anonymously blogging for Ford Bell, wouldn’t that have been dishonest?

    Er, maybe, but then I never really got the point of anonyblogging for Bell. Why NOT disclose who you were (not that there was a lot of doubt), and allow readers – both Wege and BloFoBell readers – to decide on their own?

    Blois Olson’s suit was meant to force Brodkorb out into the open. It was an open secret that he was writing MDE, but the press corps pretended not to know. Thanks to Olson’s suit, Brodkorb was outed, and now we know that the problem isn’t with Brodkorb, it’s with our local media that thinks its cute to run his stuff without properly identifying him.

    Having talked with Olson, I find this plausible. But then, that reflects on the ethics of our local media more than on Michael’s.

    Michael is bending if not breaking the rules. I doubt even you know who all is paying him. I personally suspect that everything he does is paid for by money folks on your side, but who knows?

    One statement without evidence and two plain conjectures. You’re entitled to both, but let’s ID them correctly.

    I DO believe I know who is paying Michael. If I find that indeed I don’t, that’ll affect my opinion.

    I have no reason to doubt him at this point.

    OK, no real reason.

  4. Oh, Wege?

    Let’s talk about MNob’s piece for a bit, shall we?

    I know she’s a lawyer. Don’t you think that, in the interest of clarity and accuracy, the grounds for summary dismissal might have been a key element of her story?

    And without ’em, the story is – well, incomplete, at the very least?

  5. I’m not a lawyer, but I’ve been sued by them and for me the bottom line was a bit different. After all was said and done, the judge said Brodkorb had to pay his share of the legal fees. That’s not a win, that’s kissing your sister.

    I have separate issues with Brodkorb that I’ve talked about before, but this, for me, was all about making sure the media saw it at my site first. Frankly, I think Tim Nelson failed to correctly identify Brodkorb. Paid political consultant is not the same as “former Republican party staffer” and “whatever.” Taking money from a political party pretty much brands you in a way that even casual observers can understand.

    I don’t know about you, but it says something to me that consultant doesn’t say. And the Across the Great Divide post showing that Brodkorb had Ron Carey’s statement posted before the state party did SAYS A LOT ABOUT WHAT’S GOING ON HERE.

    Brodkorb’s system would also make a certain lefty blog the de facto source of quotes as they run copy for the DFL. Do you think it’s OK for the DFL to launder comments through a blog? I don’t. And I think it’s wrong for the media to pretend they don’t understand what’s going on.

  6. Duh Wedge asks: “Mitch, I drove down there to get it because it was worth it to me to know the results before Mr. Brodkorb heard them. Why?”

    Let me take a stab at this…

    You had an hour to kill before Oprah starts?

    The courthouse is on your panhandling route anyway?

    Picking your toes got boring?

    There were no protests scheduled today and your pals all went down to the day labor center to earn some Friday night beer money?

  7. Wege,

    Brodkorb’s a hack out of party affiliation. You and many others are hacks out of affinity. To me, I see no difference. Propaganda is propaganda. The only difference being that Brodkorb calls his site “Minnesota Democrats Exposed” as opposed to “Centrisity” “MNPublius” er..”Norwegianity”.

    Your concern about a fully informed public is touching, but hollow.

  8. Admittedly, I’m only a law student, but this seems to be a case in which the court wasn’t even considering the veracity of any of the statements made. The narrow issue that the court decided on was whether the plaintiff met the elements of the claim — if you don’t, then you get on the wrong end of a summary judgment decision.

    So, it’s not quite true to say that there’s *no* evidence for the plaintiff’s claim, just not enough that a reasonable jury could find for the plaintiff — which isn’t all that much better.

  9. Seldom do cases get dismissed. There is no more complete victory for the defendant in every respect when a case is dismissed.

    Blois really fell flat on his face and is revealed as a bully – The Intimidator – a man who has no qualms about destroying the legal process and trying to send his political opponents – both anonymous and not anonymous – to jail because of their views.

    Blois probably wishes he never took those TV slots and became a public figure. In so doing the standard of defamation was set high.

    MDE would have won anyway even if Blois had not been a public figure.

    In regard to the Wodele statement http://wrightrepublican.blogspot.com/2007/03/blois-olson-perspective-on-mde-lawsuit.html
    Tedd a commenter at MinnesotaDemocratsExposed said it best:
    http://www.minnesotademocratsexposed.com/2007/03/09/ap-judge-dismisses-lawsuit-against-conservative-blogger/#comments
    Wodele: Blah, blah, blah…spin, spin, spin.
    The truth is, Olson is was a jerk, is a jerk and will always be a jerk. His entire goal was to out Michael and he accomplished his mission.
    Michael should demand the jerk pay for attorney’s fees for this abuse of the court system.

  10. Mitch quoted the standard of proof correctly. There can be NO material fact in dispute (a material fact is one that would make a difference to the outcome of the case) PLUS one side must be entitled to judgment as a matter of law, no gray areas, no “interpretation” of the law necessary.

    The standard for an award of fees is HIGHER than the standard for summary judgment. It’s actually harder to get your attorney’s fees paid than it is to win summary judgment. Here’s a reported case with a good discussion:

    http://www.lawlibrary.state.mn.us/archive/ctappub/0304/op021385-0408.htm

    In my opinion, it’s a pretty poor case when you can’t raise at least SOME material fact dispute to get past summary judgment. Blois didn’t have squat and he should have known it going it. If I didn’t know that Democrats never act like bitter and petty bullies, I’d wonder whether this was a case brought for intimidation value: rich guy sues poor guy to punish him by running up his legal bills?

    Naaaah

    .

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