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.



Timberlake, Biel settle defamation suit in Ireland; Case displays variations in defamation laws around world

While waiting in line at the grocery store, many people recognize the flood of magazines and tabloids extended down the aisle. Purported steamy love affairs, 10-day weight loss plans, and revelations of the secret lives of your favorite celebrities are screaming at you from a few feet away. The chorus echoed from many people typically sounds something like: “How are these tabloids still in business? Why don’t the celebrities sue them?”

Well, the truth is that many celebrities do sue. The success rates are mixed, though, and lawsuits are typically more successful in other countries without the robust free speech and press protections we enjoy in the United States.

Case and point: Justin Timberlake and Jessica Biel. They recently filed a defamation lawsuit against the magazine Heat in Ireland. In September, Heat published an article stating that Timberlake was seen flirting with other women at a Paris nightclub. It also quoted false statements to Biel. The Heat headlines included “Justin Timberlake gets flirty with another woman” and “The flirty photos that rocked Justin and Jessica’s marriage.”

Last week the parties settled. The magazine’s representative admitted that “[t]he article was based on an unfounded report regarding Justin Timberlake’s alleged behavior at a club following a performance in Paris.” In a statement, Paul Tweed, Timberlake and Biel’s attorney, said:

“[They] will not hesitate to take similar legal action if false allegations regarding the state of their marriage are repeated.”

It must be noted the differences in UK and American law relating to defamation that makes UK courts more friendly to the plaintiff (the person suing the media outlet or speaker). In a defamation lawsuit in the United States, the plaintiff must prove that the statements were substantially false, and if the plaintiff is a “public official” or “public figure,” the plaintiff must prove the statements were made with actual malice (meaning the defendant published the statement with either knowledge of its falsity or with reckless disregard to the statement’s truth). See New York Times Co. v. Sullivan, 376 U.S. 254 (1964) & U.S. Const. amend. I. This is an extremely rigid standard to meet.

On the other hand, the burden of proof in the UK is on the defendant to prove that the statements were true. So in this case Heat magazine had to prove its allegations about Timberlake and Biel’s relationship were true. This strict standard makes succeeding in a defamation suit and getting a settlement much easier for plaintiffs in the UK compared to the United States. Once again, the First Amendment proves to make all the difference.


New York Post settles defamation suit after falsely accusing two men associated with Boston Marathon bombings

Three days after the Boston Marathon bombings, the New York Post ran a front with the bold assertion, “BAG MEN. Feds seek these two pictured at Boston Marathon.” Next to the printed words was a photo Salaheddin Barhoum and Yassine Zaimi.

Soon after, the public learned that Barhoum and Zaimi were not implicated in the bombing but were merely standing near the finish line. The two sued the New York Post for defamation, among other causes of action.

In March 2014, Massachusetts Superior Court Judge Judith Fabricant denied the New York Post‘s motion to dismiss the defamation suit.

Judge Fabricant recounted the law of defamation in Massachusetts in her Memorandum of Decision. “To state a claim of defamation with respect to a matter of public concern, a plaintiff must allege facts sufficient to show that the defendants published a statement, of and concerning the plaintiff, that was both defamatory and false. Dulgarian v. Stone, 420 Mass. 843, 847 (1995). A statement is defamatory if it ‘would tend to hold the plaintiff up to scorn, hatred, or ridicule or contempt, in the minds of any considerable and respectable segment in the community. Phelan v. May Dept. Stores Co., 443 Mass. 52, 56 (2004).’ The imputation of a crime is defamatory per se.’ Id.

Judge Fabricant ultimately concluded that:

“A reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify the plaintiffs, but also to find them, and as implying that the plaintiffs were the bombers, or at least that investigators so suspected.”

The parties settled the suit in late September after coming to confidential and amicable terms.