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September 11, 2013

Opinion: Allyn's claims don't hold water

Readers of this site and concerned Vandy fans want to understand the potential legal ramifications/implications surrounding the latest "buzz" on viral media sites. Before I cover that, let me say nothing that follows is intended to diminish the serious nature of this case and the justice that is due to the victim of this case, but I will be focusing on facts and what is actually known from on the record sources.

The two issues that most people want clarity about are:

1. Is there any merit to the allegations leveled by Bobby Allyn that Vanderbilt coach James Franklin was involved in a cover-up of a rape?

2. Are these "reporters" defaming coach Franklin and Vanderbilt?

I'll take a look at those matters below.

On the allegation that Coach Franklin told player to delete video:

As most people are aware, there has been one reporter, Bobby Allyn who claims to have a "source really close to one of the defendants" (the 1:29 mark of his Monday interview on 104.5) who is not a student (9:05). This person is someone Allyn claims to have has known for some time and helped him in stories in the past, someone in authority that is not like a prosecutor speaking from a lot of knowledge about this case (9:37).

It seems to me everyone on Twitter could be this source. Because I do not engage in idle speculation, research Allyn's last few articles at his former employer, The Tennessean and see if you have the same guess as to his source as me.

What does the "source" actually say according to Allyn?

Allyn says, "He believes that Franklin encouraged a player to delete a video of the incident after the player showed it to Franklin."

Allyn says on the radio: "He/she has seen evidence; seen or heard rather, that James Franklin Instructed a player to delete video after player showed the coach video of what happened In Gilette dorm that night( 1:46).

So first we have the conflicting statements of the print versus the interview, and more telling, the source "has seen or heard rather" this fact happened while, let's not forget, coach Franklin was not in town.

Next, as to Allyn's statements about the criminal process: "the DA's office and the defense attorney are going to be submitting their evidence in the case which is discovery."(2:32 & 10:44) Allyn must have spent his court beat time in civil court because "discovery" in a criminal case consists of the DA's office letting the defendant know what the evidence the state has -- not, as he suggests, the defendant sharing anything with the state.

Finally, the district attorney's office has taken the unusual step of issuing a press release which said, in part: "Our office will not try this case in the media nor will we contribute to speculation or misinformation. Ethics prohibit us from commenting about the specific facts of the case that evidence will come out in due time and in the appropriate forum, which is in open court."

Clearly the DA does not appear to be the source.

Please raise your hand if you think Chris Boyd would have been charged, and not the person who potentially has influence over all your witnesses and defendants.

On the assertion that Franklin has hired a lawyer

"Noteable and interesting that coach Franklin hired him [referencing Hal Hardin] as counsel. I wouldn't read too much into the fact that "Coach Franklin has a criminal defense attorney." (More on this statement) "Sources told me that probably other coaches have lawyered up (3:56)."

Sources told me that probably The Tennessean knows who Allyn's source is since he used to work there. See how easy that was?

I would never advise anyone to talk with enforcement or prosecutorial authorities without a lawyer. This includes witnesses, potential defendants as well as victims.

Which statement is more believable?

Are these "reporters" defaming coach Franklin and Vanderbilt?

Why doesn't Vanderbilt say something? Why don't they sue? Why isn't coach Franklin speaking out?

These are all the questions I have heard and without getting too much into the "legalese" I will try to address them all.

Since this is an ongoing investigation, Vanderbilt has made its one comment about the investigation, and that was, it is cooperating fully and would make no other statements. My experience being on the enforcement side for over a decade is that we always told witnesses they could not speak about a case until it was resolved and they could face charges if they did.

Additionally, I believe Vanderbilt is speaking out appropriately. Stories based upon hearsay upon hearsay do not really deserve a response.

Defamation in Tennessee includes libel (written defamation), slander (spoken defamation), and false light invasion of privacy among other causes of action, but these are the ones I will address.

The fairly recent case of Daniel B. Eisenstein V. WTVF-TV, News Channel 5 Network LLC, M2011-02208-COA-R3-CV, 2012 WL 3090307 (Tenn. Ct. App. July 30, 2012) really states what is necessary to prove libel and false light invasion of privacy quite well.

As to libel, it says:

A party must prove:

(1) a party published a statement ;

2) with knowledge that the statement was false and defaming to the other, or;

3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement. If the plaintiff in a case of libel is a public official or public figure [coach Franklin would be considered a public figure], they must also prove that the libellous statements were made with "'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." The public figure must demonstrate evidence of actual malice with "convincing clarity."

However, the basis for an action for defamation, whether it is slander or libel, is that the defamation has resulted in an injury to the person.

Quoting from the reported Tennessee case of Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct.App. 2005) quoting the Supreme Court case of New York Times Co. V. Sullivan, 376 U.S. 254, 279-80(1964) (other citations omitted). As you can see, it is very hard for a public official to prove libel, because of the "actual malice" standard.

On the other hand, the bar is not quite as high for false light invasion of privacy. In the Eisenstein case, the Court of Appeals lists the definition as:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability, if:

1) the false light in which the other was placed would be highly offensive to a reasonable person [this is a standard legal term which a jury or judge would have to decide];

2) the actor [author] had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. (For brevity's sake I have not listed all the citations.)

The court also added: "When the plaintiff is a public official or public figure, the appropriate standard for false light claims is actual malice. Quoting West v. Media Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn.2001): "The difference between the two basically is truth is not a defense to the false light invasion of privacy claim. However, as you can see both require a showing of actual malice which is a very difficult burden to bear especially when statements like: 'I have complete faith in my source' or 'has been credible in the past' are used." (9:05).

Clearly, they are walking right up to the line and are hoping they have not stepped across it. Perhaps when it is all done, and that is the only time it can really happen, someone tries it out to see if they crossed the line. I doubt it will happen because those people seem to be bigger than that.


It comes down to this: Do I blindly trust everything that comes out of Vanderbilt? No, but let review the facts:

  • The alleged perpetrators were immediately dismissed from university

  • VU has given total cooperation with the police and law enforcement

  • VU has made no comment during pendency of this case, which is next set for court for discussion day on September 19

  • VU has had discussion with credible media outlets on what to do about campus violence

Or do I go with:

  • An inexperienced reporter let go from his last job

  • He has no corroborating sources who have either "seen or heard" or "believe" something happened

  • He has given voice by someone who has their own agenda with Vanderbilt

  • A radio station who has its most popular journalist distance the station from its sister show and co-hosts.

Seems simple to me.

My life is much better when, to quote a source from Twitter: "I have decided to stick with love. Hate is too great a burden to bear."

Alan D. Hall is the former Inspector General of the Department of Human Services and has his own private law practice in Franklin, Tenn.

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