Juries are reminding bloggers that freedom to speak does not bestow the freedom to ruin lives with false accusations. A jury recently awarded a Dallas photographer more than $1 million after concluding that a husband and wife used social media and blogs to destroy her business.
An even larger verdict was returned against a blogger in the State of Washington who was sued for defaming an Army officer by making a false allegation of sexual assault. Questions about the use of expert witnesses during the trial of that case may need to be resolved on appeal.
David Riggins v. Susan Shannon
Army Col. David Riggins was expecting to be promoted to Brigadier General when he learned from the Army’s Criminal Investigative Division (CID) that Susan Shannon had accused him of raping her when Riggins and Shannon were cadets at West Point. Shannon made the allegation in her blog, Short Little Rebel.
Shannon resigned from West Point in 1986, shortly after the alleged rape. The Washington Post reports that she “she denied any sexual assault to West Point officials at the time.” Riggins graduated and began a successful Army career that included a Bronze Star in Iraq, two tours in Afghanistan, and a series of promotions.
The CID concluded that it could neither prove nor disprove Shannon’s accusation. The Army, however, removed Riggins’ name from a list of recommended promotions, prompting his retirement.
In two blog posts, Shannon pointed to media reports about sexual assaults in the military and announced that Riggins had raped her while she was “out cold” after drinking too much beer. Riggins contended that Shannon wanted to use the blog posts to derail his anticipated promotion. Shannon denied that she knew he was in line for a promotion, but the Post reports that “one of her own witnesses testified that Shannon did know, and that it was the motivation for her writing her first blog post.”
Shannon has a history of controversial blog posts, including a wild allegation that a mass school shooting in Newtown, Connecticut, was “a planned event” and attesting to the belief that “our GOVERNMENT shot those kids and teachers and used Adam Lanza and his family to pull it off.” The jury did not hear about that blog post, but it did hear Shannon testify. Jurors reported that she was “evasive” during cross-examination and made several statements under oath that could not have been true.
Riggins’ Expert Witness
Testifying as an expert, retired Major General Peter Fuller told the jury that the allegation of sexual assault was the most likely reason for the denial of Riggins’ promotion to general. The Army has come under scrutiny by Congress and the press for its failure to curb sexual assaults in the military — a failure, some say, that stems from an unwillingness to acknowledge that the problem exists.
The fear that promoting Riggins would send the wrong signal was, in Fuller’s view, the reason Riggins’ name was withdrawn from the list of officers recommended for promotion.
Shannon’s lawyer argued that Fuller’s testimony was speculative, but the court disagreed. The jury likely considered that testimony when it decided that Riggins lost the opportunity for a substantial pay increase when his promotion was denied. The jury awarded Riggins $3.4 million in compensatory damages for injury to his reputation and lost wages. That award, like the $5 million punitive damages verdict, will likely be reduced before the court enters judgment.
Shannon has blogged about the trial, complaining that Fuller’s testimony was unsupported by “a single ounce of data.” Fuller presumably based his testimony on his experience with the inner workings of the Army. Experience is a form of “data” that experts routinely rely upon. Whether Fuller’s testimony was too speculative to be admissible is a question that might need to resolved on appeal.
Shannon’s blog also complains that her own expert witnesses were unduly restricted. She apparently wanted to use expert testimony to explain her delay in reporting the alleged assault as well as her state of mind, which she characterizes as a diagnosis of “severe depression.” That issue is also one that might be resolved on appeal if Shannon pursues a reversal of Riggins’ judgment against her.