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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M Palota
6 years ago

I would not profess to have any legal opinion on US Constitution and the 1st Amendment but my guess – and it’s only a guess – is that 9th Circuit will uphold the original ruling.

As to the whole “is she or isn’t she” “if you think she is, then you have to think he is, too” debate, it’s my opinion that that sort of discussion is not really the point.

The very nature of drug testing in sport violates a fundamental tenet of jurisprudence which is the presumption of innocence. if you compare drug testing to say road side testing for the presence of alcohol when you’re driving you can kinda see it.

When you go through a roadblock,… Read more »

marklewis
6 years ago

I don’t think Katinka doped. She’s can swim all the strokes well, a talent not many swimmers achieve. She’s swum in all the Olympics since 2004. She swims now with a confidence and aggressiveness that she didn’t always have.

But you have to remember than Lance Armstrong and Marion Jones were not caught by drug testing. Their downfall came when the people who knew they were doping broke their “code of silence.”

Tim
Reply to  marklewis
6 years ago

Your second paragraph points out that the only people who really know are people around the athlete. In this case Katinka and her husband. It is easier to dope if you are not part of a large training group. If she has doped it will never become public knowledge.

Derigan Silver
6 years ago

There is a long established First Amendment jurisprudence that protects opinion based on known or disclosed facts. Courts frequently dismiss defamation suits after ruling that a statement is an opinion of a writer that is based on facts that were disclosed. Courts have also ruled that if the facts in a dispute are well known, opinion statements based on these facts don’t have to be fully outlined with the opinion statements. Statements of opinion can lose protection if the statement (1) implies the existence of false, defamatory but undisclosed facts, (2) is based on disclosed but false or incomplete facts, or (3) is based on erroneous assessments of accurate information. I don’t think any of those apply and I believe… Read more »

fluidg
6 years ago

When the oldest, most prominent swimming magazine with worldwide distribution publishes a piece based solely on speculation that accuses a champion foreign swimmer of doping, without any proof, we have a serious problem. This is not a private conversation with individuals sharing private opinions. When an “opinion” becomes the subject of a published article in a respected periodical, it carries far more weight. This kind of reckless attack is not the solution to the doping epidemic in sports.

Being wrongfully accused is a horrible, destructive, helpless experience. People need to be held accountable for the damage their unfounded broadcasted opinions inflict. Barrett is tough when he’s slinging mud in print. Then he hides behind momma’s skirt when it comes… Read more »

Uberfan
Reply to  fluidg
6 years ago

Did Michael Phelps go and sue people who suggested he was doping?

Coach Mike 1952
Reply to  fluidg
6 years ago

Well said

Coach Mike 1952
Reply to  fluidg
6 years ago

Barrett voiced his opinions publicly & slung a LOT of mud in the process

Uberfan
6 years ago

Basically question how someone with only one world champ gold medal and no Olympic medal became the most dominant woman in the sport is a crime, neat and pathetic by Katinka

Steve Nolan
Reply to  Uberfan
6 years ago

Lol, “only one world champ gold medal.”

She was only the best swimmer in the world in ONE event ONE time, how can we possibly believe that she would eventually win more medals!?

sven
Reply to  Uberfan
6 years ago

Gonna back Steve on this one, that’s shaky logic, at best. Her SCY 400 IM is the second oldest yards US Open record on the women’s side. Almost everything else has been obliterated the past few years. It’s not like she was a no-name and then suddenly became amazing.

But since a sudden jump in medal status or relative dominance is a sign of foul play, we should all also be thinking very hard about another swimmer who made a sudden, drastic improvement across several events:
Caeleb Dressel.
2016: Qualified for Olympics in one individual, no individual medals, 2 golds from relays (one as a prelim-only swimmer).
2017: Wins seven gold medals, breaks textile WR in two… Read more »

Taa
Reply to  sven
6 years ago

Same for lance armstrong And the Russians in Sochi

Uberfan
Reply to  sven
6 years ago

To be fair, Caeleb is really young, and was also already a 21 second freestyler who improved everytime he went in and already a 47 second freestyler, the fly is pretty insane though.

Hannah
Reply to  sven
6 years ago

I think that a lot of people who claim she came out of nowhere overlook that SCY 400 IM record. Her career in LCM also really took off after she left college so it’s possible that not having to focus on SCY helped her in meters.

Uberfan
Reply to  Hannah
6 years ago

Yeah 6 years after, 26 is an odd age to peak

aquajosh
6 years ago

It would set a very dangerous precedent for free speech in this country if the Ninth District weren’t to uphold the original ruling. I expect that it will be upheld.

David Berkoff
6 years ago

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
Reply to  David Berkoff
6 years ago

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.

Uberfan
Reply to  Steve Nolan
6 years ago

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

Swim Fan
6 years ago

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.

DravenOP
Reply to  Swim Fan
6 years ago

“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.

About Retta Race

Retta Race

Former Masters swimmer and coach Loretta (Retta) thrives on a non-stop but productive schedule. Nowadays, that includes having just earned her MBA while working full-time in IT while owning French 75 Boutique while also providing swimming insight for BBC.

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