Mayoral candidate cannot prove ‘actual malice’ in political ad

From the Winter 2000 issue of The News Media & The Law, page 28.

Noting that political discussion regarding the conduct of public officials is at the pinnacle of protected speech, the state Supreme Court in Frankfort held in late October that former Mayor Troy “Frog” Welch did not provide sufficient evidence to support his claims of “actual malice” in a libel suit.

The court reiterated in its holding that a public figure must prove actual malice — knowledge of falsity or reckless disregard for the truth — to recover damages in a libel claim against a daily newspaper and dismissed Welch’s claim.

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While Troy “Frog” Welch was running his re-election campaign for mayor in 1993, two supporters of opponent Ben Hickman ran a full-page advertisement in The (Middlesboro) Daily News that contained unflattering headlines regarding Welch, along with negative comments about his conduct and administration. The advertisement ran on the Saturday and Monday before the election.

Following the publication of the advertisement in The Daily News, Welch lost the race for mayor of Middlesboro. He subsequently filed suit against the newspaper, alleging that the advertisement injured his reputation and caused him to lose the election.

In October 1994, a state trial court in Harlan dismissed the lawsuit. Welch appealed to the Kentucky Court of Appeals in Frankfort, and the court affirmed the lower court’s dismissal of the suit in December 1997. The appeals court found that Welch could not rely on the newspaper’s failure to investigate to prove it acted with “actual malice” — knowledge of falsity or reckless disregard for the truth — in publishing the advertisement.

Welch appealed to the state Supreme Court and argued that the advertisement contained false and defamatory statements about him that ruined his reputation and cost him the election. He asserted that a finding that actual malice existed could be made based on the fact that the newspaper did not investigate the facts before it published the advertisement and was not concerned with whether statements in the advertisement were true.

He argued that an employee of the newspaper who prepared the advertisement for publication did not investigate the accuracy of the information. He pointed out that the newspaper had a “self-imposed, publishing deadline” for the running of political advertisements, but ran the advertisement in question in “direct violation” of its deadline policy.

Welch argued that the harm to him from these false statements was “obvious” to the newspaper. He asserted that because the newspaper’s employee helped put the ad together, the newspaper “was not only aware of, but responsible for the ad’s content.” Welch also argued the newspaper must have had serious doubts concerning the truth of some of the statements.

The newspaper, on the other hand, argued that the “uncontroverted evidence” demonstrates a lack of actual malice. The newspaper argued that the record did not reflect “any hint” that The Daily News “entertained any doubts, much less serious doubts, about the truth of this advertisement.”

Furthermore, the newspaper pointed out that Welch admitted that he had no reason to believe that the publisher, J.T. Hurst, or anyone else at The Daily News “had any reason to suspect a single statement in the ad was false.”

In late October 1999, the Kentucky Supreme Court affirmed the intermediate appellate court’s dismissal of Welch’s libel suit against the newspaper, noting that political discussion regarding the conduct of public officials is at the pinnacle of protected speech.

Noting that a public figure like Welch would have to prove actual malice, the court rejected the claim because it found the evidence was “devoid of any hint” that the newspaper “entertained any doubts” about the truth of the published statements.

Justices William Cooper and William Graves, however, dissented and argued that there was sufficient evidence that the truth was disregarded because the newspaper should have known that political opponents have a motive to lie about one another. (Welch v. American Publishing Co. of Kentucky)