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THE STATUS OF THE 'FAIR COMMENT' LIBEL DEFENSE
IN THE WAKE OF MILKOVICH V. LORAIN JOURNAL
Paper presented to the
Law Division
Association for Education in
Journalism and Mass Communication
Washington, D.C.
August 1995
By TJ Hemlinger
Doctoral Candidate
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
706 S. Merritt Mill Road
Chapel Hill, NC 27516
919-933-1773 (H)
919-962-1204 (S)
919-962-0620 (F)
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THE STATUS OF THE
'FAIR COMMENT' LIBEL DEFENSE
IN THE WAKE OF
MILKOVICH v. LORAIN JOURNAL CO.
Abstract
By TJ Hemlinger
Doctoral Candidate
University of North Carolina at Chapel Hill
August 1995
706 S. Merritt Mill Road
Chapel Hill, NC 27516
919-933-1773 (H)
919-962-1204 (S)
919-962-0620 (F)
[log in to unmask]
Milkovich v. Lorain Journal Co. ruled that if a libelous opinion
implies an assertion of fact it is not protected by the First
Amendment. However, Milkovich created confusion about the strength
of the First Amendment opinion defense, and as a result there
has
been a threefold increase in interest in the fair comment
defense.
While the media seem to have a slight advantage when they use
the
fair comment defense, non-media defendants clearly have gained
a
weapon in defamation suits.
THE STATUS OF THE 'FAIR COMMENT' LIBEL DEFENSE
IN THE WAKE OF MILKOVICH v. LORAIN JOURNAL CO.
By TJ Hemlinger
Doctoral Candidate
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
AEJMC / August 1995 / Washington, D.C.
When the U.S. Supreme Court ruled in 1990 in Milkovich v. Lorain
Journal Co.[1] that if a libelous opinion implies an assertion of fact it
is not protected by the First Amendment, it left unclear the status
of
the fair comment defense in defamation cases. Milkovich created
confusion about the strength of the First Amendment opinion defense.
That confusion has caused some new interest in fair comment, which has
been largely overshadowed by the First Amendment defense since Gertz
v.
Welch[2] in 1974.
According to the 1939 Restatement of Torts, the common law "fair
comment" privilege protected criticism based on facts truly stated,
privileged, or otherwise known or available to the public:
If the facts are not known, a statement, though in form the
expression of an opinion, carries with it the implication of facts
to support it and is thus more than the mere expression of an
opinion. To be privileged comment . . . the facts upon which the op
inion is based must be stated or they must be known or readily
available. . . . Moreover, the facts upon which the criticism is
based must either be true or, if untrue, the critic must be
privileged to state them. In the case of a defamatory opinion
expressed upon a false statement of fact, the critic, to escape
liability, must show the privileged character of the statement of
fact, and, in addition, show that the criticism or comment
thereon
is privileged. . . .[3]
According to the 1977 Second Restatement:
If the expression of opinion was on a matter of public concern, it
was a form of privileged criticism, customarily known by the
name
of fair comment. The privilege extended to an expression of
opinion
on a matter of public concern so long as it was the actual
opinion
of the critic and was not made solely for the purpose of
causing
harm to the person about whom the comment was made, regardless
of
whether the opinion was reasonable or not. According to the
majority rule, the privilege of fair comment applied only to an
expression of opinion and not to a false statement of fact,
whether
it was expressly stated or implied from an expression of
opinion.[4]
The purpose of this paper is to see if predictions about the resurgence
of interest in the fair comment defense came true and to determine
if
and when the fair comment defense is a valuable libel defense.
The fair comment and criticism libel defense may have come into English
common law early in the nineteenth century. [5] In the United
States, the
most prominent case is Cherry Sisters v. Des Moines Leader[6] in
which the
general rule was established that denunciation, condemnation, and
satirization when criticizing persons and institutions seeking public
approval or inviting public attention is permissible. It gradually
became common law that defamatory opinions were actionable only if based
on the allegation of undisclosed or false facts.[7] Finally Rinaldi
v.
Holt, Rinehart & Winston[8] appeared three years after Gertz to make
opinion a constitutional defense.
Prior to Sullivan in 1964, the fair comment defense was the most
popular of the common law defenses.[9] It afforded legal immunity for the
honest expression of opinion on matters of legitimate public
interest
when based on true facts or a privileged statement. Describing the
fair
comment defense before Sullivan, Justice William H. Rehnquist said
in
Milkovich that fair comment was generally privileged when it was
about
"a matter of public concern, was upon true or privileged facts,
represented the actual opinion of the speaker, and was not made solely
for the purpose of causing harm."[10] A plaintiff in a defamation
case
needed only to allege there was an unprivileged publication of false and
defamatory matter to state a cause of action for defamation.
Defamatory
communications were considered actionable regardless of whether
there
were deemed to be statements of fact or opinion.[11] That led,
though, to
concerns that burdensome defamation laws could stifle valuable public
debate; thus a fair comment privilege was recognized and incorporated
into common law as an affirmative defense in defamation actions.[12]
However, New York Times v. Sullivan[13] made the fair comment defense less
important because the constitutional privilege of the actual malice
defense found in Sullivan is broader than the traditional fair comment
defense.[14]
A member of the Oregon bar, writing before Sullivan, wrote that there
is a need to reconcile a "conflict of interests among a particular
plaintiff, a particular defendant, and the public" in balancing freedom
of speech and the public's right to learn about matters of
legitimate
public interest.[15] He concluded:
The obvious conflict among these interests, then, has given rise to
the defense of fair comment. If that defense did not exist,
then
when defamatory statements were made that could neither be
proved
true or false . . . nor be proved correct or incorrect . . .
the
conflict of interests would always be resolved in the
plaintiff's
favor, since the burden of justification is on the
defendant.[16]
That began to change as New York Times v. Sullivan[17] "constitutionalized"
libel law in 1964.[18] Fair comment seemed to be further eclipsed by
constitutional law by 1974 when the Supreme Court said in dicta in Gertz
v. Robert Welch:[19]
Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas. But there is no constitutional value
in
false statements of fact.[20]
Justice Lewis Powell seemed to be saying that statements of opinion
were not actionable as libel and that defamatory statements were
actionable only if they made a false assertion of fact. This was seen as
giving absolute First Amendment protection to opinion.[21] Some
observers
then thought fair comment was no longer needed because the First
Amendment provided much stronger protection for freedom of expression:
Under fair comment, an opinion on only so much of another's
activities as were matters of public concern was privileged, and
then only if based upon true statements of fact stated or
otherwise
known to the recipient of the communication. In addition, the c
ritic actually had to hold the opinion and not have expressed it
solely for the purpose of causing harm to the target of the
criticism. An opinion on the private conduct or character or a
person engaged in matters of public interest was subject to the
further qualifications that the criticism be relevant to his
public
conduct and that it be a judgment which a reasonable person
would
make. In contrast, after Gertz, the [Restatement (Second) of
Torts]
position is that any opinion which does not imply the existence
of
unstated defamatory facts can never give rise to an action for
defamation, and that it is irrelevant whether the subject of the
communication is public or private.[22]
However, 16 years later the Milkovich Court rejected an absolute
constitutional protection for opinion. Chief Justice Rehnquist said
Justice Powell's dicta in Gertz was merely a "reiteration of Justice
Holmes' classic 'marketplace of ideas' concept"[23] from Abrams v.
United
States[24] and not an absolute guarantee of First Amendment
protection for
opinion. Thus, the majority in Milkovich ruled that the First
Amendment
does not require a separate opinion privilege limiting the
application
of state defamation laws:
[W]e do not think . . . Gertz was intended to create a wholesale
defamation exemption for anything that might be labeled
"opinion" .
. . . [W]e think the "breathing space" which "[f]reedoms of
expression require in order to survive" is adequately secured by
existing constitutional doctrine without the creation of an
artificial dichotomy between "opinion" and fact.[25]
Even though the Court held there is no categorical constitutional
protection for statements of opinion, it did imply constitutional
protection for much opinion under Philadelphia Newspapers Inc. v.
Hepps[26]
when it said statements on matters of public concern, at least by
the
media, must be proved false by the plaintiff before there can be
liability for defamation.[27] Hepps therefore "ensures that a statement of
opinion relating to matters of public concern which does not contain
a
provably false factual connotation will receive full constitutional
protection."[28] The decision also provided protection for statements
that
could not reasonably be interpreted as stating actual facts about an
individual: "This provides assurance that public debate will not
suffer
for lack of 'imaginative expression' or the 'rhetorical hyperbole'
which
has traditionally added much to the discourse of our Nation."[29]
Chief
Justice Rehnquist summed up the history of fair comment: "[U]nder the
common law, the privilege of 'fair comment' was the device employed
to
strike the appropriate balance between the need for vigorous public
discourse and the need to redress injury to citizens wrought by
invidious or irresponsible speech."[30]
LITERATURE REVIEW
There is little scholarly literature on the status of the fair comment
defense after Milkovich. As noted, most of the post-Milkovich
attention
has been on the condition of the constitutional opinion defense. The
literature on fair comment is actually the literature on Milkovich,
with
a few speculations about how Milkovich would affect fair comment.
Some
observers questioned whether there would be any impact at all, but
the
Practicing Law Institute said, "Until recently [the] common law
principle of 'fair comment' was largely supplanted by constitutional
principle, but it has been resuscitated by the Supreme Court's
decision
in Milkovich. . . ."[31]
Noting the Supreme Court's ruling in Milkovich that the First Amendment
did not require a separate opinion privilege limiting the
application of
state defamation laws,[32] one observer wrote, "[T]he Court's
holding deals
a jolting blow to freedom of speech and that of the press. . . . If
the
Milkovich decision is to stand, a chilling of protected speech will
occur. This chill will occur in the form of self-imposed
censorship."[33] He
went on to ask: "Does this decision signal the return of the common
law
privilege of fair comment for opinions?"[34] He answered in the
affirmative:
"[I]t is likely that the common law defense of fair comment will
reappear and play an important role in determining the final impact of
the Milkovich decision. The fair comment privilege will definitely
emerge when a non-media defendant comments on matters of public
concern."[35] The resurrection of the fair comment defense will not be
good,
he concluded:
Milkovich deprives the promise of the [F]irst [A]mendment freedoms
to anyone who has ever held an honest opinion.
This will definitely have a chilling effect on speech. . . .
The press has taken a huge blow. Speech will suffer. The quality
of public debate will suffer. The safe harbor of the opinion
privilege has been removed as a defense for libel suits. . . .
There will also be a revival of the common law approach to
opinions
in the privilege of fair comment for non-media defendants on
matters of public concern. . . . Speech will not be as spontaneous,
and therefore speech will be chilled. After Milkovich, our
press is
going to be a little less vigorous, and as a result, we are all
a
little less free.[36]
Outside of several journalism textbooks, though, few others have
written about the status of the fair comment defense in the wake of
Milkovich. Kent R. Middleton of the University of Georgia and Bill F.
Chamberlin of the University of Florida wrote in their law textbook,
"Although the common law protection for opinion was largely ignored
when
lower courts believed that the Gertz dicta implied an absolute
protection for opinion, the common law protection for opinion is being
reconsidered in some states."[37] Don R. Pember of the University of
Washington-Seattle wrote that the common law defense of fair comment
"may assume prominence" again in the wake of Milkovich.[38]
Others textbook authors made no predictions or assessments but simply
described the fair comment libel defense.[39]
This paper will examine predictions about the resurgence of interest in
the fair comment defense. Clearly it is time for a re-examination of
the
defense. Thus, this paper will address the following questions:
y Has there been a resurgence of interest in the fair comment libel
defense since Milkovich?
y Are libel defendants able to use the fair comment libel defense
successfully? When have they been successful and when unsuccessful?
To address these questions, all reported fair comment cases from the
four years prior to Milkovich in 1990 and cases from the four years
since Milkovich were examined.
ANALYSIS
In the wake of the Supreme Court's decision in Milkovich there has been
a marked resurgence of interest in the fair comment defense in
defamation suits. In the four-year period immediately prior to Milkovich
, there were only 10 cases when the defense argued a fair comment
defense.[40] In the four years after Milkovich, however, that number has
nearly tripled to 28 cases nationwide. While no clear pattern has
emerged as to whether or not it benefits defendants in 17 media-related
cases,[41] there appears to be no definite advantage to defendants
in 11
non-media-related cases.[42] Thus, while the private defendants
primarily
have been successful using the fair comment defense, the media
generally
have not had as much success, winning only about one-half of their
cases.
In cases involving non-media plaintiffs and defendants, the courts
ruled in favor of the plaintiffs in seven of the 10 cases, most
frequently declaring that the comments by the defendants might be
interpreted to contain or did contain constitutional malice.[43] Three
defendants did not have their fair comment defense stand up in court
when the judge ruled there might be constitutional malice. In one, the
court found Arsenio Hall's statement that the plaintiff, the
president
of the Beverly Hills/Hollywood chapter of the NAACP, was an
"extortionist" was actionable, even though "extortion," standing alone,
arguably was hyperbolic.[44] In a case where a woman and her
daughter sued
the International Society for Krishna Consciousness of California
after
it said the daughter had been abused, the court ruled that not only
did
fair comment not apply but neither did the New York Times defense
because there was substantial evidence of common law and constitutional
malice.[45] In third case, a referral letter was the basis for a
suit, and
the court ruled some statements "imply that such opinions draw upon
unstated facts" and that not all of the statements were incapable of
defamatory meaning.[46] Other statements that did not earn a fair
comment
defense include saying an ex-employee was "abusive, vulgar and
offensive";[47] calling a county supervisor a "communist";[48] and referring
to
a builder as a "drunk" when construction of a house took longer than
the
contractor/homeowner anticipated.[49] In each case, the court
indicated the
defendant's comments implied knowledge of unstated facts or could be
interpreted as defamatory by a jury. In the seventh case, a Michigan
bankruptcy court noted that a private plaintiff need just show
negligence: "[The] privilege [of fair comment] 'affords legal immunity
for the honest expression of opinion on matters of legitimate public
interest when based upon a true or privileged statement of fact.' But
in
cases involving a private plaintiff . . . the fair comment privilege
is
lost if the opinion is published negligently."[50] In an eleventh
case in
which the defendants claimed a fair comment defense, the appeals
court
merely vacated a lower court's dismissal of a defamation complaint
and
remanded it for further hearings, making no comment on the validity
of
the defendants' defense.[51]
Three non-media defendants were successful in arguing fair comment. New
York law protected an animal rights group after it wrote a letter to
a
scientific journal accusing a corporation of endangering chimpanzees
during a hepatitis test;[52] New Jersey's fair comment law protected
the
state insurance commissioner in a dispute with attorneys, saying his
statements were pure opinion within the meaning of the state fair
comment rule;[53] and the National Organization for Women was partially
successful in having a defamation suit dismissed under the Illinois
fair
comment rule.[54] The court ruled that one comment was protected as
opinion,
but another alleging that the plaintiff was involved in bombing or
burning clinics was not dismissed on the grounds of innocent
construction.
There were 17 decisions involving the media, with the media successful
more than one-half of the time: the media were successful in eight
and
unsuccessful in five, while in the remaining four the courts did not
rule directly on the claims of fair comment.
In two cases the media won when the courts ruled the claimed
defamations were privileged: In James v. San Jose Mercury News, the
court ruled that a newspaper column which reported that plaintiff
deputy
public defender had obtained school records of defendant's alleged
child
molestation victim, in "apparent" violation of California law, was
privileged, since no reasonable factfinder could find any false
statement of fact,[55] and in Snider v. National Audubon Society Inc., a
libel plaintiff's motion, in his action against an environmental
organization for an article referring to him as an "eel," to strike a
magazine's affirmative defense alleging publication was protected
under
the doctrine of fair comment was denied, since the allegedly
defamatory
statements, although they could reasonable be interpreted as
assertions
of fact, could also reasonably be interpreted as statements of
opinion
subject to fair comment doctrine.[56]
In two other cases, the courts ruled the alleged defamations were a
matter of public concern. The qualified privilege of fair comment
applied in libel action against television station for report concerning
police investigation of fatal automobile accident since the issue
was
one of public concern.[57] Also, an organization active in promoting
an
alternative medical treatment and which alleged a medical journal's
articles concerning such treatment constituted disparagement was not
entitled to preliminary injunction because defendants' statements
involved an issue of public concern and were protected by privilege of
fair comment.[58]
In a case that received nationwide attention in the media, Moldea v.
New York Times Co., a court ruled a book reviewer's statements of
criticism and commentary that the book contained "too much sloppy
journalism to trust bulk of book" were not actionable since the
assessment was supportable interpretation of book.[59] In another case, a
television station's editorial which criticized a "legal maneuver"
carried out by the plaintiff city councilman, who "slithered back into
office," constituted rhetorical hyperbole and was privileged as an
expression of fair comment.[60] In three cases courts ruled the claimed
defamations were not capable of sustaining defamatory meaning. A
politician's suit against a newspaper alleging libel for saying he
attempted to manipulate the press was not capable of sustaining
defamatory meaning and implication from the statement that the
politician changed his political position on important local issue was
protected opinion under the state constitution;[61] a newspaper's
use of
phrase "hefty" in describing the markup on packages for Gulf War
troops
was not actionable since it was too subjective, and a second
statement
asking who will benefit more also was not actionable;[62] and a
magazine's
apparent support for a mother involved in a highly publicized child
custody dispute could not transform its opinions concerning such an
issue of public concern into actionable statements.[63]
In three of the five cases where the media lost, the courts ruled that
fair comment did not work because the alleged defamatory statements
could be interpreted to imply facts. In one, statements about an
author's specific factual observations concerning his experiences in the
plaintiff's hospital were provable as being true or false and thus
gave
rise to a cause of action for libel, as did the statement that
accused
the hospital of dishonesty in connection with its billing.[64] In
another
case, a newspaper editorial concerning fees received by the plaintiff
attorney in a workers compensation case was not protected by the fair
comment privilege since the editorial lead reader to believe that the
writer had access to undisclosed defamatory facts.[65] And in the
third case
a libel defendant's statement was not constitutionally privileged
since
there was a clear implication that a judge had been bribed and since
such a statement is capable of being proved true or false.[66] In the
other
two cases, allegations of misconduct against a local doctor and
nurse,
while matters of public concern, were not protected under fair
comment
doctrine,[67] and Hustler magazine's statement describing a Wyoming
attorney
as "vermin-infested turd dispenser," "parasitic scum-sucker," and
its
"asshole of the month" were ruled clearly defamatory since they held
attorney up to hatred, contempt, or ridicule.[68]
Each of the three cases where the court sided with neither the
plaintiff or the defendant was decided on different grounds: one court
reversed a summary judgment, ruling statements could be proven true
or
false;[69] a second court said the fair comment defense had been
"supplanted
by federal constitutional law";[70] the third court expressed no
opinion
regarding the applicability of the fair comment privilege but noted
"free debate on issues of public concern is adequately protected by the
combination of [Illinois'] common law privilege and the
constitutional
protections enumerated in Milkovich."[71]
CONCLUSIONS
After Sullivan in 1964 and Gertz 10 years later, many courts felt fair
comment law had been superseded by federal constitutional law.
However,
there apparently was little or no change in the state common law
protection of fair comment, for when the 1974 flood waters of Gertz
receded in Milkovich in 1990, there, lying exposed, was fair comment,
ready to be used again. The number of times the fair comment defense
has
been used has nearly tripled in the four years since Milkovich,
compared
to the four years immediately preceding the case. In addition, while
the
media seem to have a slight advantage when they use the fair comment
defense in defamation suits, non-media defendants clearly have gained
a
weapon in defamation suits with the resurrection of the fair comment
defense.
It appears that libel defendants are able to use fair comment as a
successful defense in defamation suits when they make statements upon
matters of public concern; do not base their comments on or imply the
existence of unknown facts; or their statements are not capable of
sustaining defamatory meaning. The defendants' fair comment defense
claims fail when the alleged defamatory statements could be interpreted
to imply facts; when the comments are not protected by fair comment
because they are false assertions of fact; and when the statements are
clearly defamatory.
[1] 497 U.S. 1 (1990).
[2] Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974).
[3] Restatement of Torts _ 606 (1939).
[4] Restatement (Seco
nd) of Torts _ 566 (1977).
[5] Carr v. Hood, 1 Camp. 355, 170 Eng. Rep.
983 (1808).
[6] 86 N.W. 323 (Iowa 1901).
[7] Id.
[8] 2 Media L. Re
p. (BNA) 2169 (1977); cert. denied, 434 U.S. 969 (1977).
[9] T. Barton
Carter, et. al., Mass Communication Law in a Nutshell, 71 (1994).
[10]
497 U.S. at 13-14.
[11] Id.
[12] Woodmont Corp. v. Rockwood Center Pa
rtnership, 21 Media L. Rep. (BNA) 1177, 1179
(1993).
[13] 376 U.S. 254 (1964).
[14] Carter, supra note 9, at 71.
[15] Her
bert W. Titus, Statement of Fact Versus Statement of Opinion -- A Spuriou
s
Dispute in Fair Comment, 15 Vand. L. Rev. 1203, 1206
(1962) (quoting Note, 62 Harv. L.
Rev. 1207, 1211 (19
49).
[16] Id. at 1209.
[17] 376 U.S. 254 (1964).
[18] Robert D. Sac
k, The Law of Defamation: Recent Developments in 1993, in
Communications Law 1993, 7, 89 (James C. Goodale, chairman, 1993).
[
19] 418 U.S. 323 (1974).
[20] Id. at 339-40.
[21] See, e.g., Secrist
v. Harkin, 874 F.2d 1244 (8th Cir. 1989), cert. denied, 493
U.S. 933 (1989); Street v. National Broadcasting Co., 645 F.2d 122
7 (6th Cir. 1981),
cert. granted, 454 U.S. 815 (1981),
cert. dismissed, 454 U.S. 1095 (1981); MacConnel v.
Mitten, 638 P.2d 6
89 (Ariz. 1981); Nevada Indep. Broadcasting Corp. v. Allen, 664 P.2d
33
7 (Nev. 1983); Kotlikoff v. Community News, 444 A.2d 1086 (Pa. 1982); Rin
aldi v.
Holt, Rinehart & Winston, Inc., 366 N.E.2d 129
9 (N.Y. 1977), cert. denied, 434 U.S. 969
(1977); Hawkins v. Oden, 459
A.2d 481 (R.I. 1983); Ryan v. Herald Assoc., Inc., 566
A.2d 1316 (Vt. 1989); Hinerman v. Daily Gazette Co., 423 S.E.2d 560, 577
(W. Va. 1992),
cert. denied, 113 S. Ct. 1384 (1993).
[22] Seth A. Ka
plan, Notes, Fact and Opinion After Gertz v. Robert Welch, Inc.: The
Evolution of a Privilege, 34 Rutgers L. Rev. 81, 82 (1984)
.
[23] 497 U.S. at 18 (1990).
[24] 250 U.S. 616, 630 (1919).
[25] 4
97 U.S. at 18-19, quoting Philadelphia Newspapers v. Hepps, 475 U.S. 767,
772
(1986).
[26] 475 U.S. 767 (1986).
[27] 497 U.
S. at 18.
[28] Id. at 20.
[29] Id.
[30] Milkovich, 497 U.S. at 13.
[31] John B. McCrory & Robert C. Bernius, Constitutional Privilege in L
ibel Law, in
Communications Law 1994 7, 27 (James C. G
oodale, chairman, 1994).
[32] Milkovich v. Lorain Journal Co., 497 U.S.
1 (1990).
[33] John B. Cromer, Note, Milkovich v. Lorain Journal Co.:
This Opinion May Stifle
Yours, 20 Cap. U. L. Rev. 497,
499 (1991).
[34] Id. at 511.
[35] Id. at 513.
[36] Id. at 516-19.
[37] Kent R. Middleton & Bill F. Chamberlin, The Law of Public Communic
ation 138
(1994).
[38] Don R. Pember, Mass Media Law
186 (1993).
[39] See, e.g., Ralph L. Holsinger & Jon P. Dilts, Media L
aw 109 (1994); John D.
Zelezny, Communications Law 114
(1993); Wayne Overbeck, Major Principles of Media Law
109 (1994); Donald M. Gillmor, et. al., Mass Communication Law: Cases an
d Comment, 252
(1990).
[40] Kirk v. CBS, 14 Media L.
Rep. (BNA) 1263 (1987); Johnson v. Delta-Democrat
Pub
lishing Co., 15 Media L. Rep. (BNA) 2117 (1988); Dairy Stores v. Sentinel
Publishing, 13 Media L. Rep. (BNA) 1594 (1986); Mingu
s v. Dell Publishing Co., 17 Media
L. Rep. (BNA) 1370, 1372 (1990); Haa
s v. Gill, 15 Media L. Rep. (BNA) 2323 (1988);
Wright
v. Florida Power & Light Co., 17 Media L. Rep. (BNA) 2040 (1990); Sansone
v.
Clifford, 1990 Conn. Super. 1, 36 (1990); Brand v.
Casso, 14 Media L. Rep. (BNA) 2041
(1987); Polanco v.
Fager, 16 Media L. Rep. (BNA) 2388, 2391 (1989); Ryan v. Herald
Association Inc., 16 Media L. Rep. (BNA) 2472 (1989).
[41] S
ee infra note 55-71 and accompanying text.
[42] See infra note 43-54 an
d accompanying text.
[43] Constitutional malice as defined by the Supre
me Court in New York Times v.
Sullivan (376 U.S. 254 (
1964)) is publishing with knowledge a statement is false or
with reckless disregard of whether it is false or not. It places th
e burden of proof on
the plaintiff and is a much higher standard to pro
ve than common law malice, which
constitutes spite, ho
stility or ill will. Thus, proving constitutional malice is more
difficult than common law malice in defamation cases.
[44] E
dwards v. Hall, 19 Media L. Rep. (BNA) 1969 (1991).
[45] George v. Iskc
on of California, 4 Cal.Rptr.2d 473, 502 (Cal. App. 4th 1992).
[46] Pet
ula v. Mellody, 588 A.2d 103, 109 (Pa. 1991).
[47] Lutz v. Royal Ins. C
o. of American, 586 A.2d 278 (N.J. Super. Ct. App. Div.
1991).
[48] Yetman v. English, 811 P.2d 323 (Ariz. 1991).
[49] Hawo
rth v. Feigon, 623 A.2d 150 (Maine 1993).
[50] In re Thompson, 162 Mich
. Bankr. Ct. 749, 768 n.33 (E.D.Mich. 1993), citing Rouch
v. Enquirer &
News of Battle Creek, 398 N.W.2d 245 (1986).
[51] Muck v. Van Bibber,
585 N.E.2d 1147 (1992).
[52] Immuno A.G. v. Moor-Jankowski, 18 Media L.
Rep. (BNA) 1625 (1991).
[53] Cassidy v. Merin, 582 A.2d 1039 (N.J. Sup
er. Ct. App. Div. 1990).
[54] Scheidler v. NOW Inc. 751 F.Supp. 743 (N.
D.Ill. 1990).
[55] James v. San Jose Mercury News Inc, 21 Media L. Rep.
(BNA) 1624 (1993).
[56] Snider v. National Audubon Society Inc., 20 Me
dia L. Rep. (BNA) 1583 (1992).
[57] Kortz v. Midwest Communications Inc
., 21 Media L. Rep. (BNA) 1860 (1992).
[58] Lancaster Foundation Inc. v
. Skolnick, 21 Media L. Rep. 1021 (1992).
[59] Moldea v. New York Times
Co., 22 Media L. Rep. (BNA) 1673 (1994).
[60] Maholick v. WNEP-TV, 20
Media L. Rep. (BNA) 1022 (1992).
[61] West v. Thomson Newspapers, 872 P
.2d 999 (Utah 1994).
[62] Chapin v. Knight-Ridder, 21 Media L. Rep. (BN
A) 1449 (1993).
[63] Foretich v. Glamour, 18 Media L. Rep. (BNA) 1672 (
1990).
[64] Florida Medical Center v. New York Post, 18 Media L. Rep.
(BNA) 1224 (1990).
[65] Hinerman v. Daily Gazette Co., 20 Media L. Rep.
(BNA) 2169 (1992).
[66] Keohane v. Wilkerson, 21 Media L. Rep. (BNA) 1
417 (1993).
[67] Russell v. Thomson Newspapers, 842 P.2d 896 (Utah 1992
).
[68] Spence V. Flynt, 19 Media L. Rep. (BNA) 1129 (1991).
[69] Sas
sone v. Elder, 601 So.2d 792 (La. Ct. App. 4th 1992) (Whether statement
implied that plaintiff attorneys were trying to deceive
clients for monetary gain was
fact question).
[70]
Rosner v. Field Enterprises, 564 N.E.2d 131, 132 (Ill. App. Ct. 1st 1990)
.
[71] Weller v. American Broadcasting Cos., 19 Media L. Rep. (BNA) 116
1, 1166 n.12
(1991).
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