November 12, 2019 | Damages Actions Against Federal Agents for Constitutional Violations
|Actual Malice Standard||Important Cases|
|The Supreme Court changed this common law tradition in 1964 with the famous New York Times v. Sullivan decision. At the time of the decision, over $300 million dollars’ worth of libel suits, all brought by southern officials and individuals, were pending against newspapers who had reported on the civil rights movement. A group of civil rights leaders and clergyman took out a full page advertisement in the New York Times which described the abuse they endured from local police and asked for support for Martin Luther King. In response, an Alabama commissioner who oversaw the police departments brought a libel lawsuit against the New York Times and the leaders listed in the ad.|
The commissioner disputed several of the accounts of police conduct and argued that since he was directly overseeing the departments, his reputation was harmed. An Alabama jury awarded him $500,000 and the Alabama Supreme Court upheld the award. In doing so, the Alabama courts held that the statements were libelous “per se” – meaning no harm to the reputation actually had to be shown. Additionally, they held that it could be inferred that the New York Time’s acted out of “malice” – bad intent – because it should have known some of the statements were inaccurate.
The Supreme Court held that the Alabama ruling did not provide appropriate protection to the press. The Court was very concerned with the possibility that newspapers, without the proper protection, would engage in self-censorship. The Court held that in order for a public official bringing a libel suit to be awarded damages, they would have to prove “actual malice” – that the person charged with libel knew the statement was false, or recklessly did not investigate whether it was. This high standard involves proving the intent of the author – a very difficult task. This provides the press with a high level of protection to report on public officials without fear of retaliatory lawsuits. The Court stated a two-fold necessity for protecting the press from public officials: that strong debate was needed in regards to public issues, and that this strong debate must also be about officials who can influence the issues. As the Court would later describe in Gertz v. Robert Welch, Inc, “An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.”
Overcoming this standard by proving actual malice is extremely difficult. A publisher’s misinterpretation of official documents (Time Inc, v Pape) or an inaccurate perception of a defendant’s perception (Bose Corp. v. Consumers Union) are not good enough alone to meet the standard. In St. Amant v. Thompson, the Court held that the “reckless disregard” portion of the actual malice standard required evidence showing that the defendant had serious doubts about the truth of what they were publishing.
|New York Times v. Sullivan (1964)Gertz v. Welch (1974)|
|Government Officials||Important Cases|
|With this new standard, who would be considered a public official? The Court outlined this shortly after Sullivan, in the 1966 case Rosenblatt v Bauer. The operator of a county-owned recreational area sued a local paper columnist over an article that implied mismanagement of funds related to the area. The lower courts determined that the operator was not a public official, and therefore did not need to prove the high standard required under Sullivan. The Supreme Court reversed, holding that public officials are “those among the hierarchy of government employers who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rank or title does not necessarily determine an official’s status, the key focus being on the official’s ability apparent ability to influence public affairs.||Rosenblatt v Bauer (1966)|
|Public Figures||Important Cases|
|The Supreme Court has also determined that public figures – well-known, otherwise private individuals, yet not government officials – are treated very similarly to government officials. In Curtis Publishing Co v. Butts, a former athletics director sued a newspaper for publishing a story accusing him of divulging secrets to the opposite side in a football game in order to “fix” the game. Holding that the athletic director would have to meet the New York Times standard of proving “actual malice” in order for his suit to be effective. The Court pointed out several similarities between public figures and public officials – both may have the ability to influence, or are important to, public affairs. Additionally, public officials and public figures have stronger voices in the mass media than private citizens. This already gives them protection, because they the ability to counteract any defamatory statements made about them. A private individual does not have to meet the high standards set in New York Times v. Sullivan because they need more protection and are less important to be reported on.|
Not all public figures are treated the same. Gertz v. Robert Welsh, Inc. was a 1974 decision that involved an attorney suing a publisher for accusations made in one of their magazines that the plaintiff was a communist. The plaintiff had represented the family of a youth shot by police at the officer’s civil trial, and the defendant had accused the plaintiff in being part of a socialist plot against the nation’s police force. The defendant claimed that due to the trial, the attorney was a public figure, and therefore had to prove “actual malice” of the defendant in order to win his libel suit.
The Court outlined two different types of public figures – those that were notorious and famous in general, and those which were famous because they were drawn inadvertently into some controversy or scandal. This second type, the limited purpose public figure (also known as a “vortex public figure”), is only considered by the Court to be a public figure within the boundaries of the issue that made them that in the first place. However, in the case of Gertz, the Court found the attorney to be a private individual because of his minimal public presence (no comments to media, not famous).
Over the next decade after Gertz, the public figure standards continued to be defined, the general trend being that the determination should focus on the figure’s role in a controversy, not the subject matter of the controversy. In Time, Inc. v. Firestone, the Court held that mere involvement in a lawsuit was not enough alone to make one a limited purpose public figure. Neither was simply being a scientist involved with publicly funded research, as held in Hutchinson v. Proxmire.
|Curtis Publishing Co. v. Buts (1967)|
Opinions, by their very nature of being opinion rather than fact, cannot be false. It is difficult to bring a successful libel action against an opinion because defamation/libel require a falsity.Despite this, the Court has not afforded exclusive constitutional protection to opinion. Under the common law prior to the Supreme Court ruling on the subject, opinion was only protected from defamation if it was based on substantially true facts that fully and fairly justified the opinion.In the 1990 decision Milkovich v. Lorain Journal Co., the Supreme Court declined to create a full exemption to defamation for opinions. The Court reasoned that creating a wholesale exemption would make it too easy to hide defamatory implications and assertions behind opinion. The only opinions which would be privileged and protected are those about matters of public concern which are not based on false facts, or opinions that cannot be interpreted to state any facts about the plaintiff.
Legislators are also protected from defamation claims when they are performing their duties. This right to absolute immunity is provided for in the Constitution under the “Speech and Debate Clause”. This right, like in the judicial proceeding privilege, extends to the press which accurately report the comments. The purpose behind this privilege is to allow elected officials to make difficult decisions and openly debate without having to censor themselves out of fear of legal retribution for their words. However, this privilege does not extend to statements made outside the course of their duties, such as in newsletters or press releases. This was the case in the Court’s decision Hutchinson v. Proxmire, where the Court refused to provide absolute immunity to a senator being sued by a scientist who had been accused by the senator of wasting tax payer money in a press release.
The chief executives of federal, state, and local government are also provided absolute privilege. The reasoning behind this is the same as the legislators – removing the fear of defamation suits allows the government official more freedom to govern without pressure.
The last form of absolute privilege given is for publishers who have received consent from the plaintiff. This can take the form of publishing releases which the plaintiff has signed, making it a matter of contract rather than defamation law.
A reporter has the qualified privilege to report the going-ons within official public meetings, even if defamatory statements take place at that meeting. In Cox Broadcasting Corp. v. Cohn, the father of a murdered rape victim sued a news station for releasing his daughter’s name. The reporter had asked for and received the name from a clerk in open court. The Supreme Court held that since the reporter had lawfully acquired the name through a public meeting, they were allowed to report it.
|Milkovich v. Lorain Journal Co. (1990)|
Under Common Law, a plaintiff is presumed to have been damaged whenever they can show that a defamatory statement has been published about them, without needing specific proof at trial that they were harmed. Gertz overruled this common law principle, requiring that presumed damages or punitive damages may not be awarded unless a plaintiff may show defendant had knowledge of falsity or reckless disregard for the truth.However, in Dun & Bradstreet v. Greenmoss Builders, the Court emphasized that presumed damages were still available to plaintiffs if they involved private individuals and statements that were not of the public interest. The defendant in that case, a credit agency, notified several of its subscribers that the plaintiff construction company had voluntarily filed for bankruptcy. The report on the plaintiff was extremely inaccurate, and plaintiff sued. The Court held that presumed damages do not violate the First Amendment when the statements are not of public concern. In that case, the credit of plaintiff was not of public concern, only concerning the immediate parties to the case and the subscribers.Compensatory Damages
The decision in Gertz meant that as a matter of federal law, all libel plaintiff’s must prove actual injury and damages. The proof of these compensatory damages is not limited to out-of-pocket costs and losses. The Court identified that in defamation cases, compensatory damages may also include damages for impairment of the plaintiff’s reputation in their community, as well as for mental anguish and suffering.
Gertz barred punitive damages unless “actual malice” by the defendant was proven. Unlike Gertz’s ruling on presumed damages, all plaintiffs – regardless of whether they are private, public, or government officials – must prove actual malice in order to be awarded punitive damages in a libel suit.
|Dun & Bradstreet, Inc. v. Greenmoss Builders (1985)|