Hosszu Appeals Lawsuit Vs Barrett, Sports Publications to 9th Circuit

In November 2015, Hungarian Olympic gold medalist Katinka Hosszu filed a lawsuit against writer Casey Barrett, Swimming World, and its publisher, Sports Publications International, Incorporated. The suit centered around an opinion piece written by Barrett and published on Swimming World’s website, which raised questions about Hosszu’s legality concerning anti-doping rules based on her extreme endurance and success in the pool. SPI is the parent company for Swimming World, where the post in question was published.

Although the story itself noted that there was no physical proof that Hosszu had ever failed a doping test, Hosszu sued Barrett and Swimming World for defamation, specifically pointing to the fact that the doping allegations were untrue and published despite the fact the site knew they were untrue.

The case was first decided in August of last year, where Judge G. Murray Snow granted a motion to dismiss filed by Barrett, Swimming World and Sports Publications International, Incorporated, ruling that Barrett’s piece was protected speech under the 1st Amendment and was clearly designated as opinion, rather than fact.

The specifics of the case leaned on court precedent stating that “the threshold questions in defamation suits is… whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact.”

Flash forward to October 2017, however, and Hosszu’s lawyer, Todd A. Roberts of the Redwood City law firm of Ropers, Majeski, Kohn & Bentley, maintains his argument that the athlete should be able to pursue her causes of action. In the Ninth U.S. Circuit Court of Appeals, Roberts stated that, in dismissing the case, “the district court substituted its own narrow interpretation of the allegations of the compliant, as opposed to a light most favorable to Hosszu.” (Met News)

In the court recording of the appellate hearing which took place on October 13th, which you can watch in its entirety at the bottom of this post, 2 out of the 3 judges give indications that they indeed favor reinstating Hosszu’s action for libel. Senior Judge Stepehn S. Trott and Chief Judge Sidney Thomas appear to lean toward Hosszu having validly stated a cause of action for depicting the swimmer in a ‘false light’, while Judge Stephen Reinhardt points to Barrett having done a ‘public service’ by raising the question as to how the athlete is able to achieve the feats she does and ‘that no liability should attach to his efforts.’

Among the points of discussion among the judges, the United States Supreme Court’s 1990 opinion rendered in Milkovich v. Lorain Journal Co. is brought up, whereby ‘it was held that the expression of an opinion is not protected by the First Amendment if it implies the existence of facts which don’t exist.’

Per the discussion, “After Milkovich, an opinion won’t save you if it implies a false assertion of fact. The false assertion here is that she’s doping.”

Brent Rutemiller, CEO and Publisher at Sports Publications International, told SwimSwam today that, “The first judge who dismissed the case in federal court had the same initial concerns and obviously ruled in our favor after reading the briefs.  We expect the Ninth District Court to reaffirm the dismissal based on First Amendment Rights once they review the submissions.”

We have also reached out to writer Casey Barrett, as well as Shane Tusup, husband/coach/manager of Hosszu for comment.

No decision on whether Hosszu’s case could indeed continue has yet been rendered. Per court records, Hosszu is seeking general and special damages of “not less than” $5 million, plus punitive damages.

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22 Comments on "Hosszu Appeals Lawsuit Vs Barrett, Sports Publications to 9th Circuit"

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This is interesting, as news has sort of trended more towards the opinion piece in the last decade. If it was clearly labeled opinion, I am not certain she will have a leg to stand on only because she is a public figure. Must be infuriating.

I’m not sure you should be able to fling that kind of accusation without any proof whatsoever (other than she’s got phenomenal endurance, so she must be taking PED’s) and shield yourself from liability by saying “it’s just an opinion.” If that were the case, you can say literally anything defamatory you’d like and then claim it’s an opinion. Those kind of serious accusations have real world negative consequences in terms of reputation and endorsements. Free speech and a free press should absolutely be defended, but there are a few limited exceptions on that for a reason.

“You can say literally anything defamatory you’d like and then claim it’s an opinion”. Happens all the time and is rightfully protected under the first amendment.

David Berkoff

When you are a public figure you have to show that the person making the statement intentionally made the statement knowing it was untrue and was intended to harm. Very high standard. The Ninth Circuit will affirm. The first amendment protects this kind of speech by the press.

Steve Nolan

What’s the difference between knowing something is untrue and having no actual proof for your assertions?

This case is tough, though. Lance Armstrong went after plenty of people that claimed he was doping and ruined them. Which is good when he was “clean” but in retrospect, not good!

The one thing I think we can all agree on is that it was a bad piece.

Exactly imagine they get brought down probably into bankruptcy and its revealed she was doping you can’t repair that damage.

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About Loretta Race

Loretta Race

Loretta grew up outside Toledo, OH, where she swam age group and high school. Graduating from Xavier University, she stayed in the Cincinnati, OH area and currently resides just outside the city in Northern KY.  Loretta got back into the sport of swimming via Masters and now competes and is …

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