Last week, just before Thanksgiving, the Second Circuit shot a big turkey.  The fowl in question – a jailbird actually — claimed that New York Daily News and The Polish Daily News defamed him.  Their repute-blackening words?  That Shemtov Michtavi, a drug offender, planned to sing like a canary.

The district court blasted the libel claim, holding that it couldn't fly because what the papers said about Mr. Michtavi didn't defame him.  The Second Circuit affirmed.  Michtavi v. New York Daily News, No. 08-2111-cv (2d Cir. Nov. 25, 2009) (applying New York law).  It said:

  • "Under New York law, a statement is defamatory only if it would expose an inividual to shame 'in the minds of right-thinking persons.'"  Id., slip op. at 4 (citations omitted).

  • "It is becoming increasingly hard to ascertain as a matter of law what a right-thinking person would think . . . ."  Id..

  • "[T]he prison population . . . is clearly the group whose good opinion matters to Michtavi."  Id.
  • "The population of right-thinking persons unambiguously excludes 'those who would think ill of one who legitimately cooperates with law enforcement.'"  Id. at 5 (citation omitted).
  • "[E]very American court surveyed has held that identifying someone as a government informant is not defamatory as a matter of law."  Id.

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