March 29, 2019
Update April 1, 2019
New England Patriots safety Patrick Chung had the bad fortune of breaking his arm early in the third quarter of Super Bowl LIII.
As Chung lay on the field attended by doctors and trainers, Matthew Hogan, a ticket sales executive for the Los Angeles Rams texted “Patrick Chung is a bitch,” to his former friend Matthew Weymouth in what he refers to as “trash talk” regarding Chung’s injury. Weymouth, who is said, on information and belief, to manage Chung’s social media accounts, didn’t react kindly to Hogan’s remark about his injured friend. Hogan probably didn’t help himself in attempting to correct Weymouth’s spelling as he reacted and Chung is likely leaving the field with an air cast by this time. An angry round of texting ensued, presumably for the rest of the game. Nothing is said of what took place afterward until the following Wednesday when Weymouth is alleged to have published portions of their text exchange on Chung’s Instagram and Facebook accounts.
As a result of the publication of his comments, Hogan lost his job and has now filed a lawsuit against Weymouth, Chung, and the media entities that picked up on the Instagram post.
In the lawsuit, Hogan claims at the time he texted he did not realize the extent of Patrick Chung’s injuries and that the comment was intended as a “joke.” He further contends:
“Based on the false statements in the Instagram and Facebook posts,” Hogan says, “commenters posted remarks about Hogan that were disparaging, threatening, and harassing. On Instagram, one commenter asked, ‘Who the f**k is Matt Hogan.’ User @k_weymouth responded by posting Hogan’s Instagram username. As a result, Hogan began receiving direct messages on Instagram that were disparaging, threatening, and harassing.” He also complains that media entities picked up on the posts and further disseminated his text messages in a false light.
Hogan says the media, without further investigation, posted the content from Chung’s social media accounts and as a result, his employment was terminated, and he has been unable to find another job.
My first reaction is a personal one. Injuries are nothing to joke about, especially while a player is on the ground, attended to by medical personnel, and as a Rams employee, Hogan should be aware of the toll of injuries on professional football players.
Though he claims the statements published were portrayed in a false light, he admits to making those statements. Hogan says that he contacted Hot 96.9 regarding “the defamatory publications and broadcasts and demanded corrections,” but Hot 96.9 failed to publish any corrections, and they were under no obligation to do so since the content was derived from the public domain. Though his complaint doesn’t address what contact he may have had with 12-Up, it appears that the outlet removed their previously published content; a google search locates it, but clicking the links leads to a “page not found” error. From the readable portion of the search, it appears that 12-Up attempted to accommodate Hogan.
Nevertheless, Hogan makes five claims against the defendants in a lawsuit that will most likely garner additional negative attention to himself.
The first claim in the lawsuit is defamation which he asserts against all defendants except Weymouth.
In order to prove defamation, Hogan must prove that the defendants made a defamatory statement about him to a third party which they knew to be false. The problem here is that while Hogan alleges that he meant no harm, he does not dispute that he sent the text. In naming all parties besides Weymouth, who allegedly posted the text to Chung’s social media accounts he eliminates the one person who is known to have access to the entire exchange.
If the plaintiff is a public figure, malice must also be proven. Although Hogan is not a celebrity or public figure, per se, since the statement is in reference to a person of public interest, an NFL player injured during the Super Bowl, the malice element would likely apply.
Defamation is an extremely hard claim to prevail on and in this instance since the plaintiff has admitted that he sent the text the claim seems meritless. Although the statement by defendants may be humiliating and embarrassing, it appears lawful.
In the second claim, Hogan alleges disclosure of private facts.
Here, again, his claim falls short. The only information disclosed was Hogan’s name and social media handle—in other words, public information.
Hogan alleges a false light claim against all defendants except Weymouth. This claim is similar to defamation but unlike a defamation claim, the assertion doesn’t have to be false but merely distorted to portray the plaintiff in an embarrassing manner that a reasonable person would find offensive.
It would appear that Hogan might have credibly made this assertion against Weymouth since he claims that Weymouth misconstrued the text message that he sent and Weymouth is the only other known party who would have had certain access to the complete text string. He includes in an exhibit what he presents as the complete exchange.
After some similar exchanges continue, it is Hogan that threatens Weymouth with sending a copy of the texts to his employer, which possibly gave Weymouth the idea to post the texts on social media.
The exchange does not, however, appear to be as complete as Hogan claims.
Note the Super Bowl was played on a Sunday, and the message string resumes on a Wednesday which is the same day media picked up on the posts on Patrick Chung’s social media accounts. There appears to be some communication missing between Sunday and Wednesday, perhaps oral or by email. The “it” Weymouth refers to appears to be the Instagram post, showing an awareness of it prior to the time the text exchange. to which Weymouth says, “He took it down.” Hogan responds that he’s lost his job and “It’s still on Facebook.” The tone would seem to indicate some form of communication had taken place prior to the text. The inset that’s difficult to read, says, “anyone to lose their job and take food out of his families mouth. That’s all I ask. Please. Discipline him another way. Don’t let this hurt his family,” and is said to be from Patrick Chung
Why Hogan omits Weymouth and claims false light against the other defendants is puzzling.
Regarding Chung, Hogan would have to prove not only that Chung was aware of the entire text string and approved of its publication. This is not at all established on the face of the complaint and is even refuted by the text represented as coming from Chung.
Hogan will have an even steeper task in convincing a judge that the journalists acted maliciously and outside their First Amendment rights.
The First Amendment provides a great deal of deference to journalists. Both media outlets and their respective journalists reported as confirmed in Hogan’s exhibits that Chung posted a text exchange with Hogan and then deleted the exchange. That is an undisputed fact, and not one that shows a false light. 12-Up specifically reported:
12-Up expressed an opinion in saying “Chung is believed to be…” and then supported Hogan’s allegation that he was “just messing around,” and that it was “all in just fun.” Then 12-Up expressed another opinion with which I agree. Opinion is protected under journalistic privilege.
The claim of infliction of emotional distress is also likely to fail.
The law does not protect an individual from being embarrassed or having his feelings hurt unless the claim is tied to other unlawful conduct, which in my opinion, Hogan has failed to do. Emotional distress claims often have to be backed up with records of therapy and counseling, which through the complaint, Hogan also fails to do.
For instance, someone could post a photo of a married man kissing a woman other than his wife, and there is no defamation because he, in fact, kissed the woman. If the man’s wife were to seek a divorce, causing him economic damage, or if, perhaps his employer found his conduct distasteful, and fired him, he would still fall short of having an actionable claim.
If a third party saw the picture posted on social media and shared it, likewise there would be no claim. The same would be true for someone in the media.
Hogan, regardless of intent, sent a text making light of an NFL player’s injury. While it might be said that Weymouth overreacted, unless facts not readily apparent are soon brought out, the claim appears to be meritless.
There is no explicit law against posting screenshots of private messages, although this can sometimes be construed as harassment as Hogan contends in Count 5 against Weymouth and the only count that appears to have a possible chance at surviving a motion to dismiss. Note, I said possible and not probable.
Hogan makes no mention of bolstering his claim through filing criminal harassment charges with local authorities, alleging fear for his life or bodily injury, and likely for good reason since most state laws require that the behavior cause a credible threat to the person’s safety or their family’s safety. Whether there was any legitimate reason for communication also becomes a factor under many states’ harassment laws. Normally in a criminal harassment case, the victim seeks a restraining order against the aggressor, and there is no reference to Hogan taking this affirmative action which leads to doubt regarding a credible threat of violence. Though harassment is a state law claim, Hogan doesn’t cite any specific statutes.
In California, where Hogan lives, and filed the civil action, CCP 527.6 states language very similar to criminal harassment and looks for a repeated pattern of behavior and a credible threat of violence as noted below.
It would seem a stretch for the noted behavior to meet this bar.
I predict a quick dismissal
When assessing a legal claim, I often call upon attorneys to verify that I’m reading the complaint and interpreting the law correctly. When I inquired of Eugene Egdorf of Schrader and Associates, he emailed back:
This lawsuit is beyond ridiculous. It is lawsuits like this that cause folks to think poorly of lawyers and lose sight of all the positive changes and influences that can come from lawyers and litigation.
I agree. Frivolous lawsuits such as this compose a very small percentage of lawsuits filed but have resulted in defendant-friendly procedures that have made it more difficult for meritorious claims to survive long enough to proceed to trial.
I would expect the defendants to file a Rule 12(b)(6) motion, for failure to state a claim upon which relief can be granted, and I would expect the motion to succeed.
This lawsuit reminds me of an incident several years ago in which one of my neighbors had a dog that was prone to fence jumping. Instead of taking measures to contain the dog, he seemed unbothered when it jumped the fence and roamed the neighborhood despite numerous complaints. One day his Pit Bull not only jumped out of his fence but jumped into mine and attacked my dog. Fortunately for me, and unfortunately for my neighbor, my Doberman was capable of defending himself and came out of the scuffle in a little better shape than his attacker.
After returning from the vet’s office to have my dog attended to, the owner of the Pit Bull angrily pounded on my door and threatened a lawsuit to recover his vet bills. Astounded, I told him, “Fine, I’ll take the countersuit and see you in court.” Fortunately, that was the end of it because my neighbor probably realized his attempt to bully me didn’t work and he didn’t have a claim that he could prevail on since his damages were the result of his own conduct. In this case, Hogan has suffered damages because of his own words.
It’s a shame when people abuse the court system and as a result, make it harder for parties who are truly injured by the conduct of others to prevail.
It’s also a shame when people make light of player injuries. In this instance, while Hogan didn’t know the extent of Chung’s injury that resulted in one of two surgeries he’s endured this offseason it was apparent a man was down for an extended time and surrounded by trainers. This should have been enough. Especially for someone employed by a professional sports team.
Instead of looking to the courts to remedy his self-inflicted damages Mr. Hogan should consider the damages that professional football players stand to suffer from the injuries sustained in the course of their careers. Rule of thumb, your words may very well get you convicted in the court of public opinion, but when that happens, don’t expect exoneration in a court of law.
Update April 1, 2019:
Hogan applied for and was denied a restraining order against Weymouth as shown below.