Amicus brief advocates for reversal of unprecedented actual malice interpretation by California trial court

The actual malice standard is a critical component of a defamation claim. Its stringent requirements give journalists the liberty to challenge authority and seek the truth regarding powerful public figures and officials.

When the standard applies, many libel cases hinge on whether the plaintiff can prove a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  New York Times Co. v. Sullivan, 376 U.S. 254, 280.

The Sullivan Court demanded this rigorous standard when public officials sue for defamation (later expanded to public figures in Gertz v. Robert Welch, Inc.) because it believed in a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id. at 270.

Part of Justice Brennan’s justification for establishing the actual malice standard was to echo the sentiments of James Madison, the draftsman of the First Amendment. Madison strongly believed that the government should not have the sole power to censor its constituents and that the public possess absolute sovereignty.

In the recent case of Angel v. Winograd, a California Superior Court reached a finding of actual malice incompatible with Sullivan and Madison’s convictions. The trial court found that the defendant, Marcy Winograd, spoke with actual malice because she continued to protest the conditions of a petting zoo after animal control officers found no violations. Winograd is appealing the trial court’s order to the California Court of Appeal.

In our amicus brief, the Reporters Committee and five other media organizations urge the Court to Appeal to reverse the Superior Court’s unprecedented interpretation of the actual malice standard. By finding that Winograd acted with actual malice because she spoke in disagreement with government employees, the trial court essentially concluded that speakers cannot counter or question government employees without the risk of defamation liability. The opinion of the trial court grants the government the ability to dictate the truthfulness of statements in defamation cases.

This interpretation of the actual malice standard cannot stand. Besides ignoring years of actual malice jurisprudence, the court’s understanding of actual malice conflicts with the purpose of the First Amendment and would deter journalists from investigating the government and reporting on matters of public concern.

Marcy Winograd, the defendant in the case, sent a touching email to our local counsel, Jean-Paul Jassy of Jassy Vick Carolan LLP in Los Angeles, California, describing her favorite quote of the brief:

Instead of using the actual malice standard articulated in the wake of Sullivan, the Superior Court fashioned its own unprecedented understanding of actual malice that ignores years of reasoned constitutional justifications.

Winograd nailed the heart of our argument: The Superior Court’s finding of actual malice in this case strikes against justifications for the enactment of the actual malice standard in Sullivan and why courts have continued to uphold its stringent requirements. We hope the Court of Appeal reverses the Superior Court’s novel finding of actual malice, realigning the standard to comport with the First Amendment.

To read the Reporters Committee’s amicus brief in Winograd, click here.



Reporters Committee and other press organizations ask California Supreme Court to review law targeting photography, First Amendment expression

The Reporters Committee for Freedom of the Press and seven co-amici filed a friend-of-the-court letter brief on Nov. 10 in People v. Raef, asking the California Supreme Court to review the Court of Appeal’s decision to uphold California Vehicle Code 40008.

Raef involves the constitutionality of California Section 40008, part of the state’s anti-paparazzi statute, that penalizes those violating general driving laws while having the “intent to capture any type of visual image . . . for a commercial purpose.” Photographer Paul Raef was charged under the law in 2012 after being accused of reckless driving on a Los Angeles freeway while attempting to take photos of celebrity Justin Bieber.

Unfortunately, after the trial court found the statute unconstitutional because it targeted First Amendment activity and was overinclusive, the Court of Appeal upheld the statute, concluding that Section 40008 was a law of general application that does not target speech or single out the press for special treatment and is neither vague nor overbroad.

In our amicus letter brief to the California Supreme Court, we argue the Court of Appeal’s decision must be reviewed because Section 40008 is not a law of general applicability and it has more than an incidental effect on speech. We believe the Court of Appeal also erred in giving undue deference to police and prosecutors in enforcing this vague law that will harm journalists.

Allowing Section 40008 to stand would rubber stamp the California Legislature’s decision to enact unconstitutional laws that specifically target expression and broadly affect speech. Amici requested that the California Supreme Court review the Court of Appeal’s decision and strike down Section 40008 as violating federal and state Constitutions.

Because this amicus letter brief was my first official legal document submitted to a court since being sworn into the Louisiana bar in October, I am particularly proud of this letter and the milestone it represents in my career. I look forward to many more opportunities to advocate for the First Amendment in the future.

Click here for a PDF version of the letter brief.


UPDATE – 1/21/16: The California Supreme Court denied review in Raef.