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Courts should weigh reprinting of statements in libel suits

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NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Libel   ·   Aug. 1, 2007 Courts should weigh…

NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Libel   ·   Aug. 1, 2007

Courts should weigh reprinting of statements in libel suits

  • The state’s high court said republication of libelous statements may be viewed as evidence of actual malice.

Aug. 1, 2007  ·   The Pennsylvania Supreme Court has ruled that republishing potentially libelous statements can be considered evidence a defendant acted with “actual malice,” the standard public figures must meet to sue for libel.

The high court unanimously reversed the decision of a state appeals court, which had ruled that police officer Robin Weaver could not proceed with a libel lawsuit against the author of a letter to the editor printed in the Lancaster, Pa., Intelligencer Journal. Oscar Lee Brownstein wrote that Weaver had “allegedly raped” a woman convicted of murder and that he had been arraigned for sexually abusing women and children.

The appeals court said there was no evidence Brownstein acted with actual malice — knowledge of falsity or reckless disregard of the truth — in part because Brownstein said he confused Weaver’s name with another officer’s when he wrote that Weaver had sexually abused women and children.

The court also agreed to throw out Weaver’s lawsuit against the Intelligencer Journal.

Last year, the state Supreme Court agreed to review the case, but only on one issue in the suit against Brownstein. Specifically, the high court said it would review whether the appeals court was correct in deciding that the republication of Brownstein’s letter on a Web site three months after the lawsuit was filed was irrelevant to determining his mental state when he penned the letter more than a year earlier.

In the June 28 decision, the Supreme Court said republication can support an actual malice finding.

“Republications, retractions and refusals to retract are similar in that they are subsequent acts used to demonstrate a previous state of mind,” Chief Justice Ralph Cappy wrote for the court.

Whether Brownstein agreed to have the letter reprinted is a matter of dispute, the court said.

The court also questioned the lower courts’ acceptance of Brownstein’s statement that he confused Weaver’s name with another officer’s. When a litigant asks to have a case thrown out, the court said, even his “uncontroverted” testimony cannot support a summary judgment ruling in his favor “because the credibility of the testimony is still a matter for a jury.”

The justices also rejected Brownstein’s assertion that a judge should make a threshold assessment of actual malice during the summary judgment phase, stating that “independent review is an assessment made by appellate courts only after the jury has made findings of fact.”

Philadelphia media attorney Amy Ginensky said it is difficult to say what impact the decision will have but is worried about the potential effect on the use of summary judgment, in which a judge decides whether a case should proceed to trial, in libel cases.

“Basically, the court said in the case that the jury should make the decision on actual malice and the appellate court should decide after a jury decision whether there is clear and convincing evidence of actual malice,” she said.

In prior decisions, Ginensky said, judges have decided “ahead of time” whether there is clear and convincing evidence of actual malice, which has weeded out many libel cases before they reach the expensive trial phase.

Ginensky said the decision does not mention significant prior libel cases that seem to conflict with the new ruling.

“Those cases were not addressed in the briefs submitted to the court, so it’s not clear what will happen when a newspaper case comes up and those cases are brought to the court’s attention,” she said. “But there is language in the case, in the Weaver decision, that makes those of us who represent newspapers and other broadcasters concerned.”

(Weaver v. Lancaster Newspapers Inc.)RG

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