Let me just say at the outset: I have one really big question for Justice Wiley after reading this opinion from earlier today. More on that in a second.
The opinion is about a defamation lawsuit that Joe Collins brought against Maxine Waters. Mr. Collins ran against Ms. Waters for a seat in Congress in 2020. (By way of background: Maxine Waters has been in that seat for three decades, and is relatively famous in SoCal. The 2020 election, quite predictably, wasn't close. Ms. Waters got over 70% of the vote, and won easily -- just as she has in each of the elections since 1990.)
During the election, Ms. Waters said that Mr. Collins had been "dishonorably discharged" from the Navy. That wasn't exactly true, or at least, it was somewhat ambiguous. It turns out that Mr. Collins had been discharged from the Navy for "serious misconduct" -- that's what his DD-214 says -- and apparently had been disciplined "for providing alcohol to an underage sailor and for having sex with a service member under his command." (Classy.)
But there are multiple types of military discharges. There's an "honorable discharge" -- the one that the vast majority of service members receive, and the one that the public is most familiar with. Then there are four others, all of which are "less-than-honorable" and starting (in terms of the severity of misconduct) from "general" to "other than honorable" to "bad conduct" and then to "dishonorable". It looks like Mr. Collins got the first of these "less-than-honorable" discharges: a general. Which a person who wasn't being particularly precise -- or didn't know the details of the military's separation regime -- might perhaps call a "dishonorable" discharge, but which is technically a couple of levels about a pure "dishonorable".
So, like I said, after losing the election (badly), Mr. Collins sues.
Predictably, Ms. Waters files an anti-SLAPP motion, which the trial court grants. It's crystal clear that the first prong of the anti-SLAPP statute applies, since it's public statement on a public issue, and we surely want electoral discourse to be free and open. The relevant issue is simply whether Mr. Collins can show a probability of success on the merits.
The core problem for Mr. Collins in this regard is that to prevail against a public figure (as here), he's got to have evidence of "actual malice" in order to overcome the constitutional protection for free speech in a case (as here) involving a public figure. That doesn't necessarily mean ill will. But it's at least got to be a case of reckless indifference to the truth. Worse, for Ms. Collins, is that he's got to show this by "clear and convincing evidence." Which means "evidence [] such as to command the unhesitating assent of every reasonable mind."
The trial court held that he didn't have such evidence against Ms. Waters. And without describing in exhaustive detail all the reasons that Ms. Waters might well have reasonably believed that Mr. Collins was, in fact, dishonorably discharged, suffice it to say that there was a lot. (Including, but not limited to, being expressly told that by a Navy lawyer, plus a published federal court opinion involving a lawsuit filed by Mr. Collins that expressly said that Mr. Collins had received a "dishonorable discharge" from the Navy." Pretty powerful evidence, no?)
But here's the best thing in that regard for Mr. Collins. He puts up on his Facebook page a copy of his DD-214. The official document that says why you're discharged. And right on that document, it clearly says that he received a "general" discharge. Sure, the DD-214 also clearly says that the discharge was for "serious misconduct." But if the DD-214 is accurate, and if you know the details about the levels of military discharges, you'd know enough to know that Mr. Collins did not, in fact, technically receive a "dishonorable discharge."
The thing is, though, that Ms. Waters thinks that the DD-214 that Ms. Collins posted on the web was a fake. And, honestly, there's darn good reason for her to think it might be. Because it's crystal clear that reasonable minds might well come to the conclusion that Mr. Collins is, shall we say, occasionally less than fully forthright or trustworthy. Witness, to take just one example, yet another lawsuit filed by Mr. Collins in which he disputed an obligation to pay child support and claimed damages of $100 million, and in which he filed documents showing he had purportedly created a “Royal Family of Collins Trust” into which he had placed assets like his birth certificate—an asset Collins claimed had a value of $100 billion, and which claimed total assets of over $700 billion.
Uh, yeah. If that's the kind of stuff you're filing in court, call me crazy, but I'm not exactly going to take your word for it that the DD-214 that you've posted on Facebook ain't a Photoshop Special.
But Justice Wiley's opinion reverses the trial court. He thinks that reasonable minds might reasonably think that there's "clear and convincing" evidence that Ms. Waters was recklessly indifferent to the truth because she didn't investigate further the alleged validity of the DD-214. That's unambiguously why the opinion comes out the way it does. Here's the money quote from the opinion, one that -- if true -- I think goes a long way in explaining why Justice Wiley's view might perhaps be correct:
"Perhaps the document was a total fake. These days, anyone with skills can alter documents or create them from scratch on a laptop at home. At oral argument, Waters rightly emphasized that software is making it ever easier to concoct screen images that look genuine but are not.
But official documents can be checked officially. It could only have been to Waters’s electoral advantage to expose Collins’s fabrication, if fabrication it truly was. And the official check was easy to do. That fact—that it would have been easy to check—is in the record and is undisputed."
Okay, after all this, we've finally gotten to the central question I had when I first read the opinion:
Are you sure about that, Justice Wiley?
The opinion repeatedly relies upon ease of checking with which Ms. Waters could have conducted an "official check" of the the validity of the DD-214 posted on the web. Just a few examples: "When you face powerful documentary evidence your accusation is false, when checking is easy, and when you skip the checking but keep accusing, a jury could conclude you have crossed the line." "Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness." "It would have been easy for Waters then to check, but Waters kept repeating the accusation without checking."
I get it. If, indeed, all you have do to check get a DD-214 for someone is to go to the post office or submit a FOIA request or something like that, they yeah, I can see why that might be willful blindness.
But are you sure it's really that easy? Because the opinion nowhere explains how, in fact, you go about getting someone's DD-214, or how "easy" that process is. And then, when I looked up on Mr. Google just how easy it is to get a copy of someone's DD-214, every single hit I looked at expressly says that they're not public documents and you're not allowed to get them. This seems confirmed when I look at the VA's website and the National Archives website as well. The service member or the next of kin can get 'em -- and, presumably, photoshop them if they'd like. But not someone like Ms. Waters.
So I'm not exactly sure that it is, in fact, easy to verify this purportedly official record. And I search in vain in the opinion for evidence that it's true.
Now, Justice Wiley's opinion does say that the fact that it's easy to check "is in the record and is undisputed." Maybe it is. But I went ahead and looked at the Appellant's Opening Brief, which is available online, to find out where Mr. Google was wrong in this regard. And I couldn't even find the word "easy" in the brief at all, much less an actual citation to record evidence. The best I could find in the entire brief was the following sentence: "The official records of the character of a Veteran's military discharge are an official public record or purported official public document, which was available to the general public and known to Respondents." But there's not a citation, or reference to the record, or even anything at all to support this assertion.
I guess it's at least theoretically possible that Mr. Collins at some point filled out an authorization form or something like that and sent it to Ms. Waters that authorized her to pull his DD-214, but if so, I don't see any reference to it anywhere. Or maybe, at least theoretically, there's an argument that Ms. Waters could use her pull as a member of Congress to get the Navy to give her a copy of his DD-214. But if it's illegal for members of the public to pull someone else's DD-214, that's presumably equally true for Ms. Waters as well, particularly if the effort to do so is to assist her reelection efforts! And while California law allows public officials in their official capacities to pull California public records, that wouldn't apply to federal (Navy) records, and a pull presumably wouldn't be in Ms. Waters' official capacity either.
So, again, my question is simply this: Is it really "easy" to verify the DD-214 of someone else? If so, I'd like to learn how. 'Cause that seems a fairly central point of the opinion.
I've got subsidiary questions about the opinion as well; for example, I'm not nearly as confident as Justice Wiley is that calling a less-than-honorable discharge a "dishonorable" discharge isn't a type of nonactionable "technical" misstatement (e.g., like calling someone "convicted" or "guilty" when they actually weren't found guilty at trial), and I'm also not certain that, even with inferences viewed in favor of Mr. Collins, the alleged willful blindness here would satisfy the clear and convincing evidence test such that it would "command the unhesitating assent of every reasonable mind."
But, for now, I'll just stick to the DD-214 thing. Personally, I don't think Mr. Collin's DD-214 was a fake. I think he was, in fact, given a general -- not honorable, but not dishonorable -- discharge. But I think that (1) every reasonable person would fully understand why Ms. Waters might well have entirely reasonably thought that Mr. Collins couldn't be trusted when he said that the DD-214 that he posted on Facebook was accurate, and might instead be altered, and (2) am not confident, based on what I've read both inside and outside the opinion, that it would actually have been super easy for Ms. Waters to check whether the DD-214 was accurate.
So I'd love to learn more. Either (preferably) inside the opinion or outside of it.
