A Primary Concern

On the heels of victory for ‘Primary Colors’ author Joe Klein, courts continue to use the ‘of and concerning’ requirement to protect journalists in libel suits

From the Fall 2003 issue of The News Media & The Law, page 40.

By Kirsten Murphy

Published in 1996, “Primary Colors” was a best-selling book about the presidential campaign of Jack Stanton, a charming, womanizing southern Democrat. Even though the novel was marketed as a fictional piece of work, everyone who read the book knew it was based on former President Bill Clinton’s 1992 presidential campaign.

In “Primary Colors,” which was later made into a movie starring John Travolta, there is a scene in which Stanton emerges from the bedroom of his hotel suite buttoning his open shirt. Ms. Baum, a librarian he met on a campaign stop in Harlem, N.Y., is with him “arranging herself” and “trying to maintain the appearance of propriety.”

Daria Carter-Clark, who works at a library in Harlem, alleged that some people believe the minor character was based on her. As a result, she said, her reputation suffered . . . to the tune of $100 million. On Oct. 2, a Manhattan Supreme Court judge dismissed Carter-Clark’s libel lawsuit against author Joe Klein, a former Newsweek columnist, and his publisher, Random House.

The outcome of the case turned on an element of libel law often referred to as the “of and concerning” principle. For a plaintiff to succeed in a libel action, they must prove that the defamatory statement refers to them.

As Justice Richard A. Braun explained in the case, Carter-Clark v. Random House, “the description of the fictional character must be so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two. Superficial similarities are insufficient.”

Braun concluded that the names of the character and the plaintiff were different, their physical descriptions not similar enough, and their jobs — although both based in a library — were different enough to conclude that the subject in the book was not a characterization of Carter-Clark, in the context of a libel action. “No language used in the book was sufficient to enable any reader to identify ‘Ms. Baum’ as plaintiff,” Braun concluded.

The case highlights an interesting question: How do courts decide when a statement is made “of and concerning” a plaintiff?

In 1964, the Supreme Court addressed the “of and concerning” element of libel actions in cases involving public officials. In New York Times v. Sullivan, a Montgomery, Ala., city commissioner sued The New York Times over a full-page advertisement that criticized Montgomery law enforcement authorities for their harassment of Dr. Martin Luther King Jr. and other civil rights demonstrators. L.B. Sullivan, the police commissioner, claimed he was libeled because any criticism of the police was an attack upon him. Sullivan offered witnesses who testified that when they read the ad they thought the criticism referred to the commissioner.

The Court found that the evidence was constitutionally insufficient because the ad never referred to Sullivan as an individual or in his official position. In dismissing Sullivan’s argument, the Court wrote: “We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.”

In cases involving fictional work, courts look at a number of factors — the names or similarity of names between the character and the plaintiff, physical appearance, ages, locations or settings, occupations and personality characteristics. But for works of print and broadcast journalism, courts often must weed through far murkier issues.

In Neiman-Marcus v. Lait, decided in 1952, a New York federal district court differentiated between viable claims of group libel based on how many people were allegedly defamed. The author of a book titled “U.S.A. Confidential” wrote that “some” models and “all” saleswomen at the Neiman-Marcus department store in Dallas were “call girls,” while most of the salesmen in the men’s store were “faggots.” The store employed nine models, 382 saleswomen and 25 salesmen.

The defendants challenged the “of and concerning” element for the sales staff, but not for the models.

The court ruled that the salesmen had a cause of action, despite the use of the word “most” instead of “all.” However, the saleswomen were not allowed to proceed in their libel action because their numbers were too large. The problem with large numbers, which the court alluded to, is that a general statement about a large group cannot reasonably be said to be “of and concerning” each individual member.

Furthermore, disparagement of a large group is too diffuse to cause injury to the reputations of individual members.

In another case decided by a New York federal district court, the court held that a representative member of a group cannot survive the “of and concerning” analysis without some specific reference to him. In Anyanwu v. Columbia Broadcasting System Inc., decided in 1995, a Nigerian businessman living in New Jersey brought suit against CBS after a “60 Minutes” broadcast aired comments critical of Nigerian businesspeople.

The court held that the group, “Nigerians engaged in international business with United States citizens,” was too large to permit an individual member to sue for libel. New York law only allows a plaintiff to sue for libel when the group is composed of 25 people or less, the court said. Furthermore, the court held, the businessman could not prove he was a target of the program.

In Michigan United Conservation Clubs v. CBS News, decided in 1981, the U.S. Court of Appeals in Cincinnati (6th Cir.) held that Michigan game hunters who claimed they were criticized by two documentaries on hunting failed to show they had been singled out. “Vague, general references to a comparatively large group do not constitute actionable defamation,” the court concluded.

Plaintiffs do not, however, need to be referred to in order to meet the “of and concerning” requirement; courts often must determine whether a plaintiff has been defamed by implication.

In Boese v. Paramount Pictures Corp., a “Hardcopy” segment featured a story about Virginia Weathers, whose home in Kansas was destroyed by a fire. After a forensic chemist employed by Weathers’ insurance company concluded that the cause of the fire was arson, she was charged by local prosecutors.

The “Hardcopy” segment detailed the story, aired part of a videotape of chemist Robert Boese testifying at the arson trial, and immediately played a voice-over in which Weathers states: “Everybody lied, all the way down the line, and that came back to haunt them.”

Boese brought a lawsuit against the show’s parent company, Paramount Pictures Corp., claiming that the “Hardcopy” segment defamed him. The court concluded that although Boese is never referred to by name in the broadcast, “he is shown earlier on in the segment testifying on the witness stand. One possible interpretation is that he is an expert witness for the insurance company, and therefore, included within Weathers’ reference to ‘everybody.’ ”

In the Sixth Circuit’s Michigan United Conservation Clubs case, one plaintiff claimed that the juxtaposition of his voice “extolling the virtues of the hunt” — as background commentary for a scene showing Colorado hunters loading dead deer onto a truck — showed him “in a light contrary to the thoughts (he) expressed.”

The court determined that the use of the individual’s voice, which was never attributed to him, was not defamatory as a matter of law. The individual’s statement was “nothing more than his belief that the sport hunter is not as cruel to animals as nature itself,” the court held.

The Michigan United Conservation Clubs decision illustrates some of the reasons courts guard the “of and concerning” principle as an important First Amendment barrier to libel actions.

“It is far better for the public welfare that some occasional consequential injury to an individual arising from general censure of his profession, his party, or his sect should go without remedy,” the Sixth Circuit wrote, “than that free discussion of the great questions of politics, or morals, or faith should be checked by the dread of embittered and boundless litigation.”

Yet perhaps the most sweeping statement in support of a guarded interpretation of “of and concerning” came from the California Supreme Court in the 1986 case Blatty v. New York Times Co.

In denying a claim of injurious falsehood by William Peter Blatty, author of “The Exorcist,” over the exclusion of one of his later books from the Times bestseller list, the court held: “To allow a plaintiff who is not identified, either expressly or by clear implication, to institute such an action poses an unjustifiable threat to society.”