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Libel claim against lawyer revived, but magazines not liable

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  1. Libel and Privacy

    NMU         THIRD CIRCUIT         Libel         Jan 10, 2001    

Libel claim against lawyer revived, but magazines not liable

  • A reporter’s failure to check the accuracy of a statement did not amount to actual malice in a story about a “gansta” rap critic, according to a federal appeals court.

A split panel of the U.S. Court of Appeals in Philadelphia (3rd Cir.) upheld a district court’s dismissal of a lawsuit against Time, Newsweek and their reporters for an article which suggested that a claim in a woman’s lawsuit against a “gangsta” rapper was based on damage to her sex life. The appellate panel held on Jan. 9 that the woman’s lawsuit against the attorney who initially made the comments could proceed.

C. Delores Tucker, a Pennsylvania activist who decried gangsta rap lyrics as “corrupt” and “pornography,” sued the estate of rap star Tupac Shakur and the recording label Interscope in 1997 for intentional infliction of emotional distress, slander and invasion of privacy. Tucker claimed injuries as a result of a song by Shakur, who died in 1996. Tucker’s husband also sued for loss of consortium.

After filing the lawsuit, the estate’s attorney, Richard Fischbein said to the media that it was hard for him “to conceive how these lyrics could destroy [C. Delores Tucker’s] sex life.” Johnnie L. Roberts of Newsweek interviewed the lawyers for both sides and authored an article which suggested the loss of consortium claim was related to a loss of sexual relations, mostly based on Fischbein’s comments. Fischbein gave an interview to a Time reporter, who published a similar article. The Tuckers, who claimed the loss of consortium claim was not based on damage to the couple’s sex life, sued the magazines, the reporters and Fischbein for defamation in a case separate from their suit against Shakur’s estate and label.

The district court granted summary judgment for the defendants, holding that the statements were not capable of a defamatory meaning and, alternatively, that the Tuckers, who were public figures, could not prove the media acted with “actual malice” — knowledge of falsity or reckless disregard of the truth.

On appeal, the three-judge panel for the Third Circuit held that the published statements linking Shakur’s lyrics to a demise in the Tuckers’ sex life were more than embarrassing or annoying; they were capable of defamatory meaning. To the average reader, the court reasoned, the statements carried “numerous disparaging implications.”

Two of the judges ruled that a reasonable jury could find that Fischbein had actual knowledge that the loss of consortium claim in the original suit was not for damage to the Tuckers’ sex life because before the interview with Time he was served with an amended complaint that stated as such. Therefore, the court reversed the dismissal of the claim against Fischbein.

As for Newsweek, the court held that although the Tuckers’ attorney claimed that he told Roberts that the loss of consortium claim was not for sexual relations, other statements by the attorney weakened that claim. The attorney was later equivocal about what he said to the reporter, and the court held this was not sufficient to clear the summary judgment hurdle.

Although the Tuckers repeatedly complained that the Time reporter departed from professional standards, the court emphasized that this is not the proper test for actual malice. The court held the reporter did not purposefully avoid the truth in reporting that the loss of consortium claim was related to sexual dysfunction and held a reasonable person would not believe that the statement was untrue.

(Tucker v. Fischbein; Media Counsel: Paul G. Gardephe; Kevin T. Baine, Williams & Connolly, Washington, D.C.) DB

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© 2001 The Reporters Committee for Freedom of the Press

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