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Defamation and the Media

by Susan H. Aprill

I. Summary.

The law of defamation substantially parallels principles of fairness and ethics taught in most journalism schools and practiced by most ethical journalists. Reports must be balanced and objective. In light of the burdens and overwhelming expense of litigation, lawsuits have to be avoided and risks minimized. Even frivolous or marginal suits can be expensive to defend.

Scrupulous checking and rechecking of sources and prepublication review by editors and counsel — or at least a self check — must be used whenever a reporter spotlights a potential plaintiff's integrity or character and even where such a spotlight inadvertently focuses on one who is incidental to the report. Defamation plaintiffs are frequently not those featured, but witnesses or sources who disagree with the use of the information they provided. Though the law is stacked with technicality, journalists must recognize that defamation suits are avoided and won chiefly by accurate and objective reporting.

Of course, mistakes and misjudgments are unavoidable in journalism as in all else. Where mistakes occur, defamation defenses can be found in the United States and Florida constitutions and Florida judge-made or common law.

So long as an article or broadcast deals with matters of public concern, the First Amendment to the United States Constitution will not permit a finding of liability without fault. How much fault is required, and what type, will vary depending on whether the person alleging the libel is a public figure.

In Florida, mere negligence seems to be the standard courts apply in finding reporters and publishers liable for defamation of private persons. Other states have required a showing of "gross negligence" or some greater standard of liability. Still others specifically have defined a professional standard — "journalistic negligence." A plaintiff who is a public figure must prove "actual malice" to recover. Actual malice, the Supreme Court has said, means "knowledge of falsity or reckless disregard for the truth." This same standard applies to private figures trying to recover punitive damages or "presumed damages" (i.e., those not actually proven by the plaintiff).

Defenses include substantial truth and a variety of constitutional, statutory and common law privileges.

II. Historical Background.

The essence of defamation is injury to a person's reputation and good name. The mere fact that a person does not like the way an article portrays him does not entitle him to damages. Rather, a defamatory communication, in its classic definition, is one that tends to hold a person up to hatred, contempt, or ridicule or causes him to be shunned or avoided by others.

The distinction between libel and slander was once very important. The law of libel developed, for the most part, after the invention of the printing press. Libel law was used by the Crown to suppress seditious publications. At the same time, English courts were anxious to restrict the availability of slander (oral rather than written defamation) actions involving, as they usually did, nonpolitical considerations. To accomplish these diverse goals, English courts distinguished between "libel per se" and "libel per quod."

A statement was deemed "libel per se" if it imputed to the plaintiff any one of the following: (1) commission of a felony; (2) a presently existing venereal or other loathsome and communicable disease; (3) conduct, characteristics or a condition incompatible with the proper exercise of a lawful business, trade, profession or office; or (4) a want of chastity on the part of a woman. (A similar imputation regarding a man was not libel per se at common law).

For a statement to be "libel per se," the defamatory meaning had to be apparent on the face of the publication. Courts expanded the common law categories of "libel per se" to any statements which "necessarily caused injury to the plaintiff in his social, official and business relations."

"Libel per quod" meant that the defamatory meaning was not apparent on the face of the communication but required knowledge of extrinsic facts. An example of "libel per quod" is the seemingly routine announcement of the birth of healthy twins to a young couple. This routine birth announcement may be "libel per quod" if the woman is married to someone other than the named father, a fact not revealed by the birth announcement or known to the publisher.

Under the common law, a plaintiff could recover damages even if a statement deemed to be "libel per se" was the result of a perfectly innocent mistake. The publisher was "strictly liable" for mistakes. The effect of the strict liability theory was to place the printed word in the same legal class as explosives and dangerous animals. If a false defamatory meaning reasonably could be understood to have application to a particular person, the defendant, under the common law, published at his peril.

A libel defendant, under the common law, even if strictly liable, still might prevail, however, based on "privilege." The notion of "privilege" in a libel action is somewhat analogous to the plea of self-defense in an assault case. It rests on the idea that conduct that otherwise would be punished is, because of the circumstances, immune.

III. Defamation Defenses.

A. Constitutional Defenses.

For nearly two centuries after the American Revolution, state libel laws continued to impose "strict liability" on the press without regard to malice or fault. However, in 1964, the United States Supreme Court recognized that error is inevitable in speech and news reports, and concluded that the First Amendment's free speech and press guarantees impose constitutional limitations on state libel laws.

In New York Times v. Sullivan, the Supreme Court concluded, for the first time, that the imposition of strict liability in libel actions had an intolerable impact on First Amendment rights. The Court reasoned that constitutional protection must be extended to false speech in order to avoid self-censorship that would reduce public debate and the flow of truthful information to the public. Since this "constitutionalization" of defamatory error, the law of libel has been transformed into a delicate balancing act with the First Amendment. The standards of liability, whether the plaintiff is a "public figure" or a private person, and whether the subject of the story is a matter of public concern, all have become important questions as the rules concerning what damages may be recovered have changed.

In Sullivan, an Alabama jury awarded a city commissioner $500,000 as damages resulting from allegedly libelous statements contained in a paid advertisement in The New York Times. The advertisement charged that the civil rights of blacks were violated during racial demonstrations in the South, but only indirectly identified the plaintiff official. Only thirty-five copies of the Times were circulated in Montgomery County on the day the advertisement appeared and the claimed errors were trivial.

Even so, the Alabama jury returned a plaintiff's verdict. The same advertisement generated several companion libel actions. Even more libel actions were pending in Alabama and other southern states as a result of the Times' coverage of the civil rights movement. Alabama law required that a defendant post a bond in double the amount of the plaintiff's verdict before he could appeal. To obtain this $1 million bond, the Times mortgaged its plant and its printing presses.

Had the Supreme Court affirmed Commissioner Sullivan's $500,000 award, the Times, a newspaper of national significance, would have been forced out of business by Alabama juries — unless it abandoned its civil rights coverage. Faced with these realities, the Supreme Court unanimously reversed the jury verdict. State libel laws, for the first time, were held to be limited by the First Amendment, and the Court created a standard that prohibits public officials from recovering damages for defamation relating to their official conduct unless the statements sued upon are made with "actual malice."

"Actual malice" is a legal term of art; it does not mean "ill will." It means either: (a) actual knowledge of falsity by the publisher at the time of publication; or (b) "reckless disregard" by the publisher of whether the statements were false. To satisfy the "reckless disregard" prong, a libel plaintiff must establish with convincing clarity that a defendant: (a) entertained serious doubts as to the truth of the publication at the time of publication; or (b) possessed, at the time of publication, a "high degree of awareness of probable falsity." Ill will, hostility, or deliberate intent to harm — often referred to as "express malice" — does not constitute "actual malice."

Later, the "public official" to whom the Sullivan rule applied was expanded to include other public figures and has come to include: (a) public officials who are "public figures" (with regard to any statement touching upon the performance of their official duties or their fitness to hold public office); (b) persons who occupy newsworthy positions or who exercise pervasive power and influence; and (c) persons who voluntarily have injected themselves into a matter or issue of public interest, sometimes referred to as "vortex" or "limited purpose" public figures. (These are public figures only for the range of issues in which the public has a legitimate interest and have included, for example, a real estate developer seeking a zoning variance, a scientist seeking to influence public opinion concerning a public health matter, and a belly dancer who was interviewed regarding her professional life).

For a person to attain the status of a "public figure," the person must be involved in a specific matter or issue of public interest. The involvement must be, to some degree, voluntary. Thus, the wife of a wealthy industrialist involved in a racy divorce litigation was not involved in a "public controversy." A public school teacher charged with possession of drugs was not a "public figure" for the purpose of a story concerning his arrest, nor was a tennis pro at a private country club. A trucking company whose auction notice was used to adorn a story about bankrupt trucking firms was not a public figure, nor was a scientist who had not drawn attention to himself or participated in a public controversy, even though his research was sustained at least partially by public funds.

On the other hand, the child of a criminal defendant who voluntarily granted interviews and sought the limelight was a public figure for issues related to the defendant parent. A scientist who wrote an autobiography to influence public opinion and the allocation of public funds was a public figure.

Accusations of fraudulent commercial activities do not make a plaintiff a limited purpose public figure when the public controversy was created by the press and not by the plaintiff.

B. Substantial Truth.

While "truth is a defense" to a claim of defamation, Florida common law has taken that notion slightly further by permitting publishers of allegedly false statements to show those statements are "substantially true" or that portions that are untrue are so insignificant that a typical reader neither would realize the difference nor draw a different conclusion about the plaintiff if the false statements had not been included. In determining, then, whether an article is libelous, Florida courts review the article as if the allegedly false statements had been omitted. If the article purged of the error would not affect the mind of the reader differently, the article is not libelous. This test allows a defendant to demonstrate the general truth of the report, even though some portions may contain inaccuracies.

C. Privileges.

Certain speech has been deemed to be of such strong societal interest that it is considered privileged. These "privileges" developed largely to protect against suits for seditious libel and most frequently concern the functioning of government and public officials. Also, the press normally will not be held liable for repeating defamatory statements made by others so long as the reporting is fair and neutral. Opinions (so long as they do not express or imply false facts), rhetorical hyperbole, and satire likewise are protected.


1. Judicial, Legislative, and Matters of Public Concern.

Although, since New York Times v. Sullivan, the law of defamation has been subject to constitutional defenses, the common law privileges are frequently successful in defending libel suits. Statements are "privileged" where the circumstances under which the statements are made are such that society has a very high interest in free expression of the speaker's sentiment.

If the privilege is absolute, the defendant prevails, regardless of his motivation and regardless of what he said. If the privilege is only conditional or qualified, the libel plaintiff may overcome the privilege by showing "express malice" or that the defendant's primary motivation was an intent to injure the plaintiff.

Reporters have been afforded an absolute privilege in very limited circumstances: accurate reports of statements made during the course of judicial, administrative, and legislative proceedings, and accurate reports of statements by government officials made within the scope of their official duties.

Qualified privileges include statements made in connection with the internal affairs of private organizations by and to those with an interest, and summaries of governmental papers, judicial proceedings, and public proceedings and meetings.

Qualified privileges allow a media defendant to report fairly and accurately statements in official public proceedings which it knows to be untrue, provided the statements are attributed accurately and the report is complete.

2. Fair and Neutral Reporting.

In the course of reporting on public events, a newspaper often functions as a "bulletin board," serving merely as a vehicle for the dissemination of newsworthy statements, without espousing or even necessarily believing the contradictory charges and countercharges made by participants in a public debate. Sometimes, reporters covering such public controversies actively will disbelieve statements made by the participants in a controversy, but will publish them because it is newsworthy that the statements were made. Under Sullivan, disbelief of the statements reported can subject a newspaper to liability if the statements are false and defamatory. The Sullivan rule is predicated upon a belief in the truth of the statements made.

Such a set of facts — and a libel judgment — were presented to the federal appellate court in New York in Edwards v. National Audubon Society. The court reversed the libel judgment, however, recognizing for the first time a constitutional privilege of "neutral reporting." The facts which prompted this important decision are these:

The National Audubon Society and the DDT industry were involved in a continuing debate over the safety of DDT as a pesticide. Ultimately, the Audubon Society accused several pro-DDT scientists of being "paid liars." The New York Times' environmental reporter did not believe these charges, but reported them because he considered it newsworthy that the charges were levied by the Audubon Society. The article was straightforward and included strong denials by the scientists. The Times gave no editorial support to the charges. Since the Times disbelieved the charges, the article was not protected under Sullivan.

The pro-DDT scientists written up in the Times were "public figures." It remains to be seen if this "neutral reporting" privilege extends to "private individuals," although there is no logical reason to limit the "neutral reporting" privilege to "public figures." Moreover, any person so deeply involved in a newsworthy event that accusations directed at him are newsworthy likely will be deemed a "public figure" by the courts.

The breadth of the privilege remains ill-defined and its judicial acceptance spotty.


D. "Fair Comment" and Opinion.

In order to state a claim for defamation, a plaintiff must allege the making of a false statement of fact. Opinion traditionally did not constitute fact and, thus, the rendering of an opinion was not actionable. Under the common law, commentary or expressions of opinion enjoyed a "fair comment" privilege. But like so many of the common law privileges, this privilege was very limited. Expressions of opinion on matters of public concern, even if these opinions were defamatory, were privileged under the common law only if: (a) the opinion was based on a true statement of fact or a privileged misstatement of fact; (b)the opinion expressed represented the actual opinion of the publisher; and (c) the statement was not made for the purpose of causing harm.

Application of the "fair comment" privilege was, at best, uneven. In 1975, the United States Supreme Court wrote:


[T]here 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.


In 1990, however, the United States Supreme Court in Milkovich v. Lorain Journal Co. severely restricted protection for statements of "opinion." Because Sullivan and its progeny required a plaintiff to prove that the statement is false, the Court concluded that a plaintiff will not be able to prove falsity of statements that do not express or imply false facts. Thus, "imaginative expression" or "rhetorical hyperbole" still is protected. But the commentary upon which Milkovich sued was deemed to be "sufficiently factual to be susceptible of being proved true or false." Thus, an opinion based on undisclosed facts that turns out to be false can result in a successful lawsuit for a plaintiff.

Since the Milkovich decision, in a case where an author sued a reviewer for libel after the reviewer accused the author of "too much sloppy journalism" in a book review, the appeals court for the District of Columbia in Moldea v. New York Times Co. decided that the commentary in a book review could be actionable even though it contained opinion. In that case, the court ultimately concluded the review at issue was substantially true because the interpretations of the book reviewed were supportable by reference to the book itself. The court claimed its conclusion was consistent with Supreme Court precedent because it concerned an assessment or opinion that had been considered unverifiable by many courts, but recognized this was not an ordinary libel case like Milkovich. It applied what it termed the "supportable interpretation" standard — whether a reasonable person could find that the review's characterizations were supportable interpretations of the book.


E. Legislative Acts.

The Florida Legislature has enhanced the protections afforded to media defamation defendants. Sec. 770.01, Fla. Stat. (1995) requires any prospective libel plaintiff to notify a media defendant in writing, specifying the statements claimed to be defamatory. This must be done at least five days before suit is filed. If it is not done, the suit will be dismissed. Moreover, a companion statute provides that punitive damages cannot be recovered if a media defendant can show that its conduct was reasonable and that it published a correction, apology, or retraction after receipt of the notice and within the time provided by statute. The correction, apology or retraction must be given the same "play" that the original story received. The statute of limitations for libel actions has been reduced to two years in Sec. 95.11(4)(g), Fla. Stat. (1995), less than most tort claims, including negligence actions.

F. Wire Service Defense.

Florida courts also have refused to find liability where newspapers merely printed defamatory news reports by recognized newsgathering agencies. As long ago as 1933, the Supreme Court of Florida held that the mere reproduction of a report from a wire service could not be deemed an endorsement of the statements contained in the news report, unless the plaintiff shows that the publisher acted in a reckless manner in reproducing the news dispatch.

IV. Conclusion.

A story that is inaccurate because a reporter became biased and failed to pursue available leads easily can result in a defamation judgment. But where a journalist objectively and thoroughly explores the story, objectively critiques sources, accurately states the facts learned and draws fair conclusions from those facts, a defamation suit is far less likely and, if filed, almost always winnable.

The most dangerous stories are those researched and written under extreme deadlines—and those that include material that the reporter does not understand fully or cannot verify fully. Editors should be used as a resource for sharing ideas and enhancing objectivity. Attorneys should be consulted as well where threat of liability seems probable or even likely.

Finally, stories should be about matters of a general and legitimate public interest, not merely matters of simple curiosity. Milkovich made voicing conclusions more dangerous, and presents the potential for media self-censorship.

(updated 9/04)

ABOUT THE AUTHOR

Susan H. Aprill is a member of the law firm of Holland & Knight LLP in Miami. She has been a member of The Florida Bar since 1982, having received her B.A. from the University of Illinois in 1967 and her J.D. from the University of Miami in 1982. She represents a variety of media clients, including Time Warner, WWFD-TV, Ch. 8, Key West, SunCam and The Miami Herald. Ms. Aprill is a member of The Florida Bar's Media & Communications Law Committee and editor of the Committee's manual on press issues for the Florida Judicial Conference.