Lenny Dykstra Deemed 'Libel-Proof' In Defamation Suit Loss To Ron Darling And Publisher

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Defamation lawsuits often fail because of the high bar plaintiffs need to meet to prove defamation -- especially of a public figure. But, while there are lots of ways to lose a defamation lawsuit as a plaintiff, my favorite must certainly be the concept of a libel-proof plaintiff. This would be the notion that a plaintiff cannot be libeled or defamed if that plaintiff's reputation is so absolutely horrendous that further damage to it is impossible.

In rare cases, a plaintiff can be “libel-proof”, meaning he or she has a reputation so tarnished that it couldn’t be brought any lower, even by the publication of false statements of fact.

You may recall that in April of 2019 former Mets and Phillies outfielder Len Dykstra sued his former teammate and current Mets commentator Ron Darling for defamation and intentional infliction of emotional distress. The suit arose out of claims in Darling’s then recently-published autobiography alleging that Dykstra shouted racial slurs at Red Sox pitcher Dennis “Oil Can” Boyd before Boyd took the mound in a 1986 World Series game. Dykstra lashed out at Darling over it, denying it ever happened and then filed suit. Then everyone went quiet.

The nature and seriousness of Dykstra’s criminal offenses, which include fraud, embezzlement, grand theft, and lewd conduct and assault with a deadly weapon, and notably the degree of publicity they received, have already established his general bad reputation for fairness and decency far worse than the alleged racially charged bench-jockeying in the reference could . . .. . . Given the aforesaid litany of stories concerning Dykstra’s poor and mean-spirited behavior particularly toward various groups including racial minorities, women, and the LGBTQ community—this Court finds that, as a matter of law, the reference cannot “induce an evil opinion of [Dykstra] in the minds of right-thinking persons” or “deprive him of their friendly intercourse in society,” as that “evil opinion” has long existed.

In the story, Dykstra claims, without any evidence whatsoever, that Ron Darling — who was diagnosed with thyroid cancer and underwent surgery for it last year — “faked his cancer,” and that “the Wilpons knew all about it, and they’re in on it.” He claims has has “documented proof” of his claim, though provided none of it to Miller. Miller previously reported that Dykstra “had some dirt” on Darling, but this is the first time he has publicly accused Darling of faking his cancer diagnosis and treatment.Dykstra further claimed that the judge who dismissed his defamation suit against Darling was bribed, saying “obviously the judge was bleeping paid off or something . . . I don’t give a bleep.”

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Wisconsin Court Dumps Conviction Of Middle School Kid Who Drew A Picture Of A Bomb

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The intersection of school administration and law enforcement leads directly to insanity. All logic goes out the window when school administrators come across something that makes them feel slightly uncomfortable. Adding cops to the mix doesn't help anything. It only serves to turn every mildly misbehaving student into a criminal.We're here to talk about bombs. I'm sorry. Let me clarify. Not actual bombs. Drawings of bombs. Drawings created by students who are likely to draw bombs, guns, and general violent mayhem without actually wishing any of that on their fellow students.It took a couple of rounds in court to actually set this right. We've covered similar insanity over drawings of bombs here at Techdirt before, like the (temporarily) indefinite suspension of an autistic student who drew a bomb that looked like something straight out of a Looney Tunes short.This bomb drawing was a little more intricate but no more threatening than the round black bomb with a fuse we've all seen in any number of cartoons no one saw fit to prosecute. (h/t Ari Cohn)The Wisconsin Court of Appeals has finally ended the madness that began with terroristic threat and disorderly conduct charges being leveled against a middle school student.The decision [PDF] recounts the unfortunate chain of events that ultimately needed to be addressed by the penultimate level of the state's criminal justice system.

The court found the following facts. In 2018, A.N.G. and T.B. were classmates in a middle school summer school program. During class one day, T.B. created a drawing on a page in his science workbook. T.B. did all the drawing and writing, but A.N.G. contributed ideas.The drawing contained T.B. and A.N.G.’s names, images of what appears to be a cartoon-style bomb, a building labeled “school,” and a body lying on the ground. Around these images are written the following words: “pigs,” “preplay,” “bomb,” and “gun.” The court determined that the content of the drawing “conveys a threat of bodily harm.”

However, as will be significant in analysis below, the court also specifically found that T.B. and A.N.G. did not intend for the drawing to be “for public consumption.” Instead, the court found, T.B. and A.N.G. intended to keep it “private.”

Returning to the circuit court’s decision, the court stated that it considered it “impossible,” “in the atmosphere in which we live,” that “a student would create a document like this and not assume a reasonable person would interpret” it as a “threat” that was “a serious expression of an intent to do harm.”

However, as discussed below, this observation assumes an intended recipient of, or (using the term from First Amendment doctrine) “listener” to, the document, and in this case there was no intended recipient-listener.

The State argues that the drawing was a true threat because it was not created as part of a classroom assignment or a creative school-related expression. The State also contends that it was not mere hyperbole or an innocuous joke. Further, the State argues that the drawing was not reasonably intended to be kept private because it was reasonably foreseeable to A.N.G. that it would be seen in the school setting by school staff or other students who would interpret it as a serious expression of a purpose to inflict harm, and that, when it was discovered, school officials did reasonably interpret it this way.

I see no reasonable way to construe the findings of the circuit court and the uncontested testimony at the hearing to reflect that A.N.G. meant to cause the drawing to come to the teacher’s attention, or to the attention of any other school staff or students other than T.B., its co-creator. Based on the circuit court’s findings and the uncontested evidence, the teacher’s awareness of the drawing and decision to demand it were just accidental from A.N.G.’s point of view.

[E]ven if I were to assume that school personnel could reasonably be classified as “listeners,” how these “listeners reacted to the” drawing (as Perkins refers to the first factor) does not weigh heavily towards classifying the drawing as a true threat. Based on the testimony of the teacher and administrators involved, the circuit court found that the drawing was “obviously concerning [to the school] and obviously the school took steps within the school setting to address these issues.” Yet, they did not take it so seriously that there was an evacuation or a search of the school. Further, instead of seeking to have A.N.G. removed from the school, administrators placed A.N.G. in an in-school suspension and did not impose more significant discipline. The assistant principal testified that she takes seriously all expressions that she construes to be threats, suggesting a low threshold for school reaction to any and all conduct that might represent a danger.

Weighing all of the above considerations under the Perkins factors, I conclude that A.N.G.’s private drawing was not a true threat in the constitutional sense. Based on all of the circumstances, a reasonable “speaker” in A.N.G.’s position would not foresee that a reasonable “listener”—someone he never in fact envisioned—would interpret the drawing as a serious expression of a purpose to inflict harm. Case law interpreting the First Amendment protects from prosecution the expressions under the particular facts here.

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