Editorials critical of judicial executive were ‘substantially true’

Editorials critical of judicial executive were ‘substantially true’

11/20/95

KENTUCKY–A three-judge panel of the Kentucky Court of Appeals in early November unanimously reversed a $1 million libel award to a public official, finding that three critical editorials were “substantially true.”

Terrill Flanagan, who lost his reelection bid for Russell County Judge/Executive by one vote, sued The Times Journal, a weekly newspaper in Russell Springs, over three editorials that criticized his actions while holding that office.

In late March 1992, the newspaper published an editorial alleging that Flanagan had “washed his hands” of the county budget. The court found the editorial to be substantially true, noting that Flanagan had submitted a budget with expenditures of $250,000 for which there was no corresponding source of income. The court also found that regardless of its truth or falsity, the editorial was not defamatory because it did not harm Flanagan’s reputation in the community.

Another editorial that ran in mid-December 1992 questioned Flanagan’s vote on a $50,000 insurance policy for the county. Flanagan argued that he did not vote on that issue and therefore the editorial was false. But the court observed that it was Flanagan’s policy not to vote when he agreed with the majority, so that the editorial was “substantially if not precisely true.”

The third editorial, which was published in late February 1993, was found to be true by the court based on Flanagan’s own admissions at trial.

The court observed that Flanagan also would need to prove that The Times Journal acted with actual malice — knowledge of falsity or reckless disregard for the truth — to succeed on his libel claims. Because Flanagan had failed to prove falsity, the court stated it did not need to address the actual malice issue. Nevertheless, the court opined that it “entertained serious doubt” that Flanagan could prove actual malice, noting that his own attorney remarked during his opening statement that “The Times Journal evidently thought that all these things were true that they had said.” (Cazalet v. Flanagan; Media Counsel: F. Preston Farmer, John Sleischker, Deborah Patterson, Frankfort)