Experts say free speech at stake in ‘American Sniper’ appeal

Legal experts say important free speech issues will be at stake when an appeals court considers whether former Minnesota Gov. Jesse Ventura is entitled to the $1.8 million judgment he won against the estate of "American Sniper" author Chris Kyle.

Kyle's widow, Taya Kyle, appealed after a jury and judge sided with Ventura in the defamation case last year. The Kyle estate is asking the appeals court to throw out the verdict or at least order a new trial on First Amendment and other grounds. Leading First Amendment scholars and media organizations have filed briefs backing the Kyle estate. Ventura says the judge and jury got it right.

The 8th U.S. Circuit Court of Appeals will hear oral arguments in the case Tuesday.

"American Sniper" was Chris Kyle's best-selling book, later made into a hit movie, about his life as the deadliest sniper in U.S. military history, with 160 confirmed kills. In a subchapter called "Punching Out Scruff Face," the Navy SEAL claimed to have decked a man, whom he later identified as Ventura, during a fallen SEAL's wake at a California bar in 2006. He wrote that "Scruff Face" had made offensive comments about the elite force, including a remark that the SEALs "deserve to lose a few" in Iraq.

Ventura, a former SEAL and ex-pro wrestler, testified that Kyle's story ruined his reputation in the SEAL community. Ventura said he never made the statements and that the altercation never happened. Kyle insisted in sworn testimony videotaped before his death in 2013 that his account was accurate. His estate's lawyers presented several witnesses who backed up at least parts of his story. The jury believed Ventura and awarded him $500,000 for defamation and $1.3 million from the book's profits for unjust enrichment.

A key issue is whether Kyle acted with "actual malice," a demanding legal standard for defamation lawsuits laid down by the Supreme Court of the United States in the landmark Times v. Sullivan case in 1964. It means a plaintiff who's a public figure must prove that a defendant knew that the statement in question was false or made it with reckless disregard for whether it was false.

The 12 First Amendment scholars wrote in their friend-of-the-court brief that U.S. District Judge Richard Kyle, who is no relation to Chris Kyle, gave the jury bad instructions. Courts have acknowledged that the "actual malice" standard can be hard for juries to grasp because it doesn't mean malice in the conventional sense. The scholars said "well-intentioned courts" often recast it into simpler language, but getting it right is essential to preserving First Amendment protections.

In this case, they wrote, the judge did not make clear that Ventura had to prove that Kyle actually believed his statements were false or that Kyle actually had serious doubts about their truth when he made them.

"In this case, the trial court got very wrong two instructions that it needed to get exactly right," they wrote.

Ventura's lawyers counter that the instructions accurately stated the law and that the evidence established that Kyle "knowingly lied about an incident that simply did not occur." And if it didn't happen, they say, the "only conclusion" is that Kyle's statements were knowingly fabricated and that Kyle acted with actual malice.

A separate issue before the appeals court is the $1.3 million award for unjust enrichment. Ventura's attorneys argued that "American Sniper" shot to the top of the best-seller lists only because Kyle's statements about Ventura thrust him into the national spotlight.

Thirty-three media companies and groups filed a brief by prominent First Amendment attorney Floyd Abrams challenging the unjust enrichment award as unprecedented and dangerous. They said libel law so far has limited damages to compensation for the injuries suffered by a plaintiff, not a share of a defendant's profits. They said this case appears to be the first in American history to cross that line.

The Kyle estate also wants a retrial because the judge let the jury hear that publisher HarperCollins had an insurance policy to cover a defamation award and attorney fees. The estate says the statements were highly prejudicial, in violation of court rules. Ventura says they were properly allowed.