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.