Friday, March 1, 2013

Defamation, Public Figures and the First Amendment: Part III

For purposes of defamation, constitutional malice means knowledge of falsity or reckless disregard for whether the statement was true or false.  But what does reckless disregard mean?

First, let's discuss what it does NOT mean.

Reckless disregard does not mean that a reasonable person would have been aware of the defamatory implications of the statement or that a reasonable person would not have made the statement.

Reckless disregard is NOT negligence or a failure to follow journalistic or other professional  standards.  In fact, journalistic standards are not generally admissible evidence as to the issue of reckless disregard.

Reckless disregard is not ill will.  You can make your statement with ill will.  You can intend to damage the reputation of the person about whom you are making the statement.  Again, evidence of ill will generally is not even admissible as evidence.

Reckless disregard means a statement made with a "subjective awareness of probable falsity." Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).   Effectively, this means that the person making the statement actually knew that it was probably false, but went ahead and made the statement anyway.

The Supreme Court expanded on this standard in the case of Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989).  In that case, a political candidate got wind that a newspaper (which supported his opponent) was going to run an article about statements he supposedly made at a private gathering. But Connaughton said he had a tape recording of the meeting and that it would prove he did not make the statements.  The newspaper refused to listen to the tape and published the defamatory article.

The Supreme Court in a 9-0 decision sided with Connaughton, finding that the newspapers failure to check obvious sources who could contradict the allegations, and its refusal to listen to the tape, constituted "purposeful avoidance of the truth."  Such purposeful avoidance was sufficient to constitute the requisite reckless disregard, and therefore satisfy the constitutional malice test.

This  is a very high burden to carry.  It is particularly so because the Supreme Court has held that this must be proven by "clear and convincing evidence," a standard much higher than the preponderance of the evidence standard used in most civil cases, but not as high as the beyond a reasonable doubt standard used in criminal cases.

But who are public figures?  That's the next topic.

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