The media bring out the big guns as the Ventura verdict goes to 8th Circuit

Former Minnesota Gov. Jesse Ventura has long cast himself as a working-class brawler taking on the power and media elites. He'll have a chance again Tuesday before the 8th U.S. Circuit Court of Appeals, meeting in St. Paul.

Attorneys will debate whether a celebrity like Ventura is entitled to a $1.8 million award.

Some of the nation's most powerful news corporations have enlisted the nation's most prominent First Amendment attorneys in an attempt to overturn the verdict Ventura won last year against the estate of late author Chris Kyle.

The New York Times, Washington Post, Hearst Corp., Newspaper Association of America and the National Association of Broadcasters are among those that declared in a brief that "they are concerned about what they view as the unjustified and potentially crippling awards in this case."

Ventura finds the media position reprehensible.

"It's amazing that the media is stepping into this court case and demanding that wrongdoing be rewarded, that they should be able to profit from wrongdoing," he said in an August interview with the Star Tribune, which has not joined the media brief. "Where in the First Amendment does it say you can lie and profit from the lie and you're protected?"

The case pits Ventura, the former wrestler and governor of Minnesota from 1998 to 2002, against Taya Kyle, the widow and executor of the estate of the late Chris Kyle, whose bestseller, "American Sniper," was the subject of Ventura's defamation lawsuit.

Taya Kyle's attorneys have drafted Washington lawyer Lee Levine, described by one legal magazine as "the greatest First Amendment attorney in the United States."

Floyd Abrams, the nation's most famous First Amendment lawyer who represented the New York Times in the 1971 Pentagon Papers case, has written one of the amicus briefs blasting the verdict.

The stakes are high, says Jane Kirtley, professor of media ethics and law at the University of Minnesota and one of 12 First Amendment scholars who signed another brief urging the verdict be overturned.

"What I worry about is setting a bad precedent that is going to make it difficult, not only for journalists to do investigative reporting, but for serious authors to write unauthorized biographies," Kirtley said.

The suit stems from an incident at McP's Irish Pub in Coronado, Calif., on Oct. 12, 2006. Ventura, a former Navy SEAL, in town for a graduation ceremony for underwater Navy SEAL trainees, was visiting friends at the bar frequented by SEALs. A wake was occurring there coincidentally, honoring a SEAL killed in Iraq.

In his book, Chris Kyle wrote that a "celebrity" SEAL identified only as "Scruff Face" was "running his mouth" about the Iraq war and President George W. Bush and said that the SEALS "deserve to lose a few." When Kyle tried to quiet the man, he wrote, Ventura took a swing at him, and Kyle "laid him out … on the floor."

Kyle identified Scruff Face as Ventura in interviews right after the book's release Jan. 3, 2012. Ventura sued Kyle on Jan. 23, alleging the account was fabricated. After Kyle was killed on Feb. 2, 2013, in Texas, by a Marine vet he was trying to help, the suit continued against his estate.

On July 29, 2014, a jury found that Kyle's account of the incident was untrue, awarding Ventura $500,000 for defamation and $1.3 million for unjust enrichment. Ventura's attorneys said that amount was about one-fourth of the $6 million profits Kyle's estate reaped from book and movie rights. Kyle's attorneys say the profits were much less.

In the estate's appeal of the verdict to the 8th U.S. Circuit Court of Appeals, Minneapolis First Amendment attorney John Borger has maintained that U.S. District Judge Richard Kyle erred in two instructions to the jury. One advised the jury to consider the veracity of the whole account, rather than simply the remarks Ventura allegedly made at the bar. A second instruction, Borger said, failed to explain that jurors had to have clear and convincing evidence that Chris Kyle's account was false.

"A properly instructed jury would not have rendered a verdict in Ventura's favor," Borger wrote.

Borger also claims Judge Kyle did not properly explain to jurors, after they sent him a question, that to prove defamation they had to find that Chris Kyle knew what he wrote was false and had a reckless disregard for the truth, the legal standard for defamation in celebrity cases.

Borger also claims there was sufficient evidence to show Chris Kyle was telling the truth; that legal precedents barred the jury from awarding unjust enrichment; and that book sales were not improved by the news reports that Ventura punched Kyle.

A new trial is also warranted, Borger argued, because Judge Kyle allowed Ventura's attorneys to mention several times that the estate had insurance to cover a defamation suit.

Ventura's attorney, David B. Olsen wrote in his brief that Borger wants the appeals court to apply "a new higher" standard in defamation cases. He quoted Judge Kyle's statement following the trial that there was sufficient evidence to support Ventura's version of events.

Also, says Olsen, Chris Kyle had to know the account was false, because he wrote it. "This case does not involve a media defendant relaying important public information received from a third-party source."

Olsen argues that attorneys for Kyle's estate waived their right to challenge an award for unjust enrichment on appeal, because they never questioned it at trial. He said, " 'American Sniper' was an unknown book by an unknown first-time author" and sales would have never taken off without the Ventura connection.

Olsen said that mentioning insurance was warranted because Taya Kyle testified that if she lost the suit she'd worry about "money to live on or raise my kids with."

A decision by the 8th Circuit could be months away.

Randy Furst • 612-673-4224

Twitter: @randyfurst