Defamation Part 4: Malice
“The First Amendment requires that we protect some falsehood in order to protect speech that matters.”
Gertz v. Robert Welch, Inc.
NY Times v. Sullivan
Beginning in 1964, the New York Times v. Sullivan case began extending greater protection to the right of free speech, arguing that to allow the standard defamation law to continue without change would have serious negative impact on the importance of civil discourse. New York Times v. Sullivan is one of the most important cases in the legal history of the defamation. In it, the Supreme Court raised the bar for suits brought against media defendants. As stated in the previous article, this bar was extended to include all suits brought by public individuals. The bar was the requirement that the person accusing someone of defamation had to prove that the accused acted with “malice” even if the information was false.
In the NYT v. Sullivan case, a public official brought suit against the Times for an editorial advertisement entitled “Heed Their Rising Voices.” New York Times v. Sullivan, 376 U.S. 254, 256 (1964). The advertisement contained accusations that in the effort to enforce desegregation, that thousands of “Southern Negro students . . . [were] being met by an unprecedented wave of terror by those who would deny and negate [the U.S. Constitution and the Bill of Rights] whih the whole world looks upon as setting the pattern for modern freedom.” Id. (pdf link to the actual advertisements). The advertisement went on to list a number of incidents as examples of the wave of terror. Id. While none of the examples named the public official, there were strong suggestions that he, as Montgomery Police Commissioner, was responsible for some of the actions of “terror” including bombing Dr. King’s home, wrongfully arresting Dr. King, and accusing King of perjury. Id. 257-58. The case went to trial in the Circuit Court of Montgomery County and Sullivan was awarded damages of $500,000, (remember this is 1964) and the Supreme Court of Alabama affirmed. Id. at 257.
According to wikipedia, there were more than $300 million in verdicts assessed against the media for reporting on civil rights violations at the time that Sullivan was taken up by the Supreme Court.
A number of the itemized examples of terror were actually incorrect. Id. at 259. For example, Dr. King’s home had been bombed twice while his wife and child were present but these two events occurred before the Unhappy Person’s was the Commissioner. Id. Three of the four times that King had been arrested also happened prior to the Unhappy Person acting as Commissioner. Id. The Unhappy Person had nothing to do with King being accused of perjury nor Dr. King’s indictment of the same. Id.
The advertisement was submitted to the Times from an ad agency acting on behalf of the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South”. Id. at 260. The Committee asserted that 64 names that appeared underneath the advertisement had endorsed the statements. Id. Trial testimony showed that not one of the 64 individuals had authorized the use of his name nor had they been aware of the advertisement until the time of Sullivan’s demand for retraction. Id. The Times made no attempt to contact any of these individuals, nor did it make any attempt to check the accuracy of the contents of the ad with its own recent stories that had contradicted the events or by any other means. Id. at 261.
The Supreme Court found that the Constitutional protection demands proof of actual malice as opposed to implied malice. Id. at 283. The Court found that there was no facts to support a finding of actual malice. NY Times v. Sullivan, 376 U.S. at 284. The responsible individual at the Times advertising department believed the advertisement was “substantially correct.” Id.
The Unhappy Person pointed to the failure to print a retraction and the poor background check of the facts of the article which was contradicted by the Times own reporting.
The refusal to print a retraction did not constitute malice in this case because the advertisement didn’t specifically name the Unhappy Person and could reasonably have been construed as not referring to the Unhappy Person. Id. It was not a final refusal as it asked for subsequent information. Id.
The Fact Check.
In addressing the accusation that the Times did not do any fact checking, the Court reiterated that in order to establish that the Times knew that the advertisement was false, the Unhappy Person had to show that the “state of mind” of the advertising department knew or should have known that the information was false, not merely that it was false. Id. The Times’ failure to fact check was excused because the names on the letter were well known and believed to be trustworthy and the ad agency supplying the ad was also known to be trustworthy. Id.
What is Malice?
According to the Supreme Court in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666-67 (1989),
It isn’t enough that the MeanGirl wanted to make a profit in Harte-Hanks, instead the court found that actual malice existed because there was evidence of “reckless disregard” for the truth. The paper printed statements accusing Connaughton, a judicial candidate of “dirty tricks”, attempting to bribe a witness, and blackmail. The paper relied on the statements of one witness. Upon further investigation, the paper learned before publication that the statements of the witness were denied by the Unhappy Person as well as five other witnesses; that the charge of blackmail was inconsistent with facts known to the publisher; as well as the voice of the witness (hesitant and at times, inuadible suggesting she was unreliable as a witness). Despite having these facts prior to publication, the paper proceeded to print a story based on the uncorroborated testimony of an unreliable witness and the court found this to be reckless disregard for the truth.
In comparison, there is the case of St. Amant v. Thompson, 390 U.S. 727, 731 (1968) where the court found that the failure to investigate alone is not malice. A deputy sued a a candidate for public office, St. Amont, who asserted that the deputy took bribes. The information came from a source whose reputation was unknown to St. Amant and St. Amant did not undertake any investigation. The court found that there was no evidence to “permit the conclusion that [St. Amant] …entertained serious doubts as to the truth of his publication.” Id. at 731.
In Hustler v. Falwell, 485 U.S. 46 (1988), Jerry Falwell sued Hustler for a number of actions, including defamation, based on a fake ad where a picture of Falwell appeared next to an endorsement of a brand of liquor and the words “Jerry Falwell talks about his first time.” The piece was based on Campari ads which featured a number of celebrities sharing their first times. “Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of ‘first times.'” The Hustler parody stated that Falwell’s “first time” was “during a drunken incestuous rendezvous with his mother in an outhouse.” The piece went on to characterize Falwell as a hypocrite who preached only when he was drunk. In small print, at the bottom, was a disclaimer “ad parody-not to be taken seriously.–Ã‚
In deciding that the Hustler parody was outrageous and a distant cousin of political cartoons, it did not find it to be “vulgar”, “offensive”, or “shocking” but instead “not reasonably believable.” The jury in the trial had found for Hustler in the libel suit because the parody could not “reasonably be understood as describing actual facts about [Falwell] or actual events in which [Falwell] participated.” In other words, because the ad was so distant from Falwell’s persona, it could not have been understood to be anything but untrue and therefore did not meet the malice standard.
I think it’s important to note that the Falwell case did not turn on the disclaimer because disclaimers cannot save a person from defamation. What won the day for Hustler and Flynt was that the parody was so extreme as it could not be understood as anything but a parody. When a caricature is done that is close to the subject matter and imputes acts that could reasonably be construed as attaching to the subject of the parody, the decision can swing in favor of defamation.
Desnick v. American Broadcasting Companies, Inc., 233 F.3d 514 (2000) involved the claims by a fired eye clinic technician that a company was purposefully degrading the test scores to increase surgical repairs. The technician had made these claims on a local station before ABC’s “Prime Time Live” broadcast. The clinic sued the technician for defamation in state court and won. ABC knew of this but because it had other corroborating evidence chose to go ahead with the segment anyway. The Seventh Circuit found this to be harmless because there was no evidence in the trial record which seemed to make the technician less credible.
Dorsey v. National Enquirer, Inc., 973 F.2d 1431 (9th Cir. 1992) was brought by Arnold Dorsey also known as Engelbert Humperdinck against the National Enquirer based on an article that was published suggest Dorsey had AIDS. Kathy Jetter had a child with Dorsey and Dorsey was ordered to pay child support and educational expenses. Jetter petitioned the court for a modification requesting, among other things, an order requiring Dorsey to purchase a life insurance policy. In court papers, Jetter alleged that Dorsey had AIDS and the life insurance policy was “of dire necessity.” Jetter gave the Enquirer a copy of the affidavit and the Enquirer printed an article entitled: “Mom of Superstar Singer’s Love Child Claims in Court … Engelbert Has AIDS Virus.” Dorsey denied this when questioned by the Enquirer and suggested that Jetter wasn’t a reliable witness. The court found the gist of the Enquirer’s article was a fair and true report even though the Enquirer did not print any evidence of Jetter’s credibility issues.
In the case of Curtis v. Butts discussed last week, the jury found that the magazine engaged in wanton and reckless disregard of the truth by basing its story on the uncorroborated affidavit of an individual on probation from bad check writing charges, failing to check the story against the game film to see if changes had been made; no attempt to obtain statements from a purported witness. Curtis, 388 U.S. at 157-58. In contrast, the second case in the Curtis decision did not meet the malice standard. The dispatch was given from the field and was for immediate dissemination. There wasn’t time for the reporter to fact check and engage witnesses from the riot. The reporter gave his own eye witness account and the account was internally consistent except for a minor discrepancy. There was nothing to indicate that there was a “severe departure from accepted publishing standards.” Id at 158-59. Ultimately, the malice determination came down to whether there was a “severe” deviation in the accepted publishing standards and in cases where the news must be “hot”, the publishing standards will be lower. (Interestingly, the Supreme Court in Harte-Hanks said that deviation from publishing standards, by itself, will not be sufficient to meet the malice standard).
Distilling down the defenses
Ultimately the court looks at whether the source is reliable, whether a Mean Girl had the opportunity to fact check, what the accepted publishing standards are in particular situation, and most importantly whether the state of mind of the MeanGirl is to cause injury to the Unhappy Person (the knew or should have known of the falsity standard). If an Unhappy Person can show that the MeanGirl published the defamatory statement with knowledge that it was false, or with reckless disregard for its truth or falsity, the Unhappy Person can meet the malice standard.
According to a survey of libel suits from 1974-1984, 90 percent of Unhappy Persons bringing suit lost at trial because the malice standard is so hard to meet. Randall P. Bezanson, The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get, 74 Cal. L. Rev. 789, 790 & n.4 (1986). Malice was to be shown by the intermediate standard of “clear and convincing.”
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Ultimately, the Unhappy Person has the burden of showing that the statement is false, that the MeanGirl acted with malice and the latter must be proved a “clear and convincing” evidence. If you remember in the second part of the series, I talked briefly about the difference between the civil standard (preponderance of the evidence) and the criminal standard (beyond a reasonable doubt). Clear and convincing is a standard somewhere between Preponderance and Beyond a Reasonable Doubt.
One jurist called it “the fortress of absolute malice.” Janklow v. Newsweek, Inc., 788 F.2d 1300, 1307 (8th Cir. 1986) dissenting opinion. It’s no wonder that so few cases are won by those claiming malice.
The case law can only serve as a guide, just like this post. There is no definitive measurement of what malice is. There are some guideposts such as relying on uncorroborated testimony from a suspect witness or posting information you know is false. But the facts of each situation, from case to case, or blog post to blog post, will always be slightly different. One thing that bloggers can be assured of is that very few defamation suits will be won. Sadly because bloggers don’t have the time, inclination or knowledge, they often succumb to legal sounding threats by taking down posts or issuing apologies where none are required rather than rebuffing the Unhappy Person. Legal threats are serious and I treat them as such. Anytime someone emails me with noises about lawsuits, I respond as if my emails will be evidence in a subsequent lawsuit. However, I rarely believe that these suits will ever come to fruition which is why I always respond with a request for the Unhappy Person’s lawyer to contact me.
I can’t speak for other bloggers (and obviously if you are a blogger contacted by a lawyer, get yourself a lawyer quick), but I do not post information that I believe to be false or that is from suspect individuals. I try to obtain confirmation from a second source if I receive information from someone unknown to me. I’ve learned, in the short time I have been blogging, that those who are accused often are willing to respond to a phone call or email. It doesn’t take much effort to do this. But I won’t blog from a position of fear because I know that the law favors spirited discourse. If someone is unhappy with something I’ve said, don’t email me. Have your lawyer send me a letter.