Constitutional Law, Small Law Firms

Stop The Presses! -- Just Kidding, You Can't

It is not a perfect system, but it is difficult to limit the press without overly limiting the press.

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Have you ever walked past a newsstand, your eyes drawn to a magazine cover with a preposterous claim that a solid celebrity couple was divorcing, and thought “How do they get away with that?” Long before I began my legal career, I thought about this constantly.

In my previous columns, I explained the free speech protections afforded to us by the U.S. Constitution and the limitations to those protections as imposed by defamation laws. These columns were inspired by an interview Prince Harry had done, wherein he denounced the First Amendment as “bonkers.” In that interview, Prince Harry further stated, “I believe we live in an age now where you’ve got certain elements of the media redefining to us what privacy means.” It is clear that much of Prince Harry’s displeasure with our free speech rights stems from his experiences with the media. Such frustration is understandable in light of the public life he has led. However, any successes Harry and his wife, Meghan, have experienced in their U.K. defamation lawsuits would be quite difficult to win here in the States. This is because our judicial system has established extremely high standards to meet to successfully sue a media outlet for defamation.

These standards are not to be confused with the First Amendment’s freedom of the press. The First Amendment provides a right to report news, including opinion, without government censorship. It protects the press from the government, while the exceptions carved out in defamation laws provide the press with certain protections from private citizens’ lawsuits.

The U.S. Supreme Court held that public officials and public people (i.e., celebrities, athletes, heads of major corporations) could only win a defamation lawsuit if they could prove that the defendant acted with “actual malice,” meaning the defendant either knew that the information was false or acted “with reckless disregard of whether it was false or not.” This is helpful for the press, since a large percentage of media coverage is devoted to public figures.

The press is protected further by the often relied upon notion of a “limited-purpose public figure,” meaning people who “have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved.” This category includes people who are prominent in a particular field, making them “public figures” regarding only those specific activities. For instance, while Derek Jeter is undoubtedly an all-purpose public figure, as evidenced further by his recent induction into the Baseball Hall of Fame, fellow Yankee Brett Gardner would likely be considered a limited-purpose public figure. While he also plays for the Yankees, his is not a household name (my husband fed me his name for this article), and likely is mostly known to baseball fans. For limited-purpose public figures like Gardner, the actual malice standard extends only as far as defamatory statements involving matters related to the topics about which they are considered public figures — in his case, baseball. Thus, the actual malice standard would extend to statements involving Gardner’s baseball career but would not extend to statements pertaining to his personal life.

The notion of limited-purpose public figures also includes those who have become prominent through involvement in a current controversy. The law on this field differs by jurisdiction and can often be subjective, with each judge viewing a set of circumstances differently. However, judges generally will look at the depth of the person’s participation in the controversy, the amount of freedom the person has in choosing to engage in the controversy in the first place, and whether the person has taken advantage of the media to advocate their cause. This is difficult to pinpoint and, as I said, judges might decide differently the extent to which these elements apply to a single person. A potential example would include Capt. Sully Sullenberger, who became widely known due to his prominent involvement in the “Miracle on the Hudson” emergency flight landing. He later became an outspoken advocate for aviation safety, so for purposes of the aviation world, he’d be a public figure. (Since he was eventually played on the big screen by Tom Hanks, it is likely he would now be considered an all-purpose public figure.)

When the press covers matters relating to someone famous or relating to a scandal or controversy — which are often the items the press covers the most — the plaintiff in a defamation lawsuit has a higher burden to meet in order to prevail.

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Separate and apart from the public figure issue is the notion of a “legitimate public concern.” When the plaintiff in a defamation lawsuit is a private figure and the allegedly defamatory statements relate to a matter of legitimate public concern, the plaintiff must prove that the defendant acted “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” This standard is once again higher than the negligence standard of an ordinary defamation claim. However, it is lower than the actual malice standard that applies to public figures. Rather, this standard focuses on an objective evaluation of the defendant’s actions rather than the defendant’s state of mind at the time of publication. Examples of a legitimate public concern could include a product recall, criminal activity, or — more timely — a global pandemic.

There are many other aspects of defamation that provide media outlets and members of the press with defenses to defamation claims. For example, there is a “fair report privilege” which, in general, protects a defendant who reports on deliberations of a public body, such as a court proceeding or city council meeting. So if the press reports on something false and defamatory that was stated at such a hearing or meeting, they may be protected from liability. There is also the “neutral-reporting privilege” that protects news organizations when they publish statements, even reckless statements, made by others about a public figure even if the press suspects the statements are not true. This protection is still debated and not settled law in New York but may be used as a defense in certain other jurisdictions.

The press has also claimed that statements they’ve published are the “substantial truth” even if not 100% accurate. They might also argue that the plaintiff is “libel proof” meaning that the plaintiff’s reputation is so low already that they cannot be damaged by whatever the defendant communicated. Or, the press might claim that its statement constituted “rhetorical hyperbole,” which argues that certain language used in certain pieces, like an opinion column, is understood by readers to be figurative rather than literal. So if they write that the plaintiff “wanted to kill that person at that moment,” they were not communicating that the plaintiff was plotting a murder, but rather was angry with the other party in that statement.

Additionally, opinion statements are not defamatory. Members of the press might argue that the published statement constituted opinion rather than fact.  Similarly, stories that are extremely outlandish (think, the National Inquirer) are unlikely to be considered defamatory because they would be difficult to conclusively disprove. In the U.S., the the plaintiff bears the burden of proving the falsity of the statement. Can Ryan Gosling conclusively prove that he is not the ghost of Al Capone? Probably not, making a lawsuit against the publication prove futile.

A big trick used by the media, particularly tabloids, is writing through their sources. If a source says that they saw two celebrities interacting like a couple, the tabloid might run a feature on those celebrities and their potential secret relationship, citing those sources. They also often write articles as hypotheticals, with their articles asking questions rather than making conclusive statements. By making vague and questioning statements, they can usually avoid a viable defamation claim. This is why you see so many headlines like “A Secret Pregnancy?” or “Trouble in Paradise?” The article itself likely gives no conclusive answer to such questions, but the false information, phrased as a question, gets people talking and brings in more readers. Many times, these types of stories rely on strategic paparazzi photos, like an unflattering outfit that makes a female celebrity look thicker in the midsection, leading to a headline questioning whether she is pregnant with Ryan Gosling’s — the ghost of Al Capone’s — baby.

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The media has many legal tools at their disposal to avoid a successful defamation lawsuit and therefore can take many liberties in the way they report their stories. It may just be that Prince Harry was on to something when he complained about the media’s rights and responsibilities. It is not a perfect system, but it is difficult to limit the press without overly limiting the press. It has been exactly 230 years since the First Amendment was adopted into the Bill of Rights. A lot has changed in those 230 years — the way we receive our news, the way news is gathered and how it is reported, the fact that drones are involved, etc. Although defamation law has tried to keep up with these changes, the wheels of justice turn slowly. While those wheels are turning, I hope you keep these issues in mind the next time you see a headline that makes you say “Wait, what?”

Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Diana’s work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at [email protected] and connect with her on LinkedIn.

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