I appreciate the statement FIDE issued urging the chess world generally not to escalate the heated rhetoric surrounding the recent cheating controversy and instead to be respectful and patient while FIDE's fair play group investigates. I hope patience will be rewarded. It will be interesting to see whether FIDE issues guidance about how players should behave when they suspect other players of violating the fair play rules. However, the recent filing of a lawsuit has understandably prompted much discussion, not always well informed, about legal matters relating to defamation.
It occurs to me that someone with some knowledge of legal matters could help improve the information level of the discussion a bit by giving some background outlining the way allegations of defamation (the torts of libel and/or slander) normally proceed in a civil case in most states in the United States. (Note that federal courts, like state courts, will typically try to apply relevant substantive state law, even as they apply the Federal Rules of Civil Procedure.) I'm willing to take a first stab at such a background-outline.
In this context (wanting to share information about the law), I'm not interested in "winning" an argument on this forum, nor am I interested in helping other people win arguments. Discussion tends to be more valuable the less the people involved are focused on trying to win or on triumphally claiming victory.
(An exception might be high school debating clubs, where the whole point is generally to "win" a competition by demonstrating skill in arguing. Another obvious exception might be professional advocacy, but as an advocate who has represented many clients in court contests over about forty years I have learned that it is often valuable, and beneficial to the client, to listen respectfully to the other side.)
Below is an initial effort to present an outline about burdens of pleading and burdens of proof in a civil defamation action (by "action" here I mean a lawsuit or case) in most courts in the United States. If some other informed attorney thinks I've importantly misstated any aspect of civil procedure or substantive law that needs to be corrected, please don't hesitate to say so and please offer a correction.
In order to state a claim for the tort of defamation, a plaintiff's complaint (the initial pleading in court) must allege that the defendant made a statement of fact about the plaintiff that other people understood after reading or hearing it; that the statement was a false statement of fact; and that the plaintiff suffered demonstrable damage to reputation as a result of the false statement. Each of those is an essential element, and normally this means that each element must be clearly alleged in order for the plaintiff to survive a motion to dismiss for failure to state a claim upon which relief can be granted.
Moreover, where a plaintiff (e.g., Hans Niemann) is deemed to be a “public figure,” the U.S. Constitution requires that the plaintiff must also allege that the statement was made with "actual malice," which is a legal term of art meaning that the defendant made the statement knowing that it was false, or with reckless disregard of its falsehood.
[There is not enough time to analyze deeply here whether or not GM Niemann should be considered a public figure, so I'm treating that status as conditional, although I will note that the public interviews he has given, his streaming career, his projected self-image as a celebrity, his appearance several months ago on the cover of an issue of New in Chess, and his regularly expressed aspiration to become world chess champion, all seem consistent with considering him a public figure. On the other hand, it would not necessarily be unreasonable to argue that a teenager, even an ambitious one who considers himself a celebrity, should ordinary not be treated as a public figure for defamation purposes.]
(To simplify this outline of defamation, let's imagine that Magnus Carlsen is the only defendant against the defamation claims. Analysis of the more complex antitrust, conspiracy, and tortious interference claims is beyond the scope of this outline at this point.)
It's easy for people to get a bit confused when discussing a lawsuit alleging defamation. For one thing, the plaintiff is typically "accusing" the defendant of having "accused" the plaintiff of something that is allegedly harmful to the plaintiff's reputation. Thus, we already necessarily have two entirely different accusations (going in different directions) and thus often an ambiguity in the word "accused."
To add further confusion, the word "accused" is also often used in the context of the criminal law, to refer to a person who has been formally charged by the prosecuting authorities with having committed a criminal offense. It is important to keep in mind that the burden of proof that protects a person criminally accused, is not at all the same as the burden of proof in a civil matter, such as the tort of defamation. In a civil matter, the typical burden of proof for most issues is "by a preponderance" (or "the greater weight") of the evidence. By contrast, the much higher standard for proving criminal guilt and obtaining a conviction against an individual "accused" of a crime is "proof beyond a reasonable doubt." But the criminal burden of proof has no application to civil cases.
As noted above, the burden of pleading the elements of the tort of defamation falls on the shoulders of the plaintiff.
Now, the burden of proof normally follows the burden of pleading.
This means that Hans Niemann (as the plaintiff) will have the burden of proving, by a preponderance of the evidence, each of the following elements of defamation:
that Magnus Carlsen made a statement of fact about Niemann; AND
that Magnus Carlsen's statement was heard or read and understood by others; AND
that the statement by Magnus Carlsen was a false statement of fact; AND
that the statement by Magus Carlsen caused injury to Hans Niemann's reputation;
AND (if Hans Niemann is deemed a public figure), that the statement by Magnus Carlsen was made with what first amendment constitutional doctrine calls "actual malice."
The burden of pleading and proving a so-called "affirmative defense" is normally on the civil defendant (in this case, Magnus Carlsen). There are a number of "affirmative defenses" (e.g., qualified privileges, statute of limitations, assumption of the risk in certain types of cases, etc.) that a civil defendant definitely bears the burden of pleading and proving.
However, in a defamation case, the important "absolute defense" of truth (that is, the defense urging that any statements the defendant made were true) is in contemporary jurisprudence not considered an affirmative defense. Instead, falsehood is one of the elements the plaintiff (Niemann, in this case) bears the burden of pleading and proving. A defamation defendant who neglected in his answer to plead truth as a defense would not thereby waive that defense, because the burden of pleading and proving falsehood is on the plaintiff (Niemann, in this case). The point is that the burden will be on Hans Niemann to plead and prove that Magnus Carlsen made statements about Niemann and the burden will also be on Niemann to prove (by a preponderance of the evidence) that those statements are false.
I'm not aiming to discuss whether or not this allocation of burdens is fair. I'm simply outlining the burden of proof in the law of defamation.
***What specific statement or statements of fact did Carlsen make?
On the element of whether or not Carlsen made an actual statement of fact about Niemann, I will mention that, although Carlsen carefully avoided expressly mentioning Hans Niemann or making any public statement at all initially after he withdrew from the Sinquefield Cup, the plaintiff (Niemann) could try to develop an argument that Carlsen's silence was in effect a tacit statement, perhaps with the innuendo that Niemann had cheated in round 3 at the Sinquefield Cup. (I don't at the moment have the complaint open, so I don't know whether such a specific innuendo was properly pleaded in the complaint.) For a few weeks Carlsen expressly declined to make any public statements at all about Niemann or about his own reasons, until his remarks after the Julius Baer Cup about being "impressed" by Niemann's play and referencing Maxim Dlugy as having coached and mentored Niemann. When Carlsen later on issued a written statement giving his own impressions and belief as reasons for his having suspicions about Niemann, Carlsen carefully framed his statement in terms of his own impressions (e.g., Carlsen's perceptions during the game in St. Louis) and his own belief (namely, the belief that Niemann has cheated more extensively, and more recently, than the two instances at ages 12 and 16 that Niemann admitted).
***Was the statement "published"?
The issue of whether whatever statement is alleged to be defamatory was "published" simply refers to whether other people heard (or read) and understood it. This element might seem trivial in this case, but the need to prove publication of a statement by the defendant points to the importance of clearly identifying a particular statement that is alleged to be defamatory. If the statement at issue is the statement Carlsen issued a few days after the Julius Baer tournament ended, then there would seem to be no possible doubt that the statement was "published." Technically it remains the plaintiff's burden to prove publication, but that should be an easy burden for Niemann to meet if the statement in question is the press release by Magnus Carlsen.
***Was the statement about Niemann a direct factual assertion (or was it perhaps an expression of opinion)?
If Niemann can prove that Carlsen did actually make a statement about Niemann, Niemann will also have the burden of proving that that the statement was a statement of fact. One aspect of this is a showing that the statement was not an expression of opinion but was actually a factual assertion about Niemann. (In some contexts, the burden could shift to the defendant to assert and show that a statement was opinion, but the factual nature of any allegedly defamatory statement made by the defendant is something the plaintiff is ordinarily required to prove as an essential part of the plaintiff's case in chief.)
***Can the plaintiff prove the factual assertions to be false?
Then, if the court finds that Carlsen did make factual assertions about Niemann, Niemann still would bear the burden of proving that those assertions were false (and, if Niemann is deemed a public figure, Niemann would have the further burden of proving "actual malice"---that is, that the falsehood of the assertions was known to Carlsen or that Carlsen uttered those statements with reckless disregard of the truth).
***How have the factual statements caused Niemann's reputation to be harmed?
Finally, the burden is normally on the plaintiff to prove injury to his reputation caused by the malicious statements. It used to be the case in many states that a plaintiff was presumed to have a reputation for honesty and uprightness, which, if this presumption were to apply here, would mean that Niemann would not have the initial burden of pleading and proving his own good reputation prior to the allegedly false and defamatory statements. But I'm not sure how this tends to play out these days under Missouri law. My prediction is that, regardless of how the burden of proof is allocated on this issue, Niemann's attorneys will attempt to make some initial showing of Niemann's own earlier good reputation, in order to make the case that his reputation has suffered from the alleged defamatory statements. Even if the court were to adopt the old-fashioned rule (a rebuttable presumption of the plaintiff's good reputation), the defendant would certainly have an opportunity to rebut this by showing that the plaintiff's reputation was not good even before the alleged defamation.
***Affirmative defense of qualified privilege
Let me return briefly to one of several affirmative defenses that could possibly be available to the defendant: namely, privilege. Let me offer an analogy, with the hope that someone will supply a better analogy to illustrate the point: if you are reasonably concerned that another person may be dishonestly selling expired or tainted food to the public as good food, then, if you warn others about this possibility, you are normally protected against defamation liability by a "privilege" if you were in good faith trying to protect others and/or the public interest, even if it eventually turns out that your suspicions are mistaken or cannot be conclusively proven. The point is that if the food seller sues you for defamation, you could plead a qualified "privilege" as an affirmative defense. There are probably statutes in some states that specifically address or even shift this burden, but the common law burden of pleading and proving an affirmative defense of privilege, like other affirmative defenses, would normally be on you as the defendant. On the other hand, much of same evidence that would be introduced to support your affirmative defense of privilege would probably also be relevant to the issue of "actual malice," which the plaintiff would have the burden of pleading and proving (if the plaintiff is deemed a public figure).
Again, if I have misstated the law, please help by correcting what I've written.
I have simplified a great deal and have omitted much possible analysis. Among the most interesting doctrines when it comes to analyzing burdens and presumptions is a distinction between the "burden of producing evidence" and the "burden of persuasion." This distinction is particularly important on a motion for summary judgment but it also has other relevance that I imagine might be interesting to non-lawyers. But I will wind down now . . .
My hope here is to provide a bit of background (always subject to correction!) that might contribute to the general understanding of some key features of the allocation of the burdens of pleading and proving the elements of defamation.
It occurs to me that someone with some knowledge of legal matters could help improve the information level of the discussion a bit by giving some background outlining the way allegations of defamation (the torts of libel and/or slander) normally proceed in a civil case in most states in the United States. (Note that federal courts, like state courts, will typically try to apply relevant substantive state law, even as they apply the Federal Rules of Civil Procedure.) I'm willing to take a first stab at such a background-outline.
In this context (wanting to share information about the law), I'm not interested in "winning" an argument on this forum, nor am I interested in helping other people win arguments. Discussion tends to be more valuable the less the people involved are focused on trying to win or on triumphally claiming victory.
(An exception might be high school debating clubs, where the whole point is generally to "win" a competition by demonstrating skill in arguing. Another obvious exception might be professional advocacy, but as an advocate who has represented many clients in court contests over about forty years I have learned that it is often valuable, and beneficial to the client, to listen respectfully to the other side.)
Below is an initial effort to present an outline about burdens of pleading and burdens of proof in a civil defamation action (by "action" here I mean a lawsuit or case) in most courts in the United States. If some other informed attorney thinks I've importantly misstated any aspect of civil procedure or substantive law that needs to be corrected, please don't hesitate to say so and please offer a correction.
In order to state a claim for the tort of defamation, a plaintiff's complaint (the initial pleading in court) must allege that the defendant made a statement of fact about the plaintiff that other people understood after reading or hearing it; that the statement was a false statement of fact; and that the plaintiff suffered demonstrable damage to reputation as a result of the false statement. Each of those is an essential element, and normally this means that each element must be clearly alleged in order for the plaintiff to survive a motion to dismiss for failure to state a claim upon which relief can be granted.
Moreover, where a plaintiff (e.g., Hans Niemann) is deemed to be a “public figure,” the U.S. Constitution requires that the plaintiff must also allege that the statement was made with "actual malice," which is a legal term of art meaning that the defendant made the statement knowing that it was false, or with reckless disregard of its falsehood.
[There is not enough time to analyze deeply here whether or not GM Niemann should be considered a public figure, so I'm treating that status as conditional, although I will note that the public interviews he has given, his streaming career, his projected self-image as a celebrity, his appearance several months ago on the cover of an issue of New in Chess, and his regularly expressed aspiration to become world chess champion, all seem consistent with considering him a public figure. On the other hand, it would not necessarily be unreasonable to argue that a teenager, even an ambitious one who considers himself a celebrity, should ordinary not be treated as a public figure for defamation purposes.]
(To simplify this outline of defamation, let's imagine that Magnus Carlsen is the only defendant against the defamation claims. Analysis of the more complex antitrust, conspiracy, and tortious interference claims is beyond the scope of this outline at this point.)
It's easy for people to get a bit confused when discussing a lawsuit alleging defamation. For one thing, the plaintiff is typically "accusing" the defendant of having "accused" the plaintiff of something that is allegedly harmful to the plaintiff's reputation. Thus, we already necessarily have two entirely different accusations (going in different directions) and thus often an ambiguity in the word "accused."
To add further confusion, the word "accused" is also often used in the context of the criminal law, to refer to a person who has been formally charged by the prosecuting authorities with having committed a criminal offense. It is important to keep in mind that the burden of proof that protects a person criminally accused, is not at all the same as the burden of proof in a civil matter, such as the tort of defamation. In a civil matter, the typical burden of proof for most issues is "by a preponderance" (or "the greater weight") of the evidence. By contrast, the much higher standard for proving criminal guilt and obtaining a conviction against an individual "accused" of a crime is "proof beyond a reasonable doubt." But the criminal burden of proof has no application to civil cases.
As noted above, the burden of pleading the elements of the tort of defamation falls on the shoulders of the plaintiff.
Now, the burden of proof normally follows the burden of pleading.
This means that Hans Niemann (as the plaintiff) will have the burden of proving, by a preponderance of the evidence, each of the following elements of defamation:
that Magnus Carlsen made a statement of fact about Niemann; AND
that Magnus Carlsen's statement was heard or read and understood by others; AND
that the statement by Magnus Carlsen was a false statement of fact; AND
that the statement by Magus Carlsen caused injury to Hans Niemann's reputation;
AND (if Hans Niemann is deemed a public figure), that the statement by Magnus Carlsen was made with what first amendment constitutional doctrine calls "actual malice."
The burden of pleading and proving a so-called "affirmative defense" is normally on the civil defendant (in this case, Magnus Carlsen). There are a number of "affirmative defenses" (e.g., qualified privileges, statute of limitations, assumption of the risk in certain types of cases, etc.) that a civil defendant definitely bears the burden of pleading and proving.
However, in a defamation case, the important "absolute defense" of truth (that is, the defense urging that any statements the defendant made were true) is in contemporary jurisprudence not considered an affirmative defense. Instead, falsehood is one of the elements the plaintiff (Niemann, in this case) bears the burden of pleading and proving. A defamation defendant who neglected in his answer to plead truth as a defense would not thereby waive that defense, because the burden of pleading and proving falsehood is on the plaintiff (Niemann, in this case). The point is that the burden will be on Hans Niemann to plead and prove that Magnus Carlsen made statements about Niemann and the burden will also be on Niemann to prove (by a preponderance of the evidence) that those statements are false.
I'm not aiming to discuss whether or not this allocation of burdens is fair. I'm simply outlining the burden of proof in the law of defamation.
***What specific statement or statements of fact did Carlsen make?
On the element of whether or not Carlsen made an actual statement of fact about Niemann, I will mention that, although Carlsen carefully avoided expressly mentioning Hans Niemann or making any public statement at all initially after he withdrew from the Sinquefield Cup, the plaintiff (Niemann) could try to develop an argument that Carlsen's silence was in effect a tacit statement, perhaps with the innuendo that Niemann had cheated in round 3 at the Sinquefield Cup. (I don't at the moment have the complaint open, so I don't know whether such a specific innuendo was properly pleaded in the complaint.) For a few weeks Carlsen expressly declined to make any public statements at all about Niemann or about his own reasons, until his remarks after the Julius Baer Cup about being "impressed" by Niemann's play and referencing Maxim Dlugy as having coached and mentored Niemann. When Carlsen later on issued a written statement giving his own impressions and belief as reasons for his having suspicions about Niemann, Carlsen carefully framed his statement in terms of his own impressions (e.g., Carlsen's perceptions during the game in St. Louis) and his own belief (namely, the belief that Niemann has cheated more extensively, and more recently, than the two instances at ages 12 and 16 that Niemann admitted).
***Was the statement "published"?
The issue of whether whatever statement is alleged to be defamatory was "published" simply refers to whether other people heard (or read) and understood it. This element might seem trivial in this case, but the need to prove publication of a statement by the defendant points to the importance of clearly identifying a particular statement that is alleged to be defamatory. If the statement at issue is the statement Carlsen issued a few days after the Julius Baer tournament ended, then there would seem to be no possible doubt that the statement was "published." Technically it remains the plaintiff's burden to prove publication, but that should be an easy burden for Niemann to meet if the statement in question is the press release by Magnus Carlsen.
***Was the statement about Niemann a direct factual assertion (or was it perhaps an expression of opinion)?
If Niemann can prove that Carlsen did actually make a statement about Niemann, Niemann will also have the burden of proving that that the statement was a statement of fact. One aspect of this is a showing that the statement was not an expression of opinion but was actually a factual assertion about Niemann. (In some contexts, the burden could shift to the defendant to assert and show that a statement was opinion, but the factual nature of any allegedly defamatory statement made by the defendant is something the plaintiff is ordinarily required to prove as an essential part of the plaintiff's case in chief.)
***Can the plaintiff prove the factual assertions to be false?
Then, if the court finds that Carlsen did make factual assertions about Niemann, Niemann still would bear the burden of proving that those assertions were false (and, if Niemann is deemed a public figure, Niemann would have the further burden of proving "actual malice"---that is, that the falsehood of the assertions was known to Carlsen or that Carlsen uttered those statements with reckless disregard of the truth).
***How have the factual statements caused Niemann's reputation to be harmed?
Finally, the burden is normally on the plaintiff to prove injury to his reputation caused by the malicious statements. It used to be the case in many states that a plaintiff was presumed to have a reputation for honesty and uprightness, which, if this presumption were to apply here, would mean that Niemann would not have the initial burden of pleading and proving his own good reputation prior to the allegedly false and defamatory statements. But I'm not sure how this tends to play out these days under Missouri law. My prediction is that, regardless of how the burden of proof is allocated on this issue, Niemann's attorneys will attempt to make some initial showing of Niemann's own earlier good reputation, in order to make the case that his reputation has suffered from the alleged defamatory statements. Even if the court were to adopt the old-fashioned rule (a rebuttable presumption of the plaintiff's good reputation), the defendant would certainly have an opportunity to rebut this by showing that the plaintiff's reputation was not good even before the alleged defamation.
***Affirmative defense of qualified privilege
Let me return briefly to one of several affirmative defenses that could possibly be available to the defendant: namely, privilege. Let me offer an analogy, with the hope that someone will supply a better analogy to illustrate the point: if you are reasonably concerned that another person may be dishonestly selling expired or tainted food to the public as good food, then, if you warn others about this possibility, you are normally protected against defamation liability by a "privilege" if you were in good faith trying to protect others and/or the public interest, even if it eventually turns out that your suspicions are mistaken or cannot be conclusively proven. The point is that if the food seller sues you for defamation, you could plead a qualified "privilege" as an affirmative defense. There are probably statutes in some states that specifically address or even shift this burden, but the common law burden of pleading and proving an affirmative defense of privilege, like other affirmative defenses, would normally be on you as the defendant. On the other hand, much of same evidence that would be introduced to support your affirmative defense of privilege would probably also be relevant to the issue of "actual malice," which the plaintiff would have the burden of pleading and proving (if the plaintiff is deemed a public figure).
Again, if I have misstated the law, please help by correcting what I've written.
I have simplified a great deal and have omitted much possible analysis. Among the most interesting doctrines when it comes to analyzing burdens and presumptions is a distinction between the "burden of producing evidence" and the "burden of persuasion." This distinction is particularly important on a motion for summary judgment but it also has other relevance that I imagine might be interesting to non-lawyers. But I will wind down now . . .
My hope here is to provide a bit of background (always subject to correction!) that might contribute to the general understanding of some key features of the allocation of the burdens of pleading and proving the elements of defamation.