Thin Line Between Critique and Courtrooms: A Dialogue on the Recent Audiophile Drama

Just my two cents with the caveat that I am a lawyer, recently retired, but I did previous work in tort areas so I understand the law of defamation (slander, libel, slander per se and libel per se). The important things to know about defamation are that (1) if it involves a public figure, it is significantly harder to prove, (2) defamation only involves claims of provable or disprovable facts -- opinions no matter how thinly stated are not defamation as long as they are not based upon provable or disprovable facts (for example saying you hate something is not defamation unless you say you hate it because of a specific provable or disprovable fact), and (3) truth is always an absolute defense. 

I'm glad that @james633 posted the follow up video and I'm late to this party but I watched most of that video and think this is a lot to do about almost nothing. 

No litigation has been initiated as far as I know and Erin was having a cow due to the threats because he is a normal human being and didn't expect that kind of reaction to a generally positive review. Erik overreacted and acted like a bully/jerk for no real reason that I can see. He also impliedly blamed Erin for loss of sales probably without any kind of proof but just using it as a threat. 

Certainly Erik could have reached out civilly to Erin and discussed any suggestions or concerns he had and it appears Erin would have taken such communication seriously. Instead, Erik has created an uproar and cast himself in a negative light. 

There is no real defamation case that I can see (and even cases with good proof of defamation are usually not good cases unless they involve outrageous conduct -- see recent news on those types of cases). Even if Erik could show different measurement results, Erin's results, if not faked, are provable facts and therefore truth -- absolute defense. Any such case filed against Erin would be dismissed long before any trial. If filed in an anti-SLAPP state, attorney's fees would be awarded but hopefully Erik was just making an empty threat. 

I hope this all just simmers down and the YouTubers see there was really no real threat to their livelihood.  

@audiokinesis A defamation case can be brought anywhere the alleged defamatory remarks were published. I’d guess that a YouTube video is pretty much everywhere so the case could probably be brought in any state which gives the plaintiff the opportunity to forum shop a choose a state without an anti-SLAPP law. Then the question is whether the case can be removed to federal court and whether the federal court applies the state’s law which probably is the case.

As to how long it would take to get a case dismissed depends on the state, the court and the judge. Generally, there are 2 ways to get rid of a case pre-trial: a motion to dismiss and a motion for summary judgment. The motion to dismiss only works if there is a clear defect of the case in the pleadings meaning that the plaintiff has not alleged enough to constitute an actionable case. A motion for summary judgment works if the undisputed facts (ascertained via discovery) do constitute an actionable case (a reasonable jury wouldn’t find for the plaintiff). If the facts aren’t in dispute and the law, based upon the undisputed facts means there is no case, you win the summary judgment motion. The motion to dismiss can be attempted immediately and could get rid of some or all of the claims. The motion for summary judgment occurs months into the case.

@grislybutter Sorry for your experience but that is the way things unfortunately are. My later practice focused on litigation in the probate court (meaning guardianships, conservatorships, probate but I also did undue influence cases and prosecuted exploiters of the elderly) but I worked in tort area before. I found that lawyers were too expensive and the process always too slow. Judges seem to continue to want to be "hands off" cases until or unless it came to trial. A good 90% of cases resolved prior to trial and that process could be sped up if the Judge took a hands on approach and culled things down. But the courts are the playthings of the rich who can use the process to delay, harass and intimidate people. I went out on my own for my last 21 years of practice in order to hold down my costs and my fees but I was almost alone with that philosophy with other lawyers and judges.

@hartf36 Not to be picky but neither of those points apply.

Malice or its absence is only involved in a defamation case if there is a public official or a public figure suing a news media outlet. I doubt that Erik from Tekton fits either category and Erin certainly isn't a news media outlet. This standard came from a US Supreme Court case NY Times v. Sullivan in 1964.

https://firstamendment.mtsu.edu/article/actual-malice/

The 1st Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

While there is some interplay with the 1st Amendment (See NY Times v. Sullivan) involving the right of the press and rights to comment on public officials and public figures, defamation is a common law tort which is law created by the courts to redress injuries between individuals. The extended 1st Amendment rights involved in the Sullivan case do not pertain to the private individual. 

https://firstamendment.mtsu.edu/article/libel-and-slander/

For clarification, I was making no political statements nor supporting any. Nor was I insinuating that the criminal justice system could be or is being used politically. I was just pointing out the obvious: people with wealth can do more as litigants as they can afford the expenses than people who can't afford lawyers. I was also pointing out my disappointment in my local court system as to the way cases were handled.