NEWS MEDIA UPDATE · NEW HAMPSHIRE · Libel · May 8, 2007
High court finds criminal not ‘libel proof’
May 8, 2007 · The New Hampshire Supreme Court ruled last week that a man convicted of repeated crimes is not “libel proof” and is allowed to proceed with a defamation suit against The (Nashua, N.H.) Telegraph and the police quoted in the article about him.
The decision reversed a lower court ruling in the paper’s favor, but still had an upside for the paper, said its attorney, Richard Gagliuso. The high court recognized for the first time that it is possible for some libel plaintiffs to have reputations that are so damaged that they cannot recover damages — even though the court said the so-called “libel-proof” doctrine did not apply in this case.
“There was no certainty the court would accept the libel-proof doctrine” as a defense, Gagliuso said. “But the court adopted a part of the doctrine,” which was uncertain because it was the first time the state Supreme Court faced the issue.
Gagliuso and partner Corey Giroux had argued that even if statements about Terry Thomas in a 1999 article were false, they could not damage his character any more. Thomas is serving a jail sentence for receiving stolen property and has been convicted of several other crimes, including burglary and driving while intoxicated.
The libel-proof defense has traditionally been used in defamation cases relating to criminals. Some courts have ruled some people, including criminals, can have such poor reputations they cannot sue for defamation.
For instance, in a 2004 ruling, a Denver-based federal appeals court (10th Cir.) said a convicted murderer and kidnapper could not recoup damages for defamation even though it was falsely reported he had also been convicted of rape. The court said his public reputation was so poor that he was libel proof relating to reports charging violent crimes.
In the Telegraph‘s case, the court agreed that some plaintiffs could be libel proof, but said they would be only be after they were made notorious by widespread publication of their crimes. The justices added there was no extensive coverage of Thomas’ previous crimes.
“[C]riminal convictions alone are not enough to justify application of the doctrine,” the court wrote.
The Telegraph’s attorneys also argued that any disputed statements in the article about Thomas did not cause any more damage than true statements. But the court declined to decide on the issue.
Gagliuso said the case will be heard in the lower court and will now focus on whether some of the disputed statements were false, were statements of opinion or are protected by the state’s fair-reporting privilege.
“Since this is the first of its kind in the state, there’s still a lot that needs to be cleared up in the courts,” Gagliuso said.
The Telegraph‘s lawyers also argued the paper could not be sued for publishing police statements about what the officers learned during their investigations or for publishing something it learned from police records.
On that issue, the justices agreed with the lower court: Publishing police statements and records is covered by the state’s fair-reporting privilege only if they are part of an official action like an arrest announcement, a court hearing or a court record, the high court said.
The Supreme Court also reversed the part of the lower court’s ruling that said police officers can be sued for making false statements about a person if they did not contain “important information” for the media. False and malicious police statements are not protected, the court added.
The court also ruled that a Northeastern University criminal justice professor quoted in the article could not be sued because she was expressing her opinion.
(Thomas v. Telegraph Publ’g Co., Media Counsel: Richard C. Gagliuso and Corey N. Giroux, Gagliuso & Gagliuso, P.A., Merrimack, N.H.) — NC