Ellyn Gary
MC 3080-3
Final Project
Introduction
The constitutional fault level, known as actual malice is the publishing of a statement with the knowledge that it is false, or with reckless disregard for the truth.[1] To prove the element of fault by actual malice, the plaintiff must demonstrate with “convincing clarity” that the statement was published with reckless disregard for the truth or known falsity.[2] Actual malice is sometimes a key argument in defamation cases. Actual malice is important in defamation cases because it outlines what is and what is not protected by the First Amendment. Therefore, in these specific types of cases that deal with actual malice, the known falsity or reckless disregard must be proven in order for the plaintiff to win their case. Reckless disregard refers to publishing information that may not be true there may be an awareness of the falsity, serious doubts about the truthfulness of the information, or the author purposefully avoids the truth.[3] The actual malice level of fault could not be met in the U.S. Supreme Court case New York Times v. Sullivan, and therefore the ruling was in favor of The New York Times.[4] In New York Times v. Sullivan, L.B. Sullivan sued the New York Times for because of an ad they had run in the paper regarding non-violent protests held by African-American students in the South.[5] Sullivan sued for libel because he felt that some of the writings in the article referenced the Montgomery police, and in-turn himself, and these statements defamed his character.[6] Sullivan was the police commissioner in Montgomery, Al, and therefore considered a public official.[7] The U.S. Supreme Court decided that Sullivan was not able to prove actual malice because the proof that he presented lacked convincing clarity.[8] The author of the ad thought that the information they were writing was “substantially correct,” however they failed to verify that their sources were telling the truth, and therefore all they were guilty of was neglecting to check their sources, but this was not enough to prove actual malice or reckless disregard.[9] The ruling in New York Times v. Sullivan has affected and helped to decide many other cases. The rest of this blog will explain that case’s relation to some examples decided by the New York Court of Appeals.
Kipper v. NYP Holdings Co.
In December 2003 the New York Post rewrote and ran a story about Ozzy Osbourne’s former doctor, and how he may have prescribed more pain medicine to Osbourne during the filming of his reality show in addition to negligence he had shown to other patients.[10] The New York Post had obtained the information for their story from The L.A. Times wire service, which in their story, stated that the California Medical Board had “moved” to revoke Kipper’s license, but it had not been taken away.[11] Kipper filed a lawsuit against the New York Post, but the New York court of appeals sided with the Post because Kipper lacked clear and convincing clarity in trying to prove actual malice on the Post’s part.[12] The New York Court of Appeals decided that the failure of the New York Post to have someone check their facts before a story goes to the publisher did not suffice as reckless disregard for the truth, and therefore was not enough to prove actual malice.[13]
Shulman v. Hunderfund
The night before a election for the Commack Board of Education, the superintendent Hunderfund helped to circulate a flier that stated Shulman (the candidate in the race who was up for reelection) had “flagrantly broke the law” by awarding a food service account to a business associate.[14] Shulman, who was considered to be a public figure, sued Hunderfund for libel, after losing the election.[15] Through applying the same standard as in New York Times v. Sullivan, the court ruled in favor of Hunderfund because Shulman was not able to clearly and convincingly show that Hunderfund knew the statement he made was false, or that Shulman had not broken the law.[16] Since Shulman was not able successful in clearly and convincingly presenting evidence in his favor, he was not able to prove the element of actual malice or that Hunderfund had acted with reckless disregard.[17]
Mann v. Abel
In August 2003 Bernard Abel wrote about attorney Monroe Yale Mann in Abel’s column in the town of Rye’s newspaper.[18] Abel wrote that it seemed that Mann “pulled strings” within the government and was “leading the town to destruction.”[19] However, the column was followed by an editor’s note to act as a disclaimer by saying that the writing was an expression of opinion by the author.[20] The biggest question that Mann had to prove in his case against Abel was whether the column was an opinion piece or whether it was written with actual malice or reckless disregard. Abel appealed the initial ruling on a constitutional question, because his statements were statements of opinion and therefore protect by the law.[21] The New York Court of Appeals ruled in favor of Abel because the statements were on the opinion page of the newspaper and accompanied by the editor’s note, therefore they were merely opinion that is protected by the First Amendment and actual malice could not be applied to Mann’s libel suit against Abel.[22]
Conclusion
In New York Times v. Sullivan it was found that actual malice, and therefore reckless disregard, must be proven with clear and convincing clarity to win a defamation case.[23] There was not enough clear and convincing evidence provided by Sullivan, the plaintiff, to prove that the author of the New York Times ad had written the statements with knowing falsity or reckless disregard for the truth.[24] Plaintiffs in New York Court of Appeals cases have been faced with the same problem. In Kipper v. NYP Holding’s Co., Kipper lost because he lacked clear and convincing evidence that the Post had published the article about him with actual malice, so instead it was found that someone at the Post simply had not checked the facts, which could not be considered actual malice.[25] In Shulman v. Hunderfund, Shulman failed to clearly and convincingly show that Hunderfund knew the flier he circulated was false and that Shulman was innocent, therefore it lacked any element of reckless disregard or actual malice.[26] In Mann v. Abel, Mann lost his case against Abel because the statements that he believed were written with actual malice were instead opinion, and the law protected the defamatory statements.[27] All four of these cases are important examples as to how difficult it can be for the plaintiff to prove the constitutional level of fault known as actual malice.
[1] John D. Zelezny, Communications Law 535 (Wadsworth, 6th ed. 2011).
[2] October 28, 2011, Dr. Erin Coyle, Defamation Unit.
[3] October 28, 2011, Dr. Erin Coyle, Defamation Unit.
[4] “New York Times v. Sullivan,” Oyez, 2011, ITT Chicago-Kent College of Law, November 29, 2011 < http://www.oyez.org/cases/1960-1969/1963/1963_39>.
[5] New York Times v. Sullivan, 376 U.S. 254, 1 (1964).
[6] New York Times v. Sullivan, 376 U.S. 254, 1-2 (1964).
[7] “New York Times v. Sullivan,” Oyez, 2011, ITT Chicago-Kent College of Law, November 29, 2011 < http://www.oyez.org/cases/1960-1969/1963/1963_39>.
[8] New York Times v. Sullivan, 376 U.S. 254, 7 (1964).
[9] Id.
[10] Kipper v. NYP Holdings Co., 2009 NY Slip Op 3407; 12 N.Y.3d 348; 912 N.E.2d 26; 884 N.Y.S.2d 194; 2009 N.Y. LEXIS 762; 37 Media L. Rep. 1673 (NY 2009).
[11] Id, 4.
[12] Id.
[13] Id.
[14] Shulman v. Hunderfund, 2009 NY Slip Op 2263; 12 N.Y.3d 143; 905 N.E.2d 1159; 878 N.Y.S.2d 230; 2009 N.Y. LEXIS 37, 2 (NY 2009).
[15] Shulman v. Hunderfund, 2009 NY Slip Op 2263; 12 N.Y.3d 143; 905 N.E.2d 1159; 878 N.Y.S.2d 230; 2009 N.Y. LEXIS 37 (NY 2009).
[16] Shulman v. Hunderfund, 2009 NY Slip Op 2263; 12 N.Y.3d 143; 905 N.E.2d 1159; 878 N.Y.S.2d 230; 2009 N.Y. LEXIS 37, 146 (NY 2009).
[17] Shulman v. Hunderfund, 2009 NY Slip Op 2263; 12 N.Y.3d 143; 905 N.E.2d 1159; 878 N.Y.S.2d 230; 2009 N.Y. LEXIS 37 (NY 2009).
[18] Mann v. Abel, 2008 NY Slip Op 2675; 10 N.Y.3d 271; 885 N.E.2d 884; 856 N.Y.S.2d 31; 2008 N.Y. LEXIS 681; 36 Media L. Rep. 2106, 275 (NY 2008).
[19] Mann v. Abel, 2008 NY Slip Op 2675; 10 N.Y.3d 271; 885 N.E.2d 884; 856 N.Y.S.2d 31; 2008 N.Y. LEXIS 681; 36 Media L. Rep. 2106, 274, 275 (NY 2008).
[20] Mann v. Abel, 2008 NY Slip Op 2675; 10 N.Y.3d 271; 885 N.E.2d 884; 856 N.Y.S.2d 31; 2008 N.Y. LEXIS 681; 36 Media L. Rep. 2106 (NY 2008).
[21] Mann v. Abel, 2008 NY Slip Op 2675; 10 N.Y.3d 271; 885 N.E.2d 884; 856 N.Y.S.2d 31; 2008 N.Y. LEXIS 681; 36 Media L. Rep. 2106, 276 (NY 2008).
[22] Id, 277.
[23] New York Times v. Sullivan, 376 U.S. 254, 7 (1964).
[24] Id.
[25] Kipper v. NYP Holdings Co., 2009 NY Slip Op 3407; 12 N.Y.3d 348; 912 N.E.2d 26; 884 N.Y.S.2d 194; 2009 N.Y. LEXIS 762; 37 Media L. Rep. 1673 (NY 2009).
[26] Shulman v. Hunderfund, 2009 NY Slip Op 2263; 12 N.Y.3d 143; 905 N.E.2d 1159; 878 N.Y.S.2d 230; 2009 N.Y. LEXIS 37, 146 (NY 2009).
[27] Mann v. Abel, 2008 NY Slip Op 2675; 10 N.Y.3d 271; 885 N.E.2d 884; 856 N.Y.S.2d 31; 2008 N.Y. LEXIS 681; 36 Media L. Rep. 2106, 276 (NY 2008).
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