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Libel claims were given new life by three courts that chipped away at elements of libel defenses for the news…

Libel claims were given new life by three courts that chipped away at elements of libel defenses for the news media.

From the Fall 2005 issue of The News Media & The Law, page 21.

By Casey Murray

It was a tough summer for libel defense teams. State and federal appeals courts in three states reinstated defamation cases, ruling in two of the lawsuits that there is enough evidence of actual malice for the cases to proceed. In the third case, the court ruled that the reporting in question is capable of defaming and the dispute should go to trial. While the cases were unrelated, each case weakened the protection provided under the actual malice standard.

The three cases involve reporting on a 1994 roller-coaster accident in Kentucky, a 1996 candidate for the South Carolina House and the 2002 FBI investigation into the anthrax attacks. In all three, appellate courts reinstated libel claims or verdicts.

In Kentucky, the state Supreme Court in August reinstated a $2.97 million libel verdict against WHAS-TV in Louisville. Although WHAS has applied for a rehearing, the decision sets a dangerous precedent for Kentucky media, said Russ Coleman, an attorney with Belo Corp., which owns WHAS.

The decision, overturning a lower appellate court ruling, determined that the operators of an amusement park presented sufficient proof that the television station acted with actual malice &#151 knowledge of falsity or reckless disregard for the truth &#151 in reporting about a roller coaster accident.

“Proof of actual malice is frequently circumstantial so that the reckless disregard of truth or falsity or the actual knowledge of falsity can generally be inferred only, rather than proven directly,” Justice Donald C. Wintersheimer wrote for the divided court, which issued two opinions in addition to the court’s holding &#151 one concurring in part and dissenting in part and the other dissenting in part. “The evidence provided by Kentucky Kingdom sufficiently demonstrated that there was clear and convincing evidence of actual malice.”

The dispute arose out of three WHAS broadcasts in 1994 and 1996 following a July 1994 collision of two roller coasters at Kentucky Kingdom amusement park. Among the statements by the reporters in the stories were: “State inspectors also think the ride is too dangerous,” “the roller coaster ride that malfunctioned earlier this week,” and “Kentucky Kingdom removed a key component of the ride.”

Kentucky Kingdom sued for defamation in state court. In the 1998 jury trial, the jurors found that the amusement park had presented enough evidence to find WHAS committed actual malice and awarded the amusement park $2.97 million. The station appealed, claiming that Kentucky Kingdom had presented no evidence of actual malice. In 2000, an intermediate appellate court agreed with WHAS and ordered a new trial.

The state Supreme Court disagreed, reinstating the verdict because the park had presented enough evidence of actual malice. But, since the actual malice standard the Supreme Court used seemed to ignore the substantial truth of the stories, Coleman is optimistic about the chances for a rehearing.

“If the Kentucky Supreme Court decision last month is the last word on the subject then, yes, we would be concerned about adequate ‘breathing space’ for a free press to be able to report on matters of public importance, especially involving public figures,” Coleman said. “We’d also be concerned about potential defamation liability for statements that are substantially true when viewed in context, or that are rational interpretations of events.”

In the dissent, Justice William S. Cooper argued the same points. “The real tragedy of today’s decision, however, is that it significantly diminishes the ‘breathing space’ that is imperative for a vigorous and competent press. The majority’s conclusions . . . make no provision for substantially true speech . . . . When defamation liability is imposed in a manner that reduces the news media’s margin of error in covering public figures and matters of public concern, self-censorship by the media in its conduct of its most essential role is the inevitable result.”

Coleman has petitioned the Kentucky Supreme Court for a rehearing of the split decision, which he sees as an anomaly.

“I feel fairly well about the state of media protection against attack by non-government plaintiffs” in Kentucky, Coleman said. “I feel less well about media freedom and protection where government action is involved. Last month’s [decision] seems isolated and not part of a trend.”

The South Carolina Supreme Court also broadly interpreted the definition of actual malice in a recent ruling against a newspaper.

In that ruling, the court found actual malice purely through circumstantial evidence.

“The flaw with the Supreme Court’s analysis is that there was no evidence of the state-of-mind of the editor,” said David E. Hudson, the attorney for the newspaper. “The court cobbled together that what The Augusta [Ga.] Chronicle wrote was actual malice because of articles in another town and what the plaintiff claimed to say &#151 but no evidence as to what was known or believed by the editorial writer.”

Instead, the court looked at “any direct or indirect evidence relevant to the defendant’s state of mind,” Justice Jean Hoefer Toal wrote in the majority opinion.

The case arose out of an Oct. 1, 1997, column by Phil Kent headlined “Let the Liar Run” in The Chronicle about Tom Anderson, a candidate for the South Carolina House. The column referenced Chronicle articles from April 6 and June 3, 1997, reporting that the National Guard called Anderson to duty in the middle of his 1996 campaign. Anderson said he told the reporters that he worked for the National Flood Insurance Program and was called away after a hurricane hit North Carolina. After receiving Anderson’s correction that he went to North Carolina to process flood insurance claims not work in the National Guard, Kent wrote a column advocating that Anderson continue his campaign. In the column however, he repeatedly called Anderson a liar.

“The problem is . . . calling a candidate for state office a liar,” Hudson said. “The bluntness of the language probably caused the judges to bend over backwards to find against the Chronicle because they were not pleased with the language.”

There was, however, no evidence presented about whether Anderson actually told the Chronicle reporters that he was in the National Guard. The court instead looked at Anderson’s resume and determined that because of his Korean War record, he would be unlikely to be active in the National Guard. The court also looked at a Sept. 21, 1997, editorial in the Aiken (S.C.) Standard, which reported Anderson’s role in helping North Carolina hurricane victims.

The trial court dismissed the case, but the court of appeals reinstated it and the Supreme Court upheld the reversal. The case will be returned to the district court for trial.

“The actual malice test needs to be applied to the people responsible for the publication,” Hudson said. “Here, there’s no, zero, zilch, nada evidence of the state of mind of the person responsible.”

In a third defamation case, the U.S. Court of Appeals in Richmond (4th Cir.) ruled against the media in finding that a column about a suspect in the anthrax attacks in October 2001 was capable of having a defamatory meaning.

In this case, New York Times columnist Nicholas Kristof wrote a series of articles in the spring and summer of 2002 criticizing the FBI’s investigation of the anthrax attacks that outraged the nation in 2001. Kristof specifically focused on the circumstantial evidence surrounding Dr. Steven J. Hatfill, a former Army germ warfare specialist.

Hatfill sued the Times for defamation in June 2003 in U.S. District Court in Alexandria, Va., which dismissed Hatfill’s case because the court thought Hatfill could not show the articles were defamatory. A three-judge appellate panel reinstated the claims July 28 in a 2-1 ruling. On Oct. 18, the Fourth Circuit denied a petition for a rehearing before the entire court in a 6-6 decision in which one judge did not vote. A majority vote is needed to grant a rehearing.

In July, the court found, “the question is simply whether Kristof’s columns are capable of defamatory meaning under Virginia law,” Judge Dennis W. Shedd wrote for the majority. “Because Kristof’s columns, taken together, are capable of defamatory meaning under Virginia law, the district court erred in dismissing. . . .”

Even though Kristof’s columns stated clearly that his readers should not assume Hatfill’s guilt, the court ruled that it was not enough to eliminate any possible defamatory meaning.

“Notwithstanding Kristof’s attribution of certain allegations to unnamed sources, or his caution that readers should entertain a presumption of Hatfill’s innocence, or even his statement that the FBI should ‘end this unseemly limbo by either exculpating Dr. Hatfill or arresting him,’ the unmistakable theme of Kristof’s columns is that the FBI should investigate Hatfill more vigorously because all the evidence (known to Kristoff) pointed to him,” Shedd wrote.

The appellate court claimed that no evidence of Kristof intending to defame Hatfill was necessary because, “it is immaterial whether Kristof actually intended to defame Hatfill.” In other words, since Hatfill claimed the evidence Kristof used in his column to explain why the FBI should be looking at Hatfill was false, then under Virginia law Hatfill does not need to show Kristof intended to defame him in order to bring his defamation suit to trial. He just needed to show the columns could have a defamatory meaning &#151 which the Fourth Circuit concluded that they could.

“The Fourth Circuit didn’t express its view on the merits of the case,” said David Schulz of Levine Sullivan Koch & Schulz, media counsel for the Times. “It ruled that only as a pleading matter, the case could survive a motion to dismiss.”

Judge Paul V. Niemeyer, dissenting, found “nothing in the letter or spirit of the columns” that amounted to accusing Hatfill of sending the anthrax letters.

“The conclusion of the panel here is unfortunate,” Schulz said. “But I wouldn’t say that it’s part of any sort of national trend. It’s driven mostly by the unfortunate facts of this case.”