Chapter 5 Defamation Proof of Fault

and public officials have access to the media to refute allegedly defamatory statements . In addition to taking their jobs voluntarily, government officials have ample means to rebut criticism. They usually have easy access to the media to deny allegations made against them, to give their side of the story, and to even verbally attack their critics. Police commissioner Sullivan could have easily talked to reporters in Montgomery if he sought to publish the truth. Instead, he chose to punish   The New York Times The actual malice rule imposed on the law of libel by the Supreme Court was already a part of the law in a handful of states prior to the 1964 ruling in   New York Times Co. v. Sullivan .  In the wake of the   Sullivan   decision, all state and federal courts had to follow this rule.  By the end of the decade, the Supreme Court had extended the actual malice rule to plaintiffs called   public figures .  People outside government frequently try to lead public debate on important issues. o These people should not be any more immune to criticism and complaints than government officials, the court rationalized.  Additionally, like public officials, public figures have ready access to the media to get their side of the story out.  Public figures also need to prove actual malice in order to win a libel suit.  Finally, in 1974, the high court added the final element to the libel fault rule when it declared that even private persons, persons who are not public officials or public figures, must prove that the defendant had at least some level of fault.  Under the First Amendment, the Court ruled, private plaintiffs must prove at least a level of fault called   negligence , although state courts were given the freedom to make plaintiffs in these cases prove actual malice, a higher level of fault.  The issue of the level of fault that the plaintiff must prove will be discussed in the second half of this chapter Several words have been used in some earlier pages that beg for fuller explanation.  Who is a public official? Who is a public figure? How do you define negligence? How do you define actual malice?  Before moving to that, let's briefly summarize the basic rules of fault 1. Private persons who sue for defamation must at least prove that the material was published with negligence. Negligence is defined in the law as the failure to exercise reasonable care 2. Individuals who are either public officials or public figures for purposes of a defamation suit have to prove that the defendant exhibited actual malice when the material was published. Actual malice is defined in the law as publishing with the knowledge that the libelous assertion is false, or with reckless disregard for whether it is true or false PUBLIC PERSONS VERSUS PRIVATE PERSONS

The context in which the defamation occurs is often important.  A planner with a state geological survey office might not normally hold a position that invites public scrutiny.  But if this person is appointed by the governor to conduct a study of the feasibility of constructing a hazardous waste dump site near the state capital, this special assignment brings with it closer public scrutiny.  In such a case, a person who was not a public official might suddenly become one in terms of libel law What is the nature of the person's job? The head of a task force to reorganize city employee health benefits and the head of the city's anti-terrorism task force might supervise the same number of workers, earn the same salary and be at the same city management level.  But it’s likely that the public will take a far greater interest in the qualifications of the anti-terrorism task force supervisor and the way she does her job than in the qualifications and competency of the person heading the employee benefits task force The Nature of the Story Who the person is—the kind of job he or she holds—is an important criterion.  But it is only half the test.  Equally important is the nature of the story. What was the subject of the allegedly defamatory statement?  Whether proof of actual malice will be required depends upon the focus of the libelous statement.  If the statement concerns (1)   the manner in which the plaintiff conducts himself or herself in office—in other words, the way he or she does the job —or (2)   the plaintiffs general fitness to hold that job , then the plaintiff carries the burden of proving actual malice The first criterion relates to the plaintiff’s official duties and focuses on matters directly related to public responsibilities.  For example, a Seattle Civil Service Commission employee was a public figure because she supervised other employees and the allegations against her focused on a trip she took to Las Vegas to attend a Black public administrators conference.  The television station said she spent little time in seminars and workshops during the trip, but considerable time at the gaming tables.  The court ruled that the strong nexus between her position and the alleged false statements meant that the story directly related to the way she conducted herself on the job But remember many public officials have private lives and not everything a government employee does in public necessarily relates to his or her official conduct.  Dr. Lazelle Michaelis was the coroner of Otter Tail County, Minn., a position of substantial responsibility.

 Consider the woman who lives in a community of 6,500 people. o She was formerly the mayor, has served on the school board in the past and has been a perennial choice for president of the parent teacher association. o She is the president of the largest real estate company in town, is a director on the board of the local bank and owns the local pharmacy and dry cleaners. o She is active in numerous service clubs, is a leader in various civic projects and is instantly recognizable on the street by the town's residents. o Her family founded the town 150 years earlier. o If she is libeled in a community newspaper whose circulation remains almost exclusively in the community, it could be argued persuasively that this woman is an all-purpose public figure in the community. (See   Steere v. Cupp , in which the Kansas Supreme Court ruled such an individual was a total, or all-purpose, public figure.) But some courts have rejected the notion that because someone is well known in a community, this automatically makes him or her an all-purpose public figure.  A television reporter in Utah sued the station where she had worked for making false statements about why she was fired.  The station argued she was an all-purpose public figure. She had reported stories for the station for three years, done promotional spots and appeared at special events for the station.  One could speculate that a large percentage of people in the community could recognize the plaintiff, Holly Wayment. At least that is what the trial court surmised.  But the Utah Supreme Court rejected the ruling that she was an all-purpose public figure.  There was no evidence presented that she wielded any particular social or political influence or even proof that the news show on which she appeared was widely watched.  "If we accept these facts as sufficient evidence of general fame in the local community, any reporter would qualify as an all-purpose public figure," the court said Limited-Purpose Public Figures Limited-purpose public figures are individuals who "….. have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."  Individuals in the second category of public figures outlined by Justice Powell in the   Gertz   decision are called limited-purpose public figures.  Limited-purpose public figures are individuals who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."  This kind of libel plaintiff is regarded as a public person for a discrete part of his or her life, usually because of something this person has done to try to influence public opinion on one matter.  Between 1974 and 1979 the Supreme Court made four attempts to try to flesh out the definition of a limited-purpose public figure.

 Each month, William Proxmire, a U.S senator from Wisconsin whom some regarded as the "fiscal conscience" of the Senate, awarded a federal agency or a federal official what he called "The Golden Fleece" award, because Proxmire believed he or she or it wasted taxpayer money.  Proxmire regarded Hutchinson's research as inconsequential if not silly and gave a Golden Fleece award to the agencies that had been funding his studies for the previous seven years and made derogatory comments about Hutchinson as well.  The researcher sued for libel The Court ruled that Hutchinson played no part in the broad general controversy over how tax dollars are spent.  Nor did he try to influence public opinion about this matter—all he did was apply for research grants to sustain his work.  Simply taking public money to undertake research is not enough to make a person like Hutchinson into a public figure Lower-Court Rulings Deciding who is and who is not a limited-purpose public figure is one of the most subjective decisions courts must make in applying the law of libel.  It’s not surprising then that, despite the guidance from the Supreme Court, differences in this definition exist among the lower courts Deciding who is and who is not a limited-purpose public figure is one of the most subjective decisions courts must make in applying the law of libel.  It’s not surprising then that, despite the guidance from the Supreme Court, differences in this definition exist among the lower courts A limited-purpose public figure must voluntarily become involved in a pre-existing public controversy in an attempt to influence the resolution of the controversy.  In 2017, a federal court ruled that Russian billionaire Oleg Deripaska, who worked closely with indicted former Trump campaign chair Paul Manafort, was a limited-purpose public figure.  The court ruled that Deripaska injected himself into the controversy surrounding Russia's involvement in the 2016 presidential election by, among other things, boasting that he was an agent of the Russian government.  Because Deripaska could not prove actual malice, the court granted the Associated Press' motion to dismiss.

 Travis Riddle had achieved a small degree of notoriety in Brunswick. He performed at local rap concerts, appeared once in a segment on MTV, self-produced a CD that sold fairly well in the area and was the subject of at least one newspaper article.  But testimony revealed most of the staff at the radio station had never heard of him prior to the lawsuit.  One of the DJs at the station began receiving calls one day accusing Riddle of murder and aired some of these callers.  Riddle, who at the time was working as a banquet server in Atlanta, sued for libel. The station claimed he was a public figure The Georgia Court of Appeals asked the question, What was the controversy in this case?  The accusations of murder generated a controversy, the defendant argued. But Riddle was never named as a suspect in a murder investigation.  In fact, there was no murder. His girlfriend had merely disappeared for a few days. o Her disappearance might have been newsworthy, but it was never publicized.  But even then, if this generated a controversy, it was an issue that affected only her family and friends.  This would not have been a public controversy. A jury awarded Riddle $100,000 The Plaintiff's Role Once a court has ruled that a legitimate controversy existed prior to the allegedly defamatory statements, it must then determine what role the plaintiff played in the controversy.  This is a more difficult question.  Was the plaintiff actually involved in the controversy that gave rise to the defamation? Or was he or she simply on the periphery? Was the participation voluntary or was the plaintiff drawn into the controversy by the mass media?  Because no two cases are exactly alike, and because the answers to the questions raised above often involve subjective judgments, it is not surprising to find contradictory rulings among the courts in cases in which the facts seem somewhat similar.  But this should stand as a warning to those who think the law is made up of a set of specific rules that are applied in exactly the same fashion in every case. This rarely happens, and perhaps never will.  Let's look at a few cases to explore how various courts have dealt with the matter of the role of the plaintiff in the controversy During the 2016 presidential campaign, an 11-year-old boy, "C.M.," publicly endorsed Donald Trump and released Internet videos that went viral.  One video, in which C.M. called Hilary Clinton "deplorable" received 325,000 views on Facebook alone.  In an article titled "Trump's Mini-Mes,"   Newsweek   magazine featured two pictures of C.M. and discussed Trump's "weird little army."

 For example, in   Jadwin v. Minneapolis Star & Tribune Co. , the Supreme Court of Minnesota ruled that a mutual fund and an investment management firm were public figures without using   Gertz .  Other courts have focused on advertising by the corporation.  Finally, some courts have justified assigning public figure status to a corporation based on the fame or notoriety of the corporation, just as the Supreme Court did in   Gertz Normal advertising will not generally establish the level of notoriety required to turn a business into a public figure, although it's possible a robust advertising campaign on a controversial topic might transform a business into a public figure.  In 2014, the Thomas M. Cooley Law School sued a law firm, Kurzon Strauss, LLP, for $17 million over statements that criticized law schools for over-enrolling students and contended that law students could not pay back their student loans.  The 6th U.S. Circuit Court of Appeals ruled that the law school was a limited-purpose public figure because it had voluntarily issued a report on the topics, publicly responded to the controversy in the media and used its Web site, advertisements, recruiting materials, written publications and career services presentations to disseminate its message.  However, even a spirited, but typical, comparative advertising campaign between U.S. Healthcare Inc. and Blue Cross in Pennsylvania did not propel either company into the public-figure status, according to the 3rd U.S. Circuit Court of Appeals Two court rulings in the 1990s, including one by the 5th U.S. Circuit Court of Appeals, have provided additional criteria that might be applied when determining whether a business is a public figure for purposes of a libel suit.  In   Snead v. Redland Aggregates, Ltd. , the court of appeals ruled that the notoriety of a business to the average person in the relevant geographical area (the area in which the libel is circulated), the public prominence of the business because it manufactures widely known consumer goods and the frequency and intensity of media scrutiny of the business are all factors that need to be considered when a court makes a determination about the public-figure status of a business.  Also to be considered, the court said, is whether the libelous speech involves a matter of public or private concern. o In this case, the court ruled that a British firm that quarried sand, gravel and crushed stone was not a public figure.  And a U.S. District Court in Pennsylvania ruled that a business's relative access to the media and the manner in which the risk of defamation came upon the business (i.e., the context of the dispute that generated the libel) must be considered when deciding whether a business was a public figure or not.  While the criteria in both these decisions lack precision, these rulings indicate that some courts seem willing to consider the public-figure status of businesses in a broader light

 Unfortunately, courts have been inconsistent in how they define involuntary public figures.  In addition, some courts confuse the matter even more by finding there is no such thing as an involuntary public figure.  In addition, while the Supreme Court hypothetically wrote that a plaintiff could be an involuntary public figure, the court itself has never specifically recognized a plaintiff as one.  This includes the three Supreme Court cases discussed above— Firestone, Wolston   and   Proxmir —cases in which the plaintiff could easily have been classified as an involuntary public figure Private Persons In a libel action, if the plaintiff does not meet the definition of a public official, an all-purpose public figure, or a limited-purpose public figure, the court will regard the individual as a private person.  This designation means the plaintiff will not be required to prove that the defendant lied or exhibited reckless disregard for the truth in publishing the libel.  The plaintiff in most jurisdictions will have to demonstrate only that the defendant failed to exercise reasonable care in preparing and publishing the defamatory material.  There are, however, a few exceptions to this rule. o In Alaska, Colorado, Indiana and New Jersey, private-person plaintiffs must prove actual malice in cases involving matters of public concern. o In New York, private persons must prove a higher standard than simple negligence, but do not need to prove actual malice. o Gross negligence is a higher degree of fault than simple negligence, but a lesser degree of fault than actual malice.  To find out the rule in your state, locate the most recent state supreme court ruling on libel.  Within the text of this decision there is very likely to be a reference to the level of fault required by private-person plaintiffs

THE MEANING OF FAULT Negligence "Negligence" is a term that has been commonly used in tort law for centuries, but has been applied to libel law only since 1974.  In simple terms, negligence implies the failure to exercise ordinary care.  In deciding whether to adopt the negligence or the stricter actual malice fault requirements, state courts are providing their own definitions of the standard.  Washington state adopted a "reasonable care" standard.  Defendants are considered negligent if they do not exercise reasonable care in determining whether a statement is false or will create a false impression.  The Tennessee Supreme Court has adopted a "reasonably prudent person test": What would a reasonably prudent person have done or not have done in the same circumstance? Would a reasonably prudent reporter have checked the truth of a story more fully? Would such a reporter have waited a day or so to get more information? Would a reasonably prudent reporter have worked harder in trying to reach the plaintiff before publishing the charges?  In Arizona, negligence has been defined as conduct that creates unreasonable risk of harm.  "It is the failure to use that amount of care which a reasonably prudent person would use under like circumstances," the Arizona Supreme Court ruled Some of the more common reasons a defendant might be found negligent of are as follows:  Reliance on an untrustworthy source  Not reading or misreading pertinent documents  Failure to check with an obvious source, perhaps the subject of the story  Carelessness in editing and news handling The question the court will always ask is,   Did the reporter make a good faith effort to determine the truth or falsity of the matter? Courts will often scrutinize the source of the reporter's story when deciding whether or not there was negligence.  After a reporter relied on a source whom police described as being an unreliable informant, and even the reporter admitted in court that he had found some of his source's

information to be incorrect, the Massachusetts Supreme Judicial Court ruled that a jury might find negligence in such a case.  But a superior court in New Jersey ruled in 2003 that there was no negligence when a criminal suspect was misidentified in a news story, because the reporter had gotten the wrong name from both the police and an assistant prosecutor.  And the courts have consistently ruled that a newspaper or broadcast station is not negligent when it relies on reports received from the Associated Press, Reuters or other legitimate news services Reportorial techniques are often scrutinized when a plaintiff asserts that a news medium has been negligent.  But courts do not expect superhuman efforts from journalists, only general competence.  The   San Antonio Express-News   was sued for libel when it inadvertently ran the wrong picture with a story it published on a woman convicted of prostitution, selling a child into prostitution and drug-related offenses.  The plaintiff, who had the same name as the woman described in the   Express-News   story, had also been convicted of selling a child into prostitution, but was clearly not the woman described in the newspaper.  Was there negligence in this case? The reporter had seven years of experience covering the courthouse and had spent six months researching the series of articles on the Texas Department of Correction's parole system. o She had submitted a request to the county sheriff's office for a mug shot of the woman who was the subject of the story. o The request included the woman's name, date of birth and Department of Corrections identification number. o The sheriff’s office gave her the wrong photo. o The plaintiff insisted that the reporter failed to verify that she had the correct photo and that the reporter should have checked with the woman's mother to make certain the correct photo was being used. o The court disagreed. "The issue was not what Fox [the reporter] could have done to avoid the mistake. It is whether she acted reasonably; that is, as a reasonable reporter under similar circumstances would have acted." o The court said there was no negligence in this case The definition of the term "negligence" will undoubtedly vary from state to state and possibly from judge to judge within a state.  It’s going to be some time before any kind of broad, consistently applied guidelines emerge.  It’s unlikely the Supreme Court will be of any help in this matter as it appears to be the intention of the court to leave the matter to the states There are, however, a few practical guidelines journalists and bloggers should follow to avoid liability.

 Being thorough, fair, accurate, carefully attributing sources and quotes, using photos that correspond to the story you are writing and not using ambiguous phrases that could libel someone through innuendo will minimize claims of negligence.  In addition, using reliable sources will decrease the likelihood you publish false information.  You should also always seek comments from the subject of your statements to give them an opportunity to respond to any allegedly defamatory statements.  While nothing will completely reduce your liability, following professional norms and practices will help Actual Malice Defining actual malice is somewhat easier than defining who is and who is not a public figure or public official, but it still presents judges with problems.  In   New York Times Co. v. Sullivan , Justice Brennan defined   actual malice   as "knowledge of falsity or reckless disregard of whether the material was false or not."  Thus, actual malice focuses on the state of mind of the defendant at the time of the publication. The two parts of this definition should be considered separately Knowledge of Falsity "Knowledge of falsity" is a fancy way of saying "lie."  If the defendant lied and the plaintiff can prove it, actual malice has then been shown.  In 1969, Barry Goldwater was able to convince a federal court that political gadfly Ralph Ginzburg published known falsehoods about him during the 1964, presidential campaign in a "psychobiography" carried in Ginzburg's   Fact Magazine .  Ginzburg sent questionnaires to hundreds of psychiatrists, asking them to analyze Goldwater's mental condition.  Ginzburg published only those responses that agreed with the magazine's predisposition that Goldwater was mentally ill and changed the responses on other questionnaires to reflect this point of view.  Proof of this conduct, plus other evidence, led the court to conclude that Ginzburg had published the defamatory material with knowledge of its falsity Quotations are a part of most news stories, and they can pose an interesting problem for a court when libel is alleged.  Two kinds of quotes might appear in a story.

 Statements that are enclosed within quote marks are called direct quotes and are supposed to represent an exact (or as close as possible) copy of what the subject said. But reporters also use what are called indirect quotes.  These represent the substance of what the subject said, but not necessarily his or her exact words  Imagine that Sen. Maria Fernandez tells a reporter "We need to increase the size of the U.S. Army." o Direct quote : "We need to increase the size of the U.S. Army," Sen. Maria Fernandez said o Indirect quote : Sen. Maria Fernandez said she believed the nation needs a larger army A legal question that can arise is this: If a journalist changes the words that were uttered by a subject, but still puts them inside quote marks, implying this is exactly what the subject said, can these be used as evidence of knowledge of falsity, actual malice?  The Supreme Court confronted this question 20 years ago when a psychoanalyst named Jeffrey Masson sued   New Yorker   magazine and writer Janet Malcolm.  Malcolm had interviewed Masson for more than 40 hours and wrote a long article about him, an article that was later republished as a book.  Masson objected to many of the comments attributed to him as direct quotes, claiming that Malcolm had changed his words, that she had fabricated the statements.  The quoted statements made him look foolish, he said, and he sued for defamation.  Masson stipulated that he was a public figure, so he had to prove actual malice. He argued that changing his words in the direct quotes was evidence of knowledge of falsity A lower court agreed with the psychoanalyst, but the Supreme Court reversed this decision in a 7-2 ruling.  The Court ruled that readers do presume that words contained within quotation marks are a verbatim reproduction of what the subject said.  Nevertheless, Justice Anthony Kennedy wrote, to demand that the press meet such a high standard is unrealistic.  "If every alteration [of a quote] constituted the falsity required to prove actual malice, the practice of journalism, which the First Amendment is designed to protect, would require a radical change... We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity ... unless the alteration results in a   material change   [emphasis added] in the meaning conveyed by the statement.”  The case was sent back for a trial in a lower court, but Masson was unable to convince a jury that Malcolm had knowledge of falsity when she wrote the story, and lost the case.  An appellate court affirmed this verdict Reporters should strive to make certain direct quotes contain good copy of what a subject said, despite the leeway granted by the high court.

 But anyone who has worked as a journalist for even a short time knows it is often a real challenge to write down a speaker's exact words.  People can talk a lot faster than a reporter can write. Indirect quotes are a useful substitute Finally, if a headline says one thing, but the story says something else, is this always evidence of knowledge of falsity?  The plaintiff will argue the defendant should have known that either the headline or the story was wrong—knowledge of falsity.  But courts usually look beyond the obvious in such cases.  A headline in the   Nutley Sun   said that two local men were arrested for stock fraud.  The story said two men had been charged in a Securities and Exchange Commission civil complaint. o The men were never arrested. o The New Jersey Supreme Court ruled that just because the story said one thing and the headline something else, this was not evidence that the editors entertained serious doubts as to the statement in the headline. o The discrepancy between the two was surely sloppy journalism, but the editor had been harried in getting the paper out. o The fact the two items carried a different message was not evidence of knowledge of falsity Reckless Disregard for the Truth Proof that the defendant failed to investigate a charge that later turns out to be false is not in and of itself sufficient evidence to prove actual malice Reckless disregard for the truth is a bit more difficult to define.  In 1964, the Supreme Court said that reckless disregard could be shown by proving that the defendant had "a high degree of awareness of [the] probable falsity" of the defamatory material when it was published.  Four years later the Supreme Court said that in order to show reckless disregard for the truth, the plaintiff must bring forth "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

These definitions of reckless disregard are certainly helpful in a theoretical sense.  However, these definitions are not terribly useful in a practical sense.  It’s surely possible to envision a reporter or editor entertaining serious doubts about the truth of an allegation and publishing it anyway. o This would be considered "direct evidence" and involves questions about the defendant's state of mind.  And journalists can't refuse to answer questions about their state of mind based on the First Amendment.  In 1979,   Herbert v. Lando , the U.S. Supreme Court ruled that libel plaintiffs can inquire into a journalist's state of mind without violating the First Amendment rights of the journalist. o Anthony Herbert, an Army officer, had accused others of covering up war crimes during the Vietnam War. o He sued over a "60 Minutes" program that brought some of his claims into question. During the discovery process, Herbert sought to access materials related to the editorial process. o The defendants argued that the First Amendment protected them against inquiries into their editorial practices. o The Supreme Court disagreed, ruling there were no First Amendment restrictions on the sources from which a plaintiff could gather information for a defamation lawsuit against the media As a practical matter, however, journalists aren't in the habit of admitting they doubted a story before they published it.  As Judge Kozinski of the 9th U.S. Circuit Court of Appeals wrote in his decision in a case involving the   National Enquirer   and Clint Eastwood, "As we have yet to see a defendant who admits to entertaining serious subjective doubt about the authenticity of an article it published, we must be guided by circumstantial evidence."  Thus, as the Georgia Court of Appeals noted, "Absent an admission by the defendant that he knew his material was false or that he doubted its truth, a public figure [or public official] must rely upon   circumstantial evidence   to prove his case.”  Fortunately, there is language in a 1967 Supreme Court ruling that has been extremely helpful to both jurists and journalists in charting a course by using such evidence.  The ruling involved two cases,   Curtis Publishing Co. v. Butts and A v. Walker.  Justice John Marshall Harlan outlined a test in his opinion to evaluate the conduct of both defendants in these libel cases.  While a few courts have rejected Harlan's criteria as a test for actual malice, many courts have used it as the basis for their own definition of reckless disregard for the truth The two cases were joined and decided as one case.  In the first case, Wally Butts, the athletic director at the University of Georgia, brought suit against the   Saturday Evening Post   for an article it published alleging that Butts and

University of Alabama football coach Paul "Bear" Bryant had conspired to fix the Georgia-Alabama football game.  The   Post   obtained its information from a man who said that while making a telephone call, he had accidentally overheard a phone conversation between Butts and Bryant.  George Burnett, who had a criminal record, told the   Post   editors that he had taken careful notes.  The story was based on Burnett's recollection of what was said In the other case, Major General (retired) Edwin Walker, a political conservative and segregationist from Texas, brought suit against the Associated Press and a score of publications and broadcasting stations for publishing the charge that he led a mob of white citizens against federal marshals who were attempting to preserve order at the University of Mississippi in September 1962, during the crisis over the enrollment of a Black man, James Meredith.  Walker was on campus during the disturbances, but did not lead a mob.  The AP report was filed by a young AP correspondent on the scene The court ruled that in the   Butts   case the   Post   had exhibited highly unreasonable conduct in publishing the story but that in the Walker case no such evidence was present.  In the   Butts   case, the story was not what would be called a hot news item. It was published months after the game occurred.  The magazine had ample time to check the report.  The source of the story was not a trained reporter, but a layman who happened to be on probation on a bad-check charge.  The Post made no attempt to investigate the story further, to screen the game films to see if either team had made changes in accord with what Bryant and Butts supposedly discussed.  None of the many people supposedly with Burnett when he magically overheard this conversation were questioned by the Post.  The magazine did little, then, to check the story, despite evidence presented at the trial that one or two of the editors acknowledged that Burnett's story needed careful examination.  Finally, both Butts and Bryant had strong reputations for integrity  There had never even been hints of this kind of behavior in the past In the   Walker   case, different circumstances were present.  For the AP editor back in the office who was responsible for getting the story on the wires, it was breaking news, a story that should be sent out immediately.  The information was provided in the "heat of battle" by a young, but trained, reporter who in the past had given every indication of being trustworthy.  All but one of the dispatches from the correspondent said the same thing: Walker led the mob.  So there was internal consistency.

 Finally, when General Walker's previous actions and statements are considered, the story that he led a mob at Ole Miss was not terribly out of line with his prior behavior.  There was nothing in the story to cause AP editors to suspect that it might be in error These elements form the base of most judicial definitions of reckless disregard for the truth. Two additional burdens face the plaintiff seeking to prove actual malice  The plaintiff must prove actual malice with "clear and convincing" evidence . Normally in a civil lawsuit the plaintiff must prove his or her allegations with a "preponderance of the evidence," which means that the plaintiff has more evidence than the defendant. "Clear and convincing" is a higher standard than a preponderance of the evidence, and it means that there can be little or no dispute about the evidence  The Supreme Court has instructed appellate courts to re-examine the evidence in the case to determine that the record "establishes actual malice with convincing clarity."   Typically an appellate court is bound to accept the evidentiary findings of the trial court. But if the First Amendment defense applies in a libel case, the appellate court is mandated to take a close look and make certain the evidence supports the finding of malice. Allotting the appellate court such evidentiary power not only gives the defendant a second chance to win the case on the basis of the facts, but it also forces trial court judges to take extra pains when examining the facts, knowing that their work will likely be closely scrutinized in the future Applying the Actual Malice Standard Courts use a variety of means to try to determine whether or not the defendant acted with reckless disregard for the truth.  First, courts look at direct or state of mind evidence.  As noted earlier, however, since few defendants admit to entertaining serious doubts about the truth of something they have published, circumstantial evidence becomes an important element in many cases.  And different courts use different tests In sorting out claims of actual malice, courts often are forced to delve deeply into the reporting process.  In July 2003, newspapers in South Carolina reported that county employees, in competition with private business, had been seen working on property belonging to Deputy County Supervisor Robert Metts.  A county councilwoman named Judy Mims originated these charges.

 The allegations were false, and Metts, a public official, charged that the newspapers exhibited actual malice by publishing them.  A trial court and state court of appeals both awarded the defendants a summary judgment because there was no evidence of actual malice.  But the state Supreme Court reversed and said a jury possibly could find evidence of actual malice.  In its opinion the court listed the following factors a jury should consider o The newspaper had a list of people who had received service from county employees and the defendant's name was not on the list. o This was not a hot news story. o The reporter did not attempt to contact Metts for a comment or verification. o The reporter did not talk with Mims about how she supposedly discovered that county employees were working on Metts' property. o The reporter was aware that Mims and Metts had an adversarial relationship The law does not require the complete verification of a story, especially a breaking story.  Two cases make this point.  In 2003, the New York Post carried a short rewrite of a story carried on the   Los Angeles Times   wire service. o The story suggested that rock music personality Ozzy Osborne's former doctor had overprescribed various drugs during the time Ozzy was featured in a reality TV series, and these left him "stoned" most of the time during the TV series. o The   L.A. Times   story accurately stated the state medical board "moved to revoke" the doctor's license. o However, the Post story, headlined "Ozzy's Rx doc's license pulled," said the board had revoked his license. o The physician had a well-known detoxification practice, and had been in movies and on TV.  He was a public person and would have to prove actual malice. o At the trial the reporter said he did not recall writing that the license had been revoked, and thought the error might have occurred during editing. o The editors testified they had no knowledge of how the mistake got into the story, that they did not investigate the claim because they thought it came from the   Times   story. o It was not normal practice to check the facts in wire stories, they said. o The New York Court of Appeals ruled that it could find no evidence that suggested with convincing clarity the   Post   had committed actual malice and ruled in favor of the newspaper In 2011, the Appellate Division of the New York Supreme Court ruled that there was no evidence of reckless disregard for the truth when author Tim O'Brien wrote that Donald Trump didn’t have a net worth of $3 to $5 billion as Trump often asserted.

 O'Brien wrote that "three people with direct knowledge of Donald's finances, people who had worked closely with him for years, told me his net worth was somewhere between Sl5 million and $250 million."  Trump insisted the information was false and that O'Brien's reliance on the word of three unidentified sources was evidence of reckless disregard O'Brien showed the court that he had reinterviewed the three sources before he published the material; all three sources independently gave him the same information; he then verified the information with other sources; and the three sources had given him other information on other matters that proved to be accurate.  There was no evidence of reckless disregard of the truth, the court ruled It’s important to note that unlike negligence, departures from journalistic standards—even extreme ones—don’t always alone qualify as actual malice.  As the U.S. 3rd Circuit Court of Appeals noted in the case involving mini-Trump supporter "C.M." discussed above, "even an extreme departure from professional standards, without more, will not support a finding of actual malice."  Neither will a "failure to investigate."  In 2021, the 4th U.S Circuit Court of Appeals came to a similar conclusion in a case involving Justin Fairfax, the Lieutenant Governor of Virginia.  In 2019, CBS This Morning broadcast interviews with two women who accused Fairfax of sexual assault.  Fairfax sued CBS for defamation and intentional infliction of emotional distress seeking $400 million in damages.  Because Fairfax did not allege CBS had knowledge of falsity, the appellate court held he had to prove CBS published the information with a high degree of awareness that Fairfax likely did not sexually assault the two women.  Fairfax argued CBS acted with actual malice because of its failure to investigate the women's claims despite reasons to question the women's credibility.  The court noted that while failure to investigate alone was not enough for a finding of actual malice, failure to investigate combined with reasons to doubt the women's account could be reckless disregard for the truth.  Upon reviewing the circumstantial evidence in the case, however, the court wrote "These are not the actions of reporters avoiding the truth." Using a single untrustworthy source, however, could lead to a finding of actual malice if a publication does nothing to corroborate the source's story and goes out of its way to avoid the truth.  In 2017, TMZ.com ran a news story about a former Dallas Cowboy football player, Robert Jones, under the headline, "Ex-Super Bowl Champ Suspect in Police Investigation," with a subhead stating, "Allegedly Tried to Hire Hit Man.”

 The article stated that Jones allegedly tried to hire a hit man "to take out his agent." TMZ's source for the article was Theodore Watson, Jones' first cousin and a convicted felon.  Watson had been harassing Jones, trying to extort money.  Watson called the TMZ tip line a couple of days after Jones attorney had sent Watson a cease-and-desist letter.  The TMZ article was posted at 2:45 a.m. on June 18, 2014, without obtaining Jones' reaction to the allegations.  Jones' attorney contacted a TMZ associate producer who investigated the story at 8:00 a.m. that morning.  After the attorney sent TMZ.com a press release on Jones behalf, an updated version of the article appeared on TMZ.com later that morning that included some, but not all, of the information from the press release.  In ruling in favor of Jones, the Texas Court of Appeals noted that TMZ relied on a single, dubious source for their allegations, no one investigated Watson to determine whether he was a credible source and Jones had presented TMZ with evidence that Watson was a convicted felon with a lengthy criminal history.  The court also noted that TMZ purposefully avoided inquiring into the source's relationship with Jones and TMZ failed to contact Jones to get his response to the allegations.  Finally, the court noted that when TMZ updated their story with Jones' attorney's press release, the updated version of the story omitted information from the press release that undermined the original story.  Based on all these facts, the court ruled there was enough evidence to conclude TMZ acted with actual malice A 2014 case demonstrates that successful libel suits can also come from political advertisements.  Iowa state Senator Rick Bertrand, a Republican, filed suit over a campaign ad claiming that Bertrand "put profit over children's health."  The ad, paid for by the Iowa Democratic Party, claimed Bertrand was a "salesman for the most unethical company in the world" and that the company Bertrand had previously worked for sold a dangerous sleeping drug for children.  On appeal the Iowa Supreme Court overturned the jury's verdict in favor of Bertrand and ruled that he could not prove actual malice as a matter of law.  In writing the ad, Bertrand's opponent and the Iowa Democratic Party conducted research that revealed the FDA and others had criticized Bertrand's former company for selling the drug.  No further investigation was done to support the implication that Bertrand himself had sold the drug.  The court held there was no evidence of reckless disregard for the truth because the statements were based on reliable sources and it didn't matter that no further research had been conducted

Reporters and editors who attempt to rebut a charge of reckless disregard for the truth by using information they claim came from confidential sources need to be very careful.  In some instances a court will simply block the efforts by the defense to even introduce such material.  A federal court in Washington, D.C., ruled that   The New York Times   could not use such information in defending itself from a lawsuit by Dr. Steven J. Hatfill, a germ warfare specialist who once worked for the Army. o Hatfill asserted that a column by Nicholas D. Kristof suggested he was responsible for the deadly anthrax mailings in 2001. o Kristof claimed he had five sources for the allegations, but refused to identify them. o Three of those sources ultimately gave Kristof the permission to reveal their identities, but two remain confidential. o Judge Liam O'Grady ruled that information from these sources could not be introduced at trial to substantiate the allegations in the column It’s also important to note, however, that simply using anonymous sources alone will not support a finding of actual malice absent other factors.  In 2017, for example, the and U.S. Circuit Court of Appeals ruled that using anonymous sources alone did not constitute actual malice when a Venezuelan government official brought a defamation suit for an article published in the Wall Street Journal that stated the officials was the target of a U.S. investigation into drug trafficking and money laundering.  The 2nd Circuit ruled that relying solely on anonymous sucroses in an article did not support a finding the defendant acted with actual malice, absent other allegations One evolving issue related to actual malice is the matter of the defendant's motivation for publishing the defamatory material.  Before the ruling in   New York Times Co. v. Sullivan , the term "malice" was related to the question, Why did the defendant make these defamatory charges? Was it simply to inform the public of a problem or a concern, or were the charges published because the defendant didn't like the plaintiff or was angry with the plaintiff? In other words, was the publication fostered by ill will, spite or malice?  The actual malice standard outlined by the Supreme Court in 1964 doesn't address why something was published or broadcast, but focuses instead on the defendant's state of mind at the time of publication regarding the truth of the story.  The high court called this actual malice to distinguish it from traditional or common-law malice The Supreme Court has ruled on at least two occasions that a showing by the plaintiff of ill will or spite is not sufficient to prove actual malice.

 A Florida District Court of Appeals ruled in 2010 that even an intention to portray the plaintiff in a negative light, even if motivated by ill will or evil intent, isn’t sufficient to show actual malice unless the publisher intended to   inflict harm   through knowing or reckless falsehood.  Boxing promoter Don King had argued that when statements were made during an ESPN broadcast accusing him of crooked dealings, the producers were trying to put him in a bad light.  But state courts in Kentucky and Washington have ruled that evidence of ill will and spite can be used as evidence of actual malice in some circumstances.  The 2nd U.S. Circuit Court of Appeals ruled in 2001 a reporter's bias against an organization could be relevant to show a purposeful avoidance of the truth (actual malice) if it were coupled with evidence of an extreme departure from standard investigative techniques.  But even those courts willing to hear such evidence have set a fairly high standard for the plaintiff to meet INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The tort of intentional infliction of emotional distress (IED) first appeared in the late 19th century, but was not recognized by the "Restatement of the Law of Torts," the highly regarded synthesis of tort law published by the American Law Institute, until 1948.  As noted by a federal judge in 2008, the tort was created for a limited purpose to allow recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.  In 1965, the "Restatement" provided for the first time a definition of the tort, which has four parts: o The defendant's conduct was intentional or reckless. o The defendant's conduct was extreme and outrageous. o The defendant's conduct caused the plaintiff emotional distress. o The emotional distress was severe What does "extreme and outrageous" conduct mean?  Courts say it means conduct that goes beyond the bounds of decency and is utterly intolerable in a civilized society. o This means something much more than just insults and indignities.  And what does "severe" emotional distress mean? It means the distress suffered must be substantial and enduring, not merely minor and fleeting.  On this element of IIED, courts also ask if a reasonable person in the position of the plaintiff would have suffered severe emotional distress.  Why do they add this "reasonable person in the position of the plaintiff" requirement? To prevent thin-skinned or so-called eggshell plaintiffs (people who are too easily offended by almost anything) from recovering damages

What does this tort have to do with libel law?  Some plaintiffs who feel blocked in their attempts to sue for libel by the First Amendment defenses erected since 1964 have sought to use IIED as an alternate legal remedy. The most notable case emerged in the 1980s.  The lawsuit was prompted when   Hustler   magazine published a parody of a series of widely circulated ads for Campari liquor.  The real Campari ads featured interviews with celebrities who discussed the first time they tasted the liquor.  The printed advertisements had fairly strong sexual overtones as the subjects talked about their "first time."  Although it was apparent by the end of each "interview" the celebrities were discussing the first time they had Campari, the ads played on the sexual double entendre of the general subject of "first times."  The   Hustler   parody was a fictitious interview with the Rev. Jerry Falwell, an evangelical preacher who in the 1980s led a conservative political action group called The Moral Majority.  Falwell described his first sexual experience as an incestuous encounter with his mother.  Falwell was also characterized by the parody as a drunkard.  There was a small disclaimer at the bottom of the parody, and it was listed in the table of contents as fiction Falwell sued the magazine for libel, invasion of privacy and intentional infliction of emotional distress.  The trial judge and its publisher, Larry Flynt, dismissed the invasion of privacy claim, but sent the other two to the jury.  Jurors rejected the libel claim on the grounds that the parody was so farfetched, no person could possibly believe that it described actual facts about Falwell.  The jury did award the Baptist preacher $200,000 in damages for emotional distress Hustler   appealed the ruling, but a unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals upheld the damage award, noting that all the proof that was needed in such a case was that the item was sufficiently outrageous as to cause emotional harm and that it was published intentionally.  While most journalists did not condone the   Hustler   style of parody, they nevertheless viewed the decision as a serious threat to freedom of expression.  The sturdy First Amendment barrier built up to protect the mass media from libel suits brought by persons in the public eye was neatly circumvented by Falwell in this case.  Because of his presence as a spokesperson for the conservative religious right in this nation, Falwell would likely be considered a public figure in a libel action and be forced to prove actual malice before he could collect damages.  In this suit, he did not even have to show negligence.

 Nor did the broad First Amendment protection that is granted to statements of opinion apply outside the law of libel.  In the future, individuals suing for satire or parody could avoid having to surmount the constitutional barriers in libel law by instead filing an action for intentional infliction of emotional distress Hustler   appealed to the Supreme Court and in 1988, in a unanimous ruling, the high court reversed the appellate court ruling.  Chief Justice Rehnquist, noting that most people would see the   Hustler   parody as gross and repugnant, nevertheless rejected Falwell's argument that because he was seeking damages for severe emotional distress rather than reputational harm, a standard different from that applied in libel should apply.  "Were we to hold otherwise," the chief justice wrote, "there can be little doubt that political cartoonists and satirists would be subjected to damages awarded without any showing that their work falsely defamed its subject."  Rehnquist added: o The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events—an exploration often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided o Falwell contended it was making a mockery of serious political cartoons to compare them to the   Hustler   parody, which was truly outrageous. The law should protect even public figures from such outrageous caricatures. Rehnquist disagreed, noting the outrageousness standard of liability would not work o "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of jurors' tastes and views or perhaps on the basis of their dislike of a particular expression o The Court ruled that in order for a public figure or public official to win an emotional distress claim, it would be necessary to prove three things: 1. That the parody or satire amounted to statement of fact, not an opinion 2. That it was a false statement of fact 3. That the person who drew the cartoon or wrote the article knew it was false, or exhibited reckless disregard for the truth or falsity of the material. In other words, proof of actual malice is necessary In 2017, HBO and John Oliver were sued for defamation, intentional infliction of emotional distress and false light invasion of privacy (discussed in Chapter 8) over an episode of "Last Week Tonight with John Oliver" that addressed issues related to the coal industry.  Robert Murray and several coal companies he owned sued over statements made by Oliver related to an investigation by the federal Mine Safety and Health Administration.  The court dismissed the intentional infliction of emotional distress claim for failure to show the presence of actual malice and failure to show Oliver's conduct was outrageous.

 In September 2015, Roy Moore, the former Alabama Supreme Court chief justice, sued Showtime and Sacha Baron Cohen for intentional infliction of emotional distress over an episode of "Who Is America?"  In 2018, the   Washington Post   won a Pulitzer Prize for publishing the stories of six women who said Moore pursued them when they were teenagers and he was in his 30s.  Cohen met with Moore in the guise of the popular character fake anti-terrorism expert Erran Morad. o During his meeting with Moore, "Morad" claimed to have developed a wand that found "pedophiles." o He showed Moore the wand and said it would beep when waved over a sex offender. As part of the setup, the wand beeped each time he waved it over Moore.  In 2021, the suit against Cohen by Judge Moore was dismissed because Moore had signed a release stating he would not sue for intentional infliction of emotional distress or defamation." The parents of Seth Rich, a Democratic National Committee (DNC) staffer who was murdered in 2016, sued Ed Butowsky, Malia Zimmerman, and Fox News Network for intentional infliction of emotional distress.  The suit was based on two articles tying Rich's murder to allegations that he leaked DNC emails to Wikileaks.  Butowsky allegedly befriended the Rich's parents and paid for the retention of Rod Wheeler, a private investigator, as a planted source for future articles about the WikiLeaks conspiracy theory.  Zimmerman then authored two articles tying Rich to WikiLeaks and citing Wheeler as a source.  In 2019, the and U.S Circuit Court of Appeals held that Rich's parents sufficiently pleaded extreme and outrageous conduct under the theory that the defendants' scheme to plant Wheeler as a source for the articles was a "deliberate and malicious campaign of harassment."  The court rejected the defendants' argument that New York law required showing specific intent to cause emotional distress because recklessness was enough In 2019, a federal judge refused to dismiss claims that producers of a six-part series on Natalee Holloway, the Alabama teen who disappeared while on vacation in Aruba, intentionally inflicted emotional distress upon the missing teen's mother and committed fraud by acquiring Holloway' DNA to investigate her disappearance in Aruba.  Rejecting a motion to dismiss by Oxygen Media and Brian Graden Media, which produced "The Disappearance of Natalee Holloway," Chief U.S. District Judge Karon Bowdre said in a 26-page memorandum opinion that Beth Holloway "sufficiently alleged facts" that make her tort of outrage complaint plausible.  The judge in the case called it "plausible" that the producers of the documentary, Oxygen Media and Brian Graden Media, acted with actual malice, and thus Beth Holloway could

continue with her lawsuit even though she was a public figure as a result of her efforts to find her daughter