Chapter 3
DEFAMATION
A. TRADITIONAL RULES AND CONSTITUTIONAL
TRANSFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
B. LIBEL AND SLANDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
C. WHAT STATEMENTS ARE DEFAMATORY? . . . . . . . . . . . . . . . . . . . 157
1. Disgrace Is Essential . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
2. Defamatory in Whose Eyes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
3. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
4. Pleading Extrinsic Facts to Prove Defamation . . . . . . . . . . . . . . 164
PROBLEM 3-1: THE TEENAGE SEX EPIDEMIC . . . . . . . . . . . . . . . . . 164
D. FALSITY REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
1. Assertion of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
a. Milkovich v. Lorain Journal Co. . . . . . . . . . . . . . . . . . . . . . . 165
b. Applying Milkovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
PROBLEM 3-2: THE EX-GOVERNOR’S DIVORCE . . . . . . . . . . . . . . 175
2. Defamation Based on Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
3. Substantial Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
E. COLLOQUIUM REQUIREMENT: “OF AND CONCERNING THE
PLAINTIFF” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
1. Group Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
2. Fictional Portrayals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
3. Institutional Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
4. Criticism of Ideas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
5. Defamation of the Dead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
6. Unintended Reference to the Plaintiff . . . . . . . . . . . . . . . . . . . . . 184
PROBLEM 3-3: THE POOR BAR PASS RATE . . . . . . . . . . . . . . . . . . . 185
F. PUBLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
1. “Compelled” Self-Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
2. Distributors of Defamatory Publications . . . . . . . . . . . . . . . . . . . 189
3. Statements on the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
4. Intra-Entity and Fellow Agent Communications . . . . . . . . . . . . 190
PROBLEM 3-4: THE BOTCHED COVER LETTER . . . . . . . . . . . . . . . . 190
149
0001 [ST: 149] [ED: 10000] [REL: 1] (Beg Group) Composed: Thu Apr 29 08:20:53 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 35
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL
PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
1. Category I: Public Officials and Public Figures Suing with Respect
to Matters of Public Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
a. Strict Liability at Common Law . . . . . . . . . . . . . . . . . . . . . 191
b. New York Times v. Sullivan . . . . . . . . . . . . . . . . . . . . . . . . . 192
c. Who Is a Public Official? . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
d. Treating Public Figures the Same as Public Officials . . . . 199
PROBLEM 3-5: THE LAW CLERK AT THE STATE SUPREME
Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
e. Proving “Actual Malice” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
(1) The Meaning of “Actual Malice” . . . . . . . . . . . . . . . . . 201
(2) Standard of Proof and Judicial Review . . . . . . . . . . . . 204
(3) Applying Supreme Court Principles . . . . . . . . . . . . . . 204
(a) Example: Freedom Newspapers of Texas v.
Cantu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
PROBLEM 3-6: THE RACIAL PROFILING STORY . . . . . . . . . . . . 210
2. Category II: Private Persons Suing with Respect to Matters of
Public Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
a. Gertz v. Robert Welch, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 212
b. Applying the Gertz standards . . . . . . . . . . . . . . . . . . . . . . . . 217
c. Defamation in Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
PROBLEM 3-7: THE DEFAMED TELEMARKETER . . . . . . . . . . . . . . 223
3. Category III: Anyone Suing with Respect to Matters of Private
Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
a. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. . . . . . . 224
b. Distinguishing Private Concern from Public Concern . . . . 226
(1) Example: Quigley v. Rosenthal . . . . . . . . . . . . . . . . . . 229
c. Doubts About Presumed Damages Today . . . . . . . . . . . . . . 232
PROBLEM 3-8: THE FIRED PROFESSOR . . . . . . . . . . . . . . . . . . . 233
H. DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
1. Emotional Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
2. Limitations on Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . 237
PROBLEM 3-9: THE ALUMNI MAGAZINE . . . . . . . . . . . . . . . . . . . . . 238
I. DEFENSES AND OBSTACLES TO RECOVERY . . . . . . . . . . . . . . . . 238
1. The Communications Decency Act of 1996 . . . . . . . . . . . . . . . . . 238
a. The Congressional Language . . . . . . . . . . . . . . . . . . . . . . . . 239
b. Internet Service Providers and Distributor Liability . . . . . 242
c. Website Operators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
d. Individual “Users” of the Internet . . . . . . . . . . . . . . . . . . . . 244
150 DEFAMATION CH. 3
0002 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:54 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
e. Anonymous Postings on the Internet . . . . . . . . . . . . . . . . . . 247
(1) Example: Krinsky v. Doe No. 6 . . . . . . . . . . . . . . . . . . . 247
PROBLEM 3-10: THE SBA SURVEY . . . . . . . . . . . . . . . . . . . . 251
f. Exceptions to Communications Decency Act Immunity . . . 252
(1) Example: Barnes v. Yahoo! Inc. . . . . . . . . . . . . . . . . . . 252
g. Internet Publications and Foreign Libel Laws . . . . . . . . . . 257
2. Retraction Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
PROBLEM 3-11: THE DANGEROUS SCHOOL TEACHER . . . . . . . . . . . . 259
3. Absolute Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
a. Judicial Proceedings Privilege . . . . . . . . . . . . . . . . . . . . . . . 260
(1) Example: Cassuto v. Shulick . . . . . . . . . . . . . . . . . . . . 263
(2) Quasi-Judicial Proceedings . . . . . . . . . . . . . . . . . . . . . 265
(3) Limits of the Judicial Proceedings Privilege . . . . . . . 269
PROBLEM 3-12: THE ACCUSED CATERER . . . . . . . . . . . . . . . . 271
b. Legislative and Executive Branch Absolute Privileges . . . 272
c. Westfall Act and Federal Officers and Employees . . . . . . . 274
d. Other Absolute Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
PROBLEM 3-13: THE BAR ADMISSION APPLICANT . . . . . . . . . . . . 278
4. Qualified Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
a. Privileges of Employers and Employees . . . . . . . . . . . . . . . 280
b. Fair Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
c. Abuse of Qualified Privileges . . . . . . . . . . . . . . . . . . . . . . . . 283
PROBLEM 3-14: THE SUSPECTED PLAGIARIST . . . . . . . . . . . . . . . 285
5. Fair Report Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
PROBLEM 3-15: THE EMPLOYER WHO SUBORNED PERJURY . . . . . . . 292
6. Neutral-Reportage Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
7. SLAPP Laws (Strategic Lawsuits Against Public
Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
8. Statutes of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
a. The Single-Publication Rule . . . . . . . . . . . . . . . . . . . . . . . . 297
(1) Application to Internet Publications . . . . . . . . . . . . . . 297
PROBLEM 3-16: THE NEWSPAPER’S ONLINE ARCHIVE . . . . . . . 300
9. The Libel-Proof Plaintiff Doctrine . . . . . . . . . . . . . . . . . . . . . . . . 301
10. The Employment-at-Will Doctrine . . . . . . . . . . . . . . . . . . . . . . . 303
11. Separation of Church and State . . . . . . . . . . . . . . . . . . . . . . . . . 304
PROBLEM 3-17: THE ERRONEOUSLY DISBARRED ATTORNEY . . . . . . . 304
J. REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
TRADITIONAL RULES AND CONSTITUTIONAL TRANSFORMATION 151
0003 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:54 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
A. TRADITIONAL RULES AND CONSTITUTIONAL
TRANSFORMATION
A Matter of Honor. There may be a few topics in tort law to which people are
indifferent, but defamation is certainly not one of them. People intuitively know
what it means to be defamed, and they react just as viscerally as when they are
defrauded. Indeed, the average person’s emotional reaction to defamation may be
even stronger and more heated than the typical response to fraud. Fraud is
disgusting, but it usually involves only money. Defamation, in contrast, is generally
a matter of honor. The natural inclination of one whose character and good name
have been attacked is to want to hire a lawyer, file a lawsuit, and win vindication in
court. So, it is not surprising that there are more news reports about suits for
defamation (which encompasses the torts of libel and slander1
) than about any other
subject in the expansive field of torts.
Difficult to Win. The fact that there are many defamation claims does not mean
that it is easy for a plaintiff to win. In fact, the reality is quite the contrary. All things
considered, it is extremely hard to prevail in an action for libel or slander. Dozens
of rules conspire to favor defamation defendants. For society as a whole, perhaps
this is a good thing. The difficulty of winning a defamation claim tends to ensure
that speech and press are legally unfettered to a very large extent. However, it also
means that victims of false and defamatory statements are often left without
effective remedies. Suits against the media are particularly challenging. Media
outlets are repeat players in this area of the law. They have a vested interest in
ensuring that adverse precedent is not established and in resisting settlement
demands. Such cases are especially hard-fought because media defendants are
typically represented by experienced counsel who have defended many defamation
claims.
Frustrated Plaintiffs. Not only do defamation plaintiffs typically not win
enforceable money judgments, they also usually get nothing close to a judicial
declaration that the offensive statements were false. Moreover, the cumbersome
path of litigation may prolong the victim’s mental agony for years through round
after endless round of pleadings, discovery requests, meetings with counsel, and
depositions. If a case makes it to trial, the plaintiff is often then subjected to
grueling cross-examination, sometimes intended to show that the plaintiff had such
a bad reputation that, even if an actionably false statement was made, it caused no
damage. Of course, litigation sometimes attracts the attention of the press, and the
present configuration of defamation law means that the media, with relative
impunity, may repeat and circulate even more widely the original defamatory
charges or related embarrassing information. Moreover, in cases where a defamatory
statement is posted on the Internet, it is often actually or virtually impossible
to expunge those libelous assertions.
Claims by Victims of Truth. In some cases, defamation plaintiffs win. For
example, a judge who was defamed by false charges that he told a rape victim to
1
Generally speaking, “libel” is written defamation and “slander” is oral defamation. These topics are
discussed in greater detail in Part B of this chapter.
152 DEFAMATION CH. 3
0004 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:55 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
“get over it,” was awarded more than $2 million.2
Nevertheless, the overall statistics
are sobering for anyone thinking of filing suit. Of course, a libel or slander claim
sometimes has settlement value, even if the true prospects of prevailing in litigation
are dim. It should be remembered that not all defamation plaintiffs are innocent
victims of maliciously uttered falsehoods; some are the casualties of truth.
Defamation law is often a refuge for underperformers, such as employees who are
let go because of lack of productivity, poor skills, or for other legitimate reasons.
Terminated employees frequently allege that they lost their jobs because supervisors
and co-workers defamed them. Crafting business practices to anticipate the
likelihood of defamation claims by unhappy present or former employees is now a
major aspect of good preventative lawyering for all types of institutions. This
includes not only entities in the profit-making sector, but also nonprofit enterprises,
such as private colleges and universities.
The Struggle Over What Is Actionable. The difficulty of prevailing in a
defamation lawsuit does not mean that suits for libel and slander are going away
anytime soon. Persons who believe that they have been wronged by attacks on their
character want justice. In the United States, that often means going to court.
Anglo-American law and its precursors have grappled with the questions of when
and how to compensate victims of defamatory statements at least since the time of
the Roman Empire. Indeed, within the last fifty years, the entire corpus of
American defamation law has been transformed by dedicated efforts to reconcile
common law principles (which often favored plaintiffs) with the demands of the
First Amendment (which often favors defendants). There is no reason to think that
the struggle to “re-form” defamation law will cease in the near future. Indeed, with
the ability to electronically transmit defamatory statements to ever wider audiences,
one might expect an increase in defamation litigation and related tort
jurisprudence.
Reformation by Constitutional Litigation, Not Tort Reform. The type of “tort
reform” legislation which in recent decades has reshaped many areas of tort law,
such as medical malpractice law, rarely addresses the topics of libel and slander.
This is due in part to the fact that many of the requirements of defamation law are
constitutionally mandated by the United States Supreme Court’s interpretation of
the Federal Constitution. The law of defamation has been radically restructured in
the past half century, but virtually all of the major developments have come from
the marble temple that architect Cass Gilbert built at One First Street, N.E., in
Washington, DC, not from state capitols, such as Albany, Harrisburg, Austin, or
Sacramento.
An Immensely Complex and Challenging Field. Today, the American law of
libel and slander is immensely complex. Anyone who likes triple-layered legal
analysis, fraught with razor-edge distinctions, unanswered critical questions, and
legal standards that can be interpreted in a half dozen ways, will be comfortable in
this area of the law. On the other hand, the lawyers who only occasionally “dabble”
in defamation law should be sure to keep their legal malpractice premiums paid. Of
course, many good lawyers who have taken the time to master the law of libel and
slander regard the principles of defamation law as an intellectually challenging
2
See Murphy v. Boston Herald, Inc., 865 N.E.2d 746 (Mass. 2007).
A. TRADITIONAL RULES AND CONSTITUTIONAL TRANSFORMATION 153
0005 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:55 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
labyrinth that calls into action their best lawyering skills. Some of these lawyers
have become recognized as champions of First Amendment principles, particularly
as they apply to the media or the Internet.
The Elements of a Defamation Claim. It makes sense to begin the study of libel
and slander with a quick sketch of the elements of a prima facie case for
defamation. As will soon become apparent, the complexity starts here because the
requirements of a defamation suit are a variable (and occasionally uncertain)
mixture of traditional common law principles and more recently ascendant constitutional
rules.
In general, there must be a (1) defamatory statement of fact, (2) culpably
published by the defendant, (3) who (in many cases) acted with fault as to the falsity
of the statement that (4) caused damages to the plaintiff (which sometimes the
plaintiff must prove and in other cases are “presumed”).3
Three Categories. The third and fourth elements of a defamation claim vary in
their requirements according to the status of the plaintiff and whether the
statement in question relates to a “matter of public concern” or a “matter of private
concern.” Under the United States Supreme Court’s present expression of constitutional
principles, there are ultimately three categories.
(a) Public Officials and Public Figures. First, “public officials” and “public
figures” who are suing with regard to a statement relating to a matter of public
concern, such as their conduct or fitness, have the heaviest burden of proof and must
show that the defendant acted with “actual malice,” meaning knowledge of the
falsity of the defamatory statement or reckless disregard for the truth. It is often
extremely difficult to prove actual malice. If that standard is satisfied, plaintiffs in
this category may recover “presumed damages” and punitive damages in certain
kinds of cases.
(b) Private Persons Suing with Regard to Matters of Public Concern. Second,
“private persons” suing with regard to a matter of public concern must, as a
constitutional requirement, prove at least that the defendant acted negligently as to
the falsity of the statement, although states are free to set the standard of
culpability higher. In the absence of proof of actual malice, presumed damages and
punitive damages may not be recovered, and compensation may be awarded only for
proven actual losses.
(c) Matters of Private Concern. Third, any person suing in regard to a matter
of private concern stands in the most favored category. The Supreme Court has not
yet decided whether these plaintiffs must prove that the defendant was at least
negligent as to the falsity of the defamatory statement — although many states
recognize that requirement. At least so far as constitutional restrictions are
concerned, plaintiffs in the “private concern” category may recover presumed
damages in certain kinds of defamation cases without proof of actual loss.
Proving Falsity, as Well as Fault as to Falsity. Generally speaking, if a plaintiff
must prove that the defendant acted with fault as to the falsity of the defamatory
statement (i.e., negligence or actual malice), the plaintiff must also prove that the
3
Cf. RESTATEMENT (SECOND) OF TORTS § 558 (1977) (listing four elements).
154 DEFAMATION CH. 3
0006 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:55 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
statement was false. Falsity is not presumed. However, there are still some
unanswered questions about whether the old rule — that truth is an affirmative
defense to be pleaded and proved by the defendant — has been entirely jettisoned.
B. LIBEL AND SLANDER
Libel and Slander Distinguished. In general, written defamation is “libel” and
oral defamation is “slander.”4
This distinction is important for two reasons. First,
lawyers and judges use the terms precisely, rather than interchangeably. They do
not speak of a “slanderous article” in the newspaper or a “libelous speech” at a
public meeting. Second, and more importantly, libel and slander are treated
differently with respect to the issue of damages.
At common law, libel was regarded as much more serious than slander. This was
probably due to the fact that the rules emerged at a time when few persons could
read or write. Written defamation was regarded as having special potency with
respect to causing harm. A written defamatory statement was potentially permanent
and it could be handed from person to person in the exact same form. Slander,
in contrast, was evanescent. Presumably, oral defamation would someday be
forgotten. Even before that point was reached, it was likely that any extensive
repetition of oral statements would so transform them that they would become
unrecognizable, or at least undependable. To that extent, it was harder for a
recipient to place credence in repeated oral assertions, and therefore there was less
justification for holding the original speaker accountable.
Libel Per Se and Presumed Damages. At common law, all libel was actionable
per se, which means without proof of damages.5
Damages were presumed to result
from written defamation. A jury could simply look to the nastiness of the
defamatory falsehood and the extent of its dissemination and award a substantial
amount in compensation for presumed losses. If this seems odd, or perhaps even
breath-taking, it is. Nowhere else in all of tort law are presumed compensatory
damages awarded. Plaintiffs must always prove their losses, except in the few cases
in which a nominal award is made to vindicate the plaintiff’s technical right.
Note that some states limited the rule that libel was actionable per se only to
cases in which the libel, on its face, was defamatory of the plaintiff or to certain
types of libelous statements.
Slander Per Se and Presumed Damages. Traditionally, slander was actionable
“per se,” that is, without proof of damages, only if the statement accused the plaintiff
of:
(1) Committing a serious crime;
(2) Having a “loathsome disease”;
(3) Being incompetent or dishonest in practicing a business, trade, or profession;
or
4
See id. § 568.
5
See id. § 569.
B. LIBEL AND SLANDER 155
0007 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:56 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
(4) Being an unchaste woman.6
The “loathsome disease” category was always the slander per se category least
litigated. It covered things such as accusation of leprosy or a venereal disease, and
might today include HIV or AIDS. According to the Restatement, the disease must
be of a lingering or chronic variety to permit an award of presumed damages.7
Thus,
the exception never applied to smallpox, which quickly ran its course.
The other three slander per se categories generated considerable litigation. The
incompetence category is particularly broad when one considers the many varieties
of vocational deficiency, such as lack of knowledge, inadequate skills, poor judgment,
deficient experience, and ignorance of, or disregard for, business or professional
ethics. Today, false charges of sexual harassment in the workplace are
defamatory per se,8
presumably because they fall within this category. In one case
that settled for a large amount, the defendant accused the plaintiff beer distributorship
of selling repackaged, out-of-date beer.9
This was a charge of dishonesty in
business.
The Restatement now says that the unchastity category of slander per se covers
“serious sexual misconduct” by a plaintiff of either sex.10
State statutes sometimes
take the same position. For example, an Illinois statute provides that false charges
of fornication or adultery are actionable.11
Policy Basis of Presumed Damages. “The rationale for presuming damages in
certain defamation actions was that requiring proof of actual reputational harm
would be unfair because ‘the effect of defamatory statements is so subtle and
indirect that it is impossible directly to trace the effects thereof in loss to the person
defamed.’ ”12
Broadcast Defamation in a YouTube World. There is certainly reason to
question whether written defamation is more damaging today than oral statements.
Which is more harmful, a YouTube video that goes viral, or a written entry on a
blog? The Restatement allows the possibility that libel includes not only a written or
printed defamatory statement but “its embodiment in physical form or by any other
form of communication that has the potentially harmful qualities characteristic of
written or printed words.”13
In addition, the Restatement takes the position that
“[b]roadcasting of defamatory matter by means of radio or television is libel,
6
See Lisa R. Pruitt, “On the Chastity of Women All Property in the World Depends”: Injury from
Sexual Slander in the Nineteenth Century, 78 IND. L.J. 965 (2003).
7
RESTATEMENT (SECOND) OF TORTS § 572 cmt. c (1977).
8
See Fox v. Parker, 98 S.W.3d 713, 726 (Tex. App. 2003).
9
See Anheuser-Busch, Maris Family Settle for $120M, NAT’L L.J., Aug. 29, 2005, at 16.
10
RESTATEMENT (SECOND) OF TORTS § 574 (1977).
11
See 740 ILL. COMP. STAT. 145/1 (LEXIS 2009).
12
Kevin P. Allen, The Oddity and Odyssey of “Presumed Damages” in Defamation Actions under
Pennsylvania Law, 42 DUQ. L. REV. 495, 496 (2004) (citing RESTATEMENT (FIRST) OF TORTS § 621 cmt. a
(1938)).
13
RESTATEMENT (SECOND) OF TORTS § 568(1) (1977).
156 DEFAMATION CH. 3
0008 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:56 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
whether or not it is read from a manuscript.”14
However, some states classify
broadcast defamation as slander by statute, presumably as a result of lobbying on
behalf of radio and television networks and stations.15
It remains to be seen whether
the law will treat videos on the Internet as libel or slander. The comments posted
on YouTube are presumably libel.
Presumed Damages Today. As discussed later, the Constitution prohibits an
award of presumed damages in a case involving a matter of public concern absent
proof of “actual malice.” There are no constitutional restrictions on presumed
damages in cases involving matters of private concern,16
but some states have
departed from the traditional common law rules.
The “Special Damages” Requirement. In cases where libel or slander was not
actionable per se (without proof of damages), it was necessary for the plaintiff to
prove that the defamation caused special damages of a pecuniary or economic
nature.17
Notably, “special damages” did not include emotional distress. For
example, in an old New York case, Terwilliger v. Wands,18
the plaintiff was orally
accused of beating a path to the neighbor-lady’s house for the purpose of engaging
in sex with her while her husband was in prison. The only injury the plaintiff proved
was that he was so upset that he could not attend to business; there was no evidence
that anyone had treated him differently. The court affirmed a judgment for the
defendant because the slander did not fall within the four per se categories and
there was no proof of special damages. If the suit had been brought by a woman, or
if the accusation had been made in writing, there would have been no need to prove
special damages.
Although cases still say that a plaintiff must prove that a statement that is not
actionable per se caused damage, modern constitutional precedent recognizes that
states are free to allow compensation for emotional distress as a variety of actual
loss.
C. WHAT STATEMENTS ARE DEFAMATORY?
1. Disgrace Is Essential
Defamation Defined. Defamation is defined largely by reference to how others
will act in response to a statement. A statement is defamatory if it tends to harm
the plaintiff’s reputation and diminish the respect, goodwill, confidence, or esteem
in which the plaintiff is held by members of the community or deter others from
associating or dealing with the plaintiff.19
According to a much-repeated definition,
a defamatory utterance is one which holds the plaintiff up to scorn, hatred, ridicule,
or contempt. Thus, if a law book publisher identifies two law professors as the
14
Id. § 568A.
15
See RODNEY A. SMOLLA, 1 LAW OF DEFAMATION § 1:14 (2008).
16
See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
17
RESTATEMENT (SECOND) OF TORTS § 575 cmt. b (1977).
18
17 N.Y. 54 (1858).
19
See RESTATEMENT (SECOND) OF TORTS § 559 (1977).
C. WHAT STATEMENTS ARE DEFAMATORY? 157
0009 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:56 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
authors of a poorly researched update to their treatise, they may sue for
defamation.20
The same is true if the plaintiff is falsely accused of “being a thief
and distributing cocaine”21
or if the wife of a former congressman is accused of
verbally attacking her husband’s intern.22
Disgrace or Discredit. It is essential that the allegedly defamatory statement
carry with it the sting of disgrace or discredit. Saying that a judge accepts bribes
is defamatory; saying that the judge is overly-intellectual is not. An article calling
a Democrat a Republican is not actionable, but one asserting that a Democrat is a
member of Al-Qaeda can form the basis for a libel lawsuit.
Judge and Jury. It is for the judge to determine in the first instance whether a
statement could be understood as defamatory. Then, if reasonable minds could
differ, it is for the jury to determine whether the plaintiff was in fact defamed.
In Damon v. Moore,23
a serviceman, who was seriously injured in Iraq and lost
parts of both arms, was pictured for sixteen seconds in an anti-war documentary by
producer Michael Moore. The serviceman alleged that the documentary was an
attack on the integrity of the Commander-in-Chief and that the serviceman’s
unwitting appearance in the film defamed him by portraying him as sharing,
adopting, and endorsing the filmmaker’s views. The First Circuit held that the
district court properly dismissed the complaint because no one could possibly have
viewed the plaintiff as being disloyal to the United States. The court noted that in
the sixteen-second segment the plaintiff spoke exclusively about the pain he was
suffering and the efficacy of his pain treatment, and that the plaintiff was only one
of “approximately fifty individuals whose interviews were taken out of their
original packaging and inserted into the documentary in order to further Moore’s
message.”24
Many of those persons, including the President, Vice-President, and
Secretary of Defense, presumably, disagreed with the film’s message.
Homosexuality. In Stern v. Cosby,25
a federal court in New York held that
calling someone a homosexual is not defamation per se (meaning, in this context,
defamatory as a matter of law). As stated by the court:
The New York Court of Appeals . . . has never held that a statement
imputing homosexuality constitutes defamation per se. Accordingly, this
Court must predict what New York’s highest court would do were the issue
before it. . . .
. . . [W]hether a statement is defamatory per se can evolve from one
generation to the next.26
20
See Rudovsky v. West Publ’g Corp., 2009 U.S. Dist. LEXIS 47352 (E.D. Pa. 2009).
21
Integrated Sec. Solutions, LLC v. Sec. Tech. Sys., LLC, 2007 Conn. Super. LEXIS 2397 (Conn.
Super. Ct. 2007).
22
See Condit v. Nat’l Enquirer, Inc., 248 F. Supp. 2d 945, 948 (E.D. Cal. 2002).
23
520 F.3d 98 (1st Cir. 2008).
24
Id. at 106.
25
2009 U.S. Dist. LEXIS 70912 (S.D.N.Y. 2009).
26
[n.8] It is, for example, unlikely that the New York Court of Appeals would today hold that it is
libelous per se to state that a white man is “colored” or a “negro,” but that is precisely what the Court
158 DEFAMATION CH. 3
0010 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:56 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
The question . . . is whether the New York Court of Appeals, in 2009,
would hold that a statement imputing homosexuality connotes the same
degree of “shame, obloquy, contumely, odium, contempt, ridicule, aversion,
ostracism, degradation or disgrace,” . . . as statements accusing someone
of serious criminal conduct, impugning a person in his or her trade or
profession, implying that a person has a “loathsome disease,” or imputing
unchastity to a woman. I conclude that it would not.
The past few decades have seen a veritable sea change in social attitudes
about homosexuality. First, and perhaps most importantly, in 2003 the
United States Supreme Court, in a sweeping decision, invalidated laws
criminalizing intimate homosexual conduct, holding that such laws violate
the Fourteenth Amendment’s Due Process Clause. Lawrence v. Texas, 539
U.S. 558, 578 (2003). Thus, to the extent that courts previously relied on the
criminality of homosexual conduct in holding that a statement imputing
homosexuality subjects a person to contempt and ridicule, . . . Lawrence
has foreclosed such reliance.
Second, in 2009, the “current of contemporary public opinion” does not
support the notion that New Yorkers view gays and lesbians as shameful or
odious. A movement is currently afoot in the state to legalize gay
marriage, . . . and according to a recent opinion poll from Quinnipiac
University . . . New York State residents support gay marriage 51 to 41
percent, with 8 percent undecided. . . . The same poll found that New
York State residents support civil unions 68 to 25 percent. . . .
Finally, the New York Court of Appeals has not, in its most recent
opinion touching on social attitudes toward homosexuality, given any
indication that it perceives widespread disapproval of homosexuality in
New York. In Hernandez v. Robles, a majority of the Court of Appeals
rejected the argument that the New York Constitution compels recognition
of same-sex marriage. 7 N.Y.3d 338, 356 (2006). The plurality opinion
clearly recognized, however, that social attitudes toward gay and lesbian
New Yorkers had changed dramatically in the past few years, . . . and that
the New York legislature could permit same-sex marriage if it chose
to. . . . The Court of Appeals’ opinion in Hernandez is simply inconsistent
with the notion that gays and lesbians are the subject of scorn and disgrace.
Judge McMahon, in 2008, considered this issue and reached the opposite
conclusion. See Gallo v. Alitalia-Linee Aeree Italiane-Societa Per Azioni,
585 F. Supp. 2d 520, 549–50 (S.D.N.Y. 2008). Her carefully-considered
decision was based largely on the fact that prejudice still exists against
gays and lesbians in our society. . . . While I certainly agree that gays and
lesbians continue to face prejudice, I respectfully disagree that the
existence of this continued prejudice leads to the conclusion that there is a
widespread view of gays and lesbians as contemptible and disgraceful. . . .
Thus, I hold that Statements 1 and 2 are not defamatory per se merely
because they impute homosexuality to Stern. They are, however, nonetheheld
in 1926. See Sydney v. MacFadden Newspaper Publ’g Corp., 242 N.Y. 208, 213–14 (1926).
C. WHAT STATEMENTS ARE DEFAMATORY? 159
0011 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:56 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
less susceptible to a defamatory meaning. Therefore, a jury will decide
whether they are defamatory.
Statement 1 alleges that Stern engaged in a sexual act with Birkhead at
a party. . . . A reasonable jury could find that engaging in oral sex at a
party is shameful or contemptible, and the fact that this conduct may not
be illegal does not alter this conclusion. . . . Moreover, it also appears
from the record that, at the time this alleged incident took place in 2005
. . . , Smith was dating Birkhead and/or still involved in a relationship with
Stern. . . . Thus, to the extent that the Statement implies that Stern was
unfaithful to Smith, this would be further reason for a jury to find that the
Statement is defamatory.
Statement 2 alleges that Stern made a sex tape with Birkhead. This
allegation would expose Stern to contempt among most people — even if,
arguably, not among the social circles in which he and Smith traveled. . . .
. . . . Accordingly, Stern will have to prove special damages as to each
of these Statements.27
2. Defamatory in Whose Eyes?
In Damon v. Moore, supra, the plaintiff argued that, in determining whether his
depiction in the documentary was defamatory, the facts had to be viewed not from
the perspective of a reasonable person, but through the eyes of his military
brethren. The court did not find this point critical for it concluded that “there . . .
[was] no reason to believe that a reasonable member of the military or veteran
community would conclude that Damon’s appearance in the documentary conveyed
a defamatory meaning.”28
Nevertheless, the underlying point is important. In
whose eyes must the plaintiff be defamed? The eyes of “right-thinking” people?
“Reasonable” people? A majority of people?
Any Considerable and Respectable Segment of the Community. In Grant v.
Reader’s Digest Association,29
Judge Learned Hand addressed this question. In
that case, the defendant had published a statement implying that the plaintiff was
a Communist sympathizer. An action was stated because some persons, not clearly
irresponsibly, would have thought less of the plaintiff as a result of the statement.
In an opinion for the Second Circuit, Judge Hand wrote:
A man may value his reputation even among those who do not embrace the
prevailing moral standards; and it would seem that the jury should be
allowed to appraise how far he should be indemnified for the disesteem of
such persons. . . . That is the usual rule. Peck v. Tribune Co., . . . [214
U.S. 185 (1909)]; Restatement of Torts, § 559. . . . [T]he opinions at times
seem to make it a condition that to be actionable the words must be such
as would so affect “right-thinking people” . . . and it is fairly plain that
there must come a point where that is true. As was said in Mawe v. Piggot,
27
2009 U.S. Dist. LEXIS 70912, at *9-12 (S.D.N.Y.).
28
520 F.3d at 108.
29
151 F.2d 733 (2d Cir. 1945).
160 DEFAMATION CH. 3
0012 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:57 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Irish Rep. 4 Comm. Law, 54, 62, among those “who were themselves
criminal or sympathized with crime,” it would expose one “to great odium
to represent him as an informer or prosecutor or otherwise aiding in the
detection of crime”; yet certainly the words would not be actionable. Be
that as it may, in New York if the exception covers more than such a case,
it does not go far enough to excuse the utterance at bar. Katapodis v.
Brooklyn Spectator, Inc., . . . [38 N.E.2d 112 (N.Y. 1941)], held that the
imputation of extreme poverty might be actionable; although certainly
“right-thinking” people ought not shun, or despise, or otherwise condemn
one because he is poor. . . . We do not believe, therefore, that we need say
whether “right-thinking” people would harbor similar feelings toward a
lawyer, because he had been an agent for the Communist Party, or was a
sympathizer with its aims and means. It is enough if there be some, as there
certainly are, who would feel so, even though they would be “wrongthinking”
people if they did. . . .”30
Suits Based on Literally True Statements. Note that in Grant, the statement
at issue was literally true: the lawyer has served as a legislative agent for the
Communist party. What was allegedly false and defamatory was the implied
innuendo that the lawyer was a Communist sympathizer. Actions for libel and
slander can be based on literally true statements. However, it is often hard to
convince a jury that there was an implied defamatory assertion that meets all of the
requirements of a cause of action.
3. Rules of Construction
Courts invoke various rules of construction in determining whether a particular
statement is or is not defamatory.
The “Whole Publication” Rule. It is often said that a defamatory writing must
be read as a whole and that a particular phrase will not be viewed in isolation.
Sometimes this means that a statement, which by itself might seem to be
defamatory, is not actionable. For example, in James v. Gannett Co., Inc.,31
the
New York Court of Appeals held that a statement that a belly dancer sold her time
to lonely old men was not libelous in light of other statements that she did so just
to sit with them, to be nice to them, and to talk. Similarly, in Treutler v. Meredith
Corp., the Eighth Circuit found that a statement that a political candidate’s
company was charged with selling obscene books was not actionable because other
statements explained that the charges were false.32
Conversely, sometimes an apparently innocent statement takes on a defamatory
connotation in light of other parts of the text or conversation. Thus, in LaBozzo v.
Brooks Bros., Inc.,33
a New York trial court wrote:
30
Id. at 734–35.
31
353 N.E.2d 834 (N.Y. 1976).
32
455 F.2d 255 (8th Cir. 1972).
33
2002 NY Slip Op 40222U, 1 (N.Y. Sup. Ct. 2002).
C. WHAT STATEMENTS ARE DEFAMATORY? 161
0013 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:57 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
[S]tatements to the effect that the plaintiff was incompetent and unprofessional
might, if taken alone, be protected as pure [nonactionable] opinion.
However, in the context of his charges that plaintiff had been billing Brooks
for hours during which she was either not working at all or was working for
other clients, they are tantamount to an accusation that plaintiff was
stealing from her employer.34
Headlines and Illustrations. There is an important question as to how
attention-grabbing parts of an article, such as headlines and illustrations, should be
treated.35
Some courts have gone to great lengths to ensure that the whole
publication is considered in determining whether the plaintiff has been defamed.
For example, in Ross v. Columbia Newspapers, Inc.,36
the South Carolina Supreme
Court found that an erroneous headline, which asserted that the plaintiff was a
suspect in the death of his wife, was rendered innocuous by the last sentence of the
article which said that the wife was in serious condition in the hospital.
A more practical approach is to say that bold face type deserves greater weight
than fine print in determining whether someone has been defamed. Many persons
read only the headlines and never consider every part of an article.
For example, Kaelin v. Globe Communications Corp.37
was a case related to the
saga of former sports star O.J. Simpson. After Simpson was acquitted of the murder
of his wife, a tabloid ran a story saying that the police were considering charging
Kato Kaelin, a witness in the trial, with perjury. The headline screamed “Cops
Think Kato Did It!”; a clarifying article was buried on page 17. The court held that
Kaelin’s defamation claim could go forward. As the court explained, “headlines are
not . . . liability-free zones.”38
There was evidence that the publisher had acted with
“actual malice” because an editor admitted at a deposition that he was concerned
that the headline “did not accurately reflect the content of the article.”39
“Mitior Sensus” and the Innocent Construction Rule. In an effort to cope with
an avalanche of slander lawsuits in the sixteenth and seventeenth centuries, English
courts adopted the doctrine of “mitior sensus,” under which statements were to be
construed in the more lenient sense. Thus, calling someone a forger was not
actionable because the term could simply mean that the plaintiff was a metalworker.
This doctrine effectively closed the courthouse doors to a wide range of
cases.
The doctrine of mitior sensus is now rejected in England, and never had much
impact in the United States. However, there are some decisions that seem to be
jurisprudentially related. For example, in Liberty Mutual Fire Insurance Co. v.
34
Id. at *10–11.
35
See generally Joseph H. King, Jr., Defining the Internal Context for Communications Containing
Allegedly Defamatory Headline Language, 71 U. CIN. L. REV. 863 (2003).
36
221 S.E.2d 770 (S.C. 1976).
37
162 F.3d 1036 (9th Cir. 1998).
38
Id. at 1040.
39
Id. at 1037.
162 DEFAMATION CH. 3
0014 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:57 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
O’Keefe,40
an attorney representing a client in a suit against an insurance company
placed an advertisement for evidence which stated: “If anyone has any information
regarding Liberty Mutual Fire Insurance Company’s delay or failure to pay claims
or losses, please contact the undersigned.” The Wisconsin Court of Appeals held
that the ad was not defamatory as a matter of law because “there are many
legitimate reasons why an insurance company would not immediately pay all
claims.”41
More importantly, Illinois sometimes follows what is called the “innocent
construction rule,” with respect to which there is a great deal of precedent. Under
this rule, “words allegedly libelous that are capable of being read innocently must
be so read and declared nonactionable as a matter of law.”42
For example, in Rasky
v. Columbia Broadcasting System, Inc.,43
the Illinois Appellate Court used
dictionary definitions of “landlord” and “slum” to hold that calling someone a
“slumlord” might have meant only that he was the landlord of a building located in
a part of town that is a slum, and was therefore not actionable.
In Lott v. Levitt,44
an author sued for defamation based on a statement in the
best-selling book Freakonomics, which asserted that other scholars had been
unable to replicate the results of his crime study. The author argued that the
statement implied that he had falsified his results. After a detailed consideration of
the word “replicate,” the court dismissed the claim. It found that “the far more
reasonable construction of the disputed sentence . . . is an innocent one, that other
scholars — using separate data, statistical analyses, and research — have attempted
to arrive at the same results as Lott, but have come to different
conclusions,” and that the sentence in question was “reasonably capable of several
innocent, nondefamatory constructions.”45
Some cases say that the Illinois innocent construction rule does not apply to
cases where “a plaintiff not only must allege extrinsic facts to prove the defamatory
nature of the statement but also must plead and must prove special damages.”46
However, a detailed exploration of the Illinois innocent construction rule is beyond
the scope of this book. Two things must be remembered. First, if one is litigating a
defamation case to which Illinois law applies, it is essential to research the current
interpretation of this special doctrine which differs greatly from principles applicable
under the law of most other states. Second, care needs to be exercised in citing
Illinois defamation precedent dealing with the issue of how potentially defamatory
language should be construed.
40
556 N.W.2d 133, 134 (Wis. Ct. App. 1996).
41
Id. at 135.
42
John v. Tribune Co., 181 N.E.2d 105 (Ill. 1962).
43
431 N.E.2d 1055 (Ill. App. Ct. 1981).
44
469 F. Supp. 2d 575 (N.D. Ill. 2007).
45
Id. at 583.
46
Fedders Corp. v. Elite Classics, 279 F. Supp. 2d 965, 970 (S.D. Ill. 2003).
C. WHAT STATEMENTS ARE DEFAMATORY? 163
0015 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:58 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
4. Pleading Extrinsic Facts to Prove Defamation
Libel Per Se Versus Libel Per Quod. If a written statement, by it own terms,
clearly defames the plaintiff, it is sometimes called libel per se. For example, an
article charging that “John Smith stole money from the cash register” is libelous
per se.
(Note that this is the third way in which the term per se has been used in this
chapter. Sometimes per se means that a defamatory statement is actionable
without proof of special damages and that presumed damages may be recovered.
Sometimes per se means that there is no doubt that a statement is defamatory and
that the question is decided by the court as a matter of law and not by the jury as
a matter of fact. And sometimes per se means that a statement clearly refers to and
defames the plaintiff. Thus, whenever someone says that something is defamatory
per se, it is important to analyze or inquire into the meaning of the term per se.)
Colloquium, Inducement, and Innuendo. If it is necessary to plead additional
facts to show that a written statement defames the plaintiff, it is libelous per quod.
Thus, it may be necessary to plead facts establishing “colloquium” (that the
statement referred to the plaintiff), “inducement” (the predicate for the
defamatory meaning), or “innuendo” (the defamatory charge). Consider the words
“He’s dating Alexandra.” On its face, the statement might seem to be innocent.
However, if “he” refers to Claudius (colloquium), and if Claudius is a Roman
Catholic priest (inducement), the statement implies that Claudius is a religious
hypocrite (innuendo).
State law typically imposes strict pleading requirements on a plaintiff’s suing
with respect to statements that are not defamatory on their face.
PROBLEM 3-1: THE TEENAGE SEX EPIDEMIC
Gerard and Nanette Pasteur were shocked with disbelief when they opened the
Sunday magazine section of their newspaper and found that a picture of their
daughter Claudette had been used to illustrate an article on “The Teenage Sex
Epidemic.”
The cover of the magazine section included a reference to the article. It said
“Wild and Sexually Loose Teens at Edgewood High. Page 8.”
The article, which ran from pages 8 to 13, began with a double-page spread. The
initial page of the article was entirely taken up by a photo of two girls and three
boys. One the girls was Claudette. The photo showed the teens dressed in formal
attire. It must have been taken at the high school’s spring dance. Claudette was
standing closest to the camera, so she was the largest figure in the picture. She was
clearly visible and identifiable, although neither she nor any of the other students
were named.
On the facing page (page 9), there were two headlines, both in large font. The
largest headline said “Teens ‘Hook Up’ Frequently.” The second headline read
“They May Know More About Sex Than Their Parents.” Below the headlines,
which dominated the page, were two paragraphs of text. At the bottom of the page
was the author’s byline. And below that, in font smaller than the fonts used for the
164 DEFAMATION CH. 3
0016 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:58 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
article’s text or the byline, were two more sentences which read:
The photos on these pages were taken by award-winning photojournalist
Amadeo Carette as part of a documentary project on “Contemporary
Teens,” which will be aired on PBS this coming winter. The individuals
pictured are unrelated to the people or events described in the story.
The remaining pages of the article laid out anecdotal and statistical evidence
indicating that teens today are much more sexually active than even a decade ago.
The article explained that “hook up” is a flexible term that could refer to kissing or
any of several kinds of sex. The article suggested that one of the most significant
reasons that teens today are more sexually active is that parents, especially in
two-income families, devote insufficient time to supervision of their children.
Upon being questioned by her parents, Claudette denied having had sex with the
other students pictured in the article or anyone else for that matter.
Gerard and Nanette Pasteur and their daughter have asked whether you will
represent them in a defamation suit against the newspaper. They believe that the
article has caused serious harm to Claudette’s reputation, and that it has also
defamed her parents, both of whom are working professionals who are well-known
in the community. Please prepare an analysis of whether the article constitutes a
defamatory statement about each of the three potential plaintiffs. Also identify
other issues that you anticipate being significant factors if a lawsuit is filed.
D. FALSITY REQUIREMENT
1. Assertion of Fact
A statement is not actionable under the law of libel or slander unless it includes
a provably false assertion of defamatory fact. The landmark case is Milkovich v.
Lorain Journal Co.47
a. Milkovich v. Lorain Journal Co.
Alleged Lies About a Wrestling Match. Describing the facts of the Milkovich
dispute, Chief Justice William H. Rehnquist wrote:
. . . . Petitioner Milkovich, now retired, was the wrestling coach at
Maple Heights High School. . . . [H]is team was involved in an altercation
at a home wrestling match with a team from Mentor High School. Several
people were injured. In response to the incident, the Ohio High School
Athletic Association (OHSAA) held a hearing at which Milkovich and H.
Don Scott, the Superintendent of Maple Heights Public Schools, testified.
Following the hearing, OHSAA placed the Maple Heights team on probation
for a year. . . . Thereafter, several parents and wrestlers sued
OHSAA in the Court of Common Pleas of Franklin County, Ohio, seeking
a restraining order against OHSAA’s ruling. . . . Both Milkovich and
47
497 U.S. 1 (1990).
D. FALSITY REQUIREMENT 165
0017 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:58 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Scott testified in that proceeding. The court overturned OHSAA’s probation
and ineligibility orders on due process grounds.
The day after the court rendered its decision, respondent Diadiun’s
column appeared in the News-Herald. . . . The column bore the heading
“Maple beat the law with the ‘big lie,’ ” beneath which appeared Diadiun’s
photograph and the words “TD Says.” The carryover page headline
announced “. . . Diadiun says Maple told a lie.” The column contained the
following passages:
. . . a lesson was learned (or relearned) yesterday by the student body
of Maple Heights High School, and by anyone who attended the
Maple-Mentor wrestling meet of last Feb. 8.
A lesson which, sadly, in view of the events of the past year, is well
they learned early.
It is simply this: If you get in a jam, lie your way out.
If you’re successful enough, and powerful enough, and can sound
sincere enough, you stand an excellent chance of making the lie stand up,
regardless of what really happened.
. . . .
Anyone who attended the meet, whether he be from Maple Heights,
Mentor, or impartial observer, knows in his heart that Milkovich and
Scott lied at the hearing after each having given his solemn oath to tell
the truth.
But they got away with it.
Is that the kind of lesson we want our young people learning from
their high school administrators and coaches?
I think not . . .48
. . . . 49
The Rulings of the Ohio Courts. Milkovich commenced a defamation action
against respondents in the county court, alleging that the column accused him of
committing the crime of perjury, damaged him in his occupation of teacher and
coach, and constituted libel per se. Ultimately, the trial court granted summary
judgment for respondents. The Ohio Court of Appeals affirmed, considering itself
bound by the state Supreme Court’s determination in Superintendent Scott’s
separate action against respondents that, as a matter law, the article was a
48
[n.2] [The entire text of the article was set forth. The article included this passage:]
. . . .
I was among the 2,000-plus witnesses of the meet at which the trouble broke out, and I also
attended the hearing before the OHSAA, so I was in a unique position of being the only
non-involved party to observe both the meet itself and the Milkovich-Scott version presented
to the board.
Any resemblance between the two occurrences is purely coincidental.
. . . .
49
497 U.S. at 3–5.
166 DEFAMATION CH. 3
0018 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:59 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
constitutionally protected expression of opinion.
The Scott court decided that the proper analysis for determining
whether utterances are fact or opinion was set forth in the decision of the
United States Court of Appeals for the D.C. Circuit in Ollman v. Evans,
[750 F.2d 970 (1984)]. . . . Under that analysis, four factors are considered
to ascertain whether, under the “totality of circumstances,” a statement is
fact or opinion. These factors are: (1) “the specific language used”; (2)
“whether the statement is verifiable”; (3) “the general context of the
statement”; and (4) “the broader context in which the statement appeared.”.
. . . The court found that application of the first two factors to
the column militated in favor of deeming the challenged passages actionable
assertions of fact. . . . That potential outcome was trumped, however,
by the court’s consideration of the third and fourth factors. With respect to
the third factor, the general context, the court explained that “the large
caption ‘TD Says’ . . . would indicate to even the most gullible reader that
the article was, in fact, opinion.”. . . . As for the fourth factor, the
“broader context,” the court reasoned that because the article appeared on
a sports page — “a traditional haven for cajoling, invective, and hyperbole”
— the article would probably be construed as opinion. . . . 50
Defamatory Opinions at Common Law and Fair Comment. Turning to the
development of the common law of defamation, Chief Justice Rehnquist explained:
Defamation law developed not only as a means of allowing an individual to
vindicate his good name, but also for the purpose of obtaining redress for
harm caused by such statements. . . . As the common law developed in
this country, apart from the issue of damages, one usually needed only
allege an unprivileged publication of false and defamatory matter to state
a cause of action for defamation. . . . The common law generally did not
place any additional restrictions on the type of statement that could be
actionable. Indeed, defamatory communications were deemed actionable
regardless of whether they were deemed to be statements of fact or
opinion. . . .
However, due to concerns that unduly burdensome defamation laws
could stifle valuable public debate, the privilege of “fair comment” was
incorporated into the common law as an affirmative defense to an action for
defamation. “The principle of ‘fair comment’ afforded legal immunity for
the honest expression of opinion on matters of legitimate public interest
when based upon a true or privileged statement of fact.”. . . . As this
statement implies, comment was generally privileged when it concerned a
matter of public concern, was upon true or privileged facts, represented the
actual opinion of the speaker, and was not made solely for the purpose of
causing harm. . . . Thus under the common law, the privilege of “fair
comment” was the device employed to strike the appropriate balance
between the need for vigorous public discourse and the need to redress
50
Id. at 8–9.
D. FALSITY REQUIREMENT 167
0019 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:59 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
injury to citizens wrought by invidious or irresponsible speech.51
Constitutional Protection of Hyperbole and Satire. Rehnquist then turned to
the Supreme Court’s earlier decisions in defamation cases. He discussed its
holdings in New York Times Co. v. Sullivan,52
Curtis Publishing Co. v. Butts,53
Rosenbloom v. Metromedia, Inc.,54
and Gertz v. Robert Welch, Inc.,55
which, as
discussed later in this chapter, preclude the imposition of strict liability for false
defamatory statements in a wide range of contexts.
Still later, in Philadelphia Newspapers, Inc. v. Hepps, . . . [475 U.S. 767
(1986)], we held that “the common-law presumption that defamatory
speech is false cannot stand when a plaintiff seeks damages against a media
defendant for speech of public concern.”. . . . In other words, the Court
fashioned “a constitutional requirement that the plaintiff bear the burden
of showing falsity, as well as fault, before recovering damages.”. . . .
We have also recognized constitutional limits on the type of speech which
may be the subject of state defamation actions. In Greenbelt Cooperative
Publishing Assn., Inc. v. Bresler, . . . [398 U.S. 6 (1970)], a real estate
developer had engaged in negotiations with a local city council for a zoning
variance on certain of his land, while simultaneously negotiating with the
city on other land the city wished to purchase from him. A local newspaper
published certain articles stating that some people had characterized the
developer’s negotiating position as “blackmail,” and the developer sued for
libel. Rejecting a contention that liability could be premised on the notion
that the word “blackmail” implied the developer had committed the actual
crime of blackmail, we held that “the imposition of liability on such a basis
was constitutionally impermissible — that as a matter of constitutional law,
the word ‘blackmail’ in these circumstances was not slander when spoken,
and not libel when reported in the Greenbelt News Review.”. . . . Noting
that the published reports “were accurate and full,” the Court reasoned
that “even the most careless reader must have perceived that the word was
no more than rhetorical hyperbole, a vigorous epithet used by those who
considered [the developer’s] negotiating position extremely unreasonable.”.
. . . See also Hustler Magazine, Inc. v. Falwell, . . . [485 U.S. 46,
50 (1988)] (First Amendment precluded recovery under state emotional
distress action for ad parody which “could not reasonably have been
interpreted as stating actual facts about the public figure involved”); Letter
Carriers v. Austin, . . . [418 U.S. 264, 284–286 (1974)] (use of the word
“traitor” in literary definition of a union “scab” not basis for a defamation
action under federal labor law since used “in a loose, figurative sense” and
was “merely rhetorical hyperbole, a lusty and imaginative expression of the
contempt felt by union members”).
51
Id. at 12–14.
52
376 U.S. 254 (1964).
53
388 U.S. 130 (1967).
54
403 U.S. 29 (1971).
55
418 U.S. 323 (1974).
168 DEFAMATION CH. 3
0020 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:59 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
The Court has also determined “that in cases raising First Amendment
issues . . . an appellate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that ‘the judgment
does not constitute a forbidden intrusion on the field of free expression.’
”. . . .
Respondents would have us recognize, in addition to the established
safeguards discussed above, still another First Amendment-based protection
for defamatory statements which are categorized as “opinion” as
opposed to “fact.” For this proposition they rely principally on the following
dictum from our opinion in Gertz:
Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction
not on the conscience of judges and juries but on the competition of other
ideas. But there is no constitutional value in false statements of
fact. . . .
Judge Friendly appropriately observed that this passage “has become the
opening salvo in all arguments for protection from defamation actions on
the ground of opinion, even though the case did not remotely concern the
question.” Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (CA2
1980). . . .
. . . [W]e do not think this passage from Gertz was intended to create a
wholesale defamation exemption for anything that might be labeled “opinion.”.
. . . Not only would such an interpretation be contrary to the tenor
and context of the passage, but it would also ignore the fact that
expressions of “opinion” may often imply an assertion of objective fact.56
No Special Protection for Opinions That Imply False Facts. Rehnquist then
explored the subject of implicit statements of fact:
If a speaker says, “In my opinion John Jones is a liar,” he implies a
knowledge of facts which lead to the conclusion that Jones told an untruth.
Even if the speaker states the facts upon which he bases his opinion, if
those facts are either incorrect or incomplete, or if his assessment of them
is erroneous, the statement may still imply a false assertion of fact. Simply
couching such statements in terms of opinion does not dispel these
implications; and the statement, “In my opinion Jones is a liar,” can cause
as much damage to reputation as the statement, “Jones is a liar.” As Judge
Friendly aptly stated: “[It] would be destructive of the law of libel if a
writer could escape liability for accusations of [defamatory conduct] simply
by using, explicitly or implicitly, the words ‘I think.’ ”. . . .
. . . . [Appellants] contend that in every defamation case the First
Amendment mandates an inquiry into whether a statement is “opinion” or
“fact,” and that only the latter statements may be actionable. They propose
that a number of factors developed by the lower courts (in what we hold was
a mistaken reliance on the Gertz dictum) be considered in deciding which is
56
497 U.S. at 16–18.
D. FALSITY REQUIREMENT 169
0021 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:59 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
which. But we think the “breathing space” which “freedoms of expression
require in order to survive,” . . . is adequately secured by existing
constitutional doctrine without the creation of an artificial dichotomy
between “opinion” and fact.
Foremost, we think Hepps stands for the proposition that a statement on
matters of public concern must be provable as false before there can be
liability under state defamation law, at least in situations, like the present,
where a media defendant is involved. Thus, unlike the statement, “In my
opinion Mayor Jones is a liar,” the statement, “In my opinion Mayor Jones
shows his abysmal ignorance by accepting the teachings of Marx and
Lenin,” would not be actionable. Hepps ensures that a statement of opinion
relating to matters of public concern which does not contain a provably
false factual connotation will receive full constitutional protection.57
Next, the Bresler-Letter Carriers-Falwell line of cases provides protection
for statements that cannot “reasonably [be] interpreted as stating
actual facts” about an individual. . . . This provides assurance that public
debate will not suffer for lack of “imaginative expression” or the “rhetorical
hyperbole” which has traditionally added much to the discourse of our
Nation. . . .
The New York Times-Butts-Gertz culpability requirements further
ensure that debate on public issues remains “uninhibited, robust, and
wide-open.”. . . . Thus, where a statement of “opinion” on a matter of
public concern reasonably implies false and defamatory facts regarding
public figures or officials, those individuals must show that such statements
were made with knowledge of their false implications or with reckless
disregard of their truth. Similarly, where such a statement involves a
private figure on a matter of public concern, a plaintiff must show that the
false connotations were made with some level of fault as required by
Gertz. . . .
We are not persuaded that . . . an additional separate constitutional
privilege for “opinion” is required to ensure the freedom of expression
guaranteed by the First Amendment. . . . 58
An Implied Assertion That the Coach Perjured Himself. Turning back to the
facts of Milkovich dispute, Rehnquist explained:
The dispositive question . . . then becomes whether or not a reasonable
factfinder could conclude that the statements in the Diadiun column imply
an assertion that petitioner Milkovich perjured himself in a judicial
proceeding. We think this question must be answered in the affirmative. As
the Ohio Supreme Court itself observed: “the clear impact in some nine
sentences and a caption is that [Milkovich] ‘lied at the hearing after . . .
having given his solemn oath to tell the truth.’ ”. . . . This is not the sort
of loose, figurative or hyperbolic language which would negate the impres-
57
[n.7] We note that the issue of falsity relates to the defamatory facts implied by a statement. . . .
58
497 U.S. at 18–21.
170 DEFAMATION CH. 3
0022 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:59 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
sion that the writer was seriously maintaining petitioner committed the
crime of perjury. Nor does the general tenor of the article negate this
impression.
We also think the connotation that petitioner committed perjury is
sufficiently factual to be susceptible of being proved true or false. A
determination of whether petitioner lied in this instance can be made on a
core of objective evidence by comparing, inter alia, petitioner’s testimony
before the OHSAA board with his subsequent testimony before the trial
court. As the Scott court noted regarding the plaintiff in that case:
“Whether or not H. Don Scott did indeed perjure himself is certainly
verifiable by a perjury action with evidence adduced from the transcripts
and witnesses present at the hearing. Unlike a subjective assertion the
averred defamatory language is an articulation of an objectively verifiable
event.”. . . . So too with petitioner Milkovich.59
The judgment of the Ohio Court of Appeals was reversed and the case remanded
for further proceedings. Chief Justice Rehnquist’s opinion was joined by six other
justices (White, Blackmun, Stevens, O’Connor, Scalia, and Kennedy, JJ.).
Brennan and Marshall Dissent. Justice Thurgood Marshall joined the dissenting
opinion of Justice William J. Brennan, Jr., which stated:
Diadiun’s assumption that Milkovich must have lied at the court hearing is
patently conjecture. The majority finds Diadiun’s statements actionable,
however, because it concludes that these statements imply a factual
assertion that Milkovich perjured himself at the judicial proceeding. I
disagree. Diadiun not only reveals the facts upon which he is relying but he
makes it clear at which point he runs out of facts and is simply guessing.
Read in context, the statements cannot reasonably be interpreted as
implying such an assertion as fact. . . . 60
b. Applying Milkovich
Triable Issues of Fact. Statements of opinion have been found to raise triable
issues with respect to whether they implied false facts in cases where the host of a
call-in talk show repeatedly accused a judge of being “corrupt”;61
a professional
organization’s directory described an attorney as an “ambulance chaser”;62
a
supervisor stated that “he had reason to believe” that the plaintiff had sabotaged a
computer;63
and a work labeled “fiction” characterized the plaintiff as a “slut.”64
In Williams v. Garraghty,65
an employee alleged that a prison warden was
59
Id. at 21–22.
60
Id. at 28.
61
See Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).
62
See Flamm v. American Ass’n of Univ. Women, 201 F.3d 144 (2d Cir. 2000).
63
See Staples v. Bangor Hydro-Elec. Co., 629 A.2d 601 (Me. 1993).
64
See Bryson v. News Am. Pubs., Inc., 672 N.E.2d 1207 (Ill. 1996).
65
455 S.E.2d 209, 215 (Va. 1995).
D. FALSITY REQUIREMENT 171
0023 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:20:59 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
guilty of sexual harassment. Rejecting the argument that the statements were
constitutionally protected expressions of opinion, the Virginia Supreme Court
found that supporting statements in the memorandum, relating to an alleged
incident at the plaintiff’s house and certain “derogatory notes,” were clearly factual
in nature, and therefore could serve as the basis for a defamation lawsuit.
Opinions Incapable of Implying False Facts. Opinions which have been found
to be incapable of implying false facts include statements calling a union’s attorney
“a very poor lawyer”;66
a scholar a “crank” for having taken a “wrongheaded”
position;67
and the chairman of an election board a “lying asshole.”68
In Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc.,69
a defamation
dispute between competing retailers arising from an advertisement, the Supreme
Court of Illinois wrote:
The gist of the ad, taken as a whole, is simply this: plaintiffs copied Cosmo’s
“3 for 1” sale idea, plaintiffs were wrong to do so and should stop, and while
most customers realize the difference between the companies offering the
sales, those who might not should not be deceived — you get more for your
money in Cosmo’s 3 for 1 sale. To be sure, the language Cosmo’s used to
convey these concepts was unflattering. The ad employed terms such as
“rags,” “flea market style warehouse,” “dried cream cheese,” “low rent,”
and “a hooker’s come on.” It also likened plaintiffs to the Iraqi Information
Minister and claimed they “inflate prices and compromise quality.” In our
view, however, these are merely subjective characterizations lacking precise
and readily understood meaning. In the context of discount clothing
sales, no reasonable person would regard them as anything other than
colorful hyperbole aimed at capturing the reader’s interest and attention.70
Unverifiable Assertions. Some opinions are found to be nonactionable because
they imply nothing that could be verified. For example, in Seelig v. Infinity
Broadcasting Corp.,71
the California Court of Appeal held that the terms “chicken
butt,” “local loser,” and “big shank” were too vague to be capable of being proven
true or false. Similar conclusions have been reached with respect to nonspecific
allegations that a person was “cheating the city”72
or a “crook.”73
In Jefferson County School District v. Moody’s Investor’s Services, Inc.,74
a
school district’s bond offering did well at first, but then turned sour after Moody’s
published an article saying that the outlook on the district’s obligation debt was
“negative” and that the district was under “ongoing financial pressures” because of
66
See Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998).
67
See Dilworth v. Dudley, 75 F.3d 307, 311 (7th Cir. 1996).
68
See Greenhalgh v. Casey, 67 F.3d 299 (6th Cir. 1995).
69
882 N.E.2d 1011 (Ill. 2008).
70
Id. at 1023–24.
71
119 Cal. Rptr. 2d 108 (Ct. App. 2002).
72
See Schivarelli v. CBS, Inc., 776 N.E.2d 693, 699 (Ill. App. Ct. 2002).
73
See Dubinsky v. United Airlines Master Exec. Coun., 708 N.E.2d 441 (Ill. App. Ct. 1999).
74
175 F.3d 848 (10th Cir. 1999).
172 DEFAMATION CH. 3
0024 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:00 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
state underfunding. Consequently, the district was forced to re-offer the bonds at a
higher interest rate, which caused a significant financial loss. The Tenth Circuit held
that the vagueness of the phrases “negative outlook” and “ongoing financial
pressures” rendered them protected expressions of opinion.
In Palestine Herald-Press Co. v. Zimmer,75
the Texas Court of Appeals held that
a sports editor’s statement that a coach made an obscene gesture was not
actionable. The court explained:
Tyler’s statement that the gesture Zimmer made with his arms was
“obscene,” without further description, is subjective and indefinite. The
answer to the question of whether something is “obscene” varies from state
to state, from community to community, and from person to person.
. . . It is an individual judgment that rests solely in the eye of the
beholder and, as such, is not an objectively verifiable statement of
fact. . . . 76
Postings on Internet Bulletin Boards. In Mathis v. Cannon,77
the Supreme
Court of Georgia found that three inflammatory messages posted on an Internet
bulletin board fell short of the constitutional fact requirement that is a prerequisite
to a defamation cause of action. One of the messages read:
cannon a crook
by: duelly41
hey cannon why u got fired from calton company? ? ? ? why does cannon
and lt governor mark taylor think that crisp county needs to be dumping
ground of the south? ? ? u be busted man crawl under a rock and hide
cannon and poole!!! if u deal with cannon u a crook too!!!!!!! so stay out of
crisp county and we thank u for it78
Disposing of the claim, the court wrote:
Although the messages accused Cannon of being a crook and a thief and
asked why he had been fired from a specific company, these accusations
were made as part of the ongoing debate about the garbage disposal
dispute in Crisp County. . . . [A]ny person reading the postings on the
message board — written entirely in lower case replete with question
marks, exclamation points, misspellings, abbreviations, and dashes — could
not reasonably interpret the incoherent messages as stating actual facts
about Cannon, but would interpret them as the late night rhetorical
outbursts of an angry and frustrated person opposed to the company’s
hauling of other people’s garbage into the county.79
While such electronic venting is sometimes not actionable, that does not prevent
75
257 S.W.3d 504 (Tex. App. 2008).
76
Id. at 512.
77
573 S.E.2d 376 (Ga. 2002).
78
Id. at 379.
79
Id. at 383.
D. FALSITY REQUIREMENT 173
0025 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:00 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
lawsuits from being filed. National Law Journal reported that a Chicago woman’s
Tweet (“Who said sleeping in a moldy apartment was bad for you? Horizon realty
thinks it’s OK”), triggered a $50,000 claim for defamation of business reputation.80
Attempted Humor and the Importance of Context. In Knievel v. ESPN,81
the
Ninth Circuit held that statements made in an attempt at humor were not
actionable. Describing the facts, the court wrote:
Famed motorcycle stuntman Evel Knievel and his wife Krystal were
photographed when they attended ESPN’s Action Sports and Music
Awards in 2001. The photograph depicted Evel, who was wearing a
motorcycle jacket and rose-tinted sunglasses, with his right arm around
Krystal and his left arm around another young woman. ESPN published
the photograph on its “extreme sports” website with a caption that read
“Evel Knievel proves that you’re never too old to be a pimp.” The Knievels
brought suit against ESPN . . . contending that the photograph and
caption were defamatory because they accused Evel of soliciting prostitution
and implied that Krystal was a prostitute.82
In affirming dismissal of the action, the court stated:
ESPN argued . . . that viewers accessing the website could not help but to
see at least some of the surrounding web pages in order to view the
photograph and caption that the Knievels allege to be defamatory.
. . . [W]e found that in order to access the photograph, one must first
view, at minimum, the nine photographs that precede it and the EXPN.com
home page. . . .
Our first inquiry is into the “broad context” of the statement, which
includes “the general tenor of the entire work, the subject of the statements,
the setting, and the format of the work.”. . . . The district court
found, and we agree, that the content of the EXPN.com main page is
lighthearted, jocular, and intended for a youthful audience. . . . The page
directs the viewer to “[c]heck out what the rockstars and prom queens were
wearing,” and offers a “behind the scenes look at all the cool kids,
EXPN-style.” Most importantly, however, we observe that the page
features slang phrases such as “[d]udes rollin’ deep” and “[k]ickin’ it with
much flavor,” neither of which is susceptible to a literal interpretation. . . .
Next, we examine the “specific context and content of the statements,
analyzing the extent of figurative or hyperbolic language used and the
reasonable expectations of the audience in that particular situation.”.
. . . The web pages immediately preceding and following the Knievel
photo use slang words such as “hardcore” and “scoping,” and slang phrases
such as “throwing down a pose,” “put a few back,” and “hottie of the year,”
none of which is intended to be interpreted literally. . . .
80
Tresa Baldas, Putting the “Twit” in Twitter, NAT’L L.J., Aug. 17, 2009, at 3.
81
393 F.3d 1068 (9th Cir. 2005).
82
Id. at 1070.
174 DEFAMATION CH. 3
0026 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:00 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
. . . [E]ven if a viewer had interpreted the word “pimp” literally, he or
she would have certainly interpreted the photograph and caption, in the
context in which they were published, as an attempt at humor. . . . [N]o
reasonable reader would interpret the photograph of the Knievels as a
serious allegation of criminal wrongdoing.
We acknowledge . . . that taken in isolation and given a literal interpretation,
ESPN’s suggestion that Evel is a pimp is “sufficiently factual to be
susceptible of being proved true or false.”. . . . But we assess the meaning
of the word in the context in which it was used. Because the caption cannot
reasonably be interpreted literally in this context, the fact that its literal
interpretation could be proven true or false is immaterial.
The Knievels correctly point out that the fact that a statement is an
attempt at humor does not immunize the speaker against liability for
defamation. . . .
. . . . Read in the context of the satirical, risque, and sophomoric slang
found on the rest of the site, the word “pimp” cannot be reasonably
interpreted as a criminal accusation.83
Application to Torts Other Than Libel and Slander. The excerpts from
Milkovich set forth above in the text briefly mention Hustler Magazine v. Falwell.84
Falwell stands for the proposition that it is not possible to circumvent the false fact
requirement of a defamation action by framing the claim as a suit for intentional
infliction of emotional distress. In Falwell, an obscene parody, which was presented
as fiction, depicted the plaintiff, a well-known minister, as engaging in an incestuous
rendezvous in an out-house. The idea was so outlandish that few readers could have
believed that it had actually taken place. A jury denied recovery on the plaintiff’s
libel claim, finding that the parody could not be taken as describing facts, but it
awarded him damages for intentional infliction of emotional distress. Relying on
defamation precedent, the Supreme Court reversed. It ruled that the First
Amendment interest in uninhibited debate on public issues precludes a public figure
from recovering against a publisher for intentional infliction of emotional distress,
unless the publication contained a false statement of fact made with knowledge of
its falsity or reckless disregard for its truth.
PROBLEM 3-2: THE EX-GOVERNOR’S DIVORCE
In August 2009, numerous news sources reported that Sarah and Todd Palin
were getting a divorce. A few days earlier, Sarah Palin, the 2008 Republican vice
presidential candidate, had resigned the governorship of Alaska. According to an
article in Alaska Report, Palin’s lawyer threatened to sue the owner of the “highly
trafficked ‘ImmoralMinority’ blog” unless he removed an offending article about
the supposed divorce and posted a retraction. According to the article, the plan was
to serve libel action papers on the blog owner at a kindergarten. Is saying that
someone is getting a divorce actionable under the law of defamation?
83
Id. at 1076–79.
84
485 U.S. 46 (1988).
D. FALSITY REQUIREMENT 175
0027 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:00 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
2. Defamation Based on Conduct
Some defamation suits are based on conduct, rather than on written or spoken
words. For example, in Tyler v. Macks Stores of S.C., Inc.,85
the South Carolina
Supreme Court found that a cause of action was stated where the defendant
allegedly discharged an employee immediately following a polygraph test.
Likewise, in Morrison v. National Broadcasting Co.,86
the New York Court of
Appeals allowed an action where an unwitting plaintiff had been duped into being
a contestant on a rigged television game show.
Difficulty in Ascertaining the Factual Assertion. Certain courts have declined
to recognize a suit for libel or slander based solely on conduct. For example, in
Bolton v. Department of Human Services,87
a former employee brought an action
for defamation based on his former supervisor’s accompanying the employee to the
exit door, without a spoken word, immediately following the employee’s discharge.
The Minnesota Supreme Court concluded, as a matter of law, that the plaintiff had
not been defamed, stating that:
In most other states that have allowed an action for defamation by conduct,
the behavior has tended to rise to the level of “dramatic pantomime”: that
is, an interplay of words and conduct that provide a clearly discernible
account of the making of a false statement about the aggrieved to a third
party.88
The Bolton court appears to have been influenced by the fact that even in a
defamation suit based on conduct, it is necessary to prove a false statement of fact.
The court noted the heightened difficulty in a defamatory conduct case of applying
applicable legal tests in a suit based on a communication “that can be interpreted
by the declarant to have one meaning but to have quite a different one to the
recipient.”89
3. Substantial Truth
An action will not lie if an allegedly defamatory statement is true or
substantially true. For example, in the movie Bowling for Columbine, producer
Michael Moore said that “Terry and James [Nichols] were both arrested in
connection to the bombing”90
of the Oklahoma City federal building. In fact, James
was neither charged nor arrested regarding the Oklahoma City bombing. Although
he was later indicted for possession of unregistered firearms, he “was arrested only
days after the bombing and his arrest was brought about by the FBI’s
investigation into Timothy McVeigh’s and Terry Nichols’s roles in the bombing.”91
85
272 S.E.2d 633 (S.C. 1980).
86
227 N.E.2d 572 (N.Y. 1967).
87
540 N.W.2d 523, 525–26 (Minn. 1995).
88
Id. at 525.
89
Id.
90
Nichols v. Moore, 477 F.3d 396, 398 (6th Cir. 2007).
91
Id. at 401.
176 DEFAMATION CH. 3
0028 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:01 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Nevertheless, in Nichols v. Moore, the Sixth Circuit concluded that a defamation
action by James was barred because Moore’s statement was substantially true.92
Similarly, in Alleman v. Vermilion Publishing Corp.,93
a “letter to the editor”
charged that the plaintiff doctor had refused to see the defendants’ child because
the child was the patient of another doctor. In fact, the doctor might have said that
he refused to provide treatment because another doctor had been called and was
on his way to the hospital. No one could remember exactly what was said. The
court held that the published statement was a substantially accurate reflection of
the events which took place — namely that the doctor had refused to provide
services to an injured child — and that therefore no action would lie.
Other cases have reached essentially the same conclusion without using the
term “substantial truth.” Thus, in Sykes v. Hengel,94
the board of managers of a
limited liability corporation issued a memorandum detailing why the corporation
was in bad shape financially and indicating that the chief executive officer had been
replaced. The memorandum stated in part that “[t]his action . . . was deemed
necessary because of a series of key operational and management deficiencies that
have occurred over the course of the last 12 to 15 months.”95
A federal court in
Iowa ruled that the dismissed CEO failed to state a cause of action for defamation.
Observing that the facts about the corporation’s financial plight were true, the
court wrote:
Stripped of innuendo, the Memorandum does not state anything defamatory
about Sykes. . . . While a businessperson may feel bruised by
statements suggesting business failure on his watch, accurate statements of
the condition of the company during that period do not support a cause of
action on this theory of liability.96
The “Gist” of the Statement. Whether a statement is “substantially true”
depends upon whether the “gist” of the statement is accurate. For example, in
Gustafson v. City of Austin,97
the Texas Court of Appeals held that an e-mailed
statement was not actionable. The gist of what was said (namely, that a CPR
teacher was no longer a valid heart association CPR instructor and his instructor
status had been officially revoked by the association) was not substantially worse
than the literal truth (namely, that the teacher was no longer a valid heart
association CPR instructor, and while he could still teach CPR courses, the courses
were not sanctioned by the heart association).
Greater Opprobrium or Sting. In assessing substantial truth, some courts ask
whether the truth would have carried less sting or less opprobrium than the false
statement. Under this standard, saying that the plaintiff, while drunk, hit and killed
92
Id. at 402.
93
316 So. 2d 837 (La. Ct. App. 1975).
94
394 F. Supp. 2d 1062 (S.D. Iowa 2005).
95
Id. at 1068.
96
Id. at 1075.
97
110 S.W.3d 652 (Tex. App. 2003).
D. FALSITY REQUIREMENT 177
0029 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:01 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
a pedestrian is probably not actionable if the plaintiff, while drunk, struck and killed
a motorist.
In UTV of San Antonio, Inc. v. Ardmore, Inc.,98
the Texas Court of Appeals held
that a statement that an inspector had found roaches at a daycare center during a
follow-up inspection was not more damaging than would have been true of an
accurate statement that the inspector had noted allegations by staff members of
roaches on a cup, a crockpot, and a counter, but that no roaches were found on the
day of a specific inspection.
Minor Details. Minor details are often irrelevant. It is probably not actionable
to say inaccurately that a person stole a red purse, rather than a blue one, or that
the person swindled a customer on the sale of a new Ford, rather than on the sale
of a new Chevy. In the former case, the gist of the statement is that the actor stole
a purse, and the color of the purse has nothing to do with how the person is viewed
by others. In the latter case, the gist of the statement is that a customer was
swindled while purchasing a new car. The truth about the make of the car is
probably irrelevant to the sting or opprobrium that attaches to the statement.
Note, however, that a different result might be reached if the plaintiff is falsely
charged with stealing something last week, when the theft actually occurred ten
years earlier. Recent misconduct often carries a higher degree of opprobrium than
a relatively ancient infraction of the same nature.
Specific Allegations Versus General Allegations. Some charges are specific and
others are general. If specific allegations are made, then the focus of the substantial
truth inquiry is clear. The question is whether the person did what was charged or
something very similar. If the answer to those questions is no, it makes little
difference that the person committed other bad acts on different occasions.
A speaker who alleges that a teacher accepted a bribe from a student in exchange
for a passing grade does not establish substantial truth by proving that the teacher
submitted fraudulent invoices to the school for reimbursement of travel expenses.
However, proof of other bad acts may be allowed into evidence as bearing upon the
plaintiff’s reputation and how much it has been damaged by the defendant’s false
allegations.
Guccione v. Hustler Magazine, Inc.99
involved a charge that was general, rather
than specific. The plaintiff was accused of participating in an ongoing adulterous
relationship. In fact, the plaintiff had lived in adultery for thirteen of the preceding
seventeen years, but the adultery had ceased when his wife divorced him. The court
held that the statement could not be read to mean that the marriage and the
cohabitation had existed simultaneously for only a moment or brief interval prior to
the publication. Rather, the only reasonable construction of the statement was that
the marriage and cohabitation had existed simultaneously throughout an undefined
span of time that included the period immediately prior to publication. The facts
showed this to be substantially true, because the plaintiff’s adultery had continued
over the course of many years. Because the published statement would not have had
98
82 S.W.3d 609 (Tex. App. 2002).
99
800 F.2d 298 (2d Cir. 1986).
178 DEFAMATION CH. 3
0030 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:02 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
a worse effect on the mind of the reader than the truth pertinent to the allegation,
the complaint failed to state a claim as a matter of law.
Excusing Inaccuracies. Some cases have been generous in excusing inaccuracies.
For example, in Steele v. Spokesman-Review,100
the Idaho Supreme Court held
that statements in an article, which alleged that an attorney had relocated from
California to Idaho at about the same time as members of a white supremacist
group, were substantially true, even though two years separated their moves. In
Swindall v. Cox Enterprises, Inc.,101
the Georgia Court of Appeals found that an
editorial’s assertion that a former Congressman had “lied about drug-money
laundering” was substantially true, even though he had only been convicted of
concealing from a grand jury his involvement in discussions about money laundering.
And, in Provencio v. Paradigm Media, Inc.,102
the Texas Court of Appeals held
that a postcard identifying the plaintiff as a registered sex offender was substantially
true, even though the card bore a misleading return address implying that it
had been sent by the government rather than by a news organization.
Technically Inaccurate Terminology. Courts routinely make allowances for the
use of technically inaccurate lay terminology.103
In Rouch v. Enquirer & News of
Battle Creek, Michigan,104
the Supreme Court of Michigan found that an article
using the word “charge” to describe an arrest and booking was not defamatory, even
though no formal arraignment had occurred. In Rosen v. Capital City Press,105
the
Louisiana Court of Appeal excused the incorrect use of term “narcotics” to
encompass depressants and stimulants.
E. COLLOQUIUM REQUIREMENT: “OF AND
CONCERNING THE PLAINTIFF”
A plaintiff can sue for libel or slander only if the allegedly defamatory statement
refers to the plaintiff. Thus, cases often say that the defamation must be “of and
concerning the plaintiff.”
In Prince v. Out Publishing Inc.,106
a magazine published an article which
referred to illegal drug use and unsafe sex and included photographs of the plaintiff
and others at “circuit parties.” The court held that the plaintiff failed to satisfy the
“of and concerning” requirement, reasoning:
The photographs published in the Article establish that there were many
people at the party. In addition, the text refers to parties attended by
thousands of people. There is nothing in the text of the Article to suggest
100
61 P.3d 606 (Idaho 2002).
101
558 S.E.2d 788 (Ga. Ct. App. 2002).
102
44 S.W.3d 677 (Tex. App. 2001).
103
See RESTATEMENT (SECOND) OF TORTS § 581A cmt. f (1977).
104
487 N.W.2d 205 (Mich. 1992).
105
314 So. 2d 511 (La. Ct. App. 1975).
106
2002 Cal. App. Unpub. LEXIS 5189.
E. COLLOQUIUM REQUIREMENT: “OF & CONCERNING THE PLAINTIFF” 179
0031 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:02 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
that the general statements about illegal drug use and unsafe sex apply to
plaintiff.107
1. Group Defamation
Does a defamatory statement referring to a group (e.g., doctors, Democrats, or
alumni of a university) defame some or all of the individuals associated with the
group? In many instances, the answer is no, for there is little reason to think that
the defamatory innuendo harmed particular individuals. Thus, an assertion that
members of Congress cheat on their taxes does not entitle every member of the
House of Representatives to sue.
Size of Group, Inclusiveness of Language, Special Circumstances. It is
impossible to state a definite rule for group defamation. In each case, it is
important to consider the circumstances surrounding the statement, such as the
size of the group, the inclusiveness of the language (e.g., “one,” “some,” “many,”
“most,” “all,” “every single one”), and special circumstances (e.g., whether the
plaintiff was the only member of the defamed group who was present or whether
the defendant looked directly at the plaintiff while making the statement).
Naturally, the smaller the group, the more inclusive the language, and the more
focused the charge, the easier it is to allow a member of the group to state a cause
of action. Defamation of a group with more than twenty-five members has rarely
been found to be actionable by members of the group. However, there is no magic
to that number.
In Neiman-Marcus v. Lait,108
defamatory statements were made charging that:
(1) “some” of the models at a particular store were call girls; (2) “the salesgirls”
were less expensive and “not as snooty as the models”; and (3) “[m]ost of” the male
sales staff were homosexuals. The plaintiffs in the suit were all nine of the store’s
models, 15 of its 25 salesmen, and 30 of its 382 saleswomen. The plaintiffs who were
models and salesmen belonged to relatively small groups. Despite the fact that the
language referring to them was not all-inclusive, the statements reflected upon
them sufficiently that each model and salesman was permitted to sue. None of the
salesgirls stated a cause of action because they belonged to a very large group and
there were no special circumstances singling out members of that group.
In Diaz v. NBC Universal, Inc.,109
the Second Circuit addressed similar issues
relating to group defamation. The court wrote:
Appellants filed the complaint on behalf of . . . approximately 400
present and former special agents of the federal DEA who were employed
. . . during the period from 1973 through 1985. They alleged . . . that a
legend . . . appearing at the end of the feature film American Gangster
. . . which both describes itself as based on a true story and as a
fictionalized version of events, defamed Diaz, Korniloff, and Toal, and all
members of their putative class. The legend . . . stated that the “collabo-
107
Id. at *20.
108
13 F.R.D. 311 (S.D.N.Y. 1952).
109
2009 U.S. App. LEXIS 15653 (2d Cir.).
180 DEFAMATION CH. 3
0032 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:02 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
ration” of Richard Roberts, a New Jersey police officer, and Frank Lucas,
a major narcotics trafficker in the New York City area, “led to the
convictions of three quarters of New York City’s Drug Enforcement
Agency.”
. . . . Under the group libel doctrine, a plaintiff’s claim is insufficient if
the allegedly defamatory statement referenced the plaintiff solely as a
member of a group, unless the plaintiff can show that the circumstances of
the publication reasonably give rise to the conclusion that there is a
particular reference to the plaintiff. . . .
Appellants cannot make this showing. . . . [W]e first note that the
“group” defined by the Legend is New York City’s DEA in its entirety.
. . . In view of the large size of this group (consisting of 400 individuals,
or even potentially 233, as appellants characterized the group postcomplaint),
and that the Legend makes reference only to three-quarters of
the group, i.e., “some” of its members, appellants’ claim is incapable of
supporting a jury’s finding that the allegedly libelous statements refer to
them as individuals. . . . And the storyline of the Film only strengthens
this conclusion since several scenes, vignettes, and voiceovers describe the
corrupt officers portrayed as members of the Special Investigations Unit
(the “SIU”), which the Film indicates . . . is a unit of the New York City
Police Department (the “NYPD”), a non-federal entity.110
In Harvest House Publishers v. Local Church,111
the Texas Court of Appeals
wrote:
Under the group libel doctrine, a plaintiff has no cause of action for a
defamatory statement directed to some or less than all of the group when
there is nothing to single out the plaintiff. . . . Wright v. Rosenbaum, 344
S.W.2d 228, 231–33 (Tex. Civ. App. — Houston 1961, no writ) (holding that
statement that “one of the four ladies” stole dress, but not naming guilty
person, was not slanderous of any particular person); Bull v. Collins, 54
S.W.2d 870, 871–72 (Tex. Civ. App. — Eastland 1932, no writ) (holding that
statement that either A or B stole the money, without specifying guilty
party, not slanderous); Harris v. Santa Fe Townsite Co., 58 Tex. Civ. App.
506, 125 S.W. 77, 80 (1910, writ ref’d) (holding that statement that an
unnamed “band of nine women” from South Silsbee cut a fence was not
libelous because 15 women lived in South Silsbee).112
The Harvest House Publishers suit was based on a book which included the plaintiff
church in a list of 50 “cults.” The court rejected the plaintiff’s defamation claim
stating:
[W]e cannot conclude that a reasonable reader could believe that all groups
named in the book participate in the criminal activities that plaintiffs claim
as the basis of their libel action. No reasonable reader could conclude that
110
Id. at *2–4.
111
190 S.W.3d 204 (Tex. App. 2006).
112
Id. at 213.
E. COLLOQUIUM REQUIREMENT: “OF & CONCERNING THE PLAINTIFF” 181
0033 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:02 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
the book accuses the church, and, in fact, every other church named in the
book, of rape, murder, child molestation, drug smuggling, etc. As such, the
allegedly libelous statements in the Introduction are not “of and concerning
the church” and are not actionable.113
2. Fictional Portrayals
Plaintiffs sometimes argue that they were the basis of a fictionalized portrayal
which defamed them. In these kinds of cases, the question is simply whether the
defamatory depiction could reasonably be understood as referring to the plaintiff.
Labeling something as “fiction” does not necessarily mean that it is not actionable.
For example, in Muzikowski v. Paramount Pictures Corp.,114
the Seventh
Circuit held that a Little League baseball coach stated a claim for defamation
based on the movie “Hardball” starring Keanu Reeves. Although the character had
a different name, there were many similarities. Unlike the plaintiff, the character
committed theft and lied about being a licensed securities broker.
Similarly, in Bindrim v. Mitchell,115
a psychologist who conducted nude group
therapy sessions claimed that he was the basis for a character in a novel who
conducted the same type of sessions, and that he was defamed by the unflattering
rendering of that character. Because the evidence conflicted on the question of
whether the plaintiff and the character were the same person, the California Court
of Appeal held that the issue was properly for the jury. An award to the plaintiff
was upheld, perhaps because the evidence showed that the author of the novel had
been a participant in the plaintiff’s sessions.
Unbelievable Fiction. What saves many fiction writers from liability for
defamation is the false-fact requirement (see Part D of this chapter). If the
demeaning portrayal is so fantastic that it would not be believed, it may be
impossible to establish that there was a provably false assertion of fact.
In Pring v. Penthouse International, Ltd.,116
a real Miss Wyoming brought a
suit based on a story about a fictional Miss Wyoming which described certain
sexual activities. The court reversed a multi-million-dollar award to the plaintiff on
the ground that the work, which described unbelievable events (e.g., oral sex
resulting in levitation), was a complete fantasy and could not possibly be
understood as a statement of fact.
3. Institutional Plaintiffs
Business Reputation. A corporation or other business enterprise can be
defamed with respect to its institutional characteristics, such as credit worthiness,
efficiency, honesty, or fairness to customers. Thus, a manufacturer’s allegations
113
Id. at 214.
114
322 F.3d 918 (7th Cir. 2003).
115
155 Cal. Rptr. 29 (Ct. App. 1979).
116
695 F.2d 438 (10th Cir. 1982).
182 DEFAMATION CH. 3
0034 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:03 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
that a competitor pirated its designs may give the competitor a claim for
defamation.117
So, too, it is actionable to state falsely that a business has filed for
bankruptcy.118
Direct Defamatory Innuendo. To be actionable, a statement must directly
reflect on the institutional character of the plaintiff. Thus, in Fairyland
Amusement Co. v. Metromedia, Inc.,119
a federal court in Missouri held that a
news report that there were increasing numbers of rapes in certain neighborhoods,
did not defame an amusement park located in one of those areas. The court
explained:
A mere report of immoral or illegal activities “in and around” the premises
cannot be fairly interpreted to mean that the business either negligently or
purposefully encourages or acquiesces in such conduct. . . . [The report]
did not cast any aspersion on the integrity or manner in which the
corporate plaintiffs conduct their business. It did not suggest, for example,
that they were insolvent, . . . that they were cheating their customers,
. . . or that they were guilty of racial discrimination.120
Indirect Defamatory Innuendo. Statements about persons sometimes reflect
adversely on the entities with which they are associated, and vice versa. In general,
“words written about a corporate officer give no right of action to the corporation
unless spoken or written in direct relation to the trade or business of the
corporation.”121
Similarly, statements about an institutional entity do not defame its
officers, directors, or employees, unless there is reason to conclude that the
defamatory innuendo directly reflects on the performance and competence of such
persons.
Yale University was sued for $50 million in a federal court in Connecticut by
Dongguk University of Korea. Apparently, Yale had erroneously confirmed that a
job applicant at Dongguk had a degree fromYale, then revoked that assurance when
the Korean applicant became the center of a huge public scandal in Korea. Dongguk
alleged that as a result of the initial false statement, it was publicly humiliated and
deeply shamed based on its involvement with the person at the center of the
scandal.122
In this kind of case, one might logically ask whether the action should
fail because there was no statement “of and concerning” the plaintiff (Dongguk
University), but only a statement about someone else.
117
See Fedders Corp. v. Elite Classics, 279 F. Supp. 2d 965, 970–71 (S.D. Ill. 2003).
118
See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
119
413 F. Supp. 1290, 1295 (W.D. Mo. 1976).
120
Id. at 1294–95.
121
Palm Springs Tennis Club v. Rangel, 86 Cal. Rptr. 2d 73, 77 (Cal. Ct. App. 1999).
122
See Kang Shin-who, Dongguk Files Suit Against Yale, KOREA TIMES, Mar. 26, 2008.
E. COLLOQUIUM REQUIREMENT: “OF & CONCERNING THE PLAINTIFF” 183
0035 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:03 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
4. Criticism of Ideas
It is difficult to prove that criticism of an idea amounts to defamation of a person
who holds or advocates the idea. For example, in Ezrailson v. Rohrich,123
the Texas
Court of Appeals held that a medical research article, which criticized the creative
research ideas behind a test relating to breast implant leakage, was not capable of
a defamatory meaning as a matter of law. The court further explained that the
author of the criticized article could not maintain a libel action because the
defendant’s article discussed the medical research test in question, rather than the
plaintiff personally.
Of course, imputing an idea to a person may be defamatory, if subscription to
the idea carries with it the sting of disgrace. Labeling someone a Holocaust-denier
might be actionable; stating that a person is an environmentalist is not actionable.
5. Defamation of the Dead
Defamation of the dead does not allow the decedent’s estate to sue for libel or
slander. Moreover, courts are reluctant to find that statements about deceased
family members say something defamatory about the character of survivors.
For example, in Rose v. Daily Mirror, Inc.,124
a newspaper article stated
erroneously that the decedent, the father or husband of the plaintiffs, was “Baldy
Jack Rose,” a “self-confessed murderer who had ‘lived in constant fear that
emissaries of the underworld . . . would catch up with him and execute gang
vengeance.’ ”125
The plaintiffs were named by the article as the decedent’s
survivors, but nothing else was said about them. The New York Court of Appeals
rejected the plaintiffs’ claims for libel because “a libel or slander upon the memory
of a deceased person which makes no direct reflection upon his relatives gives them
no cause of action for defamation.”126
6. Unintended Reference to the Plaintiff
There are some cases which hold that unintended reference to the plaintiff is
sufficient to satisfy the colloquium requirement. For example, in Allied Marketing
Group, Inc. v. Paramount Pictures Corp.,127
the television program aired a
segment about a sweepstakes scam. According to the opinion of the Texas Court of
Appeals:
Paramount intended to use a fictional company name in connection with
the . . . segment and thought that “Sweepstakes Clearing House” was a
fictional name. However, unknown to Paramount, Allied had been using the
name “Sweepstakes Clearinghouse” since 1984 in connection with a direct
mail offer business. . . .
123
65 S.W.3d 373 (Tex. App. 2001).
124
31 N.E.2d 182 (N.Y. 1940).
125
Id. at 182.
126
Id.
127
111 S.W.3d 168 (Tex. App. 2003).
184 DEFAMATION CH. 3
0036 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:03 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
The court found that the program’s segment on sweepstakes scams, which was
not an obvious work of fiction, was “of and concerning” the sweepstakes company
for purposes of a defamation action. Persons who knew the plaintiff could have
concluded that the defamatory matter referred to the plaintiff. The show’s fictional
company name was identical to that of the real company, which was actually in the
business of conducting sweepstakes contests. Moreover, one of the plaintiff’s
contests was very similar to the show’s “scam” sweepstakes. The program segment
did not indicate to viewers that the show’s fictional company did not exist. The court
concluded that “[b]ecause the test is based on the reasonable understanding of the
viewer of the publication, it is not necessary for the plaintiff to prove that the
defendant intended to refer to the plaintiff.” Note, however, that while the court
found that the colloquium requirement was satisfied, a plaintiff in this type of action
may have difficulty establishing that the defendant acted with the requisite degree
of fault as to the falsity of the defamatory statement. See Part G of this chapter.
PROBLEM 3-3: THE POOR BAR PASS RATE
The graduates of William Howard Taft School of Law have had trouble passing
the state bar examination for many years. Despite the best efforts of the dean and
law faculty, the school’s passing rate for first-time test takers has hovered at
roughly 40%, far behind the typical statewide average of 82%. Dean Alf Tilden, now
in his fourth year as head of the school, has made improving bar passage the
primary goal of his administration. All of the resources of the law school have been
mobilized for the purpose of ensuring that graduates of Taft pass the bar on the
first attempt in numbers exceeding the statewide average. By outlining a
persuasive ten-point plan, Dean Tilden convinced many of the school’s alumni to
support his efforts with donations to a scholarship fund that help to ensure that
students can focus on their studies and have the money they need to enroll in bar
review courses between graduation and taking the bar.
When the results of the July bar examination were released, they showed that
Taft graduates had made progress. The 100 first-time test takers from Taft passed
the bar examination at a rate of 49%. The test results were not great, but they were
a step in the right direction. However, when the local newspaper published an
article about the bar results, it got some of the numbers wrong. The article said
that 89% of all test takers had passed; in fact, the number was 82%. The article also
said that only 34% of Taft graduates had passed the examination, rather than 49%.
Who, if anyone, has been defamed by the erroneous report of the July bar results?
F. PUBLICATION
Communication to One Person Who Understands. In the law of defamation,
“publication” is a legal term of art. It has nothing in particular to do with rolling the
printing presses or preparing a manuscript for sale at Borders or Barnes & Noble.
Rather, it simply denotes communication of defamatory matter to a third person
(other than the plaintiff) who understands. Thus, whispering in the ear of a friend,
sending a text message, or posting a note on a public bulletin board can legally
constitute publication.
F. PUBLICATION 185
0037 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:03 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
There is a quaint old case that nicely illustrates what publication means. In
Economopoulos v. A. G. Pollard Co.,128
when one clerk accused the plaintiff in
English of stealing a handkerchief, no one was present. When a second clerk made
a similar accusation in Greek, the persons present (other than the plaintiff) did not
understand Greek. The Supreme Judicial Court of Massachusetts held that no
cause of action for defamation was stated because of lack of publication.
Communication solely to the plaintiff does not constitute an actionable publication
because libel and slander are mainly concerned with the loss of esteem and
regard in the eyes of others. However, in extreme cases, other torts, such as an
action for intentional infliction of emotional distress, may provide relief for false
statements uttered only to the plaintiff.
Culpability Required. To be actionable, publication must be attributable to fault
on the part of the defendant. There is no strict liability for defamatory information
that is communicated when someone unforeseeably overhears a conversation or
reads a private letter. The defendant must have intended to publish the information
to the recipient or have done so carelessly (i.e., negligently or recklessly).
Disclosure by the Plaintiff with Knowledge of the Defamatory Content. In
some cases, it is foreseeable to the originator of a written defamatory statement
that the recipient will communicate the statement to a third person. Whether the
originator will be held liable for the publication generally depends upon whether the
recipient was aware of the libelous nature of the statement. If the recipient is
unaware of what the statement says, and if transmission of the statement is
foreseeable to the originator, the originator may be found to have published the
statement to the third person. The Restatement, for example, offers illustrations of
a letter sent to a blind person who gives it to a family member to read to the blind
person,129
and of a letter written in a foreign language which is given to a
translator.130
In these kinds of cases, it is fair to hold the originator liable for the
third person’s awareness of the defamatory content of the written communication.
In contrast, if the recipient is aware of the defamatory content of originator’s
statement, but repeats it or shows it to another person, the recipient is deemed to
be responsible for the communication and originator is not the publisher.131
This is
true even if the originator can foresee the plaintiff’s repetition or transmission of
the defamatory material.
1. “Compelled” Self-Publication
Occasional decisions have recognized a theory of “compelled” self-publication.
These cases have usually reasoned that an employee was “compelled” to publish a
defamatory statement by a former employer to a prospective employer under
circumstances where such a communication was foreseeable. For example, in
128
105 N.E. 896 (Mass. 1914).
129
RESTATEMENT (SECOND) OF TORTS § 577 illus. 10 (1977).
130
Id. illus. 11 (1977).
131
Id. cmt. m (1977).
186 DEFAMATION CH. 3
0038 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:03 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Kuechle v. Life’s Companion P.C.A., Inc.,132
the Minnesota Court of Appeals held
that because a nurse was told that her former employer had reported her alleged
misconduct to the Nurse’s Board, the nurse had no reasonable means to avoid selfpublishing
the statement to a new employer, even though she was not asked about
the reasons for her termination. Quoting an earlier decision of the Minnesota
Supreme Court, the intermediate tribunal explained:
The concept of compelled self-publication does no more than hold the
originator of the defamatory statement liable for damages caused by the
statement where the originator knows, or should know, of circumstances
whereby the defamed person has no reasonable means of avoiding publication
of the statement or avoiding the resulting damages. . . . 133
Generally Rejected. Many courts have rejected the concept of “compelled”
self-publication134
or expressed hostility to it. For example, in White v. Blue Cross
and Blue Shield of Massachusetts, Inc.,135
the Supreme Judicial Court of Massachusetts
noted that the highest courts of four states (Iowa, Minnesota, Missouri,
and North Carolina) had recognized the doctrine, but found support for this theory
of publication was far from unanimous. In an opinion rejecting the concept of
“compelled” self-publication, the Chief Justice Margaret H. Marshall wrote:
We recognize the conundrum faced by discharged employees who are
required by prospective employers to explain the circumstances of their
discharge. But as the leading authority on defamation has explained,
compelled self-publication defamation in the employment context is “troubling
conceptually.” [1 R.D. Sack, Libel, Slander, and Related Problems
§ 2.5.2, at 2-84 (3d ed. 1994 & Supp. 2003). ] “It is the termination and the
reasons for it, not the communication, about which the plaintiff is actually
complaining. . . .” . . . Any harm arising from the employee’s discharge is
more appropriately dealt with under principles of employment law, and not
under the law of libel and slander. . . . 136
In Olivieri v. Rodriguez,137
a federal constitutional action involving a probationary
police officer, the Seventh Circuit wrote:
The [plaintiff’s] position resembles the largely discredited doctrine of
“compelled republication” or (more vividly) “self-defamation,” which allows
the victim of a defamation to satisfy the requirement of publication by
publishing it himself, for example to prospective employers as in the
present case. . . . The doctrine is inconsistent with the fundamental
principle of mitigation of damages. . . . The principle of self-defamation,
applied in a case such as this, would encourage Olivieri to apply for a job to
every police force in the nation, in order to magnify his damages; and to
132
653 N.W.2d 214, 219–20 (Minn. App. 2002).
133
Id. at 219 (quoting Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 886 (Minn. 1986)).
134
See, e.g., Gonsalves v. Nissan Motor Corp., 58 P.3d 1196 (Haw. 2002).
135
809 N.E.2d 1034 (Mass. 2004).
136
Id. at 1037.
137
122 F.3d 406 (7th Cir. 1997).
F. PUBLICATION 187
0039 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:04 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
blurt out to each of them the ground of his discharge in the most lurid
terms, to the same end. Most states . . . reject self-defamation as a basis
for a tort claim, and it would be odd for federal constitutional law to
embrace this questionable doctrine.
Legislative Barriers. Some states have legislatively rejected “compelled”
self-publication. Thus, a Colorado statute provides:
No action for libel or slander may be brought or maintained unless the
party charged with such defamation has published, either orally or in
writing, the defamatory statement to a person other than the person
making the allegation of libel or slander. Self-publication, either orally or in
writing, of the defamatory statement to a third person by the person
making such allegation shall not give rise to a claim for libel or slander
against the person who originally communicated the defamatory state-
ment.138
Minnesota has not legislatively rejected the “compelled” self-publication theory
which has been recognized by Minnesota courts. However, the legislature has
passed a law which addresses the issue of grounds for termination. The statute
provides:
Subdivision 1. Notice required.
An employee who has been involuntarily terminated may, within fifteen
working days following such termination, request in writing that the
employer inform the employee of the reason for the termination. Within ten
working days following receipt of such request, an employer shall inform
the terminated employee in writing of the truthful reason for the termina-
tion.
Subdivision 2. Defamation action prohibited.
No communication of the statement furnished by the employer to the
employee under subdivision 1 may be made the subject of any action for
libel, slander, or defamation by the employee against the employer.139
It is hard to see how this law, which has rarely been cited by courts, does
anything more than say that one cannot bring a defamation action based on truth.
However, one decision seemed to suggest that whatever was said in response to a
request for truthful termination reasons was absolutely privileged.140
Another
Minnesota law limits the use of the “compelled” self-publication theory in defamation
actions involving communications obtained by an employee based on review of
the employee’s personnel records.141
138
COLO. REV. STAT. ANN. § 13-25-125.5 (LEXIS 2009).
139
MINN. STAT. ANN. § 181.933 (LEXIS 2009).
140
Huthwaite v. H.B. Fuller Co., 1992 Minn. App. LEXIS 460, *5 (1992).
141
MINN. STAT. ANN. § 181.962 Subd. 2 (LEXIS 2009).
188 DEFAMATION CH. 3
0040 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:04 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
2. Distributors of Defamatory Publications
Mere Conduits of Information. With good motives, the law has drawn a
distinction between “distributors” and “publishers.” Conduits of information, such
as libraries, bookstores, printers, and newspaper deliverers, who are unaware of
the defamatory content of the materials they disseminate, are often termed mere
“distributors.” On that ground, they are not subject to liability for defamation. Of
course, there is nothing magic about the term “distributor.” A distributor
(information conduit) who purveys materials that the distributor knows to be false
and defamatory can be sued and held responsible for resulting harm.
“Distributor” as the Term Relates to “Fault as to Falsity.” The term
“distributor” is essentially a shorthand reference to the third requirement of a
defamation action, fault as to falsity, which is discussed later in this chapter. In the
vast range of cases (and perhaps all cases, although the Supreme Court has not
definitively ruled about issues of private concern), it is necessary for a libel or
slander plaintiff to prove fault on the part of the defendant regarding the falsity of
the defamatory statement. Typically, it will be difficult or impossible to show that a
distributor who is unaware of the content of defamatory material acted with fault
as to falsity. It might be argued, of course, that a distributor who did not know
nevertheless should have known, because a reasonable person would have known.
Thus, some cases have said that a distributor “may not be held liable if it neither
knew nor had reason to know of the allegedly defamatory . . . statements.”142
However, this is a weak argument because negligence as to falsity is not sufficient
to establish liability in cases involving public figures and public officials (who must
prove actual malice), and no one reasonably expects information conduits such as
bookstores to read all of their volumes to determine if any contain false defamatory
statements. Practically speaking, the only way to show fault as to falsity in most
cases is to prove that the distributor was aware of the false contents.
Editorial Control. Publishers of newspapers and magazines exercise editorial
control over the content of their publications. Therefore, they do not qualify as
mere distributors and are subject to liability. For example, in Flowers v.
Carville,143
a federal court in Nevada held that the plaintiff stated a cause of action
against a publisher who allegedly knew that a book contained false and defamatory
statements about the plaintiff’s alleged affair with a former President.
3. Statements on the Internet
Not a “Publisher.” The Communications Decency Act insulates various
potential defendants from liability by addressing the issue of “publication.” Under
the Act, “No provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another information
content provider.”144
The Communications Decency Act is discussed in Part I-1 of
this chapter.
142
Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991).
143
266 F. Supp. 2d 1245 (D. Nev. 2003).
144
47 U.S.C.S. § 230(c)(1) (LEXIS 2009).
F. PUBLICATION 189
0041 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:04 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
4. Intra-Entity and Fellow Agent Communications
Some states hold that communications between constituents of the same entity
(e.g., between officers or employees of a corporation)145
or between agents of the
same principal (e.g., between a client’s lawyer and accountant) are not
“publications” for the purposes of the law of defamation. Under this view, the
corporation or principal is merely communicating with itself, not with a third party.
The Restatement146
and many states147
take the contrary position. They reason
that a corporation’s constituent members (e.g., officers, directors, and employees)
and a principal’s co-agents are individuals distinct from the entity or principal, and
those individuals have personal views which may be affected by the intra-entity or
co-agent communications of defamatory matter. Thus, in Bals v. Verduzco,148
the
Indiana Supreme Court labeled the no-publication view an “unacceptable legal
fiction.”
The better view is to treat intra-entity or co-agent communications as
publications, but recognize that a cause of action may be barred under a qualified
privilege which holds that the publication was appropriate. (Qualified privileges are
discussed in Part I-4 of this chapter.) In Staples v. Bangor Hydro-Elec. Co.,149
the
Supreme Judicial Court of Maine endorsed this approach, noting that “damage to
one’s reputation within the corporate community may be as devastating as that
outside” and that “the defense of qualified privilege provides adequate protection.”
PROBLEM 3-4: THE BOTCHED COVER LETTER
Seeking to find a better position as an executive corporate assistant, Carolyn
Mason hired an Internet-based job search firm, Talent Ltd., to assist her in
locating the right potential employer. For $1500, Talent Ltd. promised to revise
Mason’s resume into a letter format and then mail the resume to 500 “key decisionmakers”
in large corporations who were likely to know of, and have the authority to
fill, non-advertised employment opportunities.
After Talent Ltd. prepared the letter, Mason approved its text. The first
sentence of the letter read: “Currently seeking new challenges as a corporate
executive assistant, I am a detail-oriented professional possessing 20 years of
related leadership experience.”
Following the mailing of the letter to 500 prospective employers, Mason was
given a CD. A cover letter said that the disk contained files with all of the the
merge-printed correspondence, as well as an Excel spreadsheet with the
employers’ names. Mason could use the spreadsheet to keep track of
acknowledgment correspondence and other follow-up contacts.
145
See Starr v. Pearle Vision, Inc., 54 F.3d 1548 (10th Cir. 1995) (Oklahoma law).
146
See RESTATEMENT (SECOND) OF TORTS § 577 cmt. i (1977).
147
See Popko v. Continental Cas. Co., 823 N.E.2d 184 (Ill. App. Ct. 2005); Simpson v. Mars, Inc., 929
P.2d 966 (Nev. 1997).
148
600 N.E.2d 1353, 1356 (Ind. 1992).
149
629 A.2d 601, 604 (Me. 1993).
190 DEFAMATION CH. 3
0042 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:04 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Mason did not examine the CD immediately. However, after three weeks had
passed and she had not heard from any potential employer, she opened the files on
the CD. She found that every letter contained a serious typographical error. The
first sentence of each letter read, “Currently seeking new challenges as a 70 E.S1
B,EWI.5391 position, I am a detail-oriented professional possessing 20 years of
related leadership experience.” That was not the text she had approved.
Mason believes that she has been defamed to 500 excellent prospective
employers and that her career prospects have been seriously harmed. Please
prepare an analysis of the issues Mason will face in a libel suit against Talent Ltd.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL
PRINCIPLES
The term “fault as to falsity” relates to the purported falsity of the defamatory
statement. “Fault as to falsity” comes in at least three varieties. The most culpable
variety is knowledge of falsity. The next variety — reckless disregard for the truth
— is treated as just as bad as knowledge of falsity, at least if “reckless” means that
the defendant acted with subjective awareness of the defamatory statement’s
probable falsity. The least blameworthy variety of fault as to falsity is negligence.
Whether fault as to falsity must be proved in a libel or slander action, and if so, to
what degree, depends on the way that the case is categorized.
As alluded to earlier in this chapter, the current configuration of constitutional
precedent indicates that there are three types of defamation cases: (1) cases where
public officials or public figures are suing with respect to matters of public concern;
(2) cases where private persons are suing with respect to matters of public concern;
and (3) cases when anyone is suing with respect to matter of private concern.
1. Category I: Public Officials and Public Figures Suing
with Respect to Matters of Public Concern
Anyone who plays a large role in the life of the community is likely to be
required to meet what is commonly referred to as the New York Times “actual
malice” standard when bringing a suit for libel or slander. The evolution of this
standard and its application are considered below.
a. Strict Liability at Common Law
At common law, it was unnecessary to show that the defendant knew or should
have known that a statement was false. Moreover, the defendant did not even have
to be aware that the statement referred to the plaintiff or that it was defamatory.
For example, in an English case, Cassidy v. Daily Mirror Newspapers, Ltd.,150
a
newspaper article said that a Mr. Cassidy was engaged to a woman pictured in the
paper. Both had consented to allow the paper to announce their engagement. The
newspaper did not know that Cassidy was already married. In a subsequent
defamation suit by Cassidy’s wife, the court held that she had been libeled by the
150
2 K.B. 331 (1929).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 191
0043 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
newspaper. Her acquaintances testified that they inferred from the article that
Mrs. Cassidy was not in fact married to Cassidy, with whom she was living —
which at the time was thought to cause serious harm to her reputation.
Thus, under traditional rules, libel and slander did not require proof of fault on
the part of a defendant who published defamatory information. It was accurate to
say that “[a]t common law, libel was a strict liability tort that did not require proof
of falsity, fault, or actual damages.”151
This is no longer true. The rules began to
change in 1964 in New York Times Co. v. Sullivan.152
b. New York Times v. Sullivan
By any fair standard, the United States Supreme Court’s decision in New York
Times Co. v. Sullivan153
is a true landmark. It began the process of reconciling
traditional defamation law with the constitutional demands of the First
Amendment. So powerful has been the force of New York Times Co. v. Sullivan
that the decision and its progeny have utterly transformed the law of defamation.
It is impossible to think about any libel or slander claim in a complete way without
positioning the facts within the matrix of principles that have evolved from New
York Times Co. v. Sullivan and later decisions. Those cases today exert a dominant
force on the analysis of whether and to what extent the plaintiff must prove that
the defendant was at fault with respect to the falsity of the defamatory statement
and whether damages may be presumed rather than proved.
An Advertisement in Support of the Civil Rights Movement. Justice William
J. Brennan, Jr. delivered the opinion of the court in New York Times Co. v.
Sullivan.154
As he explained the suit, he said that the Court was required “to
determine for the first time the extent to which the constitutional protections for
speech and press limit a State’s power to award damages in a libel action brought
by a public official against critics of his official conduct.”155
Turning to the facts of
the lawsuit, Justice Brennan wrote:
Respondent L. B. Sullivan is one of the three elected Commissioners of
the City of Montgomery, Alabama. [His duties included supervision of the
Police Department.]. . . . He brought this civil libel action against the four
individual petitioners, who are Negroes and Alabama clergymen, and
against petitioner the New York Times Company, a New York corporation
which publishes . . . a daily newspaper. A jury in the Circuit Court of
Montgomery County awarded him damages of $500,000, the full amount
claimed, against all the petitioners, and the Supreme Court of Alabama
affirmed. . . .
Respondent’s complaint alleged that he had been libeled by statements
in a full-page advertisement . . . [relating to the civil rights movement for
151
Mathis v. Cannon, 573 S.E.2d 376, 380 (Ga. 2002).
152
376 U.S. 254 (1964).
153
Id. at 254.
154
Id.
155
Id. at 256.
192 DEFAMATION CH. 3
0044 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
racial equality.]. . . .
The text appeared over the names of 64 persons, many widely known for
their activities in public affairs, religion, trade unions, and the performing
arts. . . .
Of the 10 paragraphs of text in the advertisement, the third and a
portion of the sixth were the basis of respondent’s claim of libel. . . .
. . . .
It is uncontroverted that some of the statements contained in the two
paragraphs were not accurate descriptions of events which occurred in
Montgomery. . . . Although the police were deployed near the campus in
large numbers on three occasions, they did not at any time “ring” the
campus, and they were not called to the campus in connection with the
demonstration on the State Capitol steps, as the third paragraph implied.
Dr. King had not been arrested seven times, but only four; and although he
claimed to have been assaulted some years earlier in connection with his
arrest for loitering outside a courtroom, one of the officers who made the
arrest denied that there was such an assault.
[Respondent was not mentioned by name.] On the premise that the
charges in the sixth paragraph could be read as referring to him,
respondent was allowed to prove that he had not participated in the events
described. . . . 156
Traditional Libel Law. Turning, then, to the proceedings in the Alabama courts,
Justice Brennan explained:
The trial judge submitted the case to the jury under instructions that the
statements in the advertisement were “libelous per se” and were not
privileged, so that petitioners might be held liable if the jury found that
they had published the advertisement and that the statements were made
“of and concerning” respondent. . . .
Under Alabama law as applied in this case . . . [o]nce “libel per se” has
been established, the defendant has no defense as to stated facts unless he
can persuade the jury that they were true in all their particulars. . . . 157
“Uninhibited, Robust and Wide-Open.” Justice Brennan then began to lay the
intellectual foundations on which the modern of law defamation would be built. He
stated:
The First Amendment, said Judge Learned Hand, “presupposes that
right conclusions are more likely to be gathered out of a multitude of
tongues, than through any kind of authoritative selection. To many this is,
and always will be, folly; but we have staked upon it our all.”. . . . Mr.
Justice Brandeis, in his concurring opinion in Whitney v. California, [274
U.S. 357 (1927)], gave the principle its classic formulation:
156
Id. at 256–59.
157
Id. at 262–67.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 193
0045 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Those who won our independence believed . . . that public discussion
is a political duty; and that this should be a fundamental principle of the
American government. They recognized the risks to which all human
institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous
to discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil
counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law — the
argument of force in its worst form. Recognizing the occasional tyrannies
of governing majorities, they amended the Constitution so that free
speech and assembly should be guaranteed.
Thus we consider this case against the background of a profound
national commitment to the principle that debate on public issues should be
uninhibited, robust and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. . . . The present advertisement, as an expression of
grievance and protest on one of the major public issues of our time, would
seem clearly to qualify for the constitutional protection. The question is
whether it forfeits that protection by the falsity of some of its factual
statements and by its alleged defamation of respondent.
. . . . As Madison said, “Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this more true than in that
of the press.”. . . . In Cantwell v. Connecticut, 310 U.S. 296, the Court
declared:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or state,
and even to false statement. But the people of this nation have ordained
in the light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of the citizens of a democracy.
[The] erroneous statement is inevitable in free debate, and . . . it must be
protected if the freedoms of expression are to have the “breathing space”
that they “need . . . to survive”. . . .158
The Defense of Truth is Not Sufficient. Justice Brennan then turned to the
question of what these principles of free expression mean to the law of defamation,
writing:
158
Id. at 270–73.
194 DEFAMATION CH. 3
0046 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
What a State may not constitutionally bring about by means of a
criminal statute is likewise beyond the reach of its civil law of libel. The fear
of damage awards under a rule such as that invoked by the Alabama courts
here may be markedly more inhibiting than the fear of prosecution under
a criminal statute. . . . Presumably a person charged with violation of [a
criminal libel] statute enjoys ordinary criminal-law safeguards such as the
requirements of an indictment and of proof beyond a reasonable doubt.
These safeguards are not available to the defendant in a civil action. The
judgment awarded in this case — without the need for any proof of actual
pecuniary loss — was one thousand times greater than the maximum fine
provided by the Alabama criminal statute. . . . And since there is no
double jeopardy limitation applicable to civil lawsuits, this is not the only
judgment that may be awarded against petitioners for the same publication.
Whether or not a newspaper can survive a succession of such
judgments, the pall of fear and timidity imposed upon those who would give
voice to public criticism is an atmosphere in which the First Amendment
freedoms cannot survive. . . .
The state rule of law is not saved by its allowance of the defense of
truth. . . . A rule compelling the critic of official conduct to guarantee the
truth of all his factual assertions — and to do so on pain of libel judgments
virtually unlimited in amount — leads to a comparable “self-censorship.”
Allowance of the defense of truth, with the burden of proving it on the
defendant, does not mean that only false speech will be deterred.
. . . Under such a rule, would-be critics of official conduct may be
deterred from voicing their criticism, even though it is believed to be true
and even though it is in fact true, because of doubt whether it can be proved
in court or fear of the expense of having to do so. . . . The rule thus
dampens the vigor and limits the variety of public debate. It is inconsistent
with the First and Fourteenth Amendments.159
The “Actual Malice” Standard. Justice Brennan’s opinion for the court then
laid down the rule for which New York Times Co. v. Sullivan has become famous:
The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with “actual malice” — that is, with knowledge that it was false
or with reckless disregard of whether it was false or not. An oft-cited
statement of a like rule, which has been adopted by a number of state
courts, is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711,
98 P. 281 (1908). . . . On appeal the Supreme Court of Kansas, in an
opinion by Justice Burch, reasoned as follows:
[I]t is of the utmost consequence that the people should discuss the
character and qualifications of candidates for their suffrages. The
importance to the state and to society of such discussions is so vast, and
the advantages derived are so great that they more than counterbalance
159
Id. at 277–79.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 195
0047 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
the inconvenience of private persons whose conduct may be involved, and
occasional injury to the reputations of individuals must yield to the
public welfare, although at times such injury may be great. The public
benefit from publicity is so great and the chance of injury to private
character so small that such discussion must be privileged.
. . . .
We hold today that the Constitution delimits a State’s power to award
damages for libel in actions brought by public officials against critics of
their official conduct. Since this is such an action, the rule requiring proof
of actual malice is applicable. . . . 160
Failure to Meet the Standard. The court then returned to the facts of the
pending case to measure them against the constitutional standard:
. . . [W]e consider that the proof presented to show actual malice lacks
the convincing clarity which the constitutional standard demands, and
hence that it would not constitutionally sustain the judgment for respondent
under the proper rule of law. The case of the individual petitioners
requires little discussion. Even assuming that they could constitutionally be
found to have authorized the use of their names on the advertisement, there
was no evidence whatever that they were aware of any erroneous statements
or were in any way reckless in that regard. The judgment against
them is thus without constitutional support.
As to the Times, we similarly conclude that the facts do not support a
finding of actual malice. The statement by the Times’ Secretary that, apart
from the padlocking allegation, he thought the advertisement was “substantially
correct,” affords no constitutional warrant for the Alabama
Supreme Court’s conclusion that it was a “cavalier ignoring of the falsity of
the advertisement. . . .” The statement does not indicate malice at the
time of the publication; even if the advertisement was not “substantially
correct” — although respondent’s own proofs tend to show that it was —
that opinion was at least a reasonable one, and there was no evidence to
impeach the witness’ good faith in holding it. The Times’ failure to retract
upon respondent’s demand, although it later retracted upon the demand of
Governor Patterson, is likewise not adequate evidence of malice for
constitutional purposes. Whether or not a failure to retract may ever
constitute such evidence, there are two reasons why it does not here. First,
the letter written by the Times reflected a reasonable doubt on its part as
to whether the advertisement could reasonably be taken to refer to
respondent at all. Second, it was not a final refusal, since it asked for an
explanation on this point — a request that respondent chose to ignore. Nor
does the retraction upon the demand of the Governor supply the necessary
proof. It may be doubted that a failure to retract which is not itself evidence
of malice can retroactively become such by virtue of a retraction subsequently
made to another party. But in any event that did not happen here,
since the explanation given by the Times’ Secretary for the distinction
160
Id. at 279–83.
196 DEFAMATION CH. 3
0048 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
drawn between respondent and the Governor was a reasonable one, the
good faith of which was not impeached.
Finally, there is evidence that the Times published the advertisement
without checking its accuracy against the news stories in the Times’ own
files. The mere presence of the stories in the files does not, of course,
establish that the Times “knew” the advertisement was false, since the
state of mind required for actual malice would have to be brought home to
the persons in the Times’ organization having responsibility for the
publication of the advertisement. With respect to the failure of those
persons to make the check, the record shows that they relied upon their
knowledge of the good reputation of many of those whose names were listed
as sponsors of the advertisement, and upon the letter from A. Philip
Randolph, known to them as a responsible individual, certifying that the
use of the names was authorized. There was testimony that the persons
handling the advertisement saw nothing in it that would render it unacceptable
under the Times’ policy of rejecting advertisements containing
“attacks of a personal character”; their failure to reject it on this ground
was not unreasonable. We think the evidence against the Times supports at
most a finding of negligence in failing to discover the misstatements, and is
constitutionally insufficient to show the recklessness that it is required for
a finding of actual malice. . . .
We also think the evidence was constitutionally defective in another
respect: it was incapable of supporting the jury’s finding that the allegedly
libelous statements were made “of and concerning” respondent. . . . There
was no reference to respondent in the advertisement, either by name or
official position. A number of the allegedly libelous statements . . . did not
even concern the police. . . . The statements upon which respondent
principally relies as referring to him are the two allegations that did
concern the police or police functions: that “truckloads of police . . . ringed
the Alabama State College Campus” after the demonstration on the State
Capitol steps, and that Dr. King had been “arrested . . . seven times.”
These statements were false only in that the police had been “deployed
near” the campus but had not actually “ringed” it and had not gone there
in connection with the State Capitol demonstration, and in that Dr. King
had been arrested only four times. The ruling that these discrepancies
between what was true and what was asserted were sufficient to injure
respondent’s reputation may itself raise constitutional problems, but we
need not consider them here. Although the statements may be taken as
referring to the police, they do not on their face make even an oblique
reference to respondent as an individual. . . .
. . . . The present proposition would sidestep this obstacle by transmuting
criticism of government, however impersonal it may seem on its
face, into personal criticism, and hence potential libel, of the officials of
whom the government is composed. . . . We hold that such a proposition
may not constitutionally be utilized to establish that an otherwise impersonal
attack on governmental operations was a libel of an official responG.
FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 197
0049 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
sible for those operations. . . . 161
The Vote: 9-0. Five justices (Warren, C.J., and Clark, Harlan, Stewart, and
White, JJ.) joined Justice Brennan’s opinion, which reversed the judgment of the
Alabama Supreme Court and remanded the case for further proceedings. Justices
Hugo Black and Arthur Goldberg filed concurring opinions, each of which would
have categorically denied any action for defamation to a public official based on
public conduct. Justice William O. Douglas joined in both of the concurring opinions.
c. Who Is a Public Official?
“Public Official” Versus “Public Employee.” The “actual malice” requirement
does not apply to every defamation plaintiff who is on the government payroll.
Thus, not every “public employee” is a “public official.” For example, in Anaya v.
CBS Broadcasting Inc.,162
a federal court in New Mexico held that a procurement
agent employed by a government-run defense lab was not a public official.
The Test for Defining “Public Official.” “It is clear . . . that the ‘public official’
designation applies at the very least to those among the hierarchy of government
employees who have, or appear to the public to have, substantial responsibility for
or control over the conduct of governmental affairs.”163
Thus, the term may apply
to the executive director of a housing authority164
or a lottery.165
Ultimately, the test is whether the “position in government has such apparent
importance that the public has an independent interest in the qualifications and
performance of the person who holds it, beyond the general public interest in the
qualifications and performance of all governmental employees.”166
Courts have often interpreted the public official category expansively. For
example, police officers of all varieties are routinely classified as public officials.167
Depending on the facts, lower echelon employees, such as a county surveyor,168
a
teacher who is also the school’s athletic director,169
a state university’s director of
the Office of Community Standards,170
or a child protective services specialist,171
may all be deemed to be public officials.
Former Public Officials. A former public official is subject to the actual malice
161
Id. at 285–92.
162
626 F. Supp. 2d 1158 (D.N.M. 2009).
163
Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
164
See Ortego v. Hickerson, 989 So.2dSo. 2d 777 (La. Ct. App. 2008).
165
See Cloud v. McKinney, 228 S.W.3d 326 (Tex. App. 2007).
166
Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).
167
See Smith v. Huntsville Times Co., Inc., 888 So.2dSo. 2d 492 (Ala. 2004); Tomkiewicz v. Detroit
News, Inc., 635 N.W.2d 36 (Mich. Ct. App. 2001).
168
See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 814 (Tex. 1976).
169
See Johnson v. Southwestern Newspapers Corp., 855 S.W.2d 182, 186–87 (Tex. App. 1993).
170
See Fiacco v. Sigma Alpha Epsilon Fraternity, 528 F.3d 94 (1st Cir. 2008).
171
See Villarreal v. Harte-Hanks Communications, Inc., 787 S.W.2d 131, 133–35 (Tex. App. 1990).
198 DEFAMATION CH. 3
0050 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:05 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
requirement if the allegedly defamatory statement relates to his or her
performance while in office.172
Relationship to Public Performance. The actual malice rule applies to public
officials only if the defamatory statement relates to the official’s qualifications. “[A]
statement that the governor drinks himself into a drunken stupor at home every
night much more clearly affects his qualifications than a statement that a tax
assessor keeps a secret collection of pornographic pictures.”173
d. Treating Public Figures the Same as Public Officials
Soon after New York Times Co. v. Sullivan was decided, the actual malice rule
was expanded to cover not only “public officials,” but also “public figures.” As
recounted in Mathis v. Cannon174
by the Supreme Court of Georgia:
[I]n Curtis Publishing Co. v. Butts, [388 U.S. 130 (1967)] a majority of the
Court applied the New York Times rule on actual malice to criticism of
“public figures,” defined as individuals who are “intimately involved in the
resolution of important public questions or, by reason of their fame, shape
events in areas of concern to society at large.” The Court found that Wally
Butts, the University of Georgia athletic director, had attained his status as
a public figure by his position alone; the second plaintiff, a retired army
officer, had achieved public figure status “by his purposeful activity
amounting to a thrusting of his personality into the ‘vortex’ of an important
public controversy,” the racial integration of the University of Mississippi.
The rationale for extending the constitutional privilege to protect criticism
of public figures was the increasingly blurred distinctions between the
governmental and private sectors: “In many situations, policy determinations
which traditionally were channeled through formal political institutions
are now originated and implemented through a complex array of
boards, committees, commissions, corporations, and associations, some
only loosely connected with the Government.”175
PROBLEM 3-5: THE LAW CLERK AT THE STATE SUPREME COURT
Jordan Kelly thought that he had landed a great job when he was offered a
clerkship by a justice of the state supreme court. The pay was low, about one-third
of what a top law school graduate could make at a big law firm. But the prestige
was high.
Clerking for a supreme court justice meant assisting the justice with research
and writing in the cases that came before the court, and recommending how
disputed issues should be decided. A top-flight judicial clerkship was the best
credential anyone could earn right out of law school. A clerkship at the state high
court had long-term cachet. And after the one year of economic sacrifice while
172
Rosenblatt v. Baer, 383 U.S. 75 (1966).
173
RESTATEMENT (SECOND) OF TORTS § 580A cmt. b (1977).
174
573 S.E.2d 376, 381 (Ga. 2002).
175
Id. at 381.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 199
0051 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
clerking, clerks who accepted offers from big firms were phased in at second-year
associate salaries and sometimes were paid handsome “signing bonuses.” That was
a great plus, but it is also where the problem started.
Kelly started working at the court the Tuesday after Labor Day. During the
first week, he never came close to thinking about a pending case. The entire four
days were taken up with an “orientation” program for the fourteen new clerks who
would work for the seven justices on the supreme court. The program focused on
judicial ethics, online legal research, judicial writing styles, data security, and court
protocol.
The following day (Saturday), a story broke in the state’s leading newspaper,
The Capital Bulletin, which claimed that several supreme court clerks had
accepted obscenely large signing bonuses from large law firms that had cases
pending before the state supreme court. It was not clear whether the clerks who
were involved were members of the last clerkship “class” (who had just finished
their clerkship year) or members of the new clerkship class (who were just
starting). The paper did not name names, but it quoted anonymous “reliable
sources.” The story quickly triggered a weekend blizzard of criticism that ended up
being directed mainly at the justices of the state supreme court, although the
justices’ clerks were condemned, too.
Bloggers and talk show hosts had a field day. Kelly received an endless stream
of calls and text messages from former classmates wanting to know what was going
on. He said that he did not know who was involved, or even whether there was any
truth to the allegations.
On Monday, Kelly found his picture and photos of the other thirteen new law
clerks on the front page of The Capital Bulletin. Apparently the names of the
clerks had been assembled from a press release the court had issued about the
diversity of the new clerkship class. The photos seemed to have been gathered from
Facebook and MySpace, or perhaps from the “Entering Class” booklets that had
been published at some of the law schools the clerks had attended. The Monday
article stuck to its original story, but it still did not name names as to which clerks
had accepted the enormous signing bonuses.
As a result of these events, Kelly’s year at the supreme court started out with a
fiasco. All of his former classmates and professors were speculating about whether
he was involved in the scandal. Kelly has not yet lined up a post-clerkship job, and
he now realizes that it will not be as easy as he thought it would be. Rather than
the luster of an honorable supreme court clerkship, he will be tainted by
association with a corruption scandal.
If Kelly sues the Bulletin for defamation, will he able to prove that its stories
defamed him? And, if so, will he have to prove that the editors acted with actual
malice?
200 DEFAMATION CH. 3
0052 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
e. Proving “Actual Malice”
(1) The Meaning of “Actual Malice”
Focus on the Defendant’s Subjective State of Mind. Actual malice is a state of
mind about the falsity of a defamatory statement. The only way to establish actual
malice is to prove that the defendant knew that the statement was false or acted
with reckless disregard for whether or not it was false. In either case, the test is
subjective. “Knowledge” of falsity means that the defendant subjectively knew that
the statement was false. It is not enough that a reasonably prudent person would
have known, or should have known, that the statement was false. Likewise,
recklessness in the context of actual malice is a subjective test. Only persons who
publish defamation with subjective “awareness of probable falsity” are reckless.176
Erroneous Beliefs Honestly Held. The statement of an erroneous belief that is
honestly held, which has some factual support, cannot ordinarily be found to have
been uttered with actual malice. For example, in Peter Scalamandre & Sons, Inc.
v. Kaufman,177
the defendant asserted that the plaintiff conducted “an illegal haul
and dump operation” and that the “people of Texas are being poisoned.” Because
statements were shown at trial to be the defendant’s honest beliefs and were not so
without basis as to constitute reckless disregard for the truth, the Fifth Circuit
held that the plaintiff’s cause of action failed.
Similarly, in Sparks v. Peaster,178
the Georgia Court of Appeals held that a city
manager did not act with actual malice when he said that a resident had a serious
cocaine habit. The evidence showed that the plaintiff was confrontational and
sometimes irrational, and that police officers had given the manager reason to
believe that the plaintiff had a problem with drugs.
Inattention to the Truth. One consequence of focusing defamation litigation on
the issue of actual malice is that attention shifts from whether the statement was
true or false to what the defendant subjectively knew. This may make it impossible
for the plaintiff to clear his or her name by obtaining a ruling on falsity.
Disruption of the Editorial Processes. In cases involving media defendants,
litigation of the actual malice issue may be highly disruptive to editorial processes.
The publisher’s state of mind must normally be inferred from circumstantial
evidence. Consequently, plaintiffs often seek discovery of information about such
matters as communications between reporters and editors, facts known but not
used in a story, the pressures under which the work was prepared, and the identity
and credibility of the defendant’s sources.
“Actual Malice,” Not “Express” or “Common-Law” Malice. “Actual malice,”
as used in defamation cases, is a legal term of art which must be clearly
distinguished from “express” or “common-law” malice. The fact that statements
are uttered with spite, ill will, vindictiveness, or motives of revenge says nothing
about whether those statements are true or false. Therefore, a showing that the
176
St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
177
113 F.3d 556, 562 (5th Cir. 1997).
178
581 S.E.2d 579 (Ga. Ct. App. 2003).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 201
0053 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
defendant was actuated by bad motives (sometimes called “express malice” or
“common-law malice”) is not, by itself, sufficient to satisfy the actual-malice
requirement.
Jury instructions may not permit a finding of actual malice to be based merely
upon proof of hatred, enmity, desire to injure, or the like. As the United States
Supreme Court observed in Garrison v. State of Louisiana,179
a criminal
defamation case:
[T]he great principles of the Constitution which secure freedom of expression
. . . preclude attaching adverse consequences to any except the
knowing or reckless falsehood. Debate on public issues will not be
uninhibited if the speaker must run the risk that it will be proved in court
that he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth. Under a rule . . . permitting a finding of [actual]
malice based on an intent merely to inflict harm, rather than to inflict harm
through falsehood, “it becomes a hazardous matter to speak out against a
popular politician, with the result that the dishonest and incompetent will
be shielded.”. . . . Moreover, “[i]n the case of charges against a popular
political figure . . . it may be almost impossible to show freedom from
ill-will or selfish political motives.”. . . .
. . . [O]nly those false statements made with the high degree of
awareness of their probable falsity demanded by New York Times may be
the subject of either civil or criminal sanctions. . . . [The Constitution
protects even] vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.180
Of course, in many instances, if evidence of express malice is coupled with facts
showing that the defendant lacked an honest belief in the truth of the statements,
there may be “actual malice” sufficient to support a finding of liability, as well as
facts that encourage a jury to return a large judgment.
Lack of Thorough Investigation. Failing to thoroughly investigate a story may
be negligence, but it does not, by itself, amount to actual malice. For example, in St.
Amant v. Thompson,181
the Supreme Court held that relying on a single, perhaps
unreliable, source without attempting to verify the accuracy of statements was not
“reckless” within the meaning of the “actual malice” standard. However, the St.
Amant Court did acknowledge that:
Professions of good faith will be unlikely to prove persuasive, for example,
where a story is fabricated by the defendant, is the product of his
imagination, or is based wholly on an unverified anonymous telephone call.
Nor will they be likely to prevail when the publisher’s allegations are so
inherently improbable that only a reckless man would have put them in
179
379 U.S. 64 (1964).
180
Id. at 73–75.
181
390 U.S. 727 (1968).
202 DEFAMATION CH. 3
0054 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
circulation. Likewise, recklessness may be found where there are obvious
reasons to doubt the veracity of the informant or the accuracy of his
reports.182
Failure to Consult the Plaintiff or Present an Objective View. There is
ordinarily no obligation on the defendant to talk to the subject of the defamatory
communication to obtain that person’s version of the events described.183
Nor is
actual malice proved by the fact that the defendant failed to present an objective
picture of events.184
Departure from Journalistic Standards. In Harte-Hanks Communications,
Inc. v. Connaughton,185
the Supreme Court explained that “a public figure plaintiff
must prove more than an extreme departure from professional standards and . . .
a newspaper’s motive in publishing a story — whether to promote an opponent’s
candidacy or to increase its circulation — cannot provide a sufficient basis for
finding actual malice.”186
Thus, it is not surprising that factual inaccuracies alone do
not prove actual malice,187
nor does evidence that the reporting behind an article
was speculative or even sloppy.188
Anticipation of Financial Gain. The fact “[t]hat a defendant publishes statements
anticipating financial gain [by itself] . . . fails to prove actual malice” for “a
profit motive does not strip communications of constitutional protections.”189
Failure to Retract. A defendant’s subsequent conduct often does not establish
the defendant’s earlier state of mind. Thus, as the opinion in New York Times
indicates, a failure to retract an allegedly defamatory statement may be insufficient
to establish actual malice, particularly where it is dubious that the statement
referred to the plaintiff. However, if a defendant who refuses to retract was aware
at the time of the original publication that its assertions were wrong, an action will
lie. For example, in Golden Bear Distributing Systems of Texas, Inc. v. Chase Revel,
Inc.,190
an author’s notes showed that she knew her article was incorrect.
Use of Recanted Statements. In WJLA-TV v. Levin,191
an orthopedist was
accused of sexually assaulting his female patients and using inappropriate medical
procedures. The court held that the television station’s use of the statements of a
physician, which the station knew the physician had retracted, was sufficient to
support a jury finding of actual malice. A $2 million award of presumed damages
was upheld.
182
Id. at 732.
183
See Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
184
See New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. 1966).
185
491 U.S. 657 (1989).
186
Id. at 665.
187
See Time, Inc. v. Pape, 401 U.S. 279 (1971).
188
See Oliver v. Village Voice, Inc., 417 F. Supp. 235, 238 (S.D.N.Y. 1976).
189
See Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 561 (5th Cir. 1997).
190
708 F.2d 944 (5th Cir. 1983).
191
564 S.E.2d 383 (Va. 2002).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 203
0055 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
(2) Standard of Proof and Judicial Review
Clear and Convincing Evidence of Actual Malice. Although other issues in a
defamation action, such as proof of damages, are normally subject to a
preponderance-of-the-evidence standard of proof,192
actual malice must be
established by clear and convincing evidence as matter of constitutional
requirements.193
This heightened standard of proof applies not only to jury
determinations, but to preliminary rulings on motions for summary judgment.194
Therefore, it is difficult for a plaintiff to survive a defendant’s motion for summary
disposition, for it is necessary to adduce evidence from which actual malice could be
found by clear and convincing evidence.
Appellate Review of Actual Malice Findings. Whether the evidence supports
a finding of actual malice is a question of law. In determining whether the
constitutional standard is satisfied, the trial court, and every reviewing court, must
consider the factual record in full to ascertain whether there is clear and convincing
evidence.195
Thus, a finding of actual malice is not entitled to the deference
normally extended to findings of fact. This rule confers its substantial benefits
exclusively on defendants because independent appellate review occurs only when
the jury finds for the plaintiff. The no-deference rule, coupled with the clear-andconvincing-evidence
standard, may do more to provide “breathing space” for free
expression than the actual malice standard itself.
The independent review requirement does not extend to all elements of a
defamation cause of action. For example, a jury’s finding of falsity or substantial
truth must be accepted if supported by substantial evidence.196
(3) Applying Supreme Court Principles
(a) Example: Freedom Newspapers of Texas v. Cantu
A typical state court decision applying United States Supreme Court principles
is Freedom Newspapers of Texas v. Cantu.197
Cantu nicely illustrates the
challenges of proving actual malice in reporting. In that case, there was a debate
between the candidates for sheriff in a predominantly Hispanic, south Texas
county. The Democratic candidate (Cantu) was Hispanic and the Republican
candidate (Vinson) was Anglo. The Democratic candidate urged during the debate
that he was the best candidate, stating in part:
Mr. Vinson is a nice man, but he is an instructor, he is not a sheriff.You have
to have the right character to be a sheriff and you have to delegate
authority and it does not stop there. You have to be bi-cultural to
192
But see Hornberger v. Am. Broad. Companies, Inc., 799 A.2d 566, 578 (N.J. Super. Ct. App. Div.
2002).
193
See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989).
194
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–56 (1986).
195
See Bose Corp. v. Consumers Union of the U.S., Inc., 466 U.S. 485 (1984).
196
See Lundell Mfg. Co., Inc. v. Am. Broad. Companies, Inc., 98 F.3d 351 (8th Cir. 1996).
197
168 S.W.3d 847 (Tex. 2005).
204 DEFAMATION CH. 3
0056 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
understand what is going on in our neighborhoods, where there is a lot of
burglaries, how are you going to relate to these people — in Spanish — and
make them understand that they need to stop or we are going to put a stop
to it in their neighborhoods. . . . You have to be able to understand, you
have to have grown up here to understand that.198
The Offending Headline. Afterwards, a newspaper article about the debate
carried the following provocative headline:
Cantu: No Anglo can be sheriff of Cameron County.199
Cantu took exception to the article and its headline because he had never used
the word “Anglo.” In response to his protest, the newspaper published a second
article with a clarifying headline stating, “Sheriff candidate says racial issue wasn’t
the point.”200
After winning the election, Cantu sued the newspaper for defamation.
Eventually, a unanimous Texas Supreme Court concluded that:
The summary judgment record before us establishes as a matter of law
that the Herald’s reporter thought he was reporting the gist of what Cantu
said. Accordingly, any error in the Herald’s articles evidences at most
negligence, not actual malice. We reverse the court of appeals’ judgment
and render judgment that Cantu take nothing.201
Words Never Used. In explaining its decision, the Texas Supreme Court first
concluded, consistent with United States Supreme Court precedent, that the fact
that the sheriff did not use the exact words attributed to him was not evidence of
actual malice. The court wrote:
From the day the articles appeared through oral arguments in this
Court, Cantu’s primary complaint is that he never used the words
attributed to him by the Herald in its initial headline and first sentence. The
Herald concedes this is true. The court of appeals concluded this was some
evidence of malice, as “Pierce attended the debate and heard the candidate’s
comments, and knew that Cantu did not say that ‘No Anglo can be
sheriff of Cameron County.’ ”
But unlike the court of appeals, the Herald did not put this last phrase
in quotation marks. While some of Cantu’s statements at the debate were
placed in quotation marks, this one was not. Cantu discounts this distinction,
arguing the colon used in the headline is the “equivalent” of quotation
marks.
In Masson v. New Yorker Magazine, Inc.,202
the United States Supreme
Court held that placing a reporter’s words in a speaker’s mouth may be
evidence of malice in some circumstances. As the Court noted:
198
Id. at 850.
199
Id.
200
Id. at 851.
201
Id. at 859.
202
[n.15] 501 U.S. 496, 519–20 (1991).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 205
0057 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:06 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
In general, quotation marks around a passage indicate to the reader
that the passage reproduces the speaker’s words verbatim. They inform
the reader that he or she is reading the statement of the speaker, not a
paraphrase or other indirect interpretation by an author.
But the Court rejected the notion that every alteration of a speaker’s
words was some evidence of actual malice. The Court noted that reporters
who rely on notes must often reconstruct a speaker’s statements, and even
those who rely on recordings can print statements verbatim “in only rare
circumstances” due to space limitations and editorial judgments.
Instead, the Court held that an altered statement could constitute some
evidence of actual malice if a reasonable reader could understand the
passage as the speaker’s actual words (not a paraphrase), and the alteration
was material. . . .
In this case, three rather apparent clues would lead a reasonable reader
to conclude the Herald was interpreting Cantu’s remarks rather than
quoting them verbatim. First, such a reader would note that quotation
marks were placed around eight of Cantu’s statements in the first article,
but not the one at issue.
Second, a reasonable reader could not miss the pattern of the articles, in
which a summary of what each candidate said appears in one paragraph
. . . followed by one or two paragraphs of explicit quotations to support the
summary. In this context, a reasonable reader would understand the first
headline and sentence to be a paraphrase of Cantu’s remarks, with his
actual statements following in quotations.
Finally, while both articles were allegedly defamatory, the Herald’s
second article reported Cantu’s response that “I did not say that an Anglo
could not be sheriff.” Nothing in the follow-up article contradicts that claim.
To the contrary, the report that “some observers believe” Cantu had made
“discriminating remarks” at the debate clarified that the issue was the
implicit rather than explicit meaning of what he said.
Based on the entire context of the articles Cantu claims were defamatory,
we hold that a reasonable reader would have understood the Herald’s
reports to be a paraphrase or interpretation of Cantu’s remarks. Accordingly,
proof that he did not make the exact remark attributed to him,
standing alone, is no evidence of actual malice.203
Rational Interpretation of Ambiguities. Elaborating on the same theme, the
Texas Supreme Court explained:
Of course, deliberately attributing a statement to a public figure that the
latter never made may be defamatory whether or not it is in quotation
marks. . . .
Cantu argues that the Herald made a deliberate and material change in
meaning when it converted his remarks about his bilingual and bicultural
203
168 S.W.3d at 854–55.
206 DEFAMATION CH. 3
0058 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:07 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
attributes into remarks about racial and ethnic ones. For summary
judgment purposes, we assume the truth of Cantu’s assertion that he
intended only the former. Further, we agree with Cantu that reasonable
jurors could conclude from the Herald’s report that he was accused of
intending the latter, and that the difference between the two is material.
But evidence that the Herald’s report was mistaken, even negligently so,
is no evidence of actual malice. Cantu must present some evidence that the
Herald misinterpreted his remarks on purpose, or in circumstances so
improbable that only a reckless publisher would have made the mistake.
“An understandable misinterpretation of ambiguous facts does not show
actual malice.”
In Time, Inc. v. Pape, the Supreme Court addressed a similar defamation
claim in which the words of a source were undisputed but their
meaning was ambiguous.204
In that case, a report on police brutality by the
U.S. Commission on Civil Rights cited allegations from a civil lawsuit
asserting misconduct by Chicago police. In its article on the Commission’s
report, Time magazine stated the allegations as fact, omitting the word
“alleged” that appeared in the report.
But while the Commission’s report did list the incident as “alleged,” in
fact the report was “extravagantly ambiguous” about whether the allegations
were true. The Commission summarized the contents of the report as
“the alleged facts of 11 typical cases of police brutality,” though of course
none could be “typical cases” of brutality unless they were true. While the
report stated that the truth of each incident was a matter for the courts, the
Commission cited no other evidence of brutality to support the changes it
recommended. In this context, the Supreme Court held that reporting the
Chicago incident as factual was a rational interpretation of what the
Commission’s report impliedly said:
Time’s omission of the word “alleged” amounted to the adoption of one
of a number of possible rational interpretations of a document that
bristled with ambiguities. The deliberate choice of such an interpretation,
though arguably reflecting a misconception, was not enough to
create a jury issue of “malice” under New York Times. To permit the
malice issue to go to the jury because of the omission of a word like
“alleged,” despite the context of that word in the Commission Report
and the external evidence of the Report’s overall meaning, would be to
impose a much stricter standard of liability on errors of interpretation or
judgment than on errors of historic fact.205
In this case, Cantu’s remarks at the debate also “bristled with ambiguities.”
Cantu argues that his comments had nothing to do with race, as
anyone can be both bilingual and bicultural. But the context here was a
debate in which Cantu was distinguishing himself from his opponent. Cantu
204
[n.25] 401 U.S. 279 (1971).
205
[n.31] Id. at 290.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 207
0059 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:07 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
conceded at his deposition that he knew his opponent was not Hispanic, but
did not know whether he spoke Spanish; at the least, this might suggest he
was using “bilingual” to indicate the former rather than latter. And Cantu
does not explain why his opponent was not “bicultural,” despite claiming
many more years of experience in law enforcement in the Rio Grande Valley
than Cantu.
. . . .
While Cantu never used the explicit words stated in the Herald’s initial
article, the standard is whether that summary was a rational interpretation
of what he said.206
Pleas for ethnic solidarity or racial prejudice are not
always made in explicit terms. As Justice Peeples noted in analyzing such
a plea in the context of a jury argument, “[t]o permit the sophisticated
ethnic plea while condemning those that are open and unabashed would
simply reward counsel for ingenuity in packaging.”207
Similarly, holding
that headlines like the one here are actionable unless candidates make an
explicit ethnic plea would reward candidates who make implicit ones by
punishing the press for reporting on it.
. . . . The difference in the candidates’ ethnic backgrounds were apparently
obvious to those who attended the debate, and as we have noted the
terms Cantu used to distinguish himself are similar to those sometimes
used for ulterior purposes. Further, while the record does not reflect the
composition of the audience at the debate, the wider audience is a matter
of record — according to the U.S. Census taken in the year of the election,
84.3% of Cameron County residents were persons of Hispanic or Latino
origin. If Cantu’s only purpose was to emphasize his community ties, he
could have chosen less ambiguous terms.
. . . . Based on the entire context of the debate, we hold that the
Herald’s articles were a rational interpretation of Cantu’s remarks at the
debate. Accordingly, the articles standing alone were not evidence of actual
malice.208
Evidence of Dislike for the Plaintiff. The Texas Supreme Court next concluded
that out-of-court statements indicating that the officers of the newspaper disliked
Cantu were not evidence of actual malice.
. . . Cantu detailed several out-of-court statements by Herald reporters to
the effect that the officers of the paper “don’t like you” and “had it out” for
him. Assuming the truth of this hearsay, it only establishes ill will, which is
not proof of actual malice. Jurors cannot impose liability on the basis of a
206
[n.33] Pape, 401 U.S. at 290.
207
[n.34] Tex. Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 862–63 (Tex.App. — San Antonio
1990, writ denied) (holding that argument by plaintiff’s counsel that “by golly there comes a time when
we have got to stick together as a community” was incurable when plaintiff and 11 members of jury had
Spanish surnames).
208
168 S.W.3d at 855–57.
208 DEFAMATION CH. 3
0060 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:07 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
defendant’s “hatred, spite, ill will, or desire to injure.”209
“[E]vidence of
pressure to produce stories from a particular point of view, even when they
are hard-hitting or sensationalistic, is no evidence of actual malice.”
“[A]ctual malice concerns the defendant’s attitude toward the truth, not
toward the plaintiff.” While a personal vendetta demonstrated by a history
of false allegations may provide some evidence of malice, free-floating ill
will does not.210
Rejection of Alternative Interpretation. The Texas Supreme Court also
dismissed the idea that rejection of an alternative interpretation of the events is
evidence of actual malice. The court explained:
. . . [T]he court of appeals pointed to the second Herald article as proof
that the paper changed nothing after learning of Cantu’s objections and
receiving an audiotape of the debate. “The mere fact that a defamation
defendant knows that the public figure has denied harmful allegations or
offered an alternative explanation of events is not evidence that the
defendant doubted the allegations.” In the world of politics, “such denials
are so commonplace . . . they hardly alert the conscientious reporter to the
likelihood of error.”211
The Herald’s prompt follow-up article quoting
Cantu’s version of his remarks and the opinions of his supporters is
evidence of the absence of actual malice, not the opposite. . . . 212
Subsequent Events. The court next found that subsequent events had little
significance to the issue of actual malice. It wrote:
[The court of appeals] . . . pointed to the questions [that the newspaper
editor] Cox raised after reading the first article as some evidence that the
newspaper entertained doubts about its veracity. But “the focus of the
actual-malice inquiry is the defendant’s state of mind during the editorial
process. Evidence concerning events after an article has been printed and
distributed, has little, if any, bearing on that issue.”213
Expert Opinions on Reporting Bias. Finally, the Texas Supreme Court
concluded that expert opinions on whether reporting is biased are not useful. It
explained:
. . . [T]he court of appeals pointed to the opinions of an “expert journalist”
criticizing the Herald’s handling of the story and finding a consistent
pattern of biased reporting regarding Cantu. But actual malice inquires
only into the mental state of the defendant, and the expert claimed no
particular expertise in that field. Nor was his opinion based on anything
other than the articles themselves and the circumstantial evidence already
209
[n.39] Letter Carriers v. Austin, 418 U.S. 264, 281 (1974).
210
168 S.W.3d at 857–58.
211
[n.44] Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692 n. 37 (1989).
212
168 S.W.3d at 858.
213
Id.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 209
0061 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:08 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
discussed. Even assuming this evidence was competent, his opinions cannot
show that the Herald knew its articles were not a rational interpretation of
Cantu’s remarks.214
The Role of the Press in the Internet Age. In summary, the Texas Supreme
Court explained:
“[P]erhaps the largest share of news concerning the doings of government
appears in the form of accounts of reports, speeches, press conferences,
and the like.” While an increasing number of such “doings” can be
viewed in full by those with Internet access and sufficient time, most
members of the public rely on the myriad of other news outlets —
traditional and otherwise — to provide them with a summary. As a result,
press reports generally must include not a transcript of what was said but
a distillation and analysis of its implications.
“Any departure from full direct quotation of the words of the source,
with all its qualifying language, inevitably confronts the publisher with a
set of choices.” Since the founding of the nation, political candidates have
complained that those choices sometimes appear to adopt the most
unflattering and controversial interpretation possible. But nothing in the
Constitution requires the press to adopt favorable attitudes toward public
figures.215
PROBLEM 3-6: THE RACIAL PROFILING STORY
The producers of a television “news magazine” decided to do a show on racial
profiling. They hired three African-American teenagers to drive a new Lincoln
Town Car after dark on the largely vacant downtown streets of a large city. The
objective was to see if the teenagers would be stopped by police and how they
would be dealt with.
When the Lincoln changed lanes without signaling, it was pulled over by two
white police officers in a cruiser. Another police car with two more white officers
soon arrived. The officers asked the teenagers for identification. Things were said
by the officers and the teenagers. Ultimately, the teenagers were ordered out of
the car and frisked. A search of the vehicle ensued, which included the opening of
the trunk and of packages located in the backseat. No contraband was found. After
that, the teenagers were released. Most of these events were captured by two
cameras hidden in the Lincoln and by a third camera in a van which photographed
the events at a distance.
The footage relating to the stop comprised about nine minutes of the 22-minute
segment of the televised program which dealt with racial profiling. The segment
was called “Driving While African-American.” While the video of the stop was
shown on the program, it was narrated by the program host, Benjamin Franklin
Bernstein, an “investigative journalist” who had gained a reputation for “over the
top” reporting and use of inflammatory language. As the footage was shown, a
214
Id. at 858–59.
215
Id. at 859.
210 DEFAMATION CH. 3
0062 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:08 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
professor from Joseph Story School of Law discussed the action. The comments
were recorded sometime after the actual police stop but before the show was
televised. The professor had seen only part of the footage related to the stop. On
the program segment that was aired, the professor said that the search of the car
was illegal under the Fourth Amendment and that the footage appeared to be a
casebook example of racial profiling. Bernstein likewise opined, “police target
African-Americans when they are driving simply because they are black.” Viewers
were told about how the producers had hired the teenagers to drive the Lincoln as
an “experiment” to see how the police would react.
The material about the stop and search of the Lincoln was sandwiched between
two other segments of the program which offered egregious examples of racial
profiling. In the one instance, an African-American teenager was killed during a
traffic stop. In the other case, police shot an African-American husband when they
were called to a home to investigate domestic violence that was in progress.
After the program aired, it was widely discussed on the web and in the press.
Many experts took the position that the Lincoln was stopped and investigated
lawfully. Other experts asserted that the police officers had acted
unconstitutionally and that a car full of white teenagers would not have been
stopped for changing lanes without signaling.
The four officers involved in the search of the Lincoln were not named on the
program, although the city and the police department to which the officers
belonged were named. The images of the search were sufficiently clear that the
officers could be identified by persons who knew them.
After the program aired, the police department conducted an investigation of
the stop. That action caused the officers considerable distress and embarrassment.
Although no disciplinary action was taken against the officers, it seems clear that
their connection to the racial profiling story has hurt their careers.
As a result of their fathers’ roles in the events in question, children of three of
the four officers have been subjected to abuse by other students at schools where
they are enrolled.
The officers have consulted you about whether they can bring a suit for fraud or
defamation against the producers of the news magazine or persons associated with
that production. Please prepare a preliminary analysis of the issues.
2. Category II: Private Persons Suing with Respect to
Matters of Public Concern
After the New York Times actual-malice requirement was extended to public
figures, a plurality of the court voted to go even further. Rosenbloom v.
Metromedia, Inc.216
held that actual malice had to be proved in any case involving
a “matter of public concern.” However, Rosenbloom was soon repudiated in Gertz v.
Robert Welch, Inc.217
216
403 U.S. 29 (1971).
217
418 U.S. 323 (1974).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 211
0063 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:09 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
a. Gertz v. Robert Welch, Inc.
A Lawyer Defamed as a “Communist-Fronter.” In Gertz, a youth (Nelson) was
shot and killed by a police officer (Nuccio), who was later convicted of homicide.
The youth’s family retained attorney Elmer Gertz (later the “petitioner”) to
represent them in civil litigation arising from the death. In this capacity, Gertz
attended the coroner’s inquest into the boy’s death and initiated actions for
damages. However, he neither discussed Officer Nuccio with the press nor played
any part in the criminal proceeding.
Notwithstanding Gertz’s minor connection with the criminal prosecution of
Nuccio, an article in respondent’s magazine (American Opinion) portrayed him as
an architect of a plan to “frame” the police officer. American Opinion was an outlet
for the views of the anti-communist John Birch Society.
The article contained serious inaccuracies. The implication that petitioner had a
criminal record was false. There was no evidence that he or an organization to
which he belonged had taken any part in planning the 1968 demonstrations in
Chicago. There was also no basis for the charge that petitioner was a “Leninist” or
a “Communist-fronter.” Moreover, he had never been a member of the “Marxist
League for Industrial Democracy” or the “Intercollegiate Socialist Society.” The
managing editor of American Opinion had made no effort to verify or substantiate
the charges against petitioner, but had nevertheless appended an editorial
introduction stating that the author had “conducted extensive research into the
Richard Nuccio Case.”
The District Court denied the defendant’s motion to dismiss petitioner’s libel
action. After the evidence was presented, it “ruled in effect that petitioner was
neither a public official nor a public figure,” and it submitted the issue of damages
to the jury, which awarded $50,000. On further reflection, the District Court
concluded that the New York Times standard applied and entered judgment for
defendant notwithstanding the jury verdict. This action was affirmed by the Court
of Appeals for the Seventh Circuit, on the basis of Rosenbloom v. Metromedia,
Inc.218
The Standard for Public Persons. Justice Lewis F. Powell, Jr. delivered the
opinion for the Court. The opinion charted a new direction for an important range
of cases in defamation law. Justice Powell wrote:
The principal issue in this case is whether a newspaper or broadcaster
that publishes defamatory falsehoods about an individual who is neither a
public official nor a public figure may claim a constitutional privilege
against liability for the injury inflicted by those statements. . . .
The legitimate state interest underlying the law of libel is the compensation
of individuals for the harm inflicted on them by defamatory
falsehood. We would not lightly require the State to abandon this purpose,
for, as Mr. Justice Stewart has reminded us, the individual’s right to the
protection of his own good name “reflects no more than our basic concept
218
403 U.S. 29 (1971).
212 DEFAMATION CH. 3
0064 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:09 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
of the essential dignity and worth of every human being — a concept at the
root of any decent system of ordered liberty. . . .”
Some tension necessarily exists between the need for a vigorous and
uninhibited press and the legitimate interest in redressing wrongful
injury. . . .
The New York Times standard defines the level of constitutional
protection appropriate to the context of defamation of a public person.
Those who, by reason of the notoriety of their achievements or the vigor
and success with which they seek the public’s attention, are properly
classified as public figures and those who hold governmental office may
recover for injury to reputation only on clear and convincing proof that the
defamatory falsehood was made with knowledge of its falsity or with
reckless disregard for the truth. This standard administers an extremely
powerful antidote to the inducement to media self-censorship of the
common-law rule of strict liability for libel and slander. And it exacts a
correspondingly high price from the victims of defamatory falsehood.
Plainly many deserving plaintiffs, including some intentionally subjected to
injury, will be unable to surmount the barrier of the New York Times test.
Despite this substantial abridgment of the state law right to compensation
for wrongful hurt to one’s reputation, the Court has concluded that the
protection of the New York Times privilege should be available to publishers
and broadcasters of defamatory falsehood concerning public officials
and public figures. . . . We think that these decisions are correct.
. . . For reasons stated below, we conclude that the state interest in
compensating injury to the reputation of private individuals requires that a
different rule should obtain with respect to them.219
Reasons for Treating Private Persons Differently. Justice Powell then explained
why private persons stand on different footing than public persons:
The first remedy of any victim of defamation is self-help — using available
opportunities to contradict the lie or correct the error and thereby to
minimize its adverse impact on reputation. Public officials and public
figures usually enjoy significantly greater access to the channels of effective
communication and hence have a more realistic opportunity to counteract
false statements than private individuals normally enjoy. Private individuals
are therefore more vulnerable to injury, and the state interest in
protecting them is correspondingly greater.
More important . . . , there is a compelling normative consideration
underlying the distinction between public and private defamation plaintiffs.
An individual who decides to seek governmental office must accept certain
necessary consequences of that involvement in public affairs. He runs the
risk of closer public scrutiny than might otherwise be the case. . . .
Those classed as public figures stand in a similar position. Hypothetically,
it may be possible for someone to become a public figure through no
219
418 U.S. at 332–43.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 213
0065 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:09 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
purposeful action of his own, but the instances of truly involuntary public
figures must be exceedingly rare. For the most part those who attain this
status have assumed roles of especial prominence in the affairs of society.
Some occupy positions of such persuasive power and influence that they are
deemed public figures for all purposes. More commonly, those classed as
public figures have thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved. In
either event, they invite attention and comment.
Even if the foregoing generalities do not obtain in every instance, the
communications media are entitled to act on the assumption that public
officials and public figures have voluntarily exposed themselves to increased
risk of injury from defamatory falsehood concerning them. No such
assumption is justified with respect to a private individual. He has not
accepted public office or assumed an “influential role in ordering society.”.
. . . He has relinquished no part of his interest in the protection of
his own good name, and consequently he has a more compelling call on the
courts for redress of injury inflicted by defamatory falsehood. Thus, private
individuals are not only more vulnerable to injury than public officials and
public figures; they are also more deserving of recovery.
For these reasons we conclude that the States should retain substantial
latitude in their efforts to enforce a legal remedy for defamatory falsehood
injurious to the reputation of a private individual. . . . 220
Rejection of Rosenbloom. Justice Powell then explained why the Court’s
decision in Rosenbloom had erred.
The extension of the New York Times test proposed by the Rosenbloom
plurality would abridge this legitimate state interest [in compensating
harm to reputation] to a degree that we find unacceptable. And it would
occasion the additional difficulty of forcing state and federal judges to
decide on an ad hoc basis which publications address issues of “general or
public interest” and which do not — to determine, in the words of Mr.
Justice Marshall, “what information is relevant to selfgovernment.”.
. . . We doubt the wisdom of committing this task to the
conscience of judges. Nor does the Constitution require us to draw so thin
a line between the drastic alternatives of the New York Times privilege and
the common law of strict liability for defamatory error. The “public or
general interest” test for determining the applicability of the New York
Times standard to private defamation actions inadequately serves both of
the competing values at stake. On the one hand, a private individual whose
reputation is injured by defamatory falsehood that does concern an issue of
public or general interest has no recourse unless he can meet the rigorous
requirements of New York Times. This is true despite the factors that
distinguish the state interest in compensating private individuals from the
analogous interest involved in the context of public persons. On the other
hand, a publisher or broadcaster of a defamatory error which a court deems
220
Id. at 344–46.
214 DEFAMATION CH. 3
0066 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:09 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
unrelated to an issue of public or general interest may be held liable in
damages even if it took every reasonable precaution to ensure the accuracy
of its assertions. And liability may far exceed compensation for any actual
injury to the plaintiff, for the jury may be permitted to presume damages
without proof of loss and even to award punitive damages.221
New Rule for Private Persons Suing with Respect to Matters of Public
Concern. Justice Powell then set the standards for what have become known as
Gertz-type cases, defamation suits involving private persons and matters of public
concern:
[S]o long as they do not impose liability without fault, the States may define
for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a private individual.
. . . .
. . . [W]e endorse this approach in recognition of the strong and
legitimate state interest in compensating private individuals for injury to
reputation. But this countervailing state interest extends no further than
compensation for actual injury. For the reasons stated below, we hold that
the States may not permit recovery of presumed or punitive damages, at
least when liability is not based on a showing of knowledge of falsity or
reckless disregard for the truth.
The common law of defamation is an oddity of tort law, for it allows
recovery of purportedly compensatory damages without evidence of actual
loss. Under the traditional rules pertaining to actions for libel, the existence
of injury is presumed from the fact of publication. Juries may award
substantial sums as compensation for supposed damage to reputation
without any proof that such harm actually occurred. The largely uncontrolled
discretion of juries to award damages where there is no loss
unnecessarily compounds the potential of any system of liability for
defamatory falsehood to inhibit the vigorous exercise of First Amendment
freedoms. Additionally, the doctrine of presumed damages invites juries to
punish unpopular opinion rather than to compensate individuals for injury
sustained by the publication of a false fact. . . . [S]tates have no substantial
interest in securing for plaintiffs such as this petitioner gratuitous
awards of money damages far in excess of any actual injury.
. . . . We need not define “actual injury,” as trial courts have wide
experience in framing appropriate jury instructions in tort actions. Suffice
it to say that actual injury is not limited to out-of-pocket loss. Indeed, the
more customary types of actual harm inflicted by defamatory falsehood
include impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering. . . . [T]here need be no
evidence which assigns an actual dollar value to the injury.
. . . . Like the doctrine of presumed damages, jury discretion to award
punitive damages unnecessarily exacerbates the danger of media self-
221
Id. at 346.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 215
0067 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:10 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
censorship, but, unlike the former rule, punitive damages are wholly
irrelevant to the state interest that justifies a negligence standard for
private defamation actions. They are not compensation for injury. . . . In
short, the private defamation plaintiff who establishes liability under a less
demanding standard than that stated by New York Times may recover only
such damages as are sufficient to compensate him for actual injury.222
Application to the Facts in Gertz. Justice Powell then turned to an analysis of
the facts in Gertz under the new rules:
[R]espondent contends that we should affirm the judgment below on the
ground that petitioner is either a public official or a public figure. There is
little basis for the former assertion. Several years prior to the present
incident, petitioner had served briefly on housing committees appointed by
the mayor of Chicago, but at the time of publication he had never held any
remunerative governmental position. Respondent admits this but argues
that petitioner’s appearance at the coroner’s inquest rendered him a “de
facto public official.” Our cases recognize no such concept. Respondent’s
suggestion would sweep all lawyers under the New York Times rule as
officers of the court and distort the plain meaning of the “public official”
category beyond all recognition. We decline to follow it.
Respondent’s characterization of petitioner as a public figure raises a
different question. . . .
Petitioner has long been active in community and professional affairs.
He has served as an officer of local civic groups and of various professional
organizations, and he has published several books and articles on legal
subjects. Although petitioner was consequently well known in some circles,
he had achieved no general fame or notoriety in the community. None of the
prospective jurors called at the trial had ever heard of petitioner prior to
this litigation, and respondent offered no proof that this response was
atypical of the local population. We would not lightly assume that a citizen’s
participation in community and professional affairs rendered him a public
figure for all purposes. Absent clear evidence of general fame or notoriety
in the community, and pervasive involvement in the affairs of society, an
individual should not be deemed a public personality for all aspects of his
life. It is preferable to reduce the public-figure question to a more
meaningful context by looking to the nature and extent of an individual’s
participation in the particular controversy giving rise to the defamation.
In this context it is plain that petitioner was not a public figure. He
played a minimal role at the coroner’s inquest, and his participation related
solely to his representation of a private client. He took no part in the
criminal prosecution of Officer Nuccio. Moreover, he never discussed either
the criminal or civil litigation with the press and was never quoted as having
done so. He plainly did not thrust himself into the vortex of this public
issue, nor did he engage the public’s attention in an attempt to influence its
outcome. We are persuaded that the trial court did not err in refusing to
222
Id. at 346–50.
216 DEFAMATION CH. 3
0068 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:10 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
characterize petitioner as a public figure for the purpose of this litigation.
We therefore conclude that the New York Times standard is inapplicable
to this case and that the trial court erred in entering judgment for
respondent. Because the jury was allowed to impose liability without fault
and was permitted to presume damages without proof of injury, a new trial
is necessary. We reverse and remand for further proceedings in accord with
this opinion.223
A Bare Majority That Reconfigured the Law Nationally. Justice Powell’s
opinion was joined by Potter Stewart, Thurgood Marshall, Harry Blackmun and
William Rehnquist, JJ. Justice Blackmun stated in a concurrence that he found
some difficulties with the majority opinion, but that he joined in it to attain a
“definitive ruling.” Chief Justice Warren Burger dissented in an opinion which
indicated that he disapproved of the requirement of negligence for private
defamation. Justice William O. Douglas dissented on the basis of his absoluteprivilege
theory, and would have at least retained the Rosenbloom rule. Justice
William J. Brennan, Jr. dissented and would have retained the Rosenbloom rule.
Justice Byron White dissented and would have retained strict liability for private
defamation.
b. Applying the Gertz standards
Actual Malice Versus Negligence in Gertz-type Cases. The great majority of
jurisdictions have accepted Gertz’s invitation to require only a showing of
negligence in cases brought by private persons suing with respect to matters of
public concern. For example, in Rudloe v. Karl,224
Florida State University was
sued for publishing in the “Alumni Notes” section of its magazine material
submitted by one alumnus which insinuated that another alumnus had stolen a
priceless aquatic specimen from a professor and had later offered it for sale. In
reversing dismissal of the claim, the Florida District Court of Appeal wrote:
Sovereign immunity [under Florida law] is no bar to appellants’ negligent
defamation claim. “First, for there to be governmental tort liability,
there must be either an underlying common law or statutory duty of care
with respect to the alleged negligent conduct.”. . . . Here, because of the
common law duty publishers owe non-public figures, the . . . complaint
adequately stated a claim for relief against FSU in alleging that FSU
negligently published defamatory material about Mr. Rudloe and Gulf
Specimen.225
However, occasional decisions have mandated a greater showing of fault as to
falsity. For example, there is authority that in Indiana a Gertz-type plaintiff must
prove actual malice.226
The New York Variation of the Culpability Requirement. New York has
223
Id. at 351–52.
224
899 So.2dSo. 2d 1161 (Fla. Dist. Ct. App. 2005).
225
Id. at 1164.
226
See Poyser v. Peerless, 775 N.E.2d 1101 (Ind. Ct. App. 2002).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 217
0069 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:10 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
articulated the culpability requirement for Gertz-type cases in unusual terms.
“Thus, when the claimed defamation arguably involves a matter of public concern,
a private plaintiff must prove that the media defendant ‘acted in a grossly
irresponsible manner without due consideration for the standards of information
gathering and dissemination ordinarily followed by responsible parties.’ ”227
Equating Negligent Reference to the Plaintiff with Negligence as to Falsity.
Some cases take the position that negligent reference to the plaintiff is the same as
negligence as to the falsity of the allegedly defamatory statement. For example, in
Stanton v. Metro Corp.,228
an article gave the allegedly false impression that a
teenage girl (Stanton), who was pictured in a photograph, was sexually promiscuous.
In holding that the girl stated a cause of action for defamation because the
article could be understood to defame her, the court wrote:
[Defendant] Metro argues that Stanton’s amended complaint should have
been dismissed because she failed to “allege any facts that, if true, would
demonstrate that Metro acted with negligent disregard for the truth by
juxtaposing the photograph and the article.” We disagree. “[P]rivate
persons . . . may recover compensation (assuming proof of all other
elements of a claim for defamation) on proof that the defendant was
negligent in publishing defamatory words which reasonably could be
interpreted to refer to the plaintiff.” [New England Tractor-Trailer Training,
Inc. v. Globe Newspaper Co., 395 Mass. 471, 477, 480 N.E.2d 1005, 1009
(Mass. 1985)]; see also Restatement (Second) of Torts §§ 564 cmt. f & 580B
cmt. b(5) (1977). Furthermore, “ ‘[i]f the recipient reasonably understood
the communication to be made concerning the plaintiff, it may be inferred
that the defamer was negligent in failing to realize that the communication
would be so understood,’ ” provided the plaintiff can “ ‘prove that a
reasonable understanding on the part of the recipient that the communication
referred to the plaintiff was one that the defamer was negligent in
failing to anticipate.’ ”. . . . 229
Public Figure Status is a Question of Law. Whether the plaintiff is a public
figure is a question of law for the court to decide. Although Gertz makes clear that
some persons may be public figures for all purposes, the relevant issue is normally
whether the plaintiff is a limited-purpose public figure, which means a public figure
with respect to the subject matter of the defamatory statement.
Time, Inc. v. Firestone. In Time, Inc. v. Firestone,230
a weekly magazine had
inaccurately reported that a wealthy couple had been granted a divorce because of
the plaintiff’s adultery and cruelty. In fact, the basis for the ruling was “lack of
domestication” on the part of both spouses. In addressing the issue of whether the
former wife (the “respondent”) was a public figure, then-Justice William H.
Rehnquist wrote for a majority of the Court:
227
Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999) (quoting Chapadeau v. Utica Observer
Dispatch, 341 N.E.2d 569, 571 (N.Y. 1975)).
228
438 F.3d 119 (1st Cir. 2006).
229
Id. at 131–32.
230
424 U.S. 448 (1976).
218 DEFAMATION CH. 3
0070 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:10 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Respondent did not assume any role of especial prominence in the affairs of
society, other than perhaps Palm Beach society, and she did not thrust
herself to the forefront of any particular public controversy in order to
influence the resolution of the issues involved in it.
Petitioner contends that because the Firestone divorce was characterized
by the Florida Supreme Court as a “cause célèbre,” it must have been
a public controversy and respondent must be considered a public figure.
But in so doing petitioner seeks to equate “public controversy” with all
controversies of interest to the public. Were we to accept this reasoning, we
would reinstate the doctrine advanced in the plurality opinion in Rosenbloom
v. Metromedia, Inc., 403 U.S. 29 (1971), which concluded that the
New York Times privilege should be extended to falsehoods defamatory of
private persons whenever the statements concern matters of general or
public interest. In Gertz, however, the Court repudiated this position. . . .
Dissolution of a marriage through judicial proceedings is not the sort of
“public controversy” referred to in Gertz, even though the marital difficulties
of extremely wealthy individuals may be of interest to some portion of
the reading public. Nor did respondent freely choose to publicize issues as
to the propriety of her married life. She was compelled to go to court by the
State in order to obtain legal release from the bonds of matrimony. . . . 231
We hold respondent was not a “public figure” for the purpose of determining
the constitutional protection afforded petitioner’s report of the factual
and legal basis for her divorce.232
Examples of Public Figures. Courts have classified as public figures: a
politically active city resident;233
a public restaurant;234
a Holocaust survivor who
authorized a biography;235
a security guard who granted interviews before he
became a suspect;236
a professional football player;237
a former U.S. Senate
candidate;238
a Playboy playmate who posed for a photograph;239
a research
scientist and bioterrorism expert who was a frequent commentator on anthrax
mailings that killed five persons;240
and a college dean.241
231
[n.3] Nor do we think the fact that respondent may have held a few press conferences during the
divorce proceedings in an attempt to satisfy inquiring reporters converts her into a “public figure.” Such
interviews should have no effect upon the merits of the legal dispute between respondent and her
husband or the outcome of that trial, and we do not think it can be assumed that any such purpose was
intended. Moreover, there is no indication that she sought to use the press conferences as a vehicle by
which to thrust herself to the forefront of some unrelated controversy in order to influence its
resolution. . . .
232
424 U.S. at 453–55.
233
See Sparks v. Peaster, 581 S.E.2d 579 (Ga. Ct. App. 2003).
234
See Pegasus v. Reno Newspapers, Inc., 57 P.3d 82 (Nev. 2002).
235
See Thomas v. L.A. Times Comm’ns, 45 F. App’x. 801 (9th Cir. 2002).
236
See Atlanta-Journal Constitution v. Jewell, 555 S.E.2d 175 (Ga. Ct. App. 2001).
237
See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1280 (3d Cir. 1979).
238
See Williams v. Pasma, 656 P.2d 212, 216 (Mont. 1982).
239
See Vitale v. National Lampoon, Inc., 449 F. Supp. 442 (E.D. Pa. 1978).
240
See Hatfill v. New York Times Co., 532 F.3d 312 (4th Cir. 2008).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 219
0071 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:10 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Narrow Definition of Public Figure. Some decisions, often quite sensibly, have
construed the “public figure” category narrowly. For example, in Franklin Prescriptions,
Inc. v. New York Times Co.,242
a federal court in Pennsylvania held that
a pharmacy, which used the Internet for informational purposes only and did not
take orders over the Internet, was not a limited-purpose public figure in the context
of a public controversy about online pharmacies making expensive drugs more
accessible.
In Lundell Manufacturing Co. v. American Broadcasting Companies,243
the
Eighth Circuit held that a manufacturer of a garbage recycling machine was not a
public figure. Although garbage disposal was a matter of public concern, the
manufacturer’s entry into a contract for the mere sale of the machine to a county
was not the injection of the manufacturer into a controversy for the purpose of
influencing a public issue. Moreover, the defendant network’s conduct in televising
the issue did not render the manufacturer a public figure.
In Bochetto v. Gibson,244
a well-known attorney (Bochetto), who had once run for
mayor of Philadelphia, alleged that he had been defamed by another attorney, who
had filed a legal malpractice complaint against Bochetto and faxed a copy of the
complaint to a reporter who wrote a story. The complaint asserted that Bochetto
had committed malpractice by failing to disclose an adverse report to a client who
was defending two real property quiet-title actions. In discussing whether the
faxing of the complaint to the reporter was protected by a qualified privilege, the
Pennsylvania Court of Common Pleas wrote:
[T]he particular controversy giving rise to the defamation claim was a
private lawsuit brought against Bochetto by his former client. That
Malpractice Action does “not involve a matter of public controversy with
foreseeable and substantial ramifications for the members of the general
public.”. . . . Since the Malpractice Action against Bochetto does not rise
to the level of a public controversy, it does not implicate Bochetto as a public
figure, and he is a private person for purposes of this litigation.245
Involuntary Public Figures. Courts have employed such a bewildering array of
tests in grappling with the elusive idea of “involuntary public figure” status that it
is difficult to say anything useful about this category. Law professor Joseph H.
King, Jr. of the University of Tennessee argues that:
Rather than continue along a desultory path of trying to reconcile the
dissonant drags of status and content in defining the scope of constitutional
limitations on state defamation law, . . . [t]he Supreme Court should
extend the constitutionally mandated requirement of proof of knowledge or
reckless disregard, falsity, and a provably false statement suggesting actual
facts to all defamation plaintiffs in all cases without regard to either the
241
See Byers v. Southeastern Newspaper Corp. 288 S.E.2d 698 (Ga. Ct. App. 1982).
242
267 F. Supp. 2d 425 (E.D. Pa. 2003).
243
98 F.3d 351 (8th Cir. 1996).
244
2006 Phila. Ct. Com. Pl. LEXIS 310 (Pa. C.P. 2006).
245
Id. at *14.
220 DEFAMATION CH. 3
0072 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:11 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
status of the plaintiff or the nature of the content of the defendant’s
communication.246
Private Enterprisers Who Assist or Disrupt the Government. In Mathis v.
Cannon,247
the Georgia Supreme Court considered the rules relating to limitedpurpose
public figures. Addressing the facts before it, the court wrote:
The [Georgia] court of appeals has adopted a three-part analysis used in
federal cases to determine whether an individual is a limited-purpose public
figure. Under this analysis, a court “must isolate the public controversy,
examine the plaintiff’s involvement in the controversy, and determine
whether the alleged defamation was germane to the plaintiff’s participation
in the controversy.”
Applying this analysis, we conclude that Cannon [the majority owner
and president of TransWaste Services, Inc., a private entity] is a limitedpurpose
public figure in the controversy surrounding the recycling facility
and landfill in Crisp County. The public controversy concerns the Solid
Waste Management Authority of Crisp County’s financially unsuccessful
operation of its solid waste recovery facility and resulting strain on the
county’s resources and its taxpayers. After 18 months of operation, the
plant was not able to process the solid waste or produce the recyclable
materials and commercial compost as projected. As a result, a large amount
of solid waste that was collected from other locations for processing at the
authority’s plant was instead being diverted to the county landfill. The
county commission voted to raise property taxes to deal with the costs
related to disposing of the county’s own waste and expand the countyowned
landfill to accommodate the additional solid waste that TransWaste
was bringing into the county under its contract with the authority.
In reviewing Cannon’s role, we find that he was involved in the public
controversy in Crisp County in at least three ways. First, he was a crucial
actor in helping the authority obtain the commitments from other county
and city governments in south Georgia to provide solid waste for the
authority’s facility. Without these early commitments, the authority would
not have been able to obtain the construction loans necessary to go forward
with the project.
Second, Cannon represented the authority in a variety of ways that far
exceeded the terms of TransWaste’s contract to collect and haul solid waste
to Crisp County. As he explained in his deposition, the authority in 1996 was
still “just a shell of an authority developing a concept,” with no funding,
lines of credit, or buildings. “TransWaste would step in to try to help the
Authority in whatever way they could, and there are many, many instances
of that.” Although he described his position as an independent contractor
who functioned as “the garbage man of the deal,” it is difficult to distinguish
between his efforts on behalf of the public authority and his efforts on
246
See Joseph H. King, Jr., Deus ex Machina and the Unfulfilled Promise of New York Times v.
Sullivan: Applying the Times for All Seasons, 95 KY. L.J. 649, 713 (2007).
247
573 S.E.2d 376 (Ga. 2002).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 221
0073 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:11 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
behalf of his private company. Using his personal contacts with city and
county officials developed from selling them heavy-duty equipment, Cannon
solicited business for the authority; this solicitation helped generate
business for TransWaste as the authority’s exclusive hauler. He negotiated
the authority’s contracts with local governments who provided waste,
borrowed money through TransWaste and wrote a check directly to the
City of Warner Robins for equipment that the authority had agreed to
purchase, wrote and signed correspondence on authority letterhead in his
capacity as its solid waste hauler, and participated in some of the
authority’s executive sessions.
Third, Cannon precipitated the financial crisis in November 1999 by
filing a lawsuit against the authority and then temporarily halting deliveries
to the solid waste recovery plant. TransWaste’s actions in stopping deliveries
forced the authority to address its financial and legal problems.
Moreover, Cannon knew, or should have known, that suing the authority for
payment for services rendered would affect the county as the other major
participant in the project.
Based on Cannon’s role in developing the project, representing the
authority, and accelerating the crisis, we conclude that he voluntarily
injected himself into the controversy or, at a minimum, became drawn into
the public controversy over the operation of the authority’s facility and
county’s landfill. . . . Having blurred the distinction between his work for
his private business and his more public efforts in helping develop the
quasi-governmental project, he should not be able to erect a barrier to
public criticism of his role once the project failed to perform as planned.
. . . [W]e conclude that the nature and extent of Cannon’s participation
in the local controversy concerning solid waste disposal has made him a
limited-purpose public figure. . . . 248
c. Defamation in Politics
Candidates, political action committees, and others sometime disseminate
extreme characterizations of the records or proposals of political opponents. These
statements are not exempt from the law of defamation. A candidate for public office
is a current public official or an aspiring public figure who must prove actual malice
in order to prevail in suit for libel or slander. That is a formidable obstacle which
may take years to surmount, but sometimes the standard can be met.
In Boyce & Isley, PLLC v. Cooper,249
the person who was elected state attorney
general had run a commercial alleging that his opponent’s law firm had “sued the
state” and had charged the taxpayers an hourly rate of $28,000, “more than a police
officer’s salary for each hour’s work.” In fact, the fee had been pursued not by the
plaintiff, but by the plaintiff’s father, in a contingent-fee class action before the
plaintiff ever joined the law firm. The statements, which implied unethical billing
248
Id. at 381–83.
249
568 S.E.2d 893 (N.C. Ct. App. 2002).
222 DEFAMATION CH. 3
0074 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:12 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
practices, were found to be libelous per se. Moreover, claims were stated by all four
members of the opponent’s law firm and by the firm itself. The plaintiffs were able
to prove actual malice, in part because the successful candidate had refused to pull
the ad after demands for its discontinuance.
In Flowers v. Carville,250
the Ninth Circuit held that a claim was stated against
former presidential advisors based on their repetition of CNN news reports stating
that tape recordings made by the plaintiff had been “doctored” or “selectively
edited.” The court acknowledged that the plaintiff might not be able to prove actual
malice, noting that “[o]ne who repeats what he hears from a reputable news source,
with no individualized reason external to the news report to doubt its accuracy, has
not acted recklessly.”251
However, the “[d]efendants were not uninvolved third
parties who clearly lacked access to the facts behind the published reports.”252
PROBLEM 3-7: THE DEFAMED TELEMARKETER
AmeriTel Marketers, Inc. is a telemarketer of a wide range of business products
and services. At any given time, it serves hundreds or thousands of clients.
Annually, its representatives (or its machines) make several million phone calls.
AmeriTel was hired by Midland Ventures, an oil and gas company, to market
investments in oil and gas exploration to persons in middle and upper income
categories. It was not difficult for AmeriTel to target the right prospective
purchasers because its databases contained the names of millions of individuals,
along with direct or indirect information about the assets, earnings, and
investments of many of those persons.
Ultimately, Midland was disappointed by AmeriTel’s services and terminated
their contract. Many purchasers complained to Midland that they had been misled
by statements made by AmeriTel representatives. Subsequently, a Midland
employee posted unflattering comments about AmeriTel on an online business
rating website. Those statements related to the types of deceptive sales pitches
that AmeriTel representatives employed in talking to prospective customers.
Despite demands from AmeriTel, Midland has refused to remove the allegedly
defamatory statements from the website. Corporate counsel for AmeriTel needs to
advise company executives on the prospects for success if a defamation action is
filed against Midland. The first question is whether AmeriTel will have to prove
actual malice. You are a law clerk in the office of corporate counsel. Please prepare
an analysis of the factors that will bear upon judicial resolution of that issue and
the likely result.
250
310 F.3d 1118 (9th Cir. 2002).
251
Id. at 1130.
252
Id.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 223
0075 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:13 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
3. Category III: Anyone Suing with Respect to Matters of
Private Concern
The development of the constitutional principles applicable to actions for libel
and slander took an unexpected turn with the 1985 ruling in Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc.253
a. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
In Dun & Bradstreet,254
a credit report erroneously stated that a business had
declared bankruptcy. The United States Supreme Court, noting the limited
circulation of the report to only a small number of subscribers, concluded that the
defamatory statement did not involve a matter of “public concern.” Because that
was the case, the Court found that state libel law, which allowed the plaintiff to
recover presumed and punitive damages without proof of actual malice, did not
violate the First Amendment.
A Surprising Distinction. It was surprising that the court drew a distinction
between matters of public concern and matters of private concern. In 1971,
Rosenbloom v. Metromedia, Inc.255
had embraced that distinction in deciding how
far to extend the actual-malice standard. However, just three years later, Gertz v.
Robert Welch, Inc.256
repudiated Rosenbloom on the ground that judges should not
be called upon to decide what is or is not a matter of public concern. That reasoning
was no longer found to be persuasive in Dun & Bradstreet, and the distinction
between public and private matters has endured ever since.
Not All Speech is Equally Important. In his plurality opinion in Dun &
Bradstreet (which Justices William H. Rehnquist and Sandra Day O’Connor
joined), Justice Lewis F. Powell explained the basis for distinguishing between
private and public matters. He wrote:
We have long recognized that not all speech is of equal First Amendment
importance. It is speech on “ ‘matters of public concern’ ” that is “at the
heart of the First Amendment’s protection.”. . . .
. . . . In contrast, speech on matters of purely private concern is of less
First Amendment concern. . . . As a number of state courts . . . have
recognized, the role of the Constitution in regulating state libel law is far
more limited when the concerns that activated New York Times and Gertz
are absent. In such a case,
“[t]here is no threat to the free and robust debate of public issues; there
is no potential interference with a meaningful dialogue of ideas concerning
self-government; and there is no threat of liability causing a reaction
of self-censorship by the press. . . .”. . . .
253
472 U.S. 749 (1985).
254
Id.
255
403 U.S. 29 (1971).
256
418 U.S. 323 (1974).
224 DEFAMATION CH. 3
0076 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:13 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
While such speech is not totally unprotected by the First Amendment,
. . . its protections are less stringent. In Gertz, we found that the
state interest in awarding presumed and punitive damages was not
“substantial” in view of their effect on speech at the core of First
Amendment concern. . . . This interest, however, is “substantial” relative
to the incidental effect these remedies may have on speech of significantly
less constitutional interest. The rationale of the common-law rules has been
the experience and judgment of history that “proof of actual damage will be
impossible in a great many cases where, from the character of the
defamatory words and the circumstances of publication, it is all but certain
that serious harm has resulted in fact.”. . . . As a result, courts for
centuries have allowed juries to presume that some damage occurred from
many defamatory utterances and publications. Restatement of Torts § 568,
Comment b, p. 162 (1938) (noting that Hale announced that damages were
to be presumed for libel as early as 1670). This rule furthers the state
interest in providing remedies for defamation by ensuring that those
remedies are effective. In light of the reduced constitutional value of speech
involving no matters of public concern, we hold that the state interest
adequately supports awards of presumed and punitive damages — even
absent a showing of “actual malice.”257
The Unresolved Issue: Fault as to Falsity in “Private Matter” Cases. Justice
Powell’s opinion in Dun & Bradstreet was silent on whether a plaintiff, in a
defamation suit involving a private matter, must prove that the defendant was at
least negligent as to the falsity of the statement. Chief Justice Warren Burger, in a
separate concurrence, asserted that the rules announced in Gertz were limited to
cases involving matters of public concern. Justice Byron White, in another
concurrence, opined that Dun & Bradstreet had rejected the Gertz rule that liability
cannot be imposed without fault, as well as Gertz’s holding that awards of presumed
or punitive damages require actual malice. In contrast, Justice William J. Brennan,
speaking in dissent for himself and three other justices (Marshall, Blackmun, and
Stevens, JJ.), argued that the holding in Dun & Bradstreet was narrow and that the
parties did not question the requirement of fault as a prerequisite to obtaining a
judgment and actual damages.
Subsequent federal and state court decisions “run the gamut from assertions
that Dun & Bradstreet swept away all First Amendment requirements in privateprivate
suits to unequivocal declarations that the case affected nothing but the fault
requirement for presumed and punitive damages.”258
At least one U.S. Court of
Appeals (the Fifth Circuit), three federal district courts, and four states’ appellate
courts have interpreted Dun & Bradstreet as eliminating constitutional restrictions
in cases involving private persons suing with respect to matters of private
concern.259
For example, in Imperial Apparel, Ltd. v. Cosmo’s Designer Direct,
257
472 U.S. at 758–61.
258
Ruth Walden & Derigan Silver, Deciphering Dun & Bradsttreet: Does the First Amendment
Matter in Private Figure-Private Concern Defamation Cases, 14 COMM. L. & POL’Y 1, 15-16 (2009).
259
Id. at 16–21.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 225
0077 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:13 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Inc.,260
a defamation suit involving competing retailers, the Supreme Court of
Illinois wrote:
[N]o claim has been made that the statements made in the disputed
advertisement addressed a matter of public concern. . . . [Therefore], the
special standards for fault, falsity, and punitive damages imposed by the
first amendment in defamation actions therefore have no application to the
claims asserted by Imperial and the Rosengartens against Cosmo’s. Those
claims are subject to the normal common law fault, falsity and punitive
damage principles followed in Illinois in defamation cases. Because it is a
media defendant, the Sun-Times is protected by the special first amendment
standard requiring a showing of fault, but because Illinois does not
impose liability without fault in defamation cases and thus comports with
that standard, the standard has no effect on resolution of this litigation.261
b. Distinguishing Private Concern from Public Concern
Dun & Bradstreet provides little guidance for distinguishing matters of private
concern from matters of public concern. Indeed, the Court’s application of the law
to the facts then before it seems counter-intuitive and erroneous. The defendant’s
credit report said that a corporation had voluntarily declared bankruptcy. It could
certainly be argued that whether a business has failed financially is a matter of
public concern, if the business employs numerous workers, has many creditors, and
pays taxes.
Limited Dissemination. Justice Powell’s opinion placed weight on the fact that
the erroneous credit report was given limited dissemination and that the five
subscribers who received the report were contractually precluded from further
disseminating its contents. The Court also suggested that the reporting of
“objectively verifiable information” deserved less constitutional protection than
other kinds of speech, and that market forces gave credit-reporting agencies an
incentive to be accurate, “since false credit reporting is of no use to creditors.”262
Summarizing the conclusion that the report was a matter of private concern,
Justice Powell wrote:
[The credit report] was speech solely in the individual interest of the
speaker and its specific business audience. . . . This particular interest
warrants no special protection when — as in this case — the speech is
wholly false and clearly damaging to the victim’s business reputation.
. . . Moreover, since the credit report was made available to only five
subscribers, who, under the terms of the subscription agreement, could not
disseminate it further, it cannot be said that the report involves any “strong
interest in the free flow of commercial information.”. . . . There is simply
no credible argument that this type of credit reporting requires special
260
882 N.E.2d 1011 (Ill. 2008).
261
Id. at 1021.
262
472 U.S. at 762–63.
226 DEFAMATION CH. 3
0078 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:14 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
protection to ensure that “debate on public issues [will] be uninhibited,
robust, and wide-open.”263
Deference to the Media. In Huggins v. Moore,264
the NewYork Court of Appeals
wrote that “publications directed only to a limited, private audience are ‘matters of
purely private concern,’ ” but that the fact that an article “has been published in a
newspaper is not conclusive that its subject matter warrants public exposition.”
Nevertheless, in Moore, statements contained in a gossip column about an
acrimonious celebrity divorce were found to be matters of genuine social concern.
The opinion for an unanimous court stated:
Plaintiff Charles Huggins is the former husband of Melba Moore, a
popular actress. . . . Plaintiff brought this defamation action as a result of
three articles written by defendant Linda Stasi and published in the “Hot
Copy” column of defendant Daily News. . . . The articles concerned
Moore’s allegations of plaintiff’s betrayal of trust in their personal and
financial relationships during the dissolution of their marriage. The series
reported how Moore began to speak out as a self-described victim of
“economic spousal abuse,” because she believed her husband had cheated
her out of her interest in the entertainment management company they had
built together, leaving her destitute.
. . . [T]he articles themselves show the greater significance of Moore’s
personal story, a tragic downfall from a position of stardom and wealth.
Moore was given a platform for speaking out as a victim of an allegedly
pervasive modern phenomenon of economic spousal abuse. Manifestly, what
Stasi [the author of the articles] identified as the “important social issue” of
“economic spousal abuse” was at least arguably within the sphere of
legitimate public concern. . . .
. . . [W]e will not second-guess Stasi’s editorial determination that
Moore’s “personal saga” was reasonably related to this matter of social
concern to the community. . . . [A]lthough “not conclusive,” the editorial
determination of newsworthiness of the subject “may be powerful evidence
of the hold those subjects have on the public’s attention”. . . . In this case,
the evidence was powerful indeed. The record establishes that Moore’s
downfall, and her claim of plaintiff’s betrayal, was reported nationwide
across the entire spectrum of print and broadcast media.
In ruling to the contrary, the Appellate Division did not accord the
deference to editorial judgment our decisions require. That the “core” of
the dispute between Moore and plaintiff was a divorce is not conclusive. The
articles also portrayed Moore’s alleged victimization by her financial as well
as marital partner to the point of economic and career ruination. It is this
episode of human interest that reflected a matter of genuine social
concern. . . . [T]he allegedly defamatory text here was not so remote from
263
Id. at 762.
264
726 N.E.2d 456, 460 (N.Y. 1999).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 227
0079 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:15 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
the matter of public concern as to constitute an abuse of editorial
discretion. . . . 265
Allegations of Fraud. In Senna v. Florimont,266
an arcade game barker used a
public address system to tell boardwalk walkers that a competitor was “dishonest”
and “a crook,” and to say that he “ran away and screwed all of his customers in
Seaside” and would do it all again. Finding that the resulting defamation action only
required proof of negligence as to falsity, the Supreme Court of New Jersey wrote:
Defendants would have us conclude that whenever one business tars its
competitor with the canard of consumer fraud, the accusation, even if false,
involves a matter of public concern. However, this was not a case of
disinterested investigative reporting by a newspaper, using a variety of
sources, to demonstrate that customers were being defrauded by a
service-oriented business, as was true in [Turf Lawnmower Repair, Inc. v.
Bergen Record Corp., 655 A.2d 417 (N.J. 1995) ]. Defendants’ employees
were basically scaring customers away from plaintiff. Their accusations
were not more highly valued speech because they charged their rival with
consumer fraud rather than a peccadillo. It cannot be that, in the
competition of the marketplace, the bigger the lie the more free speech
protection for the publisher of the lie. Businesses have an obligation to act
with due care before calling the services rendered by a rival crooked or
fraudulent.267
The Significance of Being Regulated by the Government. The Senna court
then addressed whether being regulated by the government makes an entity’s
activities a matter of public concern:
Defendants also claim that Fascination parlors are highly regulated
businesses and therefore their employees’ false and disparaging broadcasts
about their competitor do not render them liable, even if they were
negligent, because they fall within the safe harbor of the actual-malice
standard. Defendants unmoor the term “highly regulated industry” from
its conceptual settings. . . . There is a difference between a newspaper
publishing an investigative report about the questionable loan practices of
a bank, which is part of a highly regulated industry, and a highly regulated
Fascination parlor using its public address system in an attempt to put out
of business its competitor’s highly regulated Fascination parlor. . . .
The invocation of the term “highly regulated industry” is not talismanic,
giving every speaker immunity for his negligent, false, and harmful speech.
In New Jersey, not just banks and arcade games, but professions (e.g., law,
medicine, and accountancy), trades, and many other businesses are highly
regulated by the government. The critical inquiry in determining whether
speech involves a matter of public interest is the content, form, and context
of the speech. For example, when one accountant wrongly and falsely
265
Id. at 458–62.
266
958 A.2d 427 (N.J. 2008).
267
Id. at 445.
228 DEFAMATION CH. 3
0080 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:15 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
accuses another accountant of overcharging clients, and disseminates those
accusations to clients, the public interest is not served by shielding the
speaker from the consequences of his negligence. The same holds true for
Fascination parlors.
So long as one business tells the truth about another, or does not publish
a falsehood negligently, that business will not be exposed to liability.
. . . The speech in this case no more involves the public interest than
the false credit report in Dun & Bradstreet. . . . In balancing the respective
interests at stake here, including plaintiff’s right to enjoy his reputation
free of unfair and false aspersions, the negligence standard adequately
protects defendants’ free speech rights.268
(1) Example: Quigley v. Rosenthal
In Quigley v. Rosenthal,269
the Tenth Circuit struggled with the task of
distinguishing matters of public concern from matters of private concern. In
Quigley, homeowners (the Quigleys) sued a civil rights group (the Anti-Defamation
League) and its attorney (Rosenthal) on defamation and other theories of liability
based on statements the defendants had made relating to allegedly anti-Semitic
behavior on the part of the homeowners against their Jewish neighbors (the
Aronsons). Discussing the defamation claim, the court wrote:
Consistent with Gertz, the Colorado Supreme Court has extended the
. . . “actual malice” standard of liability to cases where “a defamatory
statement has been published concerning one who is not a public official or
a public figure, but the matter involved is of public or general con-
cern.”270
. . . .
Defendants do not dispute that the Quigleys [the plaintiffs] were private
individuals at the time the alleged defamatory statements were made.
Instead, defendants assert that the statements involved matters of public
or general concern since they concerned a civil lawsuit alleging “that the
Quigleys had conspired with others to deprive [their neighbors] the
Aronsons of their constitutional rights on the basis of their religion and
race.”. . . . The district court rejected defendants’ arguments, concluding
that defendants’ statements did not relate to a matter of public or general
concern:
[T]he bulk of the allegedly defamatory statements were based on
excerpts of private telephone conversations between the Quigleys and
other third parties which the Aronsons surreptitiously intercepted. In
this regard, the Quigleys’ position contrasts to that of the plaintiffs in
. . . [Diversified Mgmt., Inc. v. The Denver Post, Inc., 653 P.2d 1103
(Colo. 1982)], in which the court found that alleged widespread and
268
Id. at 445–46.
269
327 F.3d 1044 (10th Cir. 2003).
270
[n.4] Under Colorado law, if a private individual is involved and the matter is not one of “public or
general concern,” the plaintiff merely needs to establish fault amounting to negligence on the part of the
defendant. . . .
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 229
0081 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:15 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
ongoing land-development schemes of questionable propriety constituted
a matter of public concern strictly because the matter still had the
potential to affect future buyers of lots which were yet-unsold. Similarly,
in . . . [Lewis v. McGraw-Hill Broadcasting Co., 832 P.2d 1118 (Colo. Ct.
App. 1992)], the court found a matter of public interest existed in part
because the plaintiff filed a civil lawsuit to “protest[ ] racially motivated
policies of a large retail establishment which allegedly had been directed
against her.” Thus, in Lewis, in addition to the fact that the plaintiff had
essentially thrust herself into a public debate through her lawyer’s
public commentary at a local meeting, the court relied on the fact that
resolution of the issues could have an [effect] on other patrons of a
commercial entity.
At the time of the allegedly defamatory statements in this case,
Rosenthal [the civil rights group’s attorney] had received merely one
unsolicited request from the press based on the filing of the [civil]
lawsuit, as compared to the “immediate and widespread publicity from
the various media organizations” which the filing of the underlying
lawsuit in Lewis prompted. It was defendants’ decision (arguably along
with the Aronsons’), not the Quigleys’, to amplify the matter by calling
a press conference under the ADL name. Because, at the time of the
press conference . . . [the original publication of the allegedly defamatory
statements] the dispute between the Aronsons and the Quigleys was
still essentially private, I conclude that . . . Rosenthal’s statements
about them are, accordingly, not subject to the higher [actual malice]
standard [of fault].271
Striking the Balance in Favor of Private Matter. The Quigley court suggested
that, at least in Colorado, there is a preference for classifying matters as “private”
rather than “public,” for that tends to permit redress of defamatory harm. The
Tenth Circuit wrote:
Unfortunately, Colorado law provides no clear set of guidelines for
determining whether a matter is of “public concern.”. . . . At best, the
Colorado courts have indicated that “a matter is of public concern whenever
‘it embraces an issue about which information is needed or is appropriate,’
or when ‘the public may reasonably be expected to have a legitimate
interest in what is being published.’ ”. . . . Further, the Colorado courts
have indicated that “the balance should be struck in favor of a private
plaintiff if his or her reputation has been injured by a non-media defendant
in a purely private context.”. . . .
Applying these general standards to the facts presented here, it is
apparent that the statements were made by a non-media defendant
(Rosenthal) and concerned private plaintiffs (the Quigleys), rather than
public officials or public figures. To that extent, the balance would seem to
271
327 F.3d at 1058–59.
230 DEFAMATION CH. 3
0082 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:16 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
tip in favor of concluding that the matter was of private, rather than public,
concern.272
Civil Litigation: Content is the Critical Factor. Addressing the relevance of
pending civil litigation, the Tenth Circuit wrote:
[D]efendants note that Rosenthal was discussing allegations made in a civil
lawsuit filed against the Quigleys. . . . it appears that defendants are
suggesting that civil litigation is always a matter of public concern.
. . . [I]t is far from certain that all civil litigation is considered to be a
matter of public concern under Colorado law. Perhaps the most analogous
Colorado case is Lewis, where private plaintiffs sued media defendants for
falsely reporting during a newscast that one of the plaintiffs previously had
been arrested for obstruction of justice, indecent exposure, and prostitution.
The Colorado Court of Appeals concluded that the incorrect statements
“involved a subject matter of . . . public concern.”. . . . In reaching
this conclusion, the court noted “that the newscast emerged in the context
of a persistent and concededly public controversy over [a major retailer’s]
policies towards minorities, a controversy triggered by publicity surrounding
plaintiffs’ $15 million lawsuit and their allegations of racially discriminatory
policies by [the retailer].”. . . . Although the existence of a civil
lawsuit was a relevant factor in Lewis, nothing in the court’s opinion
suggests that the mere filing of a civil lawsuit, by itself, is sufficient to
trigger “public concern.” Rather, it appears clear that the content of the
lawsuit is the critical factor. . . . 273
The Impermissible Discrimination Factor. The court next addressed whether
allegations of discrimination are always a matter of public concern.
According to defendants, any type of discrimination, including religious and
ethnic discrimination, is necessarily a matter of public concern.
. . . . The defendants appear to be on stronger ground here. In
Connick v. Myers, 461 U.S. 138, 148 n.8, (1983), the Court stated that
“racial discrimination,” at least in the context of public-employment, is “a
matter inherently of public concern.”. . . .
Notwithstanding this case law, two factors unique to this case weigh
against the conclusion that the allegations in the Aronsons’ lawsuit were a
matter of public concern. First, unlike the cases cited above, the allegations
of discrimination asserted in the Aronsons’ lawsuit were not asserted
against a public employer, nor were they asserted against any entity or
person with which the general public had contact (e.g., the major retailer in
Lewis). Thus, there was no concern that the public’s tax dollars were
supporting discrimination (e.g., as in the instance of a public employer
charged with discrimination), nor was there a concern that members of the
public were likely to be harmed or discriminated against (e.g., as in the
272
Id. at 1059–60.
273
Id. at 1060.
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 231
0083 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:16 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
instance of a major retailer charged with discrimination). See Saulpaugh v.
Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (concluding that
employee’s complaints of sex discrimination did not implicate matters of
public concern because they did not implicate “system-wide discrimination”
and instead “were motivated by and dealt with her individual employment
situation”); cf. [Williams v. Continental Airlines, Inc., 943 P.2d 10, 18 (Colo.
Ct. App. 1996)] (concluding public concern was not implicated where there
was “no claim or evidence that plaintiff [was] an unsafe or less skilled pilot
because he allegedly raped or attempted to rape women during off-duty
hours,” nor any evidence “that members of the flying public [we]re in
danger of being sexually assaulted by plaintiff”).274
The Baseless Allegations Factor. Finally, the court found it significant that the
underlying controversy was known by the defendants to lack merit. The Tenth
Circuit wrote:
[I]mportantly, Rosenthal and the ADL were intimately familiar with the
Aronsons and their allegations, having talked and met with the Aronsons
. . . on numerous occasions. . . . Unlike a third-party (e.g., newspaper
reporter) unfamiliar with the parties to a lawsuit or its underlying facts,
Rosenthal and the ADL were in a position to know, and indeed knew or
should have known, that the allegations in the Aronsons’ lawsuit were
baseless. Accordingly, we are unable to conclude that Rosenthal’s comments
at the press conference and on the radio show involved matters of
“public concern” since Rosenthal and the ADL knew or should have known
that the Aronsons’ allegations of racial discrimination/harassment were not
colorable. See Kemp v. State Bd. of Agric., 803 P.2d 498, 504 (Colo. 1990)
(“When an employee alleges a colorable claim that a university is guilty of
racial discrimination, it is a matter of public concern.”) (emphasis added);
see generally . . . Snead v. Redland Aggregates, Ltd., 998 F.2d 1325, 1330
(5th Cir. 1993) (“A speaker cannot turn his speech into a matter of public
concern simply by issuing a press release.”). We agree with the district
court that the statements made by Rosenthal at the press conference and
during the radio show did not involve matters of public concern.275
c. Doubts About Presumed Damages Today
It is useful to remember that, when it was decided in 1974, the Supreme Court’s
decision in Gertz v. Robert Welch, Inc.276
appeared to hold that presumed damages
were not available in any case absent actual malice. Thus, the Restatement
(Second) of Torts, in 1977, embraced a general rule requiring proof of actual harm
resulting from defamation.277
Eleven years later, in 1985, the Supreme Court made
clear, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,278
that the
274
Id. at 1060–61.
275
Id. at 1061.
276
418 U.S. 323 (1974).
277
RESTATEMENT (SECOND) OF TORTS § 621 and caveat (1977).
278
472 U.S. 749 (1985).
232 DEFAMATION CH. 3
0084 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:16 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Constitution does not preclude an award of presumed damages without proof of
actual malice in a case involving a private matter. However, during the period
between the decisions in Gertz and Dun & Bradstreet, the original interpretation of
Gertz influenced the development of the law at the state level. For example,
decisions in Pennsylvania greatly restricted the availability of presumed
damages.279
Today, “continued availability of presumed damages . . . [is] in serious
doubt under Pennsylvania law.”280
Similar precedent (unnecessarily) limiting the
common law rules on presumed damages exists in other jurisdictions,
notwithstanding the fact that Dun & Bradstreet retreated from the original
interpretation of Gertz.
PROBLEM 3-8: THE FIRED PROFESSOR
Two stories aired on a local radio station last week. The story on Monday
reported that:
A lawsuit filed by a former Nathanael Greene University law professor
could set a precedent. George Redeck was fired after he received tenure, in
so many words, a job for life. His attorney, Linda Wong, says the university
sees tenure as something that’s conditional. Wong says that if she wins the
case, it will mean that professors like Redeck will have job security when
granted tenure. She says tenured professors like Redeck could only be
fired for just cause. Wong said: “Several professors were dismissed with
George Redeck, all of whom happen to be Anglo and male.”
On Tuesday, the second story stated:
According to Robert Garza, attorney for Nathanael Greene University,
“George Redeck was never granted tenure by the university. The dean of
the law school voted against granting him tenure. The other deans as a
body voted against granting him tenure. And on these recommendations,
the president of the university denied him tenure. In the spring of last year,
the university notified professor Redeck that his application for tenure was
denied and that his contract to teach at the university would not be
renewed. Redeck’s contract has since expired.” Garza further stated:
“George Redeck is not the only professor who has been denied tenure at
the university in recent years. Contrary to the assertion made on this
station on Monday that all of the other professors denied tenure ‘happen to
be Anglo and male,’ two of the most recent disappointed applicants are
female.”
Ever since the stories aired, the university president has been besieged by phone
calls from angry alumni because Redeck was a popular professor. Some of the
alumni have accused the university of incompetence and discrimination in firing
Redeck. Many alums have threatened to terminate their contributions to the
university’s annual fund. As assistant university counsel, please prepare an analysis
279
See Agriss v. Roadway Exp., Inc., 483 A.2d 456, 474 (Pa. Super. Ct. 1984).
280
Kevin P. Allen, The Oddity and Odyssey of “Presumed Damages” in Defamation Actions under
Pennsylvania Law, 42 DUQ. L. REV. 495, 495 (2004). See also Manno v. Am. Gen. Fin. Co., 439 F. Supp.
2d 418, 434 (E.D. Pa. 2006).
G. FAULT AS TO FALSITY UNDER CONSTITUTIONAL PRINCIPLES 233
0085 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:17 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
of whether the university can state a cause of action for defamation against the
radio station, Wong, or Redeck.
H. DAMAGES
1. Emotional Distress
A defamation plaintiff may wish to avoid litigating the issue of damage to
reputation, in order to avoid potentially brutal discovery requests, crossexamination,
and testimony by others on that issue. In that case, the plaintiff may
waive damages to reputation and seek compensation only for emotional distress.
For example, in Time, Inc. v. Firestone,281
a libel action arising from an erroneous
report about a divorce, then-Justice William H. Rehnquist wrote:
Petitioner has argued that because respondent withdrew her claim for
damages to reputation on the eve of trial, there could be no recovery
consistent with Gertz . . . [However, in Gertz] we made it clear that States
could base awards on elements other than injury to reputation, specifically
listing “personal humiliation, and mental anguish and suffering” as examples
of injuries which might be compensated consistently with the
Constitution upon a showing of fault. Because respondent has decided to
forgo recovery for injury to her reputation, she is not prevented from
obtaining compensation for such other damages that a defamatory falsehood
may have caused her.
. . . . Several witnesses testified to the extent of respondent’s anxiety
and concern over Time’s inaccurately reporting that she had been found
guilty of adultery, and she herself took the stand to elaborate on her fears
that her young son would be adversely affected by this falsehood when he
grew older. The jury decided these injuries should be compensated by an
award of $100,000. We have no warrant for re-examining this determination.
. . . 282
Establishing the Extent of Emotional Loss. Of course, a plaintiff seeking to
recover emotional distress damages must always prove with reasonable certainty
the extent of those losses. In El-Khoury v. Kheir,283
a suit between two residents of
a village in Lebanon, the plaintiff proved the defendant defamed him by accusing
him of not paying a debt relating to the transfer of an interest in a car dealership
business with two locations in Houston. The jury awarded no damages for harm to
reputation, $25,000 for emotional distress, and $147,000 in punitive damages. On
appeal, the Texas Court of Appeals wrote:
It is axiomatic that Kheir could not prevail unless he also proved that he
suffered actual damages as a result of the alleged defamation. . . . In this
case, the jury awarded nothing for the following elements of claimed
281
424 U.S. 448 (1976).
282
Id. at 460–61.
283
241 S.W.3d 82 (Tex. App. 2007).
234 DEFAMATION CH. 3
0086 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:17 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
damages: lost profits; harm to Kheir’s “good name and character among his
. . . friends, neighbors, or acquaintances”; his “good standing in the
community”; or his “personal humiliation.” The only damages awarded
were for Kheir’s “mental anguish and suffering,” which the jury assessed at
$25,000. . . . El-Khoury contends that the evidence is legally insufficient
to support the jury’s $25,000 award. . . . 284
Mental anguish damages are recoverable in a defamation case. Bentley
v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (Bentley I). In Bentley I, the
supreme court applied the legal-sufficiency test to mental anguish damages
awarded as compensation for injuries and mental strain arising from
damage to reputation and good name stemming from accusations of
corruption by a media defendant. . . . Though a majority of the court
agreed that Bentley had provided legally sufficient evidence of some
amount of mental anguish, . . . a four-judge plurality concluded there was
legally insufficient evidence to support $7 million in mental anguish
damages. . . . On remand to consider that award, the Tyler Court of
Appeals concluded that the $7 million mental anguish award was “unsupported
by the evidence” and “so large as to be contrary to reason”;
determined from the trial record that $150,000 would be “reasonable
compensation”; and suggested a $6,850,000 remittitur. . . .
In addressing the remitted award in Bunton v. Bentley, 153 S.W.3d 50
(Tex. 2004) (Bentley II), the supreme court concluded that legally sufficient
evidence supported awarding $150,000 to Bentley as compensatory damages
for his mental anguish. . . . Citing Bentley I, the court noted that
“the ordeal” of his defamation had cost Bentley time, deprived him of sleep,
caused him embarrassment in the community in which he had spent almost
all of his life, disrupted his family, and distressed his children at school.
. . . Moreover, evidence from Bentley’s friends showed that he had become
depressed, that his honor and integrity had been impugned, and that his
family’s related suffering added to his own distress; in short, “he would
never be the same.”. . . . In Bentley’s own words, the experience of being
accused of corruption was “the worst of his life.”. . . .
Both Bentley decisions reflect the concerns initially expressed by the
supreme court in Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d
607 (Tex. 1996), and Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995),
that legally sufficient proof support mental anguish awards in order to
“ensure” that recovery for such non-economic damages constitute compensation
for actual injuries to the plaintiff rather than “a disguised disapproval
of the defendant.”. . . .
284
Kheir contended on appeal that, because El-Khoury’s statements constituted slander per se, he
was not required to prove his damages. However, the court found that Kheir waived that argument by
failing to object to certain questions submitted to the jury. Query: would the plaintiff’s lawyer be subject
to liability for malpractice based on failure to timely assert that the statement was actionable without
proof of actual losses? That argument seems plausible. See Chapter 2 of SUSAN SAAB FORTNEY & VINCENT
R. JOHNSON, LEGAL MALPRACTICE LAW: PROBLEMS AND PREVENTION (2008) (discussing lawyers’ liability for
negligence).
H. DAMAGES 235
0087 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:18 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
According to the definition derived from Parkway, mental anguish
implies a relatively high degree of mental pain and distress. It is more
than mere disappointment, anger, resentment or embarrassment, although
it may include all of these. It includes a mental sensation of pain
resulting from such painful emotions as grief, severe disappointment,
indignation, wounded pride, shame, despair and/or public humiliation.
. . . . Recognizing the “somewhat unwieldy” nature of the definition,
the supreme court acknowledged that the definition nonetheless requires
the jury to distinguish between “lesser” reactions and degrees of emotions,
for example, disappointment, embarrassment, and anger, for which there is
no compensation, and more extreme degrees of emotions, for example,
severe disappointment, wounded pride, and indignation, which may be
compensable in a proper case . . . on a further showing that these emotions
substantially disrupted the plaintiff’s daily routine. . . .
Evidence of “adequate details” to assess mental anguish may derive
from the claimant’s own testimony, the testimony of third parties, or
testimony by expert witnesses. . . .
In addition to evidence of compensable mental anguish, under the
standards just stated, some evidence must justify the amount awarded as
compensation. . . . Consistent with the language of the standard jury
charge used in this case, juries may not “simply pick a number and put it
in the blank,” but must determine an amount that “fairly and reasonably”
compensates for mental anguish “that causes ‘substantial disruption in . . .
daily routine’ or a ‘high degree of mental pain and distress.’ ”. . . .
. . . [W]e agree with El-Khoury that the evidence in this case is not
legally sufficient to support the jury’s awarding Kheir $25,000 as “fair” and
“reasonable” compensation for mental anguish and suffering from allegedly
defamatory statements by El-Khoury. . . .
Kheir and his wife provided the only testimony concerning his claim of
mental anguish. There was no testimony by third parties and no expert
testimony. Kheir generally attested to “stress” and “anxiety,” and also
stated that he lost weight, experienced headaches, and had difficulty
sleeping that sometimes required him to take a sleeping pill. Though
Kheir’s wife stated that he was “half the man he was,” the only specifics she
provided were that he was “very stressed” and had difficulty sleeping.
Neither Kheir nor his wife described a “high degree” of pain or distress
that “substantially” disrupted Kheir’s daily routine. . . . In addition,
neither Kheir nor his wife attempted to establish a causal connection
between the defamatory statements allegedly made by El-Khoury and
Kheir’s stress and anxiety.
To the contrary, Kheir’s testimony consistently linked his stress to
damage to his reputation or lack of respect among the 3,000 to 4,000 people
in the Lebanese village where he lived and had his business. Yet, the jury
rejected any amount of damages, either for harm, if any, to Kheir’s “good
name and character among his . . . friends, neighbors, and acquaintances,”
236 DEFAMATION CH. 3
0088 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:18 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
or harm, if any, to his “good standing in the community.”. . . .
Kheir also referred to his inability to obtain credit for a planned
expansion of his business and stated that vendors and suppliers discontinued
their previous practice of permitting him to pay accumulated invoices
at the end of a season. But, the record establishes that Kheir’s credit
problems resulted from a lien that was automatically imposed on some of
Kheir’s property after El-Khoury filed suit in Lebanon to enforce the
agreement to transfer. As the record further demonstrates, news of
lawsuits appears in newspapers in Lebanon. Yet, Kheir bases his claims in
this lawsuit on El-Khoury’s allegedly defamatory statements to others,
rather than on allegations in his lawsuit, which would be privileged
regardless and, thus, not actionable. . . .
Finally, the record lacks any evidence from which the jury might have
derived the $25,000 amount awarded to Kheir as fair and reasonable
compensation for his claimed mental anguish. . . .
. . . . [W]e hold that the evidence from the trial of this case would not
enable reasonable and fair-minded people to arrive at the verdict reached
by the jury here in awarding Kheir $25,000 for mental anguish and
suffering. . . .
. . . .
Well-settled law [in Texas, but not in all states] holds that a party may
not recover punitive, or exemplary, damages unless the party recovers
actual damages. . . . Having concluded that Kheir may not recover the
only actual damages awarded by the jury, we are compelled to hold that
Kheir may not recover punitive damages. . . . 285
The court remanded the case for a new trial on both liability and damages.
2. Limitations on Punitive Damages
First Amendment Limitations. As discussed above, under the First
Amendment, punitive damages are available in cases involving matters of public
concern only if the plaintiff proves actual malice. That requirement does not apply
to matters of purely private concern.
Due Process and State Limitations. However, any punitive damages award
must comply with limitations imposed by state law and with the Due Process
requirements of the Fourteenth Amendment. Those restrictions, including the
constitutional limitations recognized in State Farm Mutual Automobile Insurance
Co. v. Campbell286
and related cases, are discussed in Chapter 2 Part A-5-e.
285
241 S.W.3d at 85–89.
286
538 U.S. 408 (2003).
H. DAMAGES 237
0089 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:18 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
PROBLEM 3-9: THE ALUMNI MAGAZINE
North American University endeavors to maintain the fond regard of its 97,000
alumni by publishing a quarterly magazine. The magazine contains news about the
university and its graduates, including a “Class Notes” section with short entries
about university alumni, arranged by class year. The entries listed in Class Notes,
which are never more than a paragraph long, are typically based on information
that alumni submit to the magazine about their professional accomplishments and
family developments. Some entries are composed from stories found in news-wire
services, press releases, and newspapers.
The spring issue of the alumni magazine contained the following information in
the Class Notes section:
Ross Lamont, BS 2001, was named chief operating officer of the Gay Rights
League, a non-profit organization which lobbies for legal recognition of gay
and lesbian rights. He married his life-partner, Brett Rile, BA 2002, on
June 11, 2009, in Boston. Lamont and Rile are both employed at Citibank
in Manhattan and live in Greenwich Village.
You are assistant counsel to North American University. Lamont and Rile have
each threatened to sue. They are not gay, not married, not employed at Citibank,
and do not live in Greenwich Village. The Gay Rights League is a nonexistent entity.
The university Alumni Affairs Office, which compiles the Class Notes section of
the magazine, has no record of the source of the information for the Lamont/Rile
entry. The director of the office has acknowledged that the office has no standardized
fact-checking process for verifying Class Notes entries. The director emphasized,
however, that nothing like this has ever happened before at the university.
Prepare to advise the university president on the legal risks posed by the
threatened suit and to recommend a course of action.
I. DEFENSES AND OBSTACLES TO RECOVERY
1. The Communications Decency Act of 1996
Cases against Internet service providers (ISPs) originally focused on whether
an ISP exercised editorial control. In an early, much-noted case, Stratton
Oakmont, Inc. v. Prodigy Services Co.,287
the court wrote:
First, Prodigy held itself out to the public and its members as controlling
the content of its computer bulletin boards. Second, Prodigy implemented
this control through its automatic software screening program, and the
Guidelines which Board Leaders are required to enforce. By actively
utilizing technology and manpower to delete notes from its computer
bulletin boards on the basis of offensiveness and “bad taste,” for example,
Prodigy is clearly making decisions as to content . . . and such decisions
287
1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct.).
238 DEFAMATION CH. 3
0090 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:19 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
constitute editorial control. . . . [T]his Court is compelled to conclude that
for the purposes of plaintiffs’ claims in this action, Prodigy is a publisher
rather than a distributor.288
Some persons feared that decisions like Stratton Oakmont would inhibit the
growth and use of the Internet. In response to those concerns, Congress passed the
Communications Decency Act of 1996, which now greatly limits the liability of ISPs
and many other potential defendants.
a. The Congressional Language
Under the Communications Decency Act, “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.”289
Because a clear
understanding of the reach of this language is crucial in a wide range of tort
litigation, it is useful to look at this provision in its legislative context, including the
Act’s statements of purpose and definitions. The relevant provision is 47 U.S.C.
§ 230, which states in full:
(a) Findings
The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive
computer services available to individual Americans represent an extraordinary
advance in the availability of educational and informational resources
to our citizens.
(2) These services offer users a great degree of control over the
information that they receive, as well as the potential for even greater
control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum
for a true diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished,
to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety
of political, educational, cultural, and entertainment services.
(b) Policy
It is the policy of the United States —
(1) to promote the continued development of the Internet and other
interactive computer services and other interactive media;
288
Id. at *10–11.
289
47 U.S.C.S. § 230(c)(1) (LEXIS 2009).
I. DEFENSES AND OBSTACLES TO RECOVERY 239
0091 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:19 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
(2) to preserve the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services, unfettered
by Federal or State regulation;
(3) to encourage the development of technologies which maximize user
control over what information is received by individuals, families, and
schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of
blocking and filtering technologies that empower parents to restrict their
children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and
punish trafficking in obscenity, stalking, and harassment by means of
computer.
(c) Protection for “good samaritan” blocking and screening of offensive
material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated
as the publisher or speaker of any information provided by another
information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held
liable on account of —
(A) any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be obscene,
lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected;
or
(B) any action taken to enable or make available to information
content providers or others the technical means to restrict access to
material described in paragraph (1).
(d) Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering
an agreement with a customer for the provision of interactive computer
service and in a manner deemed appropriate by the provider, notify such
customer that parental control protections (such as computer hardware,
software, or filtering services) are commercially available that may assist
the customer in limiting access to material that is harmful to minors. Such
notice shall identify, or provide the customer with access to information
identifying, current providers of such protections.
(e) Effect on other laws
(1) No effect on criminal law
240 DEFAMATION CH. 3
0092 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:21 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Nothing in this section shall be construed to impair the enforcement of
section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110
(relating to sexual exploitation of children) of Title 18, or any other Federal
criminal statute.
(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law
pertaining to intellectual property.
(3) State law
Nothing in this section shall be construed to prevent any State from
enforcing any State law that is consistent with this section. No cause of
action may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.
(4) No effect on Communications Privacy law
Nothing in this section shall be construed to limit the application of the
Electronic Communications Privacy Act of 1986 or any of the amendments
made by such Act, or any similar State law.
(f) Definitions
As used in this section:
(1) Internet
The term “Internet” means the international computer network of both
Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term “interactive computer service” means any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems
operated or services offered by libraries or educational institutions.
(3) Information content provider
The term “information content provider” means any person or entity
that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer
service.
(4) Access software provider
The term “access software provider” means a provider of software
(including client or server software), or enabling tools that do any one or
more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
I. DEFENSES AND OBSTACLES TO RECOVERY 241
0093 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:21 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.290
b. Internet Service Providers and Distributor Liability
Section 230 of the Communications Decency Act has been broadly interpreted as
banning defamation and other claims against Internet services. For example, in
Blumenthal v. Drudge,291
a federal court for the District of Columbia found that an
Internet service provider was immune from defamation liability based on a gossip
column, even though the provider paid the columnist, promoted the column as a
new source of unverified instant gossip, and had certain editorial rights.
In Barrett v. Rosenthal,292
the Supreme Court of California recounted the
decision of the Fourth Circuit in Zeran v. America Online, Inc.,293
which rejected
the theory of distributor liability as applied to defamation on the Internet. Barrett
agreed with Zeran that Congress did not intend to create such an exception to the
immunity conferred by § 230 of the Communications Decency Act of 1996. The
Barrett court wrote:
Kenneth Zeran was bombarded with angry and derogatory telephone
calls, including death threats, after an unidentified person posted a
message on an America Online, Inc. (AOL) bulletin board. The message
advertised t-shirts with offensive slogans referring to the Oklahoma City
bombing of the Alfred P. Murrah Federal Building, and instructed prospective
purchasers to call Zeran’s home telephone number. Zeran notified AOL
of the problem, and the posting was eventually removed. However, similar
postings appeared, and an Oklahoma radio announcer aired the contents of
the first message. Zeran was again inundated with threatening phone calls.
He sued AOL for unreasonable delay in removing the defamatory messages,
refusing to post retractions, and failing to screen for similar
postings.
AOL successfully moved for judgment on the pleadings. . . . The
Fourth Circuit Court of Appeals affirmed, holding that the plain language
of section 230 “creates a federal immunity to any cause of action that would
make service providers liable for information originating with a third-party
user of the service. Specifically, § 230 precludes courts from entertaining
claims that would place a computer service provider in a publisher’s role.
Thus, lawsuits seeking to hold a service provider liable for its exercise of a
publisher’s traditional editorial functions — such as deciding whether to
publish, withdraw, postpone or alter content — are barred.”. . . .
. . . . While original posters of defamatory speech do not escape
accountability, Congress “made a policy choice . . . not to deter harmful
online speech [by] imposing tort liability on companies that serve as
290
47 U.S.C.S. § 230 (LEXIS 2009).
291
992 F. Supp. 44 (D.D.C. 1998).
292
146 P.3d 510 (Cal. 2006).
293
129 F.3d 327 (4th Cir. 1997).
242 DEFAMATION CH. 3
0094 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:21 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
intermediaries for other parties’ potentially injurious messages.”.
. . . This policy reflects a concern that if service providers faced tort
liability for republished messages on the Internet, they “might choose to
severely restrict the number and type of messages posted.”. . . .
Zeran made the same argument adopted by the Court of Appeal here:
that Congress intended to distinguish between “publishers” and “distributors,”
immunizing publishers but leaving distributors exposed to liability.
. . . Zeran contended that because Congress mentioned only the term
“publisher” in section 230, it intended to leave “distributors” unprotected.
He claimed that once he gave AOL notice that it was posting defamatory
statements on its bulletin board, AOL became liable as a “distributor.”. . . .
The Zeran court held that the publisher/distributor distinction makes no
difference for purposes of section 230 immunity. Publication is a necessary
element of all defamation claims, and includes every repetition and
distribution of a defamatory statement. . . . Although “distributors” become
liable only upon notice, they are nevertheless included in “the larger
publisher category.”. . . . “Zeran simply attaches too much importance to
the presence of the distinct notice element in distributor liability.
. . . [O]nce a computer service provider receives notice of a potentially
defamatory posting, it is thrust into the role of a traditional publisher. The
computer service provider must decide whether to publish, edit, or
withdraw the posting. In this respect, Zeran seeks to impose liability on
AOL for assuming the role for which § 230 specifically proscribes liability
— the publisher role.”. . . .
Subjecting service providers to notice liability would defeat “the dual
purposes” of section 230, by encouraging providers to restrict speech and
abstain from self-regulation. . . . A provider would be at risk for liability
each time it received notice of a potentially defamatory statement in any
Internet message, requiring an investigation of the circumstances, a legal
judgment about the defamatory character of the information, and an
editorial decision on whether to continue the publication. “Although this
might be feasible for the traditional print publisher, the sheer number of
postings on interactive computer services would create an impossible
burden in the Internet context.”. . . .
“More generally, notice-based liability for interactive computer service
providers would provide third parties with a no-cost means to create the
basis for future lawsuits. Whenever one was displeased with the speech of
another party conducted over an interactive computer service, the offended
party could simply ‘notify’ the relevant service provider, claiming the
information to be legally defamatory. . . . Because the probable effects of
distributor liability on the vigor of Internet speech and on service provider
self-regulation are directly contrary to § 230’s statutory purposes, we will
not assume that Congress intended to leave liability upon notice intact.”.
. . .
The Zeran court’s views have been broadly accepted, in both federal and
state courts. Before the Court of Appeal issued its opinion below, two other
I. DEFENSES AND OBSTACLES TO RECOVERY 243
0095 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:22 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
California Courts of Appeal had followed Zeran. In Kathleen R. v. City of
Livermore (2001) 87 Cal. App. 4th 684, 104 Cal. Rptr. 2d 772, a taxpayer
sued after her son obtained sexually explicit photographs through an
Internet connection at a public library. She sought injunctive relief on
various theories of liability. . . . The Kathleen R. court held that the state
law causes of action were barred by section 230. . . .
In Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816, 121 Cal. Rptr.2d 703,
the plaintiffs used eBay’s on-line marketing services to purchase sports
memorabilia. Claiming the items bore forged autographs, they sued eBay
for negligence, unfair trade practices, and violation of Civil Code section
1739.7, which regulates the sale of such collectibles. . . . The Gentry court
ruled that section 230 immunized eBay from liability on all the plaintiffs’
claims. It . . . reasoned that the plaintiffs were trying to hold eBay
responsible for disseminating information provided by the individual sellers
who used its service. . . . 294
The Barrett court agreed with Zeran that § 230 provides immunity to distributors
as well as other publishers.
c. Website Operators
In many cases, protection under the Act extends to website operators. Thus, in
Doe v. Friendfinder Network, Inc.,295
a federal court in New Hampshire held that
the operator of a “sex and swinger” website was immune from various state law
tort claims even though “certain features of the AdultFriendFinder service
facilitated the submission of false or unauthorized profiles.” And in Schneider v.
Amazon.com, Inc.296
the Washington Court of Appeals concluded that an online
bookseller was not liable for defamatory comments posted about an author’s books.
Immunity is not lost simply because the website operator exercises the option to
edit or delete some of the information that has been posted.297
Thus, in Batzel v.
Smith,298
the Ninth Circuit ruled that the operator of an anti-art-theft website,
who posted an allegedly defamatory e-mail authored by a third party, and who did
no more than select and make minor alterations to the e-mail, could not be
considered a content provider subject to liability under the CDA.
d. Individual “Users” of the Internet
Barrett v. Rosenthal299
appears to have been “the first published case in which
section 230 immunity . . . [was] invoked by an individual who had no supervisory
role in the operation of the Internet site where allegedly defamatory material
294
146 P.3d at 515–18.
295
540 F. Supp. 2d 288, 294–95 (D.N.H. 2008).
296
31 P.3d 37 (Wash. Ct. App. 2001).
297
See Ben Ezra, Weinstein, and Company, Inc. v. America Online, Inc., 206 F.3d 980 (10th Cir.
2000).
298
333 F.3d 1018 (9th Cir. 2003).
299
146 P.3d 510 (Cal. 2006).
244 DEFAMATION CH. 3
0096 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:22 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
appeared.”300
As the facts were described by the Supreme Court of California:
Plaintiffs, Dr. Stephen J. Barrett and Dr. Terry Polevoy, operated Web
sites devoted to exposing health frauds. Defendant Ilena Rosenthal directed
the Humantics Foundation for Women and operated an Internet
discussion group. Plaintiffs alleged that Rosenthal and others committed
libel by maliciously distributing defamatory statements in e-mails and
Internet postings, impugning plaintiffs’ character and competence and
disparaging their efforts to combat fraud. They alleged that Rosenthal
republished various messages even after Dr. Barrett warned her they
contained false and defamatory information.
. . . . The [trial] court determined that the only actionable statement
appeared in an article Rosenthal received via e-mail from her codefendant
Tim Bolen. This article, subtitled “Opinion by Tim Bolen,” accused Dr.
Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of
this article on the Web sites of two newsgroups devoted to alternative
health issues. . . . 301
Turning to the issue of whether Rosenthal’s republication of the Bolen article was
immune from suit, the court considered the question of “user” liability. It wrote:
Individual Internet “users” like Rosenthal, . . . are situated differently
from institutional service providers with regard to some of the principal
policy considerations discussed by the Zeran court and reflected in the
Congressional Record. In particular, individuals do not face the massive
volume of third-party postings that providers encounter. Self-regulation is
a far less challenging enterprise for them. Furthermore, service providers,
no matter how active or passive a role they take in screening the content
posted by users of their services, typically bear less responsibility for that
content than do the users. Users are more likely than service providers to
actively engage in malicious propagation of defamatory or other offensive
material. These considerations bring into question the scope of the term
“user” in section 230, and whether it matters if a user is engaged in active
or passive conduct for purposes of the statutory immunity.
“User” is not defined in the statute, and the limited legislative record
does not indicate why Congress included users as well as service providers
under the umbrella of immunity granted by section 230(c)(1). The standard
rules of statutory construction, however, yield an unambiguous result. We
must begin with the language employed by Congress and the assumption
that its ordinary meaning expresses the legislative purpose. . . . “User”
plainly refers to someone who uses something, and the statutory context
makes it clear that Congress simply meant someone who uses an interactive
computer service.
Section 230(c)(1) refers directly to the “user of an interactive computer
service.” Section 230(f)(2) defines “interactive computer service” as “any
300
Id. at 515.
301
Id. at 513–14.
I. DEFENSES AND OBSTACLES TO RECOVERY 245
0097 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:23 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet. . . .”
Section 230(a)(2) notes that such services “offer users a great degree of
control over the information that they receive,” and section 230(b)(3)
expresses Congress’s intent “to encourage the development of technologies
which maximize user control over what information is received by individuals,
families, and schools who use the Internet and other interactive
computer services.” Thus, Congress consistently referred to “users” of
interactive computer services, specifically including “individuals” in section
230(b)(3).
There is no reason to suppose that Congress attached a different
meaning to the term “user” in section 230(c)(1). . . . Rosenthal used the
Internet to gain access to newsgroups where she posted Bolen’s article
about Polevoy. She was therefore a “user” under the CDA, as the parties
conceded below. Nor is there any basis for concluding that Congress
intended to treat service providers and users differently when it declared
that “[n]o provider or user of an interactive computer service shall be
treated as [a] publisher or speaker. . . .” (§ 230(c)(1).) We cannot construe
the statute so as to render the term “user” inoperative. . . .
Polevoy urges us to distinguish between “active” and “passive” Internet
use, and to restrict the statutory term “user” to those who engage in
passive use. He notes that subdivisions (a)(2) and (b)(3) of section 230 refer
to information “received” by users. He also observes that the caption of
subdivision (c) is “Protection for ‘good samaritan’ blocking and screening of
offensive material.” From these premises, Polevoy reasons that the term
“user” must be construed to refer only to those who receive offensive
information, and those who screen and remove such information from an
Internet site. He argues that those who actively post or republish information
on the Internet are “information content providers” unprotected by
the statutory immunity. “Information content provider” is defined as “any
person or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any other
interactive computer service. . . .” (§ 230(f)(3).)
Polevoy’s view fails to account for the statutory provision at the center of
our inquiry: the prohibition in section 230(c)(1) against treating any “user”
as “the publisher or speaker of any information provided by another
information content provider.” A user who merely receives information on
a computer without making it available to anyone else would be neither a
“publisher” nor a “speaker.” Congress obviously had a broader meaning in
mind. Nor is it clear how a user who removes a posting may be deemed
“passive” while one who merely allows a posting to remain online is “active.”
Furthermore, Congress plainly did not intend to deprive all “information
content providers” of immunity, because the reference to “another” such
provider in section 230(c)(1) presumes that the immunized publisher or
246 DEFAMATION CH. 3
0098 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:23 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
speaker is also an information content provider. . . . 302
We conclude there is no basis for deriving a special meaning for the term
“user” in section 230(c)(1), or any operative distinction between “active”
and “passive” Internet use. By declaring that no “user” may be treated as
a “publisher” of third party content, Congress has comprehensively
immunized republication by individual Internet users.
. . . .
We share the concerns of those who have expressed reservations about
the Zeran court’s broad interpretation of section 230 immunity. The
prospect of blanket immunity for those who intentionally redistribute
defamatory statements on the Internet has disturbing implications. . . .
Plaintiffs are free under section 230 to pursue the originator of a
defamatory Internet publication. Any further expansion of liability must
await congressional action.303
e. Anonymous Postings on the Internet
Subpoenas to Disclose Identities. Because providers of defamatory content
can be held liable for defamation posted on the Internet, it often becomes critical
for a plaintiff to discover the identity of the author of anonymously posted
statements.
(1) Example: Krinsky v. Doe No. 6
In Krinsky v. Doe 6,304
a corporate officer allegedly defamed on the Internet
sued ten “Doe” defendants and served a subpoena on Yahoo!, Inc., a message-board
host, seeking information on the identities about the pseudonymous posters. Doe
No. 6 unsuccessfully moved to quash the subpoena. On appeal, Doe No. 6 argued
that the trial court had erred because there is a constitutional right to speak
anonymously on the Internet.
Constitutional Right to Speak Anonymously. Addressing the right to speak
anonymously in Krinsky, the California Court of Appeal wrote:
The use of a pseudonymous screen name offers a safe outlet for the user to
experiment with novel ideas, express unorthodox political views, or criticize
corporate or individual behavior without fear of intimidation or reprisal. In
addition, by concealing speakers’ identities, the online forum allows individuals
of any economic, political, or social status to be heard without
302
[n.19] At some point, active involvement in the creation of a defamatory Internet posting would
expose a defendant to liability as an original source. Because Rosenthal made no changes in the article
she republished on the newsgroups, we need not consider when that line is crossed. We note, however,
that many courts have reasoned that participation going no further than the traditional editorial
functions of a publisher cannot deprive a defendant of section 230 immunity. . . .
303
146 P.3d at 526–29.
304
72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008).
I. DEFENSES AND OBSTACLES TO RECOVERY 247
0099 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:23 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
suppression or other intervention by the media or more powerful figures in
the field.
Yet no one is truly anonymous on the Internet, even with the use of a
pseudonym. Yahoo! warns users of its message boards that their identities
can be traced, and that it will reveal their identifying information when
legally compelled to do so. . . .
When vigorous criticism descends into defamation, however, constitutional
protection is no longer available. “[I]t is well understood that the
right of free speech is not absolute at all times and under all circumstances.
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words — those which by their
very utterance inflict injury or tend to incite an immediate breach of the
peace. It has been well observed that such utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality.”. . . .
Corporate and individual targets of . . . online aspersions may seek
redress by filing suit against their unknown detractors. Once notified of a
lawsuit by the website host or ISP, a defendant may then assert his or her
First Amendment right to speak anonymously through an application for a
protective order or, as here, a motion to quash the subpoena. The present
action for defamation and interference with business relationships is but
one example of such confrontations.305
Tests to Determine Whether a Subpoena Will Be Enforced. The Krinsky court
then turned to the question of what test should be used to determine whether the
interests of the person allegedly harmed by improper communications should take
precedence over the interest of the anonymous speaker. The court discussed four
options: (1) a “good faith” test; (2) balancing the plaintiff’s prima facie case against
the defendant’s First Amendment rights; (3) whether there are facts sufficient to
defeat a motion for summary judgment or a motion to dismiss; and (4) simply
whether the plaintiff has stated a prima facie case.
Option #1: The Good Faith Test. Addressing the first option, the Krinsky court
wrote:
Federal and state courts have made valiant efforts to devise a fair
standard by which to balance the interests of the parties involved in
disputes over Internet speech. The most deferential to plaintiffs are those
applying a “good faith” standard. (See, e.g., In re Subpoena Duces Tecum
to America Online, Inc. (2000) 52 Va. Cir. 26, 37, 2000 WL 1210372 [ISP
required to disclose Doe identities upon corporate plaintiff’s “legitimate,
good faith basis” for alleging actionable conduct and the necessity of the
information to advance the claim].) Plaintiff does not urge us to adopt such
305
Id. at 237–39.
248 DEFAMATION CH. 3
0100 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:23 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
a low threshold for disclosure, nor would we do so; it offers no practical,
reliable way to determine the plaintiff’s good faith and leaves the speaker
with little protection.306
Option #2: Balancing Prima Facie Case Against First Amendment Rights.
Turning to the second option, the court explained:
Other courts have exercised greater scrutiny of the plaintiff’s cause of
action before allowing the speaker to be identified. In Dendrite International
Inc. v. John Doe No. 3 (2001) 342 N.J. Super. 134, 775 A.2d 756, for
example, a corporation alleged defamation by multiple Doe defendants on
a Yahoo! message board and then sought expedited discovery in order to
learn their identities. The New Jersey appellate court set forth a four-part
test, to ensure that plaintiffs do not use discovery to “harass, intimidate or
silence critics in the public forum opportunities presented by the Internet.”.
. . . First, the plaintiff must make an effort to notify the anonymous poster
that he or she is the subject of a subpoena or application for a disclosure
order, giving a reasonable time for the poster to file opposition. The plaintiff
must also set forth the specific statements that are alleged to be actionable.
Third, the plaintiff must produce sufficient evidence to state a prima facie
cause of action. If this showing is made, then the final step should be
undertaken: to balance the strength of that prima facie case against the
defendant’s First Amendment right to speak anonymously. . . . In Dendrite,
the appellate court affirmed the trial court’s denial of the discovery
application, as the corporate plaintiff had failed to produce evidence that
any decline in its stock price had been caused by the offensive messages.307
Option #3: Facts Sufficient to Defeat Summary Judgment or Dismissal. The
court then explained but rejected the third option:
Neither party advocates a third line of analysis set forth in Doe v. Cahill,
[884 A.2d 451 (Del. 2005)], a case involving political speech about a public
figure. In Cahill the Doe defendant was sued for defamation after
criticizing a town councilman on an Internet blog. . . .
. . . . The Cahill court . . . adopted a standard applicable to a plaintiff
opposing summary judgment. Thus, the plaintiff “must support his defamation
claim with facts sufficient to defeat a summary judgment motion.”.
. . . 308
. . . .
Cahill was followed by trial courts in various jurisdictions. . . . In
Lassa v. Rongstad (2006) 294 Wis.2d 187 [718 N.W.2d 673], however, the
Wisconsin Supreme Court rejected the Delaware court’s summary judgment
standard in favor of a motion-to-dismiss standard. The “silly or trivial
libel claims” that would survive a motion to dismiss in a notice-pleading
306
Id. at 241.
307
Id.
308
[n.9] The court made an exception for the element of malice in a case involving a public figure, a
showing that depends on whether the defendant had knowledge that his or her statement was false or
made it with reckless disregard as to its truth. . . .
I. DEFENSES AND OBSTACLES TO RECOVERY 249
0101 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:24 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
state such as Delaware would be adequately tested on a motion to dismiss
in Wisconsin, where the statement constituting libel must be set forth in the
complaint. The majority opinion did not, however, explain how (or if) a
motion to dismiss would incorporate a balancing of the parties’ competing
interests.
Other courts have utilized a motion-to-dismiss standard in weighing the
need of injured parties to discover the identity of libelous Doe defendants
against the rights of those defendants to speak anonymously. . . .
We find it unnecessary and potentially confusing to attach a procedural
label, whether summary judgment or motion to dismiss, to the showing
required of a plaintiff seeking the identity of an anonymous speaker on the
Internet. California subpoenas in Internet libel cases may relate to actions
filed in other jurisdictions, which may have different standards governing
pleading and motions. . . .
We agree with the Delaware Supreme Court that . . . [requiring the
plaintiff to attempt to notify the defendant] does not appear to be unduly
burdensome. . . . We recognize, however, that an Internet Web site, chat
room, or message board may no longer exist or be active by the time the
plaintiff brings suit; consequently, it would be unrealistic and unprofitable
to insist, as did the Cahill court, that a plaintiff “post a message notifying
the anonymous defendant of the plaintiff’s discovery request on the same
message board where the allegedly defamatory statement was originally
posted.”. . . . Moreover, when ISPs and message-board sponsors (such as
Yahoo!) themselves notify the defendant that disclosure of his or her
identity is sought, notification by the plaintiff should not be necessary. And
in the procedural posture presented here, where the defendant is moving to
quash the subpoena, the notification requirement benefits no one. Obviously
Doe 6 has already learned of the subpoena or he would not be seeking
protection.309
Option #4: The Prima Facie Showing Test. The California Court of Appeal
then explained why it was adopting the fourth option:
Common to most courts considering the issue is the necessity that the
plaintiff make a prima facie showing that a case for defamation exists.
Requiring at least that much ensures that the plaintiff is not merely
seeking to harass or embarrass the speaker or stifle legitimate criticism.
. . .
Plaintiff objects to the requirement of a prima facie showing. She
contends that it infringes a party’s due process right because it does not
include a reasonable opportunity to obtain evidence a plaintiff would need
to establish a prima facie case. She does not, however, explain why she
would necessarily be deprived of such an opportunity in the context of a
motion to quash. . . . In an Internet libel case, that burden should not be
insurmountable; here, for example, plaintiff knows the statement that was
309
72 Cal. Rptr. 3d at 242–44.
250 DEFAMATION CH. 3
0102 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:24 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
made and produced evidence of its falsity and the effect it had on her.
We therefore agree with those courts that have compelled the plaintiff to
make a prima facie showing of the elements of libel in order to overcome
a defendant’s motion to quash a subpoena seeking his or her identity.
Where it is clear to the court that discovery of the defendant’s identity is
necessary to pursue the plaintiff’s claim, the court may refuse to quash a
third-party subpoena if the plaintiff succeeds in setting forth evidence that
a libelous statement has been made.310
When there is a factual and legal
basis for believing libel may have occurred, the writer’s message will not be
protected by the First Amendment. . . . Accordingly, a further balancing
of interests should not be necessary to overcome the defendant’s constitutional
right to speak anonymously.311
Turning to the facts of the case, the Krinsky court concluded that the subpoena
to discover Doe No. 6’s identity should have been quashed because his Internet
postings, which fell into the category of crude, satirical hyperbole, compelled the
conclusion that they were not actionable.
PROBLEM 3-10: THE SBA SURVEY
Charles Evans Hughes School of Law was not a happy place. Students fiercely
disagreed with many of the law school’s policies, including class attendance rules,
the grading curve, and the large number of required courses. The law school
administration was widely perceived as insensitive to student concerns. As a means
of documenting student discontent for the purpose of effecting “change,” the
Student Bar Association conducted an online survey. To do this, the SBA used
Survey Monkey,312
a service which distributed the survey to law students by e-mail,
compiled the results in anonymous form, and then returned the results to the SBA.
The narrative answers to the free-style question about “other concerns” ranged
from “disgruntled” to “angry” and “rabid.” A number of charges were levied
against Dean Priscilla Klink, including accusations that she had been publicly
intoxicated at the school’s law journal banquet a few months earlier and had
recently spent law school funds on landscaping and maintenance of her home, ten
miles from campus.
As he had promised, when the survey results arrived in PDF format, the SBA
president, Dennis Calmer, with the help of other SBA officers, e-mailed copies of
the results to the students who had participated in the survey. The officers also
made extra copies of the survey available in the SBA office on campus.
Calmer delivered a hard copy of the survey in a sealed envelope to the dean’s
secretary, Carolyn Cason, with a request for a meeting with the dean at her
earliest convenience. Cason opened the survey envelope, because she opened all of
310
[n.14] “Prima facie evidence is that which will support a ruling in favor of its proponent if no
controverting evidence is presented. . . . It may be slight evidence which creates a reasonable inference
of fact sought to be established but need not eliminate all contrary inferences. . . .”. . . .
311
72 Cal. Rptr. 3d at 244–46.
312
http://www.surveymonkey.com.
I. DEFENSES AND OBSTACLES TO RECOVERY 251
0103 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:25 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
the dean’s mail, stamped the contents of each envelope with a “received” date, and
delivered the contents to Dean Klink’s office. The staff at the law school had heard
rumors about an SBA survey. When Cason saw that the contents of the envelope
dealt with the survey, she read the results. Cason did not believe what the survey
said, but she knew that Dean Klink would be angry.
“Angry” did not begin to describe the dean’s reaction. She was furious. She
called the SBA officers into her office and she read them the “riot act.” She told
them that they had libeled her and that such conduct was not befitting persons
seeking admission to the bar. Dean Klink told the officers that she was reporting
each of them to the Character and Fitness Committee of the State Board of Law
Examiners, and that they could expect to be called upon to explain why they had
published false and defamatory statements about her and why that was not
evidence of bad character.
Dean Klink also said that she would do everything possible to discover the
identities of the students who had anonymously submitted the false and
defamatory comments about her to Survey Monkey. And, the dean promised, those
persons would be dealt with appropriately.
SBA president Calmer has recognized that he is in big trouble and has hired you
to assist him with legal difficulties that may arise in the bar admissions process. In
the meantime, Calmer cannot sleep because he is not even sure whether he did
anything wrong, and he is afraid that he has gotten some of his classmates in
trouble. Calmer does not know if the facts make him or anyone else liable for
defamation. Please prepare a legal analysis of the facts so that you can explain to
Calmer where he stands.
f. Exceptions to Communications Decency Act Immunity
Fraud and Negligent Misrepresentation. Courts sometimes find narrow
exceptions to the Communications Decency Act (CDA). For example, in Anthony v.
Yahoo! Inc.,313
the plaintiff alleged that the operator of an online dating service
created false user profiles to trick new members into joining and to stop current
members from leaving. A federal court in California found that claims for fraud and
negligent misrepresentation were not barred by the CDA’s publisher-immunity
provision.
(1) Example: Barnes v. Yahoo! Inc.
In Barnes v. Yahoo! Inc.,314
the Ninth Circuit addressed “whether the
Communications Decency Act of 1996 protects an Internet service provider from
suit where it undertook to remove from its website material harmful to the plaintiff
but failed to do so.”315
Describing the facts of the case, the court wrote:
313
421 F. Supp. 2d 1257 (N. D. Cal. 2006).
314
570 F.3d 1096 (9th Cir. 2009).
315
Id. at 1098.
252 DEFAMATION CH. 3
0104 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:25 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
. . . Cecilia Barnes broke off a lengthy relationship with her boyfriend
. . . [H]e responded by posting profiles of Barnes on a website run by
Yahoo!, Inc. (“Yahoo”). . . .
. . . . The profiles contained nude photographs of Barnes and her
boyfriend, taken without her knowledge, and some kind of open solicitation
. . . to engage in sexual intercourse. The ex-boyfriend then conducted
discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing
male correspondents to the fraudulent profiles he had created. . . . Before
long, men whom Barnes did not know were peppering her office with
emails, phone calls, and personal visits, all in the expectation of sex.
In accordance with Yahoo policy, Barnes mailed Yahoo a copy of her
photo ID and a signed statement denying her involvement with the profiles
and requesting their removal. One month later . . . Barnes again asked
Yahoo by mail to remove the profiles. Nothing happened. The following
month, Barnes sent Yahoo two more mailings. During the same period, a
local news program was preparing to broadcast a report on the incident. A
day before the initial air date of the broadcast, Yahoo broke its silence; its
Director of Communications, a Ms. Osako, called Barnes and asked her to
fax directly the previous statements she had mailed. Ms. Osako told Barnes
that she would “personally walk the statements over to the division
responsible for stopping unauthorized profiles and they would take care of
it.” Barnes claims to have relied on this statement and took no further
action regarding the profiles and the trouble they had caused. Approximately
two months passed without word from Yahoo, at which point Barnes
filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter,
the profiles disappeared from Yahoo’s website, apparently never to re-
turn.316
Turning to the dispute before it, the Ninth Circuit summarized the case:
Barnes’ complaint against Yahoo . . . appears to allege two causes of
action. . . . First, the complaint suggests a tort for the negligent provision
or non-provision of services which Yahoo undertook to provide. . . . Oregon
has adopted section 323 of the Restatement (Second) of Torts (1965),
which describes the elements of this claim. . . . Barnes also refers in her
complaint and in her briefs to Yahoo’s “promise” to remove the indecent
profiles and her reliance thereon to her detriment. We construe such
references to allege a cause of action under section 90 of the Restatement
(Second) of Contracts (1981).
. . . . Yahoo contended that section 230(c)(1) of the Communications
Decency Act (“the Act”) renders it immune from liability in this case. See 47
U.S.C. § 230(c)(1). The district court granted the motion to dismiss.
. . . 317
316
Id. at 1098–99.
317
Id. at 1099.
I. DEFENSES AND OBSTACLES TO RECOVERY 253
0105 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:25 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Addressing the merits of the appeal, the Ninth Circuit then began its analysis of
the federal law in question.
Section 230 of the Act [quoted earlier in this chapter], also known as the
Cox-Wyden Amendment (“the Amendment”), protects certain internetbased
actors from certain kinds of lawsuits. . . .
. . . . The operative section of the Amendment is section 230(c) [“Protection
for ‘good samaritan’ blocking and screening of offensive material.”].
. . .
Section 230(c) has two parts. . . . Looking at the text, it appears clear
that neither this subsection nor any other declares a general immunity
from liability deriving from third-party content, as Yahoo argues it does.
“Subsection (c)(1) does not mention ‘immunity’ or any synonym.”. . . .
. . . [O]ne notices that subsection (c)(1), which after all is captioned
“Treatment of publisher or speaker,” precludes liability only by means of a
definition. “No provider or user of an interactive computer service,” it says,
“shall be treated as the publisher or speaker of any information provided by
another information content provider.”. . . . Subsection 230(e)(3) makes
explicit the relevance of this definition, for it cautions that “[n]o cause of
action may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.” Bringing these two
subsections together, it appears that subsection (c)(1) only protects from
liability (1) a provider or user of an interactive computer service (2) whom
a plaintiff seeks to treat, under a state law cause of action, as a publisher
or speaker (3) of information provided by another information content
provider.
. . . . The flashpoint in this case is the meaning of the “publisher or
speaker” part of subsection (c)(1). . . .
The cause of action most frequently associated with the cases on section
230 is defamation. . . .
But . . . the language of the statute does not limit its application to
defamation cases. Indeed, many causes of action might be premised on the
publication or speaking of what one might call “information content.” A
provider of information services might get sued for violating antidiscrimination
laws . . . ; for fraud, negligent misrepresentation, and
ordinary negligence . . . ; for false light [invasion of privacy] . . . ; or even
for negligent publication of advertisements that cause harm to third
parties. . . . Thus, what matters is not the name of the cause of action —
defamation versus negligence versus intentional infliction of emotional
distress — what matters is whether the cause of action inherently requires
the court to treat the defendant as the “publisher or speaker” of content
provided by another. . . .
We have indicated [in a prior case] that publication involves reviewing,
editing, and deciding whether to publish or to withdraw from publication
254 DEFAMATION CH. 3
0106 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:26 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
third-party content. . . . 318
Negligent Performance of an Undertaking. The court then rejected the
plaintiff’s tort cause of action for negligent performance of an undertaking. The
court wrote:
The Oregon law tort that Barnes claims Yahoo committed derives from
section 323 of the Restatement (Second) of Torts, which states:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other’s person or things, is subject to liability to the
other for physical harm resulting from his failure to exercise reasonable
care to perform his undertaking, if (a) his failure to exercise such care
increases the risk of such harm, or (b) the harm is suffered because of
the other’s reliance upon the undertaking.
Barnes argues that this tort claim would not treat Yahoo as a publisher.
She points to her complaint, which acknowledges that although Yahoo “may
have had no initial responsibility to act, once [Yahoo,] through its agent,
undertook to act, [it] must do so reasonably.” According to Barnes, this
makes the undertaking, not the publishing or failure to withdraw from
publication, the source of liability. . . .
We are not persuaded. . . . The word “undertaking,” after all, is
meaningless without the following verb. That is, one does not merely
undertake; one undertakes to do something. And what is the undertaking
that Barnes alleges Yahoo failed to perform with due care? The removal of
the indecent profiles that her former boyfriend posted on Yahoo’s website.
But removing content is something publishers do, and to impose liability on
the basis of such conduct necessarily involves treating the liable party as a
publisher of the content it failed to remove. . . . 319
Defamation Liability Based on Failure to Remove. The Ninth Circuit reinforced
its conclusion that negligent performance of an undertaking was not
actionable under the CDA because a person can sometimes become liable as a
publisher of defamatory content based on failure to remove a libelous statement
from the person’s premises:
. . . [W]e note thatYahoo could be liable for defamation for precisely the
conduct of which Barnes accuses it. Defamation law sometimes imposes “an
affirmative duty to remove a publication made by another.” Prosser and
Keaton on Torts § 113, at 803. Courts have applied this principle, including
in a case that reads like a low-tech version of the situation before us. In
Hellar v. Bianco, 244 P.2d 757, 758 (Cal. Ct. App. 1952), a woman received
a phone call from a man who sought to arrange an unconventional, but
apparently amorous, liaison. . . . After being rebuffed, the man informed
the woman that her phone number appeared on the bathroom wall of a local
318
Id. at 1099–1102.
319
Id. at 1102–03.
I. DEFENSES AND OBSTACLES TO RECOVERY 255
0107 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:26 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
bar along with writing indicating that she “was an unchaste woman who
indulged in illicit amatory ventures.”. . . . The woman’s husband promptly
called the bartender and demanded he remove the defamatory graffito,
which the bartender said he would do when he got around to it.
. . . Shortly thereafter, the husband marched to the bar . . . and
discovered the offending scrawl still gracing the wall. . . . He defended his
wife’s honor by suing the bar’s owner.
The California Court of Appeal held that it was “a question for the jury
whether, after knowledge of its existence, [the bar owner] negligently
allowed the defamatory matter to remain for so long a time as to be
chargeable with its republication.”. . . .
. . . [W]e hold that section 230(c)(1) bars Barnes’ claim, under Oregon
law, for negligent provision of services that Yahoo undertook to provide.
. . . 320
Promissory Estoppel. The court then turned to the plaintiff’s contract law claim
based on promissory estoppel.
[W]e [must] inquire whether Barnes’ theory of recovery under promissory
estoppel would treat Yahoo as a “publisher or speaker” under the Act.
. . . In a promissory estoppel case, as in any other contract case, the
duty the defendant allegedly violated springs from a contract — an
enforceable promise — not from any non-contractual conduct or capacity of
the defendant. . . . Barnes does not seek to hold Yahoo liable as a
publisher or speaker of third-party content, but rather as the counter-party
to a contract, as a promisor who has breached.
How does this analysis differ from our discussion of liability for the tort
of negligent undertaking?. . . . To undertake a thing, within the meaning
of the tort, is to do it.
Promising is different because it is not synonymous with the performance
of the action promised. That is, whereas one cannot undertake to do
something without simultaneously doing it, one can, and often does,
promise to do something without actually doing it at the same time.
Contract liability here would come not fromYahoo’s publishing conduct, but
from Yahoo’s manifest intention to be legally obligated to do something,
which happens to be removal of material from publication. Contract law
treats the outwardly manifested intention to create an expectation on the
part of another as a legally significant event. . . .
Furthermore, a court cannot simply infer a promise from an attempt to
de-publish of the sort that might support tort liability under section 323 of
the Restatement (Second) of Torts. For, as a matter of contract law, the
promise must “be as clear and well defined as a promise that could serve as
an offer, or that otherwise might be sufficient to give rise to a traditional
contract supported by consideration.”. . . . “The formation of a contract,”
320
Id. at 1103–05.
256 DEFAMATION CH. 3
0108 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:26 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
indeed, “requires a meeting of the minds of the parties, a standard that is
measured by the objective manifestations of intent by both parties to bind
themselves to an agreement.”. . . . Thus a general monitoring policy, or
even an attempt to help a particular person, on the part of an interactive
computer service such as Yahoo does not suffice for contract liability. This
makes it easy forYahoo to avoid liability: it need only disclaim any intention
to be bound. . . .
One might also approach this question from the perspective of waiver.
The objective intention to be bound by a promise . . . also signifies the
waiver of certain defenses. . . . [O]nce a court concludes a promise is
legally enforceable according to contract law, it has implicitly concluded
that the promisor has manifestly intended that the court enforce his
promise. By so intending, he has agreed to depart from the baseline rules
(usually derived from tort or statute) that govern the mine-run of relationships
between strangers. Subsection 230(c)(1) creates a baseline rule: no
liability for publishing or speaking the content of other information service
providers. Insofar as Yahoo made a promise with the constructive intent
that it be enforceable, it has implicitly agreed to an alteration in such
baseline.
Therefore, we conclude that, insofar as Barnes alleges a breach of
contract claim under the theory of promissory estoppel, subsection
230(c)(1) of the Act does not preclude her cause of action. Because we have
only reviewed the affirmative defense that Yahoo raised in this appeal, we
do not reach the question whether Barnes has a viable contract claim or
whether Yahoo has an affirmative defense under subsection 230(c)(2) of the
Act.
. . . [W]e affirm in part, reverse in part, and remand for further
proceedings. . . . 321
Barnes’ holding that a tort claim based on voluntary undertaking was barred by
the terms of the Communications Decency Act is very much in accord with other
precedent which has construed the Act broadly. Whether the Barnes decision, to
allow the plaintiff’s promissory estoppel claim to proceed, will withstand the test of
time is open to question. (The court’s brief discussion of whether Yahoo! waived its
rights under the Act is probably the most persuasive rationale for permitting the
contract claim to stand.) Nevertheless, Barnes nicely illustrates the issues with
which courts must grapple relating to defamation on the Internet.
g. Internet Publications and Foreign Libel Laws
It is essential to remember that in a globally connected world, publications on
the Internet may give rise to defamation lawsuits in countries where protection of
free expression is much less robust than in the United States. For example, British
libel law is very different from corresponding American principles. To take just one
example, the falsity of a defamatory statement is presumed under British law.
321
Id. at 1106–09.
I. DEFENSES AND OBSTACLES TO RECOVERY 257
0109 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:27 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Anti-Enforcement of British Libel Judgments. Global distribution of
publications, such as newspapers, can be used as a justification for filing suit in
another country. According to some courses, “London has gained a reputation as
the libel capital of the world.”322
At least two states — New York and Illinois —
have passed laws to prevent enforcement of British libel judgments. The New York
law provides:
§ 5304. Grounds for Non-Recognition
(a) No recognition. A foreign country judgment is not conclusive if:
. . . .
8. the cause of action resulted in a defamation judgment obtained in
a jurisdiction outside the United States, unless the court before which
the matter is brought sitting in this state first determines that the
defamation law applied in the foreign court’s adjudication provided at
least as much protection for freedom of speech and press in that case as
would be provided by both the United States and New York constitu-
tions.323
Of course, American publishers with operations in Britain are particularly
vulnerable to efforts to enforce a British libel judgment.
2. Retraction Statutes
Effect on Punitive Damages. Some states have passed retraction statutes
which bear on the issue of punitive damages. For example, in Georgia, statutory
provisions provide that any plaintiff who did not ask for a retraction is generally
not entitled to punitive damages.324
Occasionally, retraction statutes antedate important Supreme Court decisions.
It is therefore important to ask what (if anything) they add to the considerable
constitutional protections that have already been recognized by the Supreme
Court. For example, a Mississippi statute, adopted in 1962 (two years before New
York Times Co. v. Sullivan), provides as follows:
(1) Before any civil action is brought for publication, in a newspaper
domiciled and published in this state or authorized to do business in
Mississippi so as to be subject to the jurisdiction of the courts of this state,
of a libel, or against any radio or television station domiciled in this state,
the plaintiff shall, at least ten (10) days before instituting any such action,
serve notice in writing on the defendant at its regular place of business,
specifying the article, broadcast or telecast, and the statements therein,
which he alleges to be false and defamatory.
322
See Eric Pfanner, A Fight to Protect Americans from British Libel Law, N.Y. TIMES, May 25, 2009,
at B3 (online edition).
323
N.Y. CIV. PRAC. LAW & RULES § 5304 (LEXIS 2009).
324
See Mathis v. Cannon, 573 S.E.2d 376, 385 (Ga. 2002).
258 DEFAMATION CH. 3
0110 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:27 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
(2) If it appears upon the trial that said article was published, broadcast
or telecast in good faith, that its falsity was due to an honest mistake of the
facts, and there were reasonable grounds for believing that the statements
in said article, broadcast or telecast were true, and that within ten (10) days
after the service of said notice a full and fair correction, apology and
retraction was published in the same edition or corresponding issues of the
newspaper in which said article appeared, and in as conspicuous place and
type as was said original article, or was broadcast or telecast under like
conditions correcting an honest mistake, and if the jury shall so find, the
plaintiff in such case shall recover only actual damages. The burden of proof
of the foregoing facts shall be affirmative defenses of the defendant and
pled as such.
(3) This section shall not apply to any publication concerning a candidate
for public office made within ten (10) days of any primary, general or special
election in which such candidate’s candidacy for or election to public office
is to be determined, and this section shall not apply to any editorial or to
any regularly published column in which matters of opinions are ex-
pressed.325
PROBLEM 3-11: THE DANGEROUS SCHOOL TEACHER
On a website named “Dangerous Teachers,” there was a link to a document (the
“Document”) about Sam McGlynn, a shop class teacher at Chestnut Ridge High
School. The Document appeared to be an official reprimand of McGlynn, who had
been found guilty of making improper use of the Internet to access pornographic
materials via school computers.
A comment (the “Comment”) posted by a reader under the website’s link for the
McGlynn Document stated: “What did you expect of a burned out teacher married
to a woman who spent five years in a mental institution?”
Soon after the postings appeared on the “Dangerous Teachers” website, local
radio talk show hosts began discussing the allegations made in both the Document
and the Comment. The local television then ran a story which repeated the
substance of the Document posted on the web, but said nothing about the
Comment. The television reporter in the televised segment said that both Chestnut
Ridge High School and Sam McGlynn had been asked to respond to the
allegations, but that both refused to discuss the matter.
The Document posted on the web about McGlynn was fabricated. There is no
truth to the allegations in the Document or the Comment.
Sam McGlynn and his wife, Nancy McGlynn, have hired a lawyer, Grace
Hammerstein. Hammerstein has explained that under the Communications
Decency Act there is little chance of recovering tort damages from the operator of
the “Dangerous Teachers” website if the operator did not originate the posted
material. However, Hammerstein said that it may be possible to recover damages
from persons who posted the Document and Comment on the website and from the
325
MISS. CODE ANN. § 95-1-5 (LEXIS 2009).
I. DEFENSES AND OBSTACLES TO RECOVERY 259
0111 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:27 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
radio and television stations whose broadcasts discussed the allegations.
If defamation actions against the broadcasters are governed by a retraction
statute identical to the Mississippi retraction statute quoted above, must
Hammerstein request a retraction before commencing litigation against the
potential defendants? In addition, if a retraction is made by a defendant, what
effect will that have on the McGlynns’ defamation claims?
3. Absolute Privileges
“Absolute” privileges are absolute. If an absolute privilege applies, it generally
makes no difference what the defendant knew or should have known, or why the
defendant uttered the defamatory statement. In contrast, “qualified” or
“conditional” privileges (discussed later in this chapter) may be negated by various
forms of improper conduct by a defendant.
a. Judicial Proceedings Privilege
The “judicial proceedings privilege” is sometimes called the “litigation
privilege.” Pursuant to this rule, statements made by judges, lawyers, parties,
witnesses, or jurors in connection with pending or contemplated litigation are
absolutely privileged.326
Bars Defamation and Other Claims. In Jones v. Coward,327
the defendant
attorney asked a potential witness “Did you hear that [plaintiff] got run out of town
for drugs?” or stated, “[Plaintiff] got run out of town for drugs.”328
The North
Carolina Court of Appeals held “that an attorney’s statement or question to a
potential witness regarding a suit in which that attorney is involved, whether
preliminary to trial, or at trial, is privileged and immune from civil action for
defamation,” unless it is “palpably irrelevant” to the case.329
The court further held
that the judicial proceedings privilege also barred an action for intentional infliction
of emotional distress based on the same facts, because otherwise “the privilege . . .
would be eviscerated, and the public policy providing advocates the security to
zealously pursue cases on behalf of their clients would be completely
undermined.”330
In Atkinson v. Affronti,331
a union attorney sent a letter to a general contractor
alleging that its superintendent had stabbed a large, inflatable rat used by union
picketers, and that the union intended to hold the general contractor responsible.
In finding that a defamation claim by the supervisor against the union attorney was
barred by the judicial proceedings privilege, the Appellate Court of Illinois noted
that the privilege “affords complete immunity, irrespective of the attorney’s
326
See RESTATEMENT (SECOND) OF TORTS §§ 585–589 (1977).
327
666 S.E.2d 877 (N.C. Ct. App. 2008).
328
Id. at 878.
329
Id. at 880.
330
Id.
331
861 N.E.2d 251 (Ill. App. Ct. 2006).
260 DEFAMATION CH. 3
0112 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:28 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
knowledge of the statement’s falsity or the attorney’s motives in publishing the
defamatory matter.”332
Advertising for Clients or Evidence. In Simpson Strong-Tie Co., Inc. v.
Stewart, Estes & Donnell,333
an attorney ran a newspaper ad and a website
announcement. The newspaper ad said:
Attention: Wood Deck Owners
If your deck was built after January 1, 2004 with galvanized screws
manufactured by Phillips Fastener Products, Simpson Strong-Tie or
Grip-Rite, you may have certain legal rights and be entitled to monetary
compensation, and repair or replacement of your deck. Please call if you
would like an attorney to investigate whether you have a potential
claim. . . .334
The announcement on the law firm’s website read:
Class Action Investigations
Phillips Screws and Fasteners and/or Simpson’s Screws and Fasteners —
We are investigating the accelerated corrosion due to defectively manufactured
screws and fasteners caused by pressure treated wood.335
In addressing the question of whether the litigation privilege “encompasses an
attorney’s solicitous statements made prior to the filing of a lawsuit,” the Supreme
Court of Tennessee rejected the plaintiff’s argument that recognition of such a
privilege would give “attorneys ‘unfettered license . . . to troll for clients via . . .
indiscriminate advertising portraying possible defendants in any defamatory light
advantageous to securing new’ business for the attorney.”336
The court wrote:
We are persuaded that the litigation privilege applies to attorney
solicitations published prior to the start of litigation. Specifically, the
communication at issue is protected by the privilege if (1) the communication
was made by an attorney acting in the capacity of counsel, (2) the
communication was related to the subject matter of the proposed litigation,
(3) the proposed proceeding must be under serious consideration by the
attorney acting in good faith, and (4) the attorney must have a client or
identifiable prospective client at the time the communication is published.
The privilege will not apply unless each of these elements is satisfied.337
Quoting the Restatement, the court cautioned that the “bare possibility that the
proceeding might be instituted is not to be used as a cloak to provide immunity for
332
Id. at 256.
333
232 S.W.3d 18 (Tenn. 2007).
334
Id. at 20.
335
Id. at 21.
336
Id. at 23–24.
337
Id. at 24.
I. DEFENSES AND OBSTACLES TO RECOVERY 261
0113 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:28 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
defamation when the possibility is not seriously considered.”338
Nevertheless, the
court broadly framed the rule, which it found to be supported by cases in other
jurisdictions. The court wrote:
. . . The plaintiff argues that the privilege should not apply to circumstances
such as those presented here because rather than limiting the
defamatory communications to persons having a potential claim against the
plaintiff, the defendant “indiscriminately circulated them to the entire
world.” According to the plaintiff, the defendant had not consulted with a
client or potential client about any claim against the plaintiff but broadly
scattered its defamatory statements to everyone with access to the
Tennessean newspaper and the Internet. Relying upon cases finding that a
defamatory communication is protected only if it is published to persons
with an interest in the proposed litigation, see, e.g., Andrews v. Elliot, 109
N.C. App. 271, 426 S.E.2d 430, 433 (N.C. Ct. App. 1993), the plaintiff
maintains that untargeted communications by an attorney should fall
outside the permissible scope of the privilege to safeguard against abuse.
. . . .
While we are not unsympathetic with the plaintiff’s position, limiting the
privilege in the manner suggested by the plaintiff could, in our view, inhibit
potential parties or witnesses from coming forward and impede the
investigatory ability of litigants or potential litigants, thereby undermining
the reasons for the privilege. In some situations, attorneys may have no
practical means of discerning in advance whether the recipients of the
communication have an interest in the proposed proceeding. In that event,
the attorney can only communicate with those having the ability and desire
to join the proposed litigation by publishing the statement to a wider
audience, which may include unconnected individuals. When the prerequisites
of the privilege are satisfied, the privilege should not be lost based on
this fact alone. We note, however, that unnecessary defamatory publications
to recipients unconnected with the proposed proceeding would not be
privileged. . . . For example, if the attorney has a feasible way of discerning
which recipients have an interest in the case, but nevertheless publishes
the defamatory communication to those having no interest in the case, the
privilege would not apply.
. . . .
We also observe that, even if the requirements of the privilege are
satisfied, an attorney who exceeds the bounds of permissible conduct may
face collateral consequences. For example, an attorney who makes false
and defamatory statements which result in a baseless lawsuit may face a
malpractice action by the client or a malicious prosecution action by the
party defamed, or both. . . . An attorney who institutes meritless litigation
or files suit for an improper purpose may also face sanctions imposed
by the courts under Rule 11 of the Tennessee Rules of Civil Procedure. In
addition, an attorney may be disciplined by the Board of Professional
338
Id. at 24 (quoting RESTATEMENT (SECOND) OF TORTS § 586 cmt. e (1977)).
262 DEFAMATION CH. 3
0114 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:29 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Responsibility for violating ethical requirements which prohibit the filing of
frivolous claims or soliciting employment by means of fraud or false or
misleading statements. . . . These alternative remedies for attorney misconduct
present “the risk of punishment for the errant lawyer . . . real
enough to require that lawyer to beware.”. . . . In light of these alternative
remedies, coupled with the limitations we have placed on the privilege
itself, we are satisfied that the privilege cannot be exploited as an
opportunity to defame with impunity.339
(1) Example: Cassuto v. Shulick
The breadth of the judicial proceedings privilege is illustrated by a recent case
which should give great comfort to lawyers who mistakenly hit the “reply all”
button when sending e-mail. Cassuto v. Shulick340
involved a fee dispute between a
Pennsylvania attorney (Shulick), who was lead counsel for a client (Stone), and a
New York attorney (Cassuto), who was hired to serve as local counsel for the client,
but had been dismissed. Describing the facts, a federal court in New York wrote:
Cassuto emailed many of the parties involved in the Stone matter notifying
them of his charging lien and demanding that his name be included on any
and all settlement documents “as attorney,” and on the settlement check.
Among the parties copied on this email were Shulick, Eric Kades, a named
plaintiff in the Stone matter, and Craig Miller, the CEO of Stone Commercial
Brokerage, and the attorneys who represented the defendant in the
Stone matter. . . .
In response, Shulick hit “reply all” and wrote the following sentence . . .
[implying that Cassuto’s claim] “. . . evidenc[ed] that he is still, apparently,
as . . . previously suspected, under the influence of substances that caused
him to act so irratically [sic] previously [sic] — the reason for his
termination.” Cassuto claims this statement constitutes libel per
se. . . . 341
Pertinence, Broadly Defined, is a Question of Law. Addressing the merits of
the defamation claim, the court wrote:
The judicial proceedings privilege is an absolute bar to defamation suits
arising out of statements pertinent to judicial proceedings made by any
party related to those proceedings. Whether statements of an allegedly
defamatory nature are pertinent for purposes of the judicial proceedings
privilege is a question of law for the court to decide.
In determining whether a statement is pertinent to judicial proceedings
for purposes of the privilege, courts apply an “extremely liberal” test,
asking whether the statement is “at all pertinent to the litigation.” The
measure of a statement’s pertinence to judicial proceedings is whatever a
reasonable person would think is “connected” to the case. Thus, any doubts
339
Id. at 25–27.
340
2007 U.S. Dist. LEXIS 42638 (S.D.N.Y. 2007).
341
Id. at *3–5.
I. DEFENSES AND OBSTACLES TO RECOVERY 263
0115 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:29 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
are to be resolved in favor of finding a statement to be pertinent to a judicial
proceeding. “The barest rationality, divorced from any palpable or pragmatic
degree of probability, suffices to establish the offending statement’s
pertinence to the litigation.” The privilege embraces anything that may
possibly be pertinent, including disputes over legal fees between attorneys.
Additionally, a statement made during the course of judicial proceedings is
only actionable where the statement is “so outrageously out of context as to
permit one to conclude, from the mere fact that the statement was uttered,
that it was motivated by no other desire than to defame.”342
Wholly Unrelated Statements. The Cassuto court further explained:
While the privilege does not extend to statements made by persons
“wholly unrelated” to the relevant litigation, “no strained or close construction
will be indulged in to exempt a [person] from the protection of
privilege.” The privilege is not destroyed simply because a participant to
the judicial proceedings no longer represents a party. The privilege is only
inapplicable where the statement is made by someone who has no
involvement whatsoever in the pending litigation or was never involved in
the proceedings. Moreover, it is irrelevant for purposes of applying the
privilege that third parties inadvertently heard or read an allegedly
defamatory statement.343
Pertinence is Evaluated in Context. The court continued:
In determining whether a statement is pertinent to a judicial proceeding,
the statement must be read in context. Here, Cassuto initiated the
discussion in issue. Cassuto entitled his initial email to Shulick
“SETTLEMENT-Stone Commercial Brokerage, Inc. v. Organic, Inc. et al.”
As evidenced by the subject line, the email pertained to the Stone lawsuit.
Nonetheless, Cassuto contends the email is not pertinent to a judicial
proceeding because it related to the Fee Agreement, not to the lawsuit.
Cassuto is simply wrong. The statement related to the lawsuit as it arose
from Cassuto’s representation in the Stone matter. In response to Cassuto’s
request for fees, Shulick sent an email rejecting Cassuto’s claim, stating
that “he would be happy to litigate the fees.”
Frustrated with his failing efforts to obtain payment from Shulick,
Cassuto filed a lien against any Stone settlement. While Cassuto contends
the fee dispute was not pertinent to the Stone litigation, his decision to file
a lien against the settlement proceeds and to alert all parties and counsel
of that decision proves the contrary.
. . . .
Cassuto contends that his status as former counsel should preclude any
application of the judicial proceedings privilege. But when former counsel
to litigation continue to involve themselves in actual proceedings, the
342
Id. at *8–9.
343
Id. at *10.
264 DEFAMATION CH. 3
0116 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:29 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
privilege still applies. As discussed above, Cassuto sent an email to
opposing counsel in Stone demanding his name be included on settlement
papers with the designation “as attorney.”. . . .
Cassuto relies on Silverman v. Clark [822 N.Y.S.2d 9 (App. Div. 2006)] in
which the privilege did not apply to an attorney formerly involved in
litigation. But this case is inapposite. The attorney in Silverman merely
contacted his former client to suggest that she proceed with her new
attorney cautiously, or alternatively, return to his firm. The attorney made
no statement pertinent to a pending litigation as was the case here.
Finally, Cassuto contends that the immunity should not apply because
Shulick copied his secretary and paralegal on subsequent emails, including
the string of emails containing the allegedly defamatory statements.
However, as noted earlier, the privilege is not extinguished simply because
third parties have been exposed to the allegedly defamatory statements.344
The Second Circuit affirmed the district court’s ruling in Cassuto, in a summary
order which stated simply, “For substantially the reasons stated by the District
Court, we agree that the e-mail was privileged. We have considered all of Cassuto’s
arguments and find them to be without merit.”345
(2) Quasi-Judicial Proceedings
Statements relating to a quasi-judicial proceeding are often absolutely
privileged. For example, in Sullivan v. Smith,346
the Alabama Court of Civil
Appeals held that the statements of a crime victim’s parents to the state Board of
Pardons and Paroles could not form the basis for a slander action.
Quasi-judicial proceedings come in many varieties. In Craig v. Stafford Const.,
Inc.,347
the Supreme Court of Connecticut held that an investigation conducted by
a police department’s internal affairs division constituted a quasi-judicial
proceeding. Therefore, a defamation action, based on a complaint to the division
about a police officer’s alleged racial bias, was barred by an absolute privilege. The
court noted that, in determining whether a proceeding is quasi-judicial in nature, it
is appropriate to consider the following factors: “whether the body has the power
to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain
facts and decide; (3) make binding orders and judgments; (4) affect the personal
property rights of private persons; (5) examine witnesses and hear the litigation of
the issues on a hearing; and (6) enforce decisions or impose penalties.”348
Complaints to Government Agencies. In 5-State Helicopters, Inc. v. Cox,349
a
defamation claim arose from two letters of complaint sent to the Federal Aviation
344
Id. at *11–15.
345
313 Fed. Appx. 448 (2d Cir. 2009).
346
925 So. 2d 972 (Ala. Civ. App. 2005).
347
856 A.2d 372 (Conn. 2004).
348
Id. at 377 (quoting Kelley v. Bonney, 606 A.2d 693, 704 (1992)).
349
146 S.W.3d 254 (Tex. App. 2004).
I. DEFENSES AND OBSTACLES TO RECOVERY 265
0117 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:29 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Administration (FAA). In holding that the suit was barred by an absolute privilege,
Chief Justice John Cayce wrote for the Texas Court of Appeals:
A proceeding is quasi-judicial in nature if it is conducted by a governmental
executive officer, board, or commission that has the authority to
hear and decide the matters coming before it or to redress the grievances
of which it takes cognizance. . . .
. . . [T]he rationale for extending the absolute privilege to statements
made during quasi-judicial proceedings rests in the public policy that every
citizen should have the unqualified right to appeal to governmental agencies
for redress “without the fear of being called to answer in damages” and that
the administration of justice will be better served if witnesses are not
deterred by the threat of lawsuits. . . . The absolute privilege is intended
to protect the integrity of the process and ensure that the quasi-judicial
decision-making body gets the information it needs. . . .
Whether an alleged defamatory statement is related to a proposed or
existing judicial or quasi-judicial proceeding, and is therefore absolutely
privileged, is a question of law. . . .
In this case, FAA’s quasi-judicial status is not in dispute. The FAA
Administrator may reinspect and reexamine any civil aircraft at any time to
ensure that the aircraft is in compliance with federal air safety laws.
. . . If it appears that a person may be in violation of federal aviation
statutes or regulations, the FAA is authorized to initiate an investigation
and decide whether any violations have occurred. . . . The FAA may,
among other things, hold administrative hearings, issue orders of compliance,
assess civil penalties, seize noncompliant aircraft, or bring a civil
enforcement action in federal district court. . . . If . . . as a result of the
investigation, the FAA determines that a violation has occurred that does
not require legal enforcement action, an appropriate official in the FAA
field office responsible for processing the enforcement case “may take
administrative action in disposition of the case.”. . . . Such administrative
actions include issuing a warning notice to the alleged violator.350
Quasi-Judicial Status Depends on Authority, Not Adjudication. The court
emphasized that a governmental entity’s status depends on the entity’s authority:
The mere fact that the FAA’s investigation did not culminate in a
full-blown administrative hearing or a “formal adjudication” did not alter
its quasi-judicial nature. It is undisputed that the FAA had the authority to
conduct such a hearing and adjudication if it had determined that such
measures were necessary. A proceeding’s quasi-judicial status depends on
whether the governmental entity has the authority to investigate and
decide the matters at issue, not on the length, complexity, or outcome of the
proceeding. . . .
. . . [T]o adopt the narrow view of quasi-judicial proceedings that
appellees urge would result in a rule that private citizens’ communications
350
Id. at 257–58.
266 DEFAMATION CH. 3
0118 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:30 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
to a quasi-judicial body about a matter that the entity was authorized to
investigate and resolve would not be privileged unless and until the
proceeding reached the administrative hearing stage. Such a rule would
have a chilling effect on the free flow of information and deter rather than
aid the decision-making body’s efforts to obtain necessary information.
. . . 351
Attorney Discipline and Related Matters. In many states, persons reporting
alleged attorney misconduct to disciplinary authorities enjoy an absolute privi-
lege.352
In some jurisdictions, the privilege is an extension of the judicial proceedings
privilege to attorney disciplinary hearings, which are quasi-judicial in nature.
In Sobol v. Alarcon,353
the court concluded that an absolute privilege barred a
defamation action by a certified legal document preparer. In that case, an attorney
sent a letter to the State Bar accusing a certified legal document preparer of the
unauthorized practice of law. Thereafter, the State Bar forwarded the letter to the
Board of Legal Document Preparers. In disposing of a suit against the attorney who
made the report, the Arizona Court of Appeals wrote:
This court has afforded absolute immunity to individuals who have filed
complaints with the State Bar against attorneys accusing them of unethical
conduct. . . . We have done so to encourage the public to report alleged
unethical lawyer behavior without fear of reprisal and free from the threat
of civil litigation. Application of the privilege also ensures the State Bar, as
the entity authorized by the Supreme Court of Arizona to regulate attorney
conduct, receives the information it needs to accomplish its disciplinary
role. . . .
In Arizona, a [certified] legal document preparer . . . may perform
specified legal services without being supervised by an attorney in good
standing with the State Bar. In light of the role now permissibly played by
certified legal document preparers in working with the public and providing
the public with certain legal services, just as with the legal profession,
public policy demands that absolute immunity be extended to members of
the public who report alleged unethical behavior by certified legal document
preparers. We can conceive of no reason why a person who reports
allegedly unethical conduct by a lawyer should be protected by absolute
immunity while a person who reports allegedly unethical conduct by a
certified legal document preparer should be subjected to the risk of civil
liability. Given the public’s need for access to legal services and the
importance of regulating those who provide such services, there should be
no distinction. . . . 354
351
Id. at 258–59.
352
See TEX. GOV’T CODE ANN. T.2, Subt. G, App. A-1 § 15.8 (LEXIS 2009).
353
131 P.3d 487 (Ariz. Ct. App. 2006).
354
Id. at 490.
I. DEFENSES AND OBSTACLES TO RECOVERY 267
0119 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:30 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
University Sexual Harassment Procedures. In Hartman v. Keri,355
the
Supreme Court of Indiana held that statements charging a university professor
with sexual harassment were absolutely privileged. The court explained its reasoning
as follows:
[Anti-harassment policies] . . . similar to Purdue’s are commonly found
in institutions of higher education. At least three states [New York,
California, and Maryland] have held that communications to school authorities
raising complaints against educators enjoy the same absolute privilege
the law accords to statements in judicial proceedings. . . . In reaching this
conclusion courts have described the processes of the educational institutions
as quasi-judicial. . . . This view of the issue, adopted by Justice
Rucker’s separate opinion, invokes a body of law that analyzes the
availability of the privilege in terms of the degree to which court-like
procedures are available. Thus, courts have examined whether proceedings
are under oath, whether there is subpoena power, whether discovery is
available, and the like. . . . Purdue’s processes do not establish such a
formal apparatus. But to the extent Keri has a complaint about the
adequacy or fullness of the process, it is a complaint with Purdue, not
Hartman and Swinehart [the complainants]. That complaint has been
asserted in federal court and has been resolved there adversely to Keri. At
least in the context of educational institutions, as long as the process is
reasonably transparent and fair and affords the subject an opportunity to
respond, we think the ultimate issue focuses less on the particular process
and more on the recognition of the institution’s interest in assuring a
proper educational environment.
Hartman and Swinehart acted under the procedure Purdue established.
Protecting their complaints with anything less than an absolute privilege
could chill some legitimate complaints for fear of retaliatory litigation.
. . . A university should be given the latitude to tailor its processes to
the educational environment without degrading the protection the law gives
to complaints of misconduct in the educational setting. . . .
Citizens reporting suspected criminal activity to law enforcement enjoy
only a qualified privilege, which subjects them to the risk of retaliatory civil
litigation for malicious or unfounded charges. E.g., Holcomb v. Walter’s
Dimmick Petrol., Inc., 858 N.E.2d 103, 106 (Ind. 2006) (citing Conn v. Paul
Harris Stores, Inc., 439 N.E.2d 195, 200 (Ind. Ct. App. 1982)). At first blush
it may seem anomalous to grant a higher degree of protection to complaints
made in the educational setting. But a current student is subject to
academic discipline for abuse of the process. In practical terms this is a
substantial deterrent to false reporting. Moreover, the need for protection
is greater in the educational setting because the subject of the complaint —
the educator — is in a position of authority over the student, so fear of
retaliation presents a potential obstacle to open airing of grievances. . . .
355
883 N.E.2d 774 (Ind. 2008).
268 DEFAMATION CH. 3
0120 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:31 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Finally, we think it is relevant that the Indiana General Assembly has
given state higher educational institutions the power to govern conduct on
institution property and to “prevent unlawful or objectionable acts,” of the
institution’s students, faculty, and employees “wherever the conduct might
occur.” Ind. Code Ann. §§ 21-39-2-2 to -3 (West 2008). This includes the
power to “dismiss, suspend, or otherwise punish any student, faculty
member, or employee of the state educational institution who violates the
institution’s rules or standards of conduct, after determination of guilt by
lawful proceedings.”. . . . These statutes authorize educational institutions
to construct their own disciplinary procedures in a way that protects
the needs of the participants and also serves the educational goals of the
institution. Although Purdue’s procedure may lack the trappings of a
traditional court proceeding, it is orderly and reasonably fair, requires
“appropriate discipline” for those who file knowingly false or malicious
complaints, and promises reasonable efforts to restore the reputation of
anyone charged with discrimination or harassment that proves unsubstantiated.
If Keri has been unfairly treated, his complaint is against Purdue
University as the architect and implementer of the policy and procedures,
not the students who invoked the process.356
(3) Limits of the Judicial Proceedings Privilege
Publication to the Press or Other Audiences of Statements Related to
Litigation. Occasionally courts find that statements connected to litigation are not
protected by the absolute judicial proceedings privilege. One such case was
Bochetto v. Gibson.357
In that case, an attorney (Bochetto) was sued for legal
malpractice based on conduct which allegedly occurred in connection with the
defense of a client in quiet-title actions. In the legal malpractice action, the client
was represented by a new attorney (Gibson). The legal malpractice complaint
alleged that Bochetto had breached his fiduciary obligations by failing to disclose
important information (an expert report) to the client and by other misconduct
related to the procurement of a substitute expert report. After filing the legal
malpractice complaint for the client, Gibson faxed a copy to a reporter with the
Legal Intelligencer (Dudick), which resulted in a story which Bochetto claimed was
false and defamatory. In a defamation suit by Bochetto against Gibson and his firm,
the defendants argued that the claim was barred by the judicial proceedings
privilege. In addressing that issue, the Supreme Court of Pennsylvania wrote:
Pursuant to the judicial privilege, a person is entitled to absolute
immunity for “communications which are issued in the regular course of
judicial proceedings and which are pertinent and material to the redress or
relief sought.” Post v. Mendel, 510 Pa. 213, 507 A.2d 351, 355 (1986)
(emphasis in original). . . .
In Post, this Court was asked to decide whether the judicial privilege
protected an attorney from liability for statements he made in a letter
356
Id. at 777–79.
357
860 A.2d 67 (Pa. 2004).
I. DEFENSES AND OBSTACLES TO RECOVERY 269
0121 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:31 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
detailing alleged acts of misconduct by his opposing attorney, which was not
only sent to the opposing attorney, but was also sent as copies to the judge
trying the case, the Disciplinary Board of this Court, and the attorney’s
client. Although we found that the letter had been issued during the course
of the trial and referred to matters that occurred during the trial, we
nevertheless concluded that it was not: (1) issued as a matter of regular
course of the proceedings; or (2) pertinent and material to the proceed-
ings.358
Accordingly, . . . we held that . . . [the letter] was not “within the
sphere of [communications] which judicial immunity was designed to
protect” and that the attorney was not absolutely immune from liability for
his statements in the letter. . . .
In . . . the instant case, we initially note that Gibson’s publication of the
complaint to the trial court was clearly protected by the privilege.
. . . However, the fact that the privilege protects this first publication does
not necessarily mean that it also protects Gibson’s later act of republishing
the complaint to Dudick. See Pawlowski v. Smorto, 403 Pa. Super. 71, 588
A.2d 36, 41 n. 3 (1991) (“[E]ven an absolute privilege may be lost through
overpublication. . . . In the case of the judicial privilege, overpublication
may be found where a statement initially privileged because made in the
regular course of judicial proceedings is later republished to another
audience outside of the proceedings.”); Barto v. Felix, 250 Pa. Super. 262,
378 A.2d 927, 930 (1977) (although allegations in attorney’s brief were
protected by judicial privilege, attorney’s remarks concerning contents of
brief during press conference were not likewise protected by privilege).
Indeed, this later act may only be protected by the judicial privilege if it
meets the two elements that we held in Post are critical for the privilege to
apply, i.e., (1) it was issued during the regular course of the judicial
proceedings; and (2) it was pertinent and material to those proceedings. As
Gibson’s act of sending the complaint to Dudick was an extrajudicial act
that occurred outside of the regular course of the judicial proceedings and
was not relevant in any way to those proceedings, it is plain that it was not
protected by the judicial privilege.359
The court noted in a footnote that while Gibson is not absolutely immune from
liability for faxing the complaint to the reporter, he might nevertheless be entitled
to a qualified privilege. As discussed later in the chapter, qualified privileges are
“abused,” and therefore afford no protection, if the defendant acts with knowledge
358
[n.13] In finding that the letter did not satisfy these two criteria, we explained as follows:
The letter did not state or argue any legal position, and it did not request any ruling or action
by the court. Nor did the communication request that anything contained in it should even be
considered by the court. The letter was clearly not a part of the judicial proceedings to which
it made reference, and merely forwarding a copy of the letter to the court did not make it a
part of those proceedings. Likewise, forwarding copies of the letter to plaintiff’s alleged client
. . . and to the Disciplinary Board . . . did not render the letter a part of the trial proceedings,
and transmittal of those copies would not logically have been expected to affect the course of
trial.
Post, 507 A.2d at 356.
359
860 A.2d at 71–73.
270 DEFAMATION CH. 3
0122 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:31 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
of a statement’s falsity or for improper motives, such as spite, ill-will, or vindictive-
ness.
PROBLEM 3-12: THE ACCUSED CATERER
Soon after the City of St. Loyal (the City) adopted a new ethics code (the Code),
a complaint was filed with the Ethics Review Board (the Board) by Raphael’s
Catering (Raphael’s). The complaint related to the City’s solicitation of bids for a
lucrative, five-year, exclusive-rights catering contract at the Convention Center.
Raphael’s had submitted a bid for the contract. One of the competing bids was
submitted by Raphael’s old nemesis, Child’s Comestibles (Child’s). In the complaint
to the Board, Raphael’s alleged that the owners of Child’s had made improper
campaign contributions to certain members of City Council, and was therefore
ineligible to bid on the Convention Center catering contract.
The new Code provided that neither the filing of a complaint nor any official
action relating to a complaint would be public information unless and until the
Board made a finding that the complaint had merit. Unfortunately, because the
provisions of the Code were new and city officials were unfamiliar with them, the
complaint filed by Raphael’s against Child’s was erroneously distributed to the
press in response to an open records request.
The resulting news stories attracted great public attention. Reporters
researching the story were able to document a history of “bad blood” and
animosity between Raphael’s and Child’s. Media scrutiny also focused on whether
members of City Council were in compliance with campaign finance laws.
The Board, which consisted of eleven members approved by City Council,
offered Child’s the opportunity to present a defense to the charges stated in
Raphael’s complaint. Applicable provisions in the Code prohibited ex parte
communications with members of the Board. The Code also required all witnesses
to be sworn and provided that all questioning of witnesses was to be conducted by
the members of the Board. Under the Code, a person charged with unethical
conduct had a right to attend a hearing and to present witnesses, but no right to be
accompanied by legal counsel. No standard of proof was stated in the Code.
The Board had the power to make a finding that the Code had been violated and
to recommend to City Council what sanction should be imposed. However, the
Board’s findings and recommendations were not binding on City Council, which
had plenary power to review any finding of fact de novo and to disregard any
recommendation of the Board.
The proceedings relating to the complaint against Child’s were closed to the
public. Ultimately, the Board found that there was no violation and recommended
that City Council take no further action. City Council followed that
recommendation.
After the Convention Center catering contract was awarded to a bidder
unrelated to the ethics complaint, Child’s filed suit against Raphael’s alleging that
the statements made in the complaint to the Board were false and defamatory,
without any factual basis, and maliciously intended to cause Child’s not to be
I. DEFENSES AND OBSTACLES TO RECOVERY 271
0123 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:32 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
awarded the catering contract. Raphael’s has moved to dismiss the defamation
complaint on the ground that its ethics complaint to the Board was absolutely
privileged. No prior case or legislative enactment has addressed this question. How
should the court rule?
b. Legislative and Executive Branch Absolute Privileges
Legislative Proceedings. It is not at all surprising that, in a country with a
three-branch government, the judicial proceedings privilege is paralleled by
privileges relating to the legislative and executive branches. Thus, as a matter of
common law, utterances by legislators and legislative witnesses, if published in
connection with legislative functions, are immune from suit.360
In Riddle v. Perry,361
the Supreme Court of Utah held that the statement of a
legislative witness, which implied that the sponsor of a bill had been bribed, was
related to the hearing and therefore absolutely privileged. This was true even
though both the committee parliamentarian and the legislative witness both
acknowledged that the statement was out of order.
Executive Branch Communications. Statements by high level executive
branch officials in the federal or state government are absolutely privileged, under
common law principles, if made in connection with the performance of official
duties.362
At the state level, the absolute privilege for executive branch
communications extends at least to high level officials, such as the governor,
attorney general, and heads of state departments. Whether lesser state officials
enjoy a qualified, rather than absolute, privilege depends on state law.363
Statements in Search Warrants. In Smith v. Danielczyk,364
the Maryland
Court of Appeals held that police officers were entitled to only qualified immunity
with respect to defamatory statements contained in a search warrant application.
Interestingly, the court also noted that the judicial proceedings privilege was not
applicable to the facts, which involved a search of the lockers of fellow police
officers. The court wrote:
An application for a search warrant may be said to be in the nature of a
judicial proceeding because the application must be made to a judge and
because the issuance of a warrant is a judicial act. On the other hand, . . .
an application for search warrant, at least in the ordinary case, is not made
in the course of an existing judicial proceeding and does not inaugurate or
necessarily lead to one. . . . Moreover, the presentation of a search
warrant application is almost always ex parte, often occurring at the judge’s
home during the evening hours, with little or no ability to test the accuracy
of the affiant’s averments. Absent some knowledge to the contrary, the
judge necessarily assumes good faith and truthfulness on the part of the
360
See RESTATEMENT (SECOND) OF TORTS §§ 590 & 590A (1977).
361
40 P.3d 1128 (Utah 2002).
362
See RESTATEMENT (SECOND) OF TORTS § 591 (1977).
363
See id. § 591 cmt. c.
364
928 A.2d 795 (Md. 2007).
272 DEFAMATION CH. 3
0124 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:32 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
affiant and looks to see only whether those averments, assuming them to be
true, suffice to establish probable cause to believe that incriminating
evidence will be found at the place or on the person to be searched. . . .
The normal trappings of . . . [an adversarial] judicial proceeding are
thus lacking. In that regard, the presentation of an application for search
warrant may be more akin to an investigatory proceeding rather than a
judicial one. . . .
A critical underpinning to allowing an absolute privilege for statements
made in the course of a judicial proceeding is that, because such a
proceeding is normally adversarial in nature, there is usually the ability to
test the veracity of those statements and to publicly rebut them. Witnesses
can be cross-examined; contradictory evidence can be presented. A neutral
fact-finder, after examining all of the evidence presented, can decide what
is believable and what is not. . . . Even in sub-proceedings that may
themselves be ex parte in nature, such as requests for temporary restraining
orders, the opportunity exists later in the case to expose and sanction
false statements. . . .
That counterweight simply does not exist with respect to search warrant
applications. . . .
The rationale for being cautious about extending an absolute privilege to
an ex parte search warrant proceeding was well-stated in Franks v.
Delaware, [438 U.S. 154, 168 (1978)]: “[t]he requirement that a warrant not
issue ‘but upon probable cause, supported by Oath or affirmation,’ would be
reduced to a nullity if a police officer was able to use deliberately falsified
allegations to demonstrate probable cause, and, having misled the magistrate,
then was able to remain confident that the ploy was worthwhile.”365
Rights Under the Petition Clause. Persons communicating with executive
branch officers do not enjoy an absolute privilege that would defeat a defamation
action. The guarantees of the Petition Clause of the Federal Constitution have been
found to be coextensive with those articulated in New York Times Co. v. Sullivan366
and its progeny. Thus, in McDonald v. Smith,367
the United States Supreme Court
held that letters addressed to the President, concerning the plaintiff’s qualifications
to become a United States Attorney, could give rise to liability if actual malice was
proved.
Similarly, in Clark v. Jenkins,368
the Texas Court of Appeals held that a civil
rights group and its president were not absolutely immune from a defamation suit
based on the group’s distribution of a memorandum to the Justice Department and
a Congressman requesting certain action. The memorandum stated that a member
of city council was a convicted felon who had served time for prostitution and
drug-related offenses. A jury verdict was upheld because there was clear and
365
Id. at 811–13.
366
376 U.S. 254 (1964).
367
472 U.S. 479 (1985).
368
248 S.W.3d 418 (Tex. App. 2008).
I. DEFENSES AND OBSTACLES TO RECOVERY 273
0125 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:32 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
convincing evidence that the defendants acted with actual malice.
State Constitutional Protections. State law sometimes provides greater protection
than the Federal Constitution. In Kashian v. Harriman,369
the California
Court of Appeal held that the state statutory absolute privilege for statements made
in connection with an “official proceeding,” defeated a defamation claim based on a
letter urging a division of the Office of the Attorney General to institute an
investigation of the tax-exempt status being claimed by a certain health care
provider.
c. Westfall Act and Federal Officers and Employees
Any reference to the application of judicial, legislative, or executive branch
absolute privileges at the federal level is incomplete without some discussion of the
protections afforded to federal employees under the Westfall Act. In Wuterich v.
Murtha,370
a U.S. Marine sued a Congressman for defamation based on the
Congressman’s statements to the press. The D.C. Circuit wrote:
This case involves an important question concerning the scope of
absolute immunity under the Westfall Act. See 28 U.S.C. § 2679. The
Westfall Act “accords federal employees absolute immunity from commonlaw
tort claims arising out of acts they undertake in the course of their
official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). . . . “When a
federal employee is sued for wrongful or negligent conduct, the Act
empowers the Attorney General to certify that the employee ‘was acting
within the scope of his office or employment at the time of the incident out
of which the claim arose.’ Upon the Attorney General’s certification, the
employee is dismissed from the action, and the United States is substituted
as defendant in place of the employee.”. . . .
In this case, U.S. Marine Frank D. Wuterich sued Congressman John
Murtha, alleging that the Congressman made false and defamatory statements
to the press about the role of Wuterich’s squad in the deaths of
civilians in Haditha, Iraq in 2005. Congressman Murtha invoked the
protections of the Westfall Act and the Attorney General’s designee
certified that the Congressman was acting within the scope of his employment
at the time he uttered the contested statements. . . . Congressman
Murtha and the United States now appeal the District Court’s denial of the
Attorney General’s certification.371
Addressing the framework of the Westfall Act, the court explained:
[Once] the federal employee is dismissed from the case and the United
States is substituted as the defendant in place of the employee . . . the suit
is governed by the Federal Tort Claims Act (“FTCA”) and is subject to all
of the FTCA’s exceptions for actions in which the Government has not
waived sovereign immunity. . . . When one of these exceptions applies,
369
120 Cal. Rptr. 2d 576 (Cal. Ct. App. 2002).
370
562 F.3d 375 (D.C. Cir. 2009).
371
Id. at 377–78.
274 DEFAMATION CH. 3
0126 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:32 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
the Attorney General’s certification converts the tort suit into a FTCA
action over which the federal court lacks subject matter jurisdiction and
has the effect of altogether barring plaintiff’s case.372
The FTCA bars an action against the federal government for many types of
intentional torts, including liable and slander.373
Thus, the viability of the plaintiff’s
claim hinged upon whether the Congressman’s statements were within the scope of
his office or employment. If so, the Congressman was immune and sovereign
immunity precluded the plaintiff from suing the federal government. Addressing
the key issue, the D.C. Circuit wrote:
The Restatement provides:
Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the
use of force is not unexpectable by the master.
Restatement (Second) of Agency § 228(1). . . .
Wuterich argues that Congressman Murtha’s statements to the media
fell outside the scope of his employment because they were neither conduct
“of the kind he is employed to perform,” . . . nor were they “actuated, at
least in part, by a purpose to serve the master,”. . . . Wuterich alleged in
his complaint that Congressman Murtha’s “comments were made outside of
the scope of his employment as a U.S. Congressman and [were] intended to
serve his own private purposes and interests.”. . . . Wuterich additionally
maintained at the motion hearing before the District Court that Congressman
Murtha’s comments fell outside the scope of his official duties because
they were intended to embarrass Defense Secretary Rumsfeld. Taken
together and generously construed under the liberal pleading standard of
Rule 8(a), Wuterich has failed to allege facts that, taken as true, establish
that Congressman Murtha’s actions exceeded the scope of his employment.
The analysis of Wuterich’s allegations is controlled by this court’s
decision in Council on American Islamic Relations v. Ballenger, 444 F.3d
659 (D.C. Cir. 2006). In that case, the Council on American-Islamic
Relations sued Congressman Cass Ballenger for defamation and slander
after Congressman Ballenger remarked that the organization was the
“fund-raising arm for Hezbollah” during a conversation with a reporter
about his separation from his wife. . . . The District Court upheld the
Government’s Westfall Act certification and dismissed the case. . . . In
affirming the District Court, this court explained that the proper test under
Restatement § 228(1)(a) is whether the “[underlying conduct] — not the
372
Id. at 380.
373
See 28 U.S.C. 2680(h) (LEXIS 2009).
I. DEFENSES AND OBSTACLES TO RECOVERY 275
0127 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:32 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
allegedly defamatory sentence — was the kind of conduct Ballenger was
employed to perform.”. . . .
Applying this test, the court in Ballenger held that the Congressman’s
conduct was of the kind he was employed to perform, because “[s]peaking
to the press during regular work hours in response to a reporter’s inquiry
falls within the scope of a congressman’s ‘authorized duties.’ ”. . . . Further,
the court was quite clear in stating that, even though the allegedly
defamatory statement was made in the course of a conversation about
Congressman Ballenger’s marital difficulties, his “conduct was motivated
— at least in part — by a legitimate desire to discharge his duty as a
congressman” within the meaning of Restatement § 228(1)(c). . . . This
was so, the court explained, because a congressman’s “ability to do his job
as a legislator effectively is tied, as in this case, to the Member’s
relationship with the public and in particular his constituents and colleagues
in the Congress.”. . . .
. . . [I]t is clear that Wuterich has not alleged any facts that even
remotely suggest that Congressman Murtha was acting outside the scope
of his employment when he spoke about the Haditha incident. . . . [T]he
underlying conduct — interviews with the media about the pressures on
American troops in the ongoing Iraq war — is unquestionably of the kind
that Congressman Murtha was employed to perform as a Member of
Congress. This is especially true in the case of Congressman Murtha, who
was the Ranking Member of the Appropriations Committee’s Subcommittee
on Defense and had introduced legislation to withdraw American troops
from Iraq. . . .
. . . Wuterich’s claim that Congressman Murtha desired to “embarrass”
Defense Secretary Rumsfeld, even if true, surely would not take his actions
outside the scope of his employment.
As this court emphasized in Ballenger, “The Restatement’s text reveals
that even a partial desire to serve the master is sufficient.”. . . . Attacking
the credibility of Defense Secretary Rumsfeld, the man who was the public
face of the war in Iraq, was . . . part and parcel of Congressman Murtha’s
job as a legislator charged with overseeing military affairs and of his efforts
to serve his constituents by advancing legislation to bring home American
troops stationed in Iraq.
. . . .
. . . [W]e hereby vacate the District Court’s order. . . . Wuterich’s case
is barred by sovereign immunity. . . . 374
374
Wuterich, 562 F.3d at 383–87.
276 DEFAMATION CH. 3
0128 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:32 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
d. Other Absolute Privileges
Spousal Communications. The publication of defamatory material between a
husband and wife is absolutely privileged.375
Consent by the Plaintiff. The maxim volenti non fit injuria applies as readily
to libel and slander actions as in other areas of tort law. To one who is willing, no
harm is done. If the plaintiff consents to the defendant’s publication of defamatory
material, the plaintiff cannot complain.376
Publications Required by Law. A statement uttered under legal compulsion
generally is not actionable. Thus, if a broadcaster is required to afford a political
candidate an equal chance to be heard, and has no right of censorship, the
broadcaster cannot be held liable for dissemination of defamatory statements by
the candidate that are broadcast in compliance with that legal obligation.377
Various statutes expressly create this type of privilege. For example, a section in
the Texas Finance Code entitled “Reports of Apparent Crime,” provides that:
A state trust company that is . . . [the] victim of an apparent or suspected
misapplication of its corporate or fiduciary funds or property in any amount
by a director, manager, managing participant, officer, or employee shall
. . . [make a report] to the banking commissioner within 48
hours. . . . The state trust company or a director, manager, managing
participant, officer, employee, or agent is not subject to liability for
defamation or another charge resulting from information supplied in the
report.378
The California Child Abuse and Neglect Reporting Act provides that “[n]o
mandated reporter shall be civilly or criminally liable for any report required or
authorized by this article.”379
Reports of Criminal Activity to the Police. In Hagberg v. California Federal
Bank FSB,380
the California Supreme Court, relying on a state statute that
immunizes statements in official proceedings, held that “when a citizen contacts law
enforcement personnel to report suspected criminal activity and to instigate law
enforcement personnel to respond, the communication . . . enjoys an unqualified
privilege.” The privilege defeated the plaintiff’s claims alleging slander and other
theories of tort liability. The plaintiff in Hagberg had argued that the only
explanation for her treatment was racial or ethnic prejudice based on the fact that
she was Hispanic. In response, the court wrote:
Because our review of the record raises a serious question whether the
evidence . . . was sufficient even to raise a triable issue of fact on the
375
See RESTATEMENT (SECOND) OF TORTS § 592 (1977).
376
See id. § 583.
377
See id. § 592A cmt. a..
378
TEX. FINANCE CODE § 183.113(a) (LEXIS 2009).
379
CAL. PENAL CODE § 11172 (LEXIS 2009).
380
81 P.3d 244 (Cal. 2004).
I. DEFENSES AND OBSTACLES TO RECOVERY 277
0129 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
question whether Cal Fed or its employees were motivated by racial or
ethnic prejudice in their treatment of plaintiff or followed a policy of
singling out persons of certain races or ethnic backgrounds for discriminatory
treatment, we have concluded that this is not an appropriate case in
which to resolve the broad legal question whether proof that a business
establishment has called for police assistance (or has a policy of calling for
police assistance) based on racial or ethnic prejudice could give rise to
liability under the Unruh Civil Rights Act notwithstanding the provisions of
section 47(b) [the statutory official proceedings privilege]. . . . 381
Suspected Child Abuse. Some states hold that reports relating to suspected
child abuse are absolutely privileged. For example, California law imposes on
certain persons a duty to report evidence of suspected child abuse, then further
provides:
No mandated reporter shall be civilly or criminally liable for any report
required or authorized by this article. . . . Any other person reporting a
known or suspected instance of child abuse or neglect shall not incur civil
or criminal liability as a result of any report authorized by this article
unless it can be proven that a false report was made and the person knew
that the report was false or was made with reckless disregard of the truth
or falsity of the report, and any person who makes a report of child abuse
or neglect known to be false or with reckless disregard of the truth or
falsity of the report is liable for any damages caused. . . . 382
There are many statutory variations in other jurisdictions relating to reports of
suspected child abuse.383
PROBLEM 3-13: THE BAR ADMISSION APPLICANT
When Kayla Quince applied for admission to practice after graduating from law
school, she found that the process required a lot of paperwork. Among other
things, she had to furnish the bar examiners with the names and contact
information of all of her supervisors at every place she had ever worked.
After her first year of law school, Quince had interned at the law firm of
Sorenson & Porter, where she was supervised by Andy Clark. Quince therefore
listed Clark on her application materials. She also signed the “Authorization and
Release” form that she had received from the State Bar. The form, after she filled
in her name, stated in relevant part:
I, Kayla Quince, hereby give my consent to the Board of Law Examiners
to conduct an investigation as to my moral character and fitness and to
make inquiries and request such information from third parties as, in the
sole discretion of the Board, is necessary to such investigation. . . .
381
Id. at 260.
382
CAL. PENAL CODE § 11172(a) (LEXIS 2009).
383
See, e.g., COLO. REV. STAT. ANN. § 19-3-309 (LEXIS 2009).
278 DEFAMATION CH. 3
0130 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
I authorize every person having opinions about me or knowledge or
control of information pertaining to me to reveal, furnish, and release to the
Board of Law Examiners any such opinions, knowledge, information,
documents, records, or other data. . . .
I hereby release, discharge, and hold harmless the Board of Law
Examiners and any person, firm, company, corporation, employer, or other
third-party, and their agents, from any and all liability of every nature and
kind arising out of the furnishing, inspection, and use of such opinions,
knowledge, documents, or other data. . . .
The statement was signed by Quince before a Notary Public and notarized.
When Quince worked at Sorenson & Porter, she had made some mistakes.
However, she thought that Clark would give her a positive report if he was
contacted by the bar examiners. Quince was seriously wrong.
Some of the errors that Quince had made at the law firm had seriously
embarrassed Clark and had potentially subjected the firm to malpractice liability.
When Clark was contacted by the bar examiners, he was provided with a copy of the
Authorization and Release Form. In response to the inquiry about Quince, Clark
provided a full and unflattering account of Quince’s errors at the firm. In fact, what
Clark wrote was even worse than the truth because Clark confused Quince with
Karen Curren, another intern who worked for the law firm the same summer. Andy
Clark’s letter to the Board of Law Examiners attributed some of Curren’s errors
and unprofessional conduct to Quince.
As a result of Clark’s letter, the Board of Law Examiners conducted a full
investigation into the matter, which delayed Quince’s admission to the bar for six
months. During that period, the firm by which Quince was hired for a job after
graduation paid her at the same agreed salary that she continued to receive after
becoming fully licensed. Please evaluate whether Quince has a viable defamation
claim against Clark and his law firm.
4. Qualified Privileges
Legal issues relating to “conditional” or “qualified” privileges fall into two basic
categories. The first concerns when such privileges arise, and the second relates to
the circumstances under which such privileges are lost.384
Types of Interests Protected. In general, a qualified privilege may arise in any
situation in which there is good reason for the law to encourage or permit a person
to speak or write about a potential defamation plaintiff, even though the speaker is
not certain about the accuracy of the information relayed. Thus, the Restatement
contains specific qualified privilege rules relating to protection of: (1) the
publisher’s own interests;385
(2) the interests of the recipient of a communication or
a third party;386
(3) a common interest of the publisher and recipient;387
(4) the
384
See RESTATEMENT (SECOND) OF TORTS § 593 (1977).
385
Id. § 594.
386
Id. § 595.
I. DEFENSES AND OBSTACLES TO RECOVERY 279
0131 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
interests of family members;388
and (5) the public interest (including
communications with public officials or peace officers389
and communications by
inferior state officers who are not entitled to an absolute privilege390
).
In general, a communication is more likely to be qualifiedly privileged than
would otherwise be the case: if there is a relationship between the publisher and
the recipient; if the communication concerns a risk to the interests of the publisher,
the recipient, or others that could be avoided through reliance on the information
provided; if the statement was solicited, rather than volunteered; and if the
allegedly defamed person previously engaged in some form of related wrongful
conduct.
In Havlik v. Johnson & Wales University,391
the First Circuit held that a
university, which reasonably but erroneously believed that it was required by
federal law to issue a crime report about one student’s assault on another, was
protected by a qualified privilege for a defamation suit based on the contents the
report. Moreover, the fact that a university vice president had “accused the
plaintiff of prevarication” relating to the underlying events and “may have
harbored some hostility toward the plaintiff” was irrelevant for purposes of
determining whether the report was privileged.392
This was true because there was
no evidence that the vice president played any part in the preparation of that
document.
Credit Reporting Agencies. Credit reporting agencies are usually thought to
have a qualified privilege with respect to communications to their subscribers.
a. Privileges of Employers and Employees
Current Employers. “[A]n employer has a conditional or qualified privilege that
attaches to communications made in the course of an investigation following a
report of employee wrongdoing.”393
Co-Employees. Comments by one employee about another employee may enjoy
a qualified privilege, for example, if they are made at a board of directors’
corporate grievance hearing394
or are published to management with respect to
another’s job performance.395
Thus, in Bals v. Verduzco,396
the Indiana Supreme
Court held that an action by a current employee based upon a supervisor’s
allegedly defamatory evaluation was barred by a qualified privilege. Likewise, in
387
Id. § 596.
388
Id. § 597.
389
Id. § 598..
390
Id. § 598A.
391
509 F.3d 25 (1st Cir. 2007).
392
Id. at 34.
393
Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
394
See Hagebak v. Stone, 61 P.3d 201 (N.M. Ct. App. 2002).
395
See Sheehan v. Anderson, 263 F.3d 159 (3d Cir. 2001).
396
600 N.E.2d 1353 (Ind. 1992).
280 DEFAMATION CH. 3
0132 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
DeNardo v. Bax,397
the Supreme Court of Alaska found that an employee’s
statements that she was being stalked by a co-worker were qualifiedly privileged
because they expressed legitimate concern for personal safety.
Former Employers. A former employer’s statements, made in good faith about
a former employee to a state workforce commission, are qualifiedly privileged
because the speaker and the recipient have a common interest.398
Likewise, if the
plaintiff’s former employer is asked about the plaintiff’s job performance by a
prospective new employer, most jurisdictions would say that the former employer
has a qualified privilege.
Nevertheless, the former employee may sue the former employer, arguing that
any qualified privilege was abused. This risk has caused some former employers to
refuse to give prospective employers any information about their former employees
other than job titles and dates of employment. Such a practice has a number of bad
consequences. Able employees, who would get good references if employers could
comment freely, may not get the praise they deserve. New employers are deprived
of the use of pertinent information in making hiring decisions. And, occasionally,
even third parties may be harmed, as when a former employer, fearing litigation,
does not disclose a job applicant’s history of actual or threatened violence.
Some states have enacted legislation to make it harder for former employees to
bring defamation actions. Thus, a Kansas statute provides:
(a) Unless otherwise provided by law, an employer, or an employer’s
designee, who discloses information about a current or former employee to
a prospective employer of the employee shall be qualifiedly immune from
civil liability.
(b) Unless otherwise provided by law, an employer who discloses
information about a current or former employee to a prospective employer
of the employee shall be absolutely immune from civil liability. The
immunity applies only to disclosure of the following: (1) date of employment;
(2) pay level; (3) job description and duties; (4) wage history.
(c) Unless otherwise provided by law, an employer who responds in
writing to a written request concerning a current or former employee from
a prospective employer of that employee shall be absolutely immune from
civil liability for disclosure of the following information to which an
employee may have access:
(1) written employee evaluations which were conducted prior to the
employee’s separation from the employer and to which an employee shall
be given a copy upon request; and
(2) whether the employee was voluntarily or involuntarily released
from service and the reasons for the separation. . . . 399
397
147 P.3d 672 (Ak. 2006).
398
See Patrick v. McGowan, 104 S.W.3d 219 (Tex. App. 2003).
399
KAN. STAT. ANN. Ch. 44, Art. 1, § 44-119a (LEXIS 2009).
I. DEFENSES AND OBSTACLES TO RECOVERY 281
0133 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Note that the Kansas statute covers only information furnished to a prospective
employer.
b. Fair Comment
The qualified privilege of fair comment once played a major role in libel and
slander litigation. Pursuant to the privilege, a person who accurately reported the
facts could offer an opinion about a related subject of public interest without risk of
liability. However, the privilege was lost if the facts were erroneously stated, unless
the statement itself was privileged.
The constitutionalization of the law of defamation, which began with New York
Times v. Sullivan,400
has in many respects eclipsed the privilege of fair comment
because in numerous situations a false statement of fact, or even a negligently false
statement of fact, will not give rise to liability. However, courts occasionally still
invoke the privilege of fair comment.
For example, in Magnusson v. New York Times Co.,401
a plastic surgeon, who
was the subject of unflattering “In Your Corner” consumer report on television,
sued the broadcasting station and reporter. The court held that a common law fair
comment privilege could be asserted as a defense. The Oklahoma Supreme Court
wrote:
Under the common law defense of fair comment, a statement is
generally privileged when it: 1) deals with a matter of public concern; 2) is
based on true or privileged facts; and 3) represents the actual opinion of the
speaker, but is not made for the sole purpose of causing harm. In making
the privilege determination, courts look to the phrasing of the statement,
the context in which it appears, the medium through which it is disseminated,
the circumstances surrounding its publication, and a consideration of
whether the statement implies the existence of undisclosed facts.
First, there is no question that the opinions expressed in the broadcasts
involved a matter of public concern. Public health is clearly a matter of
public consonance. Furthermore, the availability and skills of surgeons
constitute matters relating to a community’s public health.
Second, Magnusson does not allege that the stories were false in the
sense that they did not accurately report the patients’ complaints. . . .
Here, all the patients interviewed by Edwards and included in the KFOR
broadcasts were clearly basing their statements about the doctor’s professionalism
. . . on their individual experiences and the opinions or conclusions
they developed therefrom.
Third, it is for the court to determine whether a statement is one of fact
or opinion. The statements here cannot reasonably be interpreted as
stating actual facts about the doctor. Rather, they are in the nature of
nonactionable “judgmental statements”, opinionative but not factual in
400
376 U.S. 254 (1964).
401
98 P.3d 1070 (Okla. 2004).
282 DEFAMATION CH. 3
0134 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
nature. Furthermore, where the tone of the broadcast is pointed, exaggerated
and heavily laden with emotional rhetoric and moral outrage, listeners
are put on notice to expect speculation and personal judgment. References
to “botched” surgeries and “devastating” scars clearly fall within this
category rather than being statements which could reasonably be interpreted
as stating actual facts.
Finally, the reports were presented as part of the “In Your Corner”
series — clearly identified as investigations into claims by patients in which
both negative and positive disclosures were made about Magnusson and to
which the doctor was given the opportunity to respond. There was nothing
about the broadcasts indicating that facts were being withheld. . . .
. . . . Applying the standards of the common law fair comment privilege
and considering the statements’ phrasing, their context, the medium
through which they were presented, the circumstances surrounding their
publication, and a determination of whether the statements imply the
existence of undisclosed facts, we have little difficulty determining that the
broadcasts here, both of which were focused on alleged complications
arising from plastic surgery and the conditions associated therewith, meet
the requirements for application of the common law fair comment privi-
lege.402
c. Abuse of Qualified Privileges
A qualified privilege is defeasible in the sense that the law does care about what
the defendant knew, who the defendant told, and why the defendant made the
statement. Thus, a qualified privilege may be lost or “abused” in a variety of ways,
such as by excessive publication, improper motives (such as spite, ill will, or
vindictiveness), or fault on the part of the defendant as to the falsity of the
communication.
Excessive Publication. Excessive publication occurs when a person with good
reasons to communicate potentially defamatory information tells other recipients
who do not need to know. This amounts to an abuse of privilege, and the excessive
publication is actionable.
Of course, whether the defendant has engaged in excessive publication is usually
a question of fact. In McCoy v. Neiman Marcus Group, Inc.,403
a federal court in
Texas held that a company did not abuse its qualified privilege by holding a
department meeting to explain to remaining employees that the plaintiff was
terminated for fraud and that systems were in place to detect such fraud.
Lack of Good Faith and Disregard for the Plaintiff’s Rights. Some courts say
that, in order to be qualifiedly privileged, a statement must be made in good faith.
For example, in Kuechle v. Life’s Companion P.C.A., Inc.,404
the Minnesota Court
of Appeals held that an employer, who said that an employee had been discharged
402
Id. at 1076–77.
403
1997 U.S. Dist. LEXIS 2136 (N.D. Tex.).
404
653 N.W.2d 214 (Minn. Ct. App. 2002).
I. DEFENSES AND OBSTACLES TO RECOVERY 283
0135 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:33 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
for allegedly violating a direct order, did not have qualified privilege because the
employer had made only a cursory investigation of the underlying facts, failed to
interview the plaintiff, and ignored a supervisor’s statement that she had made a
request of the plaintiff, rather than given a direct order.
In Popko v. Continental Cas. Co.,405
a suit by a former employee relating to the
reasons for his termination, the Appellate Court of Illinois articulated the abuse of
privilege issue in slightly different terms. The court wrote:
A corporation has an unquestionable interest in investigating and correcting
a situation where one of its employees may be engaged in suspicious
conduct within the company. . . . Thus, a qualified privilege exists for
communications made concerning such investigation.
However, even on such occasion, the communication may still be
actionable if the privilege is abused, i.e., if there is a direct intention to
injure the plaintiff or a reckless disregard of the plaintiff’s rights. . . . 406
Negligence or Actual Malice. Traditionally, in many states, negligence with
respect to the falsity of a defamatory statement destroyed a qualified privilege.
Obviously, continued adherence to this rule, in light of New York Times Co. v.
Sullivan and its progeny, would have meant that the concept of qualified privilege
would have virtually vanished from American defamation law in those jurisdictions.
Not surprisingly, the second Restatement endorsed the view, long followed in some
states, that only actual malice, not negligence, destroys a qualified privilege. Thus
qualified privileges continue to play a role in cases not involving public officials and
public figures.
It was not surprising that in Wiggins v. Mallard,407
the Supreme Court of
Alabama ruled that “a private-party-defamation plaintiff may overcome a qualifiedimmunity
defense with testimony indicating that the defendant intentionally lied
about the plaintiff.” Intentional lying constitutes actual malice.
However, in American Future Systems, Inc. v. Better Business Bureau of
Eastern Pennsylvania,408
the Supreme Court of Pennsylvania refused to endorse
the view that only fault amounting to actual malice, not negligence, destroys a
qualified privilege. The court appeared to conclude, perhaps appropriately, that
because it is easy to raise an issue of conditional privilege, private plaintiffs would
often be required to prove actual malice to prevail in a defamation action.
The Limited Value of Qualified Privileges. The fact that a qualified privilege
may be lost by abuse limits the potency of qualified privileges. It is easy to raise a
fact issue as to whether abuse of a qualified privilege occurred. Therefore, summary
judgment is often denied to a defendant asserting a qualified privilege.
For example, Gray v. HEB Food Store No. 4409
involved these facts:
405
823 N.E.2d 184 (Ill. App. Ct. 2005).
406
Id. at 180–81.
407
905 So. 2d 776, 788 (Ala. 2004).
408
923 A.2d 389 (Pa. 2007).
409
941 S.W.2d 327 (Tex. App. 1997).
284 DEFAMATION CH. 3
0136 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:34 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Betty Gray was grocery shopping at appellee’s store. Upon completing her
shopping, she went to pay for her groceries at a check-out operated by
HEB checker Esmi Cantu. As this occurred,Yvette Rodriguez, an assistant
service manager, approached the check-out counter and made several
statements directed to Cantu and appellant. Gray alleged that Rodriguez
asked Cantu, “What are you giving this lady free?” Gray further alleged
that Rodriguez then turned to Gray and asked Gray, “Ma’am, what are you
getting free today?” According to Gray, Rodriguez repeated these questions
several times.410
The grocery store argued that it had a qualified privilege to make inquiries to
investigate alleged theft from the store. However, the grocery store was denied
summary judgment on the defamation claim because the store’s evidence was
insufficient to show that the statement was made without malice.
PROBLEM 3-14: THE SUSPECTED PLAGIARIST
Anca Engles and Kevin Stensley had been academic competitors in their
engineering program for several semesters. In terms of grade point average, Kevin
was number one in the class, outranking Anca every semester by a mere fraction of
a point. When word quietly spread throughout the class that Kevin had submitted
for course credit a research paper that he had purchased online, Anca was secretly
delighted. The only thing she could think of was that she would finally rank number
one, if the news reached the school administrators and if they took action.
However, neither of those conditions was certain to occur.
Feigning concern for academic standards and the reputation of the school, Anca
discussed with her husband, John Hatch, and her best friend, Marcie Reusch,
whether she had a duty to report what she knew to the dean or associate dean of
the engineering program. John cautioned her not to do anything because she really
had no “facts.” Marcie said that the widespread rumor was a “fact” and that she
should report it, but do so anonymously.
Anca delivered an unsigned letter to the office of the associate dean, by sliding
it under the door after hours. The associate dean would normally have ignored an
anonymous complaint, but these charges concerned the top student in the class.
The associate dean decided that he had to raise the issue with the dean, in order to
get directions on whether it was necessary to make some kind of inquiry.
The dean told the associate dean that the school could be greatly embarrassed if
a story came out establishing that the best student had been given credit for a
“plagiarized” paper, purchased on the Internet, after the administration knew of
that risk. The dean instructed the associate dean not to convene an honor court
hearing but instead to make a confidential inquiry to see if Kevin would admit or
deny wrongdoing if confronted with the anonymous report.
The associate dean located a cell phone number for Kevin and called him. Kevin
did not answer, but a recording of Kevin’s voice said to leave a message. Thinking
that only Kevin would pick up messages on Kevin’s cell phone, the associate dean
410
Id. at 328.
I. DEFENSES AND OBSTACLES TO RECOVERY 285
0137 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:34 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
said, “Kevin, I have very bad news. There is a rumor circulating on campus that
you submitted a plagiarized research paper. I need to talk to you as soon as
possible.”
Unfortunately, the message was picked up by Kevin’s roommate, Riley West,
who had borrowed Kevin’s cell phone and had been expecting a call. Riley had
already heard about the rumor on campus. He did not know if it was true and had
not discussed the rumor with Kevin. Listening to the associate dean’s message
impressed Riley with the gravity of the situation. With embarrassment, West
relayed the message to Kevin.
Kevin immediately called the associate dean, who was not available. Distraught
and unwilling to wait until he could reach the associate dean, Kevin called the dean.
He told the dean what the associate dean had said on the message, and denied that
he had purchased a research paper online or submitted anything other than his
own work in fulfillment of course requirements.
Although the rumor was wholly unfounded, it caused serious harm to Kevin’s
reputation, at least on campus. If Kevin can prove all of the above facts, can he
prevail in a defamation action against any of the persons who repeated the false
charges?
5. Fair Report Privilege
Reports of Official Actions and Proceedings. The “fair report” privilege
(sometimes called the “reporter’s privilege”) is neither “absolute” nor “qualified” as
those terms are used to describe other defamation privileges. The fair report
privilege hinges on the subject matter, fairness, and accuracy of the report. A fair
and accurate report about official actions or proceedings, or about a meeting open
to the public on matters of public concern, is privileged even if the person making
the report knows that the report contains false defamatory information.411
Thus, a newspaper can accurately quote what a police department press release
says about an arrest without any obligation to investigate the facts. In Goss v.
Houston Community Newspapers,412
the defendants were sued for defamation
based on publication of a newspaper article:
The story, entitled “Drag racers arrested by deputy,” stated that Goss and
another man had been arrested after a Harris County Sheriff’s Deputy
observed that their vehicles appeared to be racing. The story further
reported that appellant was placed into custody for possession of a
controlled substance while the other man was charged with racing on a
highway.413
411
See RESTATEMENT (SECOND) OF TORTS § 611 (1977). New Jersey, to the contrary, holds that actual
malice defeats the privilege. See Ricciardi v. Weber, 795 A.2d 914, 924 (N.J. Super. Ct. App. Div. 2002).
412
252 S.W.3d 652 (Tex. App. 2008).
413
Id. at 654.
286 DEFAMATION CH. 3
0138 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:34 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
In fact, “Goss was never charged with drag racing, and the controlled substance
charge was later dismissed.”414
Nevertheless, a libel claim was barred by the fair
report privilege because the Texas Court of Appeals found that, although some of
the information was arranged in a different order, the story quoted nearly verbatim
large portions of the sheriff’s department’s news release and fairly summarized
other portions.
Privilege Hinges on “Substantial” Fairness and Accuracy, Not Absence of
Abuse. In Alpine Industries Computers, Inc. v. Cowles Pub. Co.,415
a retailer
(Alpine) brought a defamation action against a newspaper publisher (Cowles) based
on an article asserting that Alpine sold counterfeit software. Alpine contended that
the reporter’s privilege did not apply to the story or that, if it did, the privilege was
abused. Addressing the dispute, the Washington State Court of Appeals wrote:
Washington has long afforded news media defendants a privilege for
reporting on official actions and proceedings. . . .
. . . [T]he more recent Washington opinions discussing the fair reporting
privilege rely to some degree on Section 611 of Restatement (Second)
of Torts . . . [which states]:
The publication of defamatory matter concerning another in a report
of an official action or proceeding or of a meeting open to the public that
deals with a matter of public concern is privileged if the report is
accurate and complete or a fair abridgement of the occurrence reported.
. . . .
The purpose of the fair reporting privilege is to serve the public’s
interest in obtaining information as to what transpires in official proceedings
and public meetings. . . . “The privilege is not intended as merely a
convenient method of shielding the press from tort liability, but instead is
intended to ensure that information is made available to the public
concerning what occurs in official proceedings.”. . . .
Significantly, the fair reporting privilege is “somewhat broader in its
scope” than the conditional privileges set forth in Sections 594 through
598A of [the] Restatement (Second) of Torts. . . . The fair reporting
privilege may protect the publisher even if the publisher does not believe
defamatory statements contained in the official report to be true or even
knows the defamatory statements to be false. . . .
. . . [T]he fair reporting privilege is not subject to the same abuse
analysis as conditional privileges. . . .
. . . [T]he fair reporting privilege extends to reports of official actions,
including actions arising from judicial proceedings. . . . Here, the challenged
statements are easily traceable to the District Court’s proceedings
as reflected by Microsoft’s complaint [against Alpine], the court order
414
Id.
415
57 P.3d 1178 (Wash. Ct. App. 2002), amended 64 P.3d 49 (Wash. Ct. App. 2003).
I. DEFENSES AND OBSTACLES TO RECOVERY 287
0139 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:34 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
signed by Mr. Le [the owner of Alpine] and reported in the story, and the
District Court’s memorandum decision. Given the record, we conclude as a
matter of law that the challenged statements are attributable to an official
proceeding. . . .
For a report to be a fair abridgment of an official proceeding, surgical
precision is not required so long as the report is substantially accurate and
fair. Restatement, supra, § 611 cmt. f. “It is not necessary that it be exact
in every immaterial detail or that it conform to that precision demanded in
technical or scientific reporting.” Id. “It is enough that it conveys to the
persons who read it a substantially correct account of the proceedings.”
Id. . . . .
. . . . Under this standard, the publisher must not edit and delete an
otherwise accurate report so as to misrepresent the proceeding and thus
mislead the reader. Restatement, supra, § 611 cmt. f. And the publisher
must not add material so as to cast a person in a defamatory light. . . . To
determine the fairness of the report, we must read the article as a
whole. . . .
Here, a passage in the . . . story states the District Court ordered
Alpine to pay damages for the sales of both Office Pro and Windows 95
counterfeit software after December 1998. The passage is partially inaccurate;
the sales at issue were of Windows 95 counterfeit software alone. But
if the story is read in its entirety, the error is not substantial. The story
contained two references to Mr. Le’s claim that he stopped selling Office
Pro after the cease and desist letter from Microsoft. Moreover, the story
contains a direct quote from the District Court order regarding “ ‘Le’s
decision to continue buying Windows 95. . . .’ ” Viewed in context with the
entire story, the challenged passage is substantially accurate and fair as a
matter of law.416
Press Releases and On-the -Record Comments by Public Officials. The fair
report privilege sometimes extends to reports about informal comments by public
officials. In Hudak v. Times Pub. Co., Inc.,417
a federal court in Pennsylvania wrote:
. . . Pennsylvania courts give a somewhat broad interpretation to the
concept of “reports of an official action or proceeding,” as set forth in the
Second Restatement. We conclude that the reported remarks of Mr. Foulk,
which Plaintiff challenges in this case, should likewise be viewed as a
“report” of “official action” giving rise to a privileged occasion. Here, it is
undisputed that, following Plaintiff’s formal arrest on criminal charges,
Defendant Thompson went to the District Attorney’s office in her capacity
as a reporter for the Times for the express purpose of eliciting an official
comment on the charges. . . . She met with Mr. Foulk, face-to-face, in his
office, asked him to officially comment on the case for purposes of
publication, and recorded his statement directly. . . . Mr. Foulk, as Dis-
416
Id. at 1185–87.
417
534 F. Supp. 2d 546 (W.D. Pa. 2008).
288 DEFAMATION CH. 3
0140 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
trict Attorney of Erie County, is the chief law enforcement officer of the
county. . . . While his on-the-record comments were made in the context
of an informal, one-on-one meeting with Ms. Thompson, they served the
same purpose as a press release or press conference. Accordingly, Defendant
Thompson’s report of Mr. Foulk’s comments constitute a “report of an
official action or proceeding” for purposes of the fair report privilege. . . .
Finally, our conclusion that the fair report privilege conditionally applies
to the reported comments of Mr. Foulk is supported by case law from other
jurisdictions. . . . See, e.g., . . . Alsop v. The Cincinnati Post, 24 Fed.
Appx. 296, 297–98, 2001 WL 1450784 at *1 (6th Cir. 2001) (privilege applied
to newspaper’s statement that plaintiff sold crack cocaine to informants at
his store, where challenged statement was based on information obtained
from U.S. Attorney’s press release); . . . Thomas v. Telegraph Pub. Co.,
155 N.H. 314, 929 A.2d 993, 1010 (2007) (suggesting that the privilege would
not automatically protect reports of all private conversations between
police officers and reporters but would protect reports that bear sufficient
indicia of accuracy and that are based upon press conferences, interviews
with a police chief, or other types of official conversations). . . .
. . . . The touchstone of the fair report privilege seems to be whether
there exist sufficient indicia of “officialdom” in the reported communication.
The record here supports but one conclusion: though Mr. Foulk’s remarks
to Ms. Thompson occurred in a casual setting, they constituted an official,
on-the-record report concerning governmental action undertaken within
the scope of Mr. Foulk’s office.418
Government Informants and Unofficial Sources. Information obtained from
government informants is not protected by the fair report privilege because the
information is not obtained as the result of an official act or proceeding.419
As the
Tennessee Court of Appeals explained:
The prevailing view is that the fair report privilege should not be
extended to apply to the “myriad types of informal reports and official and
unofficial investigations, contacts, and communications of law enforcement
personnel at all levels of the state and federal bureaucracy with local,
regional, and national media.”. . . . It should be applied only to reports of
official actions or proceedings involving responsible, authoritative decisionmakers
who assume legal and political responsibility for their actions. . . .
Unofficial, off-the-record statements, especially when the source remains
confidential, lack the dignity and authoritative weight of official actions and
proceedings and, therefore, reports of these statements should not be
protected by the fair report privilege. . . .
The American Law Institute has addressed how far the scope of “official
action” extends into the domain of arrests and the underlying facts
associated with the arrests by differentiating between reports of an arrest
418
Id. at 572–73.
419
Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270 (Tenn. Ct. App. 2007).
I. DEFENSES AND OBSTACLES TO RECOVERY 289
0141 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
and statements regarding the underlying facts that precipitated the arrest.
The Restatement (Second) of Torts states that “[a]n arrest by an officer is
an official action, and a report of the fact of the arrest or of the charge of
crime made by the officer in making or returning the arrest” is within the
fair report privilege; however, “statements made by the police or by the
complainant or other witnesses or by the prosecuting attorney as to the
facts of the case or the evidence expected to be given are not yet part of the
judicial proceeding or of the arrest itself” are not. . . . 420
Policy Basis: Agency, Public Supervision, and Public Interest. The fair
report privilege, as formulated by the Restatement, is so well established that it is
difficult to find a detailed exploration of the policy basis of the rule. Addressing
those concerns, in Medico v. Time, Inc.,421
the Third Circuit explained:
Three policies underlie the fair report privilege. . . . Initially, an
agency theory was offered to rationalize a privilege of fair report: one who
reports what happens in a public, official proceeding acts as an agent for
persons who had a right to attend, and informs them of what they might
have seen for themselves. The agency rationale, however, cannot explain
application of the privilege to proceedings or reports not open to public
inspection.
A theory of public supervision also informs the fair report privilege.
Justice Holmes, applying the privilege to accounts of courtroom proceedings,
gave the classic formulation of this principle:
(The privilege is justified by) the security which publicity gives for the
proper administration of justice. . . . It is desirable that the trial of
causes should take place under the public eye, not because the controversies
of one citizen with another are of public concern, but because it
is of the highest moment that those who administer justice should always
act under the sense of public responsibility and that every citizen should
be able to satisfy himself with his own eyes as to the mode in which a
public duty is performed.
Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). . . .
A third rationale for the fair report privilege rests, somewhat tautologically,
on the public’s interest in learning of important matters. [However,].
. . . “mere curiosity in the private affairs of others is of insufficient
importance to warrant granting the privilege,”. . . .
Some jurisdictions rely on the informational rationale to extend the
privilege to accounts of the proceedings of public meetings of private,
nongovernmental organizations, as long as the meeting deals with matters
of concern to the public. . . .
Care must be taken, of course, to ensure that the supervisory and
informational rationales not expand into justifications for reporting any
420
Id. at 286–87.
421
643 F.2d 134 (3d Cir. 1981).
290 DEFAMATION CH. 3
0142 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
defamatory matter maintained in any government file. . . . 422
The Reliability Rationale and Reports About Actions of Foreign Governments.
Some cases invoke reliability as one of the policy foundations of the fair
report privilege.
In OAO Alfa Bank v. Center for Public Integrity,423
two Russian businessmen
sued a public interest organization and its reporters for publishing defamatory
statements linking the plaintiffs to organized crime and narcotics trafficking. In
deciding the case in favor of the defendants, a federal court in the District of
Columbia held that the fair report privilege did not apply to reports about the
actions of a foreign government. The reasoning of the court suggests that the
supposed reliability or unreliability of official information may sometimes play a
role in the application of the doctrine. The court wrote:
The Fourth Circuit . . . in Lee v. Dong-A Ilbo, 849 F.2d 876 (4th Cir.
1988), . . . refused to extend the privilege to a United States news agency
report of a South Korean government press release. Reasoning that “[w]e
are familiar with the workings of our government and consider it to be open
and reliable,” while “[f]oreign governments, like nongovernmental sources
of information, are not necessarily familiar, open, reliable, or accountable,”
the Fourth Circuit declined to “provide a blanket privilege to those who
report the activities of foreign governments.”. . . . The court then held
that applying “the privilege in a piecemeal fashion would be extremely
difficult,” placing the court in the untenable position of attempting to
determine whether a foreign state exhibits the “openness and reliability
that warrant an extension of the privilege.”. . . . The court therefore
concluded that the privilege should not apply to reports on the acts of
foreign governments.
This Court agrees. . . . Indeed, the Restatement adopts the same
approach, explicitly limiting the compass of the privilege to reports of the
proceedings or actions of “the government of the United States, or of any
State or of any of its subdivisions,” Restatement (Second) of Torts § 611
cmt. d (1977). . . . [E]ven if the better course would be to assess the
application of the privilege to a foreign state on a case-by-case basis, the
defendants in this case allege that Russia during this period [the 1990s] was
a “corrupt system run by crony capitalists,” . . . hardly the showing of
“openness and reliability” one would presumably look for in extending the
privilege.424
Inaccurate Reports. In Myers v. The Telegraph,425
the Illinois Appellate Court
found that a news report was substantially inaccurate and therefore not protected
by the fair report privilege. Newspaper accounts had reported that a criminal had
pled guilty to a felony and was placed on probation. However, according to official
422
Id. at 140–42.
423
387 F. Supp. 2d 20 (D.D.C. 2005).
424
Id. at 41–42.
425
773 N.E.2d 192 (Ill. App. Ct. 2002).
I. DEFENSES AND OBSTACLES TO RECOVERY 291
0143 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
reports, the felony charges that were initially brought against the criminal were
dismissed, and he pled guilty only to a misdemeanor and was given a conditional
discharge.
Similarly, in Edwards v. Paddock Publications, Inc.,426
the fair report privilege
was found not to apply because, while the defendants accurately reported that
Christopher Edwards had been arrested, they published an accompanying photograph
of another Christopher Edwards, a high school football star, who had no
connection to the arrest.
Embellishments. In some cases, embellishment of a report with other facts or
expressions of the speaker’s opinion means that the speaker is not protected by the
fair report privilege. In Quigley v. Rosenthal,427
the Tenth Circuit found that the
fair report privilege did not apply to the defamation claim before it. The court
wrote:
[I]t is clear that [defendant] Rosenthal’s statements at the press conference
and on the Greg Dobbs Show went well beyond merely reporting the
allegations in the Aronsons’ complaint [in a lawsuit against their neighbors].
. . . It is apparent from Rosenthal’s statements that he was asserting,
as a matter of fact, that the allegations in the Aronsons’ complaint were
true, and that he, the . . . [Anti-Defamation League], and the Aronsons had
substantial evidence to support those allegations. Further, on several
occasions, Rosenthal’s comments went well beyond the allegations of the
complaint.428
PROBLEM 3-15: THE EMPLOYER WHO SUBORNED PERJURY
Olympus is a small town where news travels fast. When Sally Tarnett, a former
employee of Seguin Valley Farm (the Farm), filed a petition seeking a protective
order against the Farm’s manager, Steven Klapp, people were soon talking. They
did not know the details of the request for an injunction, but they remembered all
of the high points in the turbulent relationship between Tarnett and Klapp.
For almost a decade, Tarnett and Klapp had dated on and off, with periods of
romantic bliss punctuated by several spectacular break-ups. Sometimes passionate,
sometimes vengeful, the relationship played out, more or less, in full public view.
There was no shortage of melodrama. It was just another episode in the saga when
Tarnett quit her job at the Farm and then named Klapp in the petition for a
protective order.
In the petition, Tarnett alleged that Klapp had attempted to induce her to
commit perjury in a lawsuit brought by the Farm against one of its business
partners. According to the petition, Klapp sent certain key employees at the Farm
two letters. Attachments to the petition purported to be true and correct
photocopies of those letters. The first letter described the pending lawsuit filed on
behalf of the Farm. The letter stated that employees had to decide, before lawyers
426
763 N.E.2d 328, 336 (Ill. App. Ct. 2001).
427
327 F.3d 1044 (10th Cir. 2003).
428
Id. at 1062.
292 DEFAMATION CH. 3
0144 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
came to talk to them, “whether you consider yourself part of the Farm or whether
you think you can find a better employer and more generous pay, benefits, perks,
flexibility, and working conditions somewhere else in the valley.” The second letter
contained the following passage:
You needn’t concern yourself about whether what you say is accurate or
may subsequently be proved false; you are asked only to testify to what you
believe to the best of your knowledge is true. . . . If we find that you are
equivocal or unwilling to become involved on behalf of Seguin Valley Farm,
and that damages the case our legal team has worked hard to build, then I
will have to make the determination whether it is workable for me to run
the Farm with only the staff members who can be counted on when the
Farm really needs them.
The petition seeking a protective order alleged that, after Tarnett received the
letters, Klapp threatened to physically harm her if she refused to cooperate.
Peter Woodward, a reporter for the Valley Tribune, a local newspaper, read the
court pleadings with wide-eyes. He knew that a story about Tarnett and Klapp
would sell papers. However, Woodward was unable to confirm that any other
employee at the Farm had received either of the letters which, according to the
petition, had been delivered not just to Tarnett, but to several other key employees.
This disturbed him because Woodward also remembered that, only a year earlier,
Tarnett had sued Klapp for assault. However, she had dismissed the action soon
after Klapp received a dose of bad publicity.
While he was trying to check out the facts alleged in Tarnett’s petition,
Woodward heard a more detailed version of the story. From at least two sources he
learned that Klapp had threatened to harm not just Tarnett, but also her
ten-month-old son. Many persons in Olympus thought that Klapp was the father of
the boy.
An article was soon published in the Tribune under Woodward’s byline. It
reported that Tarnett had sought a protective order against Klapp after he had
allegedly threatened her and her son with violence unless she committed perjury.
The article quoted the language in the second letter which stated: “You needn’t
concern yourself about whether what you say is accurate or may subsequently be
proved false.” However, it omitted the part that said, “you are asked only to testify
to what you believe to the best of your knowledge is true.”
At a hearing held after publication of the article, the judge refused to issue a
protective order because he found that the facts asserted by the petitioner were not
credible. Tarnett did not appeal that ruling.
Klapp has sued Woodward and the Tribune for defamation. Please prepare an
analysis of how the Tribune can defend against the claim.
I. DEFENSES AND OBSTACLES TO RECOVERY 293
0145 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
6. Neutral-Reportage Privilege
As presently configured, the neutral-reportage privilege is a minor tributary of
the river of defamation law. In Edwards v. National Audubon Soc’y, Inc.,429
the
New York Times reported that a publication by a prominent conservation group
had criticized certain scientists as “paid liars” because of their support of the
chemical industry in a controversy over a pesticide. In finding for the newspaper,
Chief Judge Irving Kaufman said that even if actual malice had been established
(which it was not), a constitutional privilege of neutral republication protected the
Times. Thus, the court ruled that the public interest in being informed about
ongoing controversies justified creating a privilege to republish allegations made
by a responsible organization against a public figure, if the republication is done
accurately and neutrally in the context of an existing controversy.
Some courts have rejected the neutral-reportage privilege.430
A few have
endorsed it.431
The Supreme Court has not ruled on whether such privilege is
constitutionally mandated.
Professor David Anderson of the University of Texas has written that:
If the President of the United States baselessly accused the Vice
President of plotting to assassinate him . . . most courts surely would hold
that the media could safely report the President’s accusation even if they
seriously doubted its truth.432
7. SLAPP Laws (Strategic Lawsuits Against Public
Participation)
Suits for libel or slander are often filed not to win, but to silence critics who may
be coerced to back down rather than face the expenses and risks of litigation. Not
surprisingly, many legislatures have sought to curb such abuses, at least insofar as
they threaten to diminish discussion of public issues. These states have passed
what are called “SLAPP” laws, so named because they apply to Strategic Lawsuits
Against Public Participation.
In Dove Audio Inc. v. Rosenfeld, Meyer & Susman,433
the son of the late actress
Audrey Hepburn asked lawyers to look into why one of his mother’s charities had
received so little in the way of royalties from one of her audio recordings. The
lawyers contacted other celebrities who had participated in the recordings and
their charities, informing them of the problem and stating an intention to file a
complaint with the Attorney General. Dove Audio then sued the law firm for
defamation and tortious interference. (Tortious interference is discussed in
429
556 F.2d 113 (2d Cir. 1977).
430
See Hogan v. Herald Co., 444 N.E.2d 1002 (N.Y. 1982); Norton v. Glenn, 860 A.2d 48 (Pa. 2004);
see also Khawar v. Globe Int’l Inc., 965 P.2d 696 (Cal. 1998) (declining to apply the privilege to the case
of a private person accused of killing Robert Kennedy).
431
See April v. Reflector-Herald, Inc., 546 N.E.2d 466, 469 (Ohio Ct. App. 1988).
432
David A. Anderson, Is Libel Law Worth Reforming?, 140 U. Pa. L. Rev. 487, 504 (1991).
433
54 Cal. Rptr. 2d 830 (Cal. App. 1996).
294 DEFAMATION CH. 3
0146 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:35 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Chapter 5.) Finding that the law firm was immune under both the absolute
litigation privilege and the SLAPP statute, the California Court of Appeal wrote:
In general terms, a SLAPP suit is “a meritless suit filed primarily to chill
the defendant’s exercise of First Amendment rights.”. . . . Under [Code
Civ. Proc.] section 425.16, subdivision (b), “A cause of action against a
person arising from any act of that person in furtherance of the person’s
right of petition or free speech under the United States or California
Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.”
Subdivision (e) provides: “As used in this section, ‘act in furtherance of
a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes any
written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law; any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law; or any written or oral statement
or writing made in a place open to the public or a public forum in
connection with an issue of public interest.”
. . . .
RM & S’s communication raised a question of public interest: whether
money designated for charities was being received by those charities. The
communication was made in connection with an official proceeding authorized
by law, a proposed complaint to the Attorney General seeking an
investigation. . . . .
. . . . Once the party moving to strike the complaint makes that
threshold showing, the burden shifts to the responding plaintiff to establish
a probability of prevailing at trial. Appellant did not, and cannot do
so. . . . RM & S’s communications were absolutely privileged under Civil
Code section 47, subdivision (b). That privilege is applicable to both causes
of action alleged by appellant, defamation and interference with economic
relationship. . . . The trial court did not err in granting RM & S’s special
motion to strike under section 425.16.
Lack of a Public Issue. In some cases, dismissal pursuant to a SLAPP law is
denied because there is no pending public issue. For example, in Hariri v.
Amper,434
an environmental group was sued for defamation by a landowner who
wanted to operate an airport on his property. The New York Appellate Division held
that the group was not entitled to relief under the state SLAPP law because the
landowner had never formally requested a zoning variance and was therefore not a
“public applicant or permittee.”
434
854 N.Y.S.2d 126 (App. Div. 2008).
I. DEFENSES AND OBSTACLES TO RECOVERY 295
0147 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
8. Statutes of Limitations
Short Period for Filing. Actions for defamation are typically subject to a short
statute of limitations. For example, the Illinois statute provides:
Actions for slander, libel or for publication of matter violating the right
of privacy, shall be commenced within one year next after the cause of
action accrued.435
The decision in Serrano v. Ryan’s Crossing Apartments436
illustrates the
operation of a similar statute. In Serrano, the Texas Court of Appeals wrote:
A “slander claim accrues on the date of the communication or publication
and not on the date of the consequences or sequelae.”. . . .
. . . Serrano has not articulated with specificity the particular slanderous
comments in issue. We construe her argument to be that Ryan’s
Crossing slandered her name by falsely filing an affidavit which ultimately
resulted in her criminal prosecution for theft by check. The affidavit, dated
February 5, 2003, alleged that Serrano wrote a rent check for $670 which
was not paid due to insufficient funds. Serrano filed suit for slander on
December 15, 2004, well past the one-year statute of limitations.
. . . Summary judgment was properly granted [to defendant Ryan’s
Crossing] on the slander claims.437
Public Entities and Employees. In some states, defamation actions against a
public entity or public employee are governed by a special statute of limitations, not
by the one that usually applies to defamation actions.438
That type of statute of
limitations may also be short.
The Discovery Rule and “Inherently Secretive” Publications. In some cases,
the running of the statute of limitations on a libel or slander claim is tolled pursuant
to a discovery rule. For example, in Manguso v. Oceanside Unified School
District,439
the California Court of Appeal held that a claim filed 16 years after the
defendant placed an allegedly defamatory letter in the plaintiff’s personnel file was
not too late, because the plaintiff could not reasonably have been expected to
discover the basis for her cause of action before then. However, in a later case,
Hebrew Academy of San Francisco v. Goldman,440
the California Supreme Court
made clear that discovery rules may be applied only to a narrow range of cases. The
court stated that:
[C]ourts uniformly have rejected the application of the discovery rule to
libels published in books, magazines, and newspapers, stating that although
application of the discovery rule may be justified when the defamation was
435
735 ILL. COMP. STAT. ANN. 5/13-201 (LEXIS 2009).
436
241 S.W.3d 560 (Tex. App. 2007).
437
Id. at 563.
438
See, e.g., Dube v. Likins, 167 P.3d 93, 103 (Ariz. Ct. App. 2007).
439
152 Cal. Rptr. 27 (Cal. Ct. App. 1979).
440
173 P.3d 1004 (Cal. 2007).
296 DEFAMATION CH. 3
0148 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
communicated in confidence, that is, in an inherently secretive manner, the
justification does not apply when the defamation occurred by means of a
book, magazine, or newspaper that was distributed to the public. . . . 441
Extending that line of precedent to the limit, the Hebrew Academy decision ruled
that the discovery rule did not apply in a case involving a transcript of an oral
history that had an extremely limited circulation of less than ten copies distributed
to religious libraries, because the book was not published in an “inherently secretive
manner.”442
a. The Single-Publication Rule
Defamation defendants sometimes escape liability by arguing that a claim was
filed too late under the terms of the single-publication rule. That rule, which is
reflected in § 577A of the Restatement (Second) of Torts, provides that any one
edition of a book or newspaper, or any one radio or television broadcast, is a single
publication, with respect to which only one action may be brought for all damages
resulting from the publication. According to the California Supreme Court in
Shively v. Bozanich,443
a publication generally is said to occur on the “first general
distribution of the publication to the public.” Thus, a plaintiff may not bring an
action every time a book is sold, and in every jurisdiction in which a sale takes
place. The single-publication rule addresses the concern that, if every sale or
reading of a book were a publication, there would be no effective statute of
limitations in libel cases. The rule also helps plaintiffs by allowing the collection of
all damages in a single litigation.
Under the single-publication rule, suppose that this book was published in 2010,
purchased in 2011, read by a student in 2012, and sold second-hand to another
student in 2013. Absent tolling pursuant to a discovery rule, the period of
limitations applicable to a person defamed in the book began to run in 2010.
However, if a paperback edition of this book is published in 2014, that event is a
separate publication which starts the running of the statute of limitations anew.
(1) Application to Internet Publications
There is an important question as to how the statute of limitations applies to
defamatory statements on the Internet. For example, does every change to a
website constitute a republication of defamatory material on the website? In
addition, what about transmission at different times of the same statement via the
Internet, as where the same report is sent to different subscribers?
Selective Limited Dissemination. In Pendergrass v. ChoicePoint, Inc.,444
a
federal court in Pennsylvania considered some of these issues. In that case, when
the plaintiff was dismissed from employment with Rite Aid, Rite Aid submitted a
441
Id. at 1009 (quotation marks and citations omitted).
442
Id. at 1010.
443
80 P.3d 676 (Cal. 2003) (quoting Belli v. Roberts Bros. Furs, 49 Cal. Rptr. 625, 629 (Cal. Ct. App.
1966).
444
2008 U.S. Dist. LEXIS 99767 (E.D. Pa. 2008).
I. DEFENSES AND OBSTACLES TO RECOVERY 297
0149 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
report to a ChoicePoint service called Esteem, an employment screening database.
According to the court:
After his termination, Plaintiff interviewed with CVS Pharmacy and
Walgreens Pharmacy for permanent full-time positions. . . . Although he
was approved for hiring at both CVS and Walgreens, he was told on or
about November 30, 2006 that a “bad report” in his employment history
prevented his hiring. . . . According to Plaintiff, the “bad report” was the
report Rite Aid submitted to the Esteem database describing the January
11, 2006 incident at Rite Aid as “Cash Register Fraud and Theft of
Merchandise,” with a total theft amount of $ 7,313.00. . . . On July 25,
2007, after unsuccessfully attempting to correct the inaccurate Esteem
report with ChoicePoint, Plaintiff received a letter from the retail chain
Target that denied his employment application based on a copy of the
Esteem report. . . .
Plaintiff alleges . . . that ChoicePoint “did in fact republish the defamatory
report, repeatedly, to its other Esteem subscribers, including but not
limited to the said communications to CVS, Walgreens and Target.”. . . . As
a result, “Plaintiff has been branded a thief in the eyes of almost every
potential employer in his field” and has experienced difficulty finding
full-time employment. . . . 445
On January 10, 2008, Plaintiff sued Rite Aid alleging defamation and other
claims. Rite Aid moved to dismiss the defamation count based on failure to file
within the one-year statute of limitations. Addressing that issue, the court wrote:
Rite Aid argues that Plaintiff’s defamation claim arises from the
publication of the allegedly false theft report to ChoicePoint, which Plaintiff
discovered on or about November 30, 2006 when he received the letter from
Walgreens. . . . Even assuming that the one-year statute of limitations
period did not begin until Plaintiff discovered the existence of the publication
on or about November 30, 2006, Rite Aid argues that the Complaint is
barred because it was filed in January 2008, well beyond the one-year
statute of limitations period. . . .
. . . Plaintiff argues that each viewing of the defamatory report in the
Esteem database constitutes a separate tort, each with its own statute of
limitations. Because the original defamer may be held liable for repetition
of the defamatory statement if the repetition was authorized or expected,
see Restatement (Second) of Torts § 576 (1977), Plaintiff contends that Rite
Aid is liable for the foreseeable repetition of the incident report by
ChoicePoint. Thus, according to Plaintiff, Rite Aid is liable for each
“republication” of the Esteem report, including the July 2007 viewing by
Target and any other republications occurring within the statutory limitations
period. Therefore, Plaintiff contends, only the portion of his defamation
claim that stems from any publication or republication occurring prior
445
Id. at *3–4.
298 DEFAMATION CH. 3
0150 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
to January 10, 2007 is subject to dismissal on statute of limitations
grounds.446
The court then turned to the question of whether the single-publication rule was
applicable to the case, noting that:
Pennsylvania has adopted the Uniform Single Publication Act by statute.
See 42 Pa. Cons. Stat. § 8341(b) (“No person shall have more than one cause
of action for damages for libel or slander, or invasion of privacy, or any
other tort founded upon any single publication, or exhibition, or utterance,
such as any one edition of a newspaper, or book, or magazine, or any one
presentation to an audience, or any one broadcast over radio or television,
or any one exhibition of a motion picture.”).447
Material Not Available to the Public. The Pendergrass court then elaborated
on application of the rule:
Courts considering the single publication rule in internet-based defamation
cases generally have found it applicable to postings made on websites
accessible to the general public. As the New York Court of Appeals has
explained, “[c]ommunications posted on Web sites may be viewed by
thousands, if not millions, over an expansive geographic area for an
indefinite period of time. Thus, a multiple publication rule would implicate
an even greater potential for endless retriggering of the statute of
limitations, multiplicity of suits and harassment of defendants.” Firth v.
State, 98 N.Y.2d 365, 775 N.E.2d 463, 466, 747 N.Y.S.2d 69 (N.Y. 2002); see
also Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1131 (9th Cir.
2006). . . .
In cases where, as here, the allegedly defamatory electronic report was
not made available to the public but only to subscribing members of a
database, the risks of an infinite limitations period and multiple suits are
reduced significantly. . . . In [Swafford v. Memphis Individual Practice
Ass’n, 1998 Tenn. App. LEXIS 361, at *23 (Tenn. Ct. App. 1998)], the
Tennessee Court of Appeals found that the single publication rule did not
apply to allegedly defamatory information that the defendants supplied to
a national medical practitioner database that was later accessed by
database subscribers. . . . Because the database was not accessible to the
general public, the court found it “unlikely that more than a handful of
individuals or entities would gain access to information stored in the data
base,” and therefore, the defendants’ report was not an “aggregate
publication” justifying the single publication rule. . . .
Numerous courts have rejected the theory that providing allegedly
defamatory or inaccurate information to a consumer reporting agency is
equivalent to a mass publication of that information. . . . These courts
have concluded, therefore, that each transmission of the defamatory
information is a separate republication of that material, giving rise to a new
446
Id. at *5–6.
447
Id. at *8–9 n.2.
I. DEFENSES AND OBSTACLES TO RECOVERY 299
0151 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
cause of action. . . . The Court finds these cases persuasive, as Rite Aid
did not circulate the report to a wide audience; instead, it transmitted it to
ChoicePoint with the knowledge that it would be made available to
subscribing Esteem customers upon request.
. . . . Unlike a single publication that reaches many viewers through
circulation of the original material, information in the Esteem database is
viewed on separate, distinct occasions by subscribing members. . . . The
risks of an infinite statute of limitations resulting from widespread
circulation of a single publication are not present in the instant case. . . .
Because the risks justifying the rule are not present, the Court finds that
Pennsylvania courts would not apply the single publication rule to the facts
of this case.448
The court therefore rejected Rite Aid’s statute of limitations defense.
Updating Websites. Observing that “communications accessible over a public
Web site resemble those contained in traditional mass media, only on a far grander
scale,” the New York Court of Appeals held, in Firth v. State,449
that the
single-publication rule applies to publications on the Internet. It found that
updating a website usually does not constitute a new publication of defamatory
material contained on the website:
The mere addition of unrelated information to a Web site cannot be
equated with the repetition of defamatory matter in a separately published
edition of a book or newspaper . . . for it is not reasonably inferable that
the addition was made either with the intent or the result of communicating
the earlier and separate defamatory information to a new audience.
. . . [M]any Web sites are in a constant state of change, with information
posted sequentially on a frequent basis. . . . A rule applying the republication
exception . . . [to unrelated changes] would either discourage the
placement of information on the Internet or slow the exchange of such
information. . . . These policy concerns militate against a holding that any
modification to a Web site constitutes a republication of the defamatory
communication itself.450
PROBLEM 3-16: THE NEWSPAPER’S ONLINE ARCHIVE
The Afternoon News ran an article in its daily newspaper on December 18, 2009,
with the headline “Former Valley Mayor Reaches Plea Agreement.” The Associated
Press (“AP”) then picked up and altered the Afternoon News article by changing
its title to “Former Valley Mayor Guilty of Illegally Importing Elephant Tusks.”
The Afternoon News website then automatically incorporated the text of the AP
article into the website, so that both the original article and the AP article
appeared on the Afternoon News website.
448
Id. at *9-16.
449
747 N.Y.S.2d 69, 71 (N.Y. 2002).
450
Id. at 72–73.
300 DEFAMATION CH. 3
0152 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
After protests by the former mayor, Bob Raub, the Afternoon News ran a
retraction on February 2, 2010, in the print version of the newspaper. The
retraction stated the original story misidentified the party who pled guilty. Legal
action had been taken against a company of which Raub was the president, not
against Raub personally, for illegal importation of elephant tusks. All charges
against Raub had been dismissed. The company, not Raub, had pled guilty.
The retraction never appeared on the Afternoon News website. Sometime in
November 2010, the original and AP versions of the online story were removed
from the “free” portion of the Afternoon News website. Both articles then
continued to be available in the website’s “archive” for a fee. It is impossible to
establish whether anyone accessed the articles between November 2010 and
October 2011 because a computer virus destroyed both the archive and the relevant
billing files at the Afternoon News main office.
The online “archive” (but not the billing files) had been backed up at a remote
location and could be re-created. However, because the pay-per-view arrangement
for viewing the archive had not been financially successful, future charges for
specific articles were eliminated. Beginning in October 2011, all previously
“archived” materials were available free of charge to the 38,000 subscribers of the
printed version of the Afternoon News. In November 2011, the subject matter of
the original article became an issue in Valley politics, and Raub, who continued to
be politically active, was accused by a candidate for mayor of having been
previously convicted of illegally importing parts of animals that were gathered
from endangered species.
In January 2012, former mayor Raub consulted you to determine whether it is
too late to sue the Afternoon News for defamation. If it is not too late, Raub wants
to know whether he can prevail. The applicable statute of limitations is two years.
Please advise.
9. The Libel-Proof Plaintiff Doctrine
The libel-proof plaintiff doctrine has extremely limited application. According to
the doctrine, some plaintiffs have such a bad reputation that they cannot be
damaged by false statements, and therefore they should not be permitted to sue
for defamation. It makes sense that an infamous dictator or terrorist, such as
Aldolf Hitler, Saddam Hussein, or Osama bin Laden, should not be permitted to
waste the time of the courts (not to mention opposing parties) litigating a claim for
defamation. However, in cases not so extreme, courts are likely to reject this
defense to liability.
In Stern v. Cosby,451
plaintiff Howard K. Stern, the former lawyer for and
companion of the late Anna Nicole Smith, sued the author and publisher of a bestselling
book. Stern contended that the defendants defamed him by falsely stating
or suggesting, among other things, that “he had engaged in sex with the father of
Smith’s child, ‘pimped’ Smith to as many as fifty men a year, and played a role in
451
2009 U.S. Dist. LEXIS 70912 (S.D.N.Y. 2009).
I. DEFENSES AND OBSTACLES TO RECOVERY 301
0153 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:36 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
Smith’s death.”452
The defendants argued that Stern was “libel-proof.” A federal
court in New York rejected this argument, stating:
The libel-proof doctrine is predicated on the notion that “a plaintiff’s
reputation with respect to a specific subject may be so badly tarnished that
he cannot be further injured by allegedly false statements on that
subject.”. . . . While the doctrine is most often applied to plaintiffs with
criminal convictions, it is not limited to plaintiffs with criminal records. . . .
The Second Circuit has cautioned that the libel-proof plaintiff doctrine is
to be sparingly applied, as it is unlikely that many plaintiffs will have such
tarnished reputations that their reputations cannot sustain further damage.
. . .
There is some question, as the parties acknowledge, as to whether the
libel-proof plaintiff doctrine is valid in the wake of the Supreme Court’s
decision in Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 523 (1991),
where the Court held that the incremental harm doctrine — the “cousin” of
the libel-proof doctrine — is not properly grounded in the First Amendment,
and therefore not valid under federal law. . . .
Whether a plaintiff is libel-proof is a question of law for the Court to
decide. . . .
. . . . I conclude that it does not bar Stern’s suit.
First, Stern should not be precluded from seeking damages for being
defamed by the Book merely because he was the subject of critical
discussion on tabloid television and in celebrity gossip magazines. Even
assuming, for example, that Geraldo Rivera and other celebrity journalists
and talk show hosts suggested that Stern had a hand in Smith’s death,
Stern denies these accusations. If indeed the accusations are false, the fact
that Stern might have been falsely accused before does not mean that he
could not be further injured if he was falsely accused again. . . . Moreover,
there is a qualitative difference between comments made on a tabloid
television show and written statements in a book purporting to be the
product of legitimate “investigative journalism,” written by — as appears
on the cover of the Book — an “Emmy-Award Winning Journalist.”. . . .
Second, much of the conduct detailed in the Book is fundamentally
different from the conduct that was the subject of the allegations swirling
in the tabloid media. None of the media reports prior to the publication of
the Book referenced Stern engaging in oral sex with Birkhead or making
a video of himself and Birkhead doing so. The general thrust of the media
reports prior to publication of the Book was that Stern was a member of
Smith’s bizarre inner circle who exploited Smith for money and fame. This
is different in kind from many of the allegations in the Book, and thus
Stern’s reputation could sustain further damage. . . . As then-Judge
Scalia aptly put it, “[i]t is shameful that Benedict Arnold was a traitor; but
he was not a shoplifter to boot, and one should not have been able to make
452
Id. at *1.
302 DEFAMATION CH. 3
0154 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
that charge while knowing its falsity with impunity.” Liberty Lobby v.
Anderson, 746 F.2d 1563, 1568 (D.C. Cir. 1984), rev’d on other grounds, 477
U.S. 242 (1986). So, too, here.
Similarly, the criminal complaint filed against Stern in California does
not alter this conclusion. While it undoubtedly does some damage to Stern’s
reputation, it is only an accusation and he is obviously presumed innocent
in the matter. Moreover, the subject matter of the criminal complaint is
different from most of the Statements at issue in this case. The criminal
complaint charges Stern with playing a role in obtaining prescription drugs
for Smith. It says nothing about promiscuous homosexual sex, “pimping,”
or any of the other Statements at issue here.
Finally, the fact that Stern was seen on certain episodes of The Anna
Nicole Show in a negative light likewise does not render him libel-proof.
Although the show was a “reality show,” Stern contends that much of it was
staged, and many viewers undoubtedly watched the show with some
skepticism. More importantly, the allegations in the Statements are
significantly different and much more serious than the conduct Stern
engaged in on the show.453
10. The Employment-at-Will Doctrine
Some states adhere to an employment-at-will doctrine under which an employee
can be terminated for any reason or no reason at all. Because many defamation
claims arise from job termination, questions logically arise as to whether remedies
under the law of defamation are limited in any way by the employment-at-will
doctrine.
In Exxon Mobil Corp. v. Hines,454
two employees (plaintiffs/appellees) were
terminated based on conduct relating to a charitable contribution matching plan.
In a subsequent defamation action, the jury awarded the former employees
damages for emotional distress, harm to reputation, and, in each case, $100,000 in
past and future lost income and lost unemployment benefits. Addressing the last
element of the damages awards, the Texas Court of Appeals wrote:
Under the at-will employment doctrine, an employer may generally
terminate an at-will employee without fear of legal repercussions for a good
reason, a bad reason, or no reason at all. . . . Additionally, as a corollary
to the doctrine, Texas does not recognize a cause of action for “negligent
investigation” in the employment context. . . . Based on these two principles,
Exxon argues that appellee’s economic damages are barred because
they resulted from the employment terminations and not directly from the
defamation. . . . 455
453
Id. at *6–8.
454
252 S.W.3d 496 (Tex. App. 2008).
455
[n.4] Based on their defamation finding, the jury awarded economic damages to appellees for lost
income and lost employment benefits suffered in the past and likely to be sustained in the futureI.
DEFENSES AND OBSTACLES TO RECOVERY 303
0155 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
We begin by noting that appellees do not allege, and there is no evidence
to suggest, that Exxon ever communicated the substance of the September
23 and October 23 presentations to anyone outside the company. Consequently,
under appellees’ theory, the internal communication of the reason
for the terminations ( i.e., the alleged defamation) enables them to recover
the damages caused by the terminations. This would clearly violate the
at-will employment doctrine — and its general prohibition against wrongful
termination claims by at-will employees — by creating liability where at
law none may exist (i.e., by allowing monetary recovery when the employer
terminates the employee for a “bad reason”).456
. . . . We reject appellees’
argument and hold that a terminated employee may not recover damages
resulting from employment termination simply because the reason for the
termination (even if defamatory) may have been internally communicated
within the employing company.
Our holding should not be construed as suggesting that an employer can
never defame an employee in Texas or that an employee can never recover
defamation damages from his or her employer (whether the defamation
was communicated only internally or also externally); it merely means that
an employee cannot recover as defamation damages those damages caused
by employment termination. . . . 457
11. Separation of Church and State
In Harvest House Publishers v. Local Church,458
a church had been listed as a
cult in a book. The Texas Court of Appeals held that “being labeled a ‘cult’ is not
actionable because the truth or falsity of the statement depends upon one’s
religious beliefs, an ecclesiastical matter which cannot and should not be tried in a
court of law.”459
PROBLEM 3-17: THE ERRONEOUSLY DISBARRED ATTORNEY
All of the lawyers in the state are required to belong to the State Bar. One of the
benefits that members receive in exchange for their dues is a monthly magazine
called “Lawyers.” A regular feature in the magazine is a section devoted to
disciplinary actions. Any lawyers who have been disbarred, suspended from
practice, or otherwise publicly disciplined because of misconduct are listed in that
section, along with a brief description of the basis on which discipline was imposed.
. . . . [T]here is no evidence in the record to suggest that these damages were caused by any Exxon
conduct other than the termination of appellees.
456
[n.6] Thus, the situation before us is distinctly different from cases wherein a plaintiff alleges two
alternative but not legally prohibited causes of action such as design defect and breach of warranty in the
products liability context. In that situation, a plaintiff can recover under one cause of action (assuming
he or she can muster the requisite proof) without violating a prohibition against the other claim. Here,
recovery of lost wages and employment benefits due to termination violates the at-will employment
doctrine.
457
252 S.W.3d at 502–03.
458
190 S.W.3d 204 (Tex. App. 2006).
459
Id. at 212.
304 DEFAMATION CH. 3
0156 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
The August issue of Lawyers carried an entry in the disciplinary action section
which read as follows:
Correction
An article provided by the Board of Disciplinary Appeals for “Disciplinary
Actions” in the July issue of Lawyers was inaccurate:
Page 730: The board entered an interlocutory order of suspension
against Bernard Dolze (#5372625); it did not disbar him as indicated. Dolze
was convicted in United States District Court of 12 counts of mail fraud and
of aiding and abetting an intentional crime. He was sentenced to 90 months
in prison. Upon release, Dolze will be placed on supervised release for three
additional years. He was ordered to make immediate restitution in the
amount of $1,008,316. Dolze has appealed his conviction. In the event that
the conviction becames final, Dolze will be disbarred.
Can Dolze state a viable claim for defamation against anyone involved in the
publication of the erroneous report in the July issue of Lawyers?
J. REVIEW
Recall the excerpt in the “review” section of Chapter 2, discussing whether
economic harm caused by erroneous scoring of standardized tests might be
actionable under the law of deceit or negligent misrepresentation. Does the law of
defamation offer an additional remedy or a better alternative?
A statement is not defamatory unless it carries with it the sting of
disgrace. To be actionable as libel or slander, an utterance must adversely
reflect on the personal character of the plaintiff, such as by subjecting the
plaintiff to “hatred, ridicule or contempt.” A defamatory statement must so
tend to “harm the reputation of another as to lower him in the estimation
of the community or to deter third persons from associating or dealing with
him.” Communications falling short of this standard will not support a libel
or slander claim.
Many standardized test score errors are of a minor magnitude. A report
understating a test-taker’s performance by twenty-five, or perhaps even
fifty, points on the 2400-point SAT, is so unlikely to subject the test-taker to
the opprobrium of the community that a court should not entertain a
resulting defamation claim. De minimis non curat lex. Defamation actions
seeking to redress a minor scoring error may be dismissed under the
substantial-truth rule, which bars recovery based on statements that,
though literally false, are substantially correct.
A scoring error of greater magnitude will warrant more extensive
judicial consideration, such as test results on the 2400-point SAT that are
understated by, say, 200, 300, or 400 points. At some juncture, the
magnitude of the error will be so great as to disgrace the test-taker and
cause others to think less of him or her. Statements that impute incompetence
in business, trade, or profession are readily actionable as libel and
slander. Mis-scoring plaintiffs may be able to invoke successfully this type
J. REVIEW 305
0157 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
of precedent to mount defamation claims in cases involving sizeable scoring
errors. This line of reasoning will be particularly appealing where an
erroneous score precipitates clear harm, such as causing a student to be
denied a diploma, degree, or essential professional credential. In such
cases, a defendant testing agency publishes to those to whom it disseminates
test scores false facts purporting to show that the test-taker is not
“competent.”
The “publication” requirement for libel and slander is satisfied by
intentional or negligent communication of the false statement to a third
person who understands the defamatory utterance. This standard is
satisfied where a testing agency provides test results directly to a person
other than the test-taker. It is even possible that a testing agency may be
held liable for republication of an erroneous score by the test-taker. While
the originator of a defamatory statement is generally not responsible for its
republication by the subject of the false and defamatory statement, that is
because the subject is normally aware of the defamatory content, and has
a duty to avoid or mitigate damages. However, retransmission by the
plaintiff of a known falsehood should be distinguished from cases of
unwitting transmission of a defamatory message whose falsehood is
unknown. “If the defamed person’s transmission of the communication to
the third person was made without an awareness of the [false and]
defamatory nature of the matter, and if the circumstances indicated that
communication to a third party would be likely, a publication may properly
be held to have occurred.”
. . . .
Whether a defamation suit by a test-taker whose score is seriously
understated is treated as involving a private person suing with respect to a
matter of public concern (a Gertz case), or simply a person suing with
respect to a matter of private concern (a Dun & Bradstreet case), has
important implications not only with respect to culpability, but whether
damages must be proved. At common law, all libel (generally written
defamation) was actionable per se, as were four categories of slander
(generally oral defamation, including statements imputing incompetence in
business, trade or profession). This meant that a jury could award
“presumed damages,” without proof of actual losses. Under the rule of
presumed damages — which was a great departure from the usual
standards of tort liability — the jury could look to the nastiness of the
statement, and the degree of its dissemination, and presume an amount of
damages that would fairly compensate the plaintiff. Thus, many sizeable
awards were made without any precise proof of what losses actually
occurred. During the process of reconciling the ancient law of libel and
slander with the demands of the First Amendment, . . . [the] Supreme
Court held that a Gertz-type plaintiff (a private person suing with regard to
a matter of public concern) could not recover presumed damages without
proof of actual malice. In contrast, a Dun & Bradstreet-type plaintiff (a
person suing with respect to a matter of purely private concern) was still
allowed to recover presumed damages under the traditional rules, even in
306 DEFAMATION CH. 3
0158 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
the absence of actual malice. Consequently, damages issues relating to a
defamation claim in standardized test mis-scoring cases may be greatly
affected by whether the false statement is viewed as a matter of purely
private concern, rather than a matter of public concern. In that situation,
proof of actual losses will frequently not be required.
What qualifies as a matter of private concern is often unclear, and many
persons doubt whether courts can or should attempt to define what matters
are legitimately of concern to the public. In Dun & Bradstreet, the
Supreme Court re-embraced the public concern/private concern dichotomy
that it had rejected just a few years earlier, and surprisingly held that an
erroneous statement about whether a major employer in the community
was going bankrupt was a matter of private concern because the statement
was contained in a credit report that was distributed to a very limited
number of subscribers. In light of that ruling, standardized test results
reported confidentially to a small number of private schools — in contrast
to standardized testing results in the public education, which are often
publicly available — might fall within that “private concern” category. . . .
As yet, there is little guidance from courts directly addressing defamation
. . . claims based on standardized test scoring errors, although a
recent case declined to hold as a matter of law that “misreported test scores
can never give rise to a claim for defamation.” One of the unresolved
questions is whether a claim for libel or slander against a testing agency
can be defeated by a qualified privilege. Regardless of the attacks on
standardized testing, many would argue that such evaluative instruments
serve a useful purpose, and therefore a testing agency’s good faith
communication of test scores — even if erroneous — should be qualifiedly
privileged. A qualified privilege is lost when the privilege is abused. One
form of abuse is dissemination of a statement with knowledge of its falsity
or with reckless disregard for its truth. This means that qualified privileges
will play no role in cases alleging defamation or false-light against testing
agencies, if the plaintiff must prove actual malice. That is, proof of the
plaintiff’s prima facie case would, by necessity, destroy a qualified privilege.
However, as explained above, it is likely that in many libel or slander
mis-scoring suits the plaintiff will qualify as a “private” person, and will
therefore only need to prove that the defendant testing agency acted with
negligence as to the falsity of the report. In such cases, it may be possible
for a qualified privilege to defeat the plaintiff’s proof of a prima facie
case.460
460
Vincent R. Johnson, Standardized Tests, Erroneous, Scores, and Tort Liability, 38 RUTGERS L.J.
655, 698–708 (2007).
J. REVIEW 307
0159 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0
0160 [ST: 149] [ED: 10000] [REL: 1] Composed: Thu Apr 29 08:21:37 EDT 2010
XPP 8.1C.1 Patch #6 LS000000 nllp 3281 [PW=540pt PD=720pt TW=360pt TD=580pt]
VER: [LS000000-Local:29 Mar 10 11:02][MX-SECNDARY: 21 Apr 10 06:58][TT-: 24 Mar 10 08:33 loc=usa unit=03281-ch0003] 0