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Defamation Claims and Public Figures in The Media

Actual Malice Standard

This article will examine some of the more current defamation claims brought by various “public figures” and explore how these standards have been—and could be—analyzed by a court. Certainly, the evolution of “mass media” has made the defamation landscape more complicated—and interesting. We will examine two defamation cases: one pending and one settled. We will also discuss one potential defamation claim that could arise in the coming months and how mass media, the internet, and the rapid dissemination of information could affect these, and future defamation claims. There will also be a brief review of the “actual malice standard” recited in New York Times Co. v. Sullivan—still regarded as valid legal precedent—and Oilman v. Evans, the action that gave us the standard to determine what constitutes a “factual assertion,” (which is not protected under the First Amendment if it is indeed untruthful) and opinion, which is given protection under the First Amendment.

 A Defamation Claim Pending: Sarah Palin v. New York Times Co.

Sarah Palin, the former vice-president nominee in the 2008 presidential election and previous Alaska governor, sued the New York Times on the ground of defamation over a 2017 editorial they published allegedly linking Palin to a mass shooting in Alexandria, Virginia. Four people were wounded. Among those who were wounded was House Representative, Steven Scalise. However, it was not the entirety of the editorial that gave way to Palin’s claim. Rather, the 2017 editorial, in turn, referenced a 2011 shooting where six people were killed and several were wounded. Among the wounded was Democratic Congresswoman, Gabrielle Giffords. The 2017 editorial appeared to link Palin, a known Republican, to the 2011 shooting by referencing Palin’s political action committee, stating that they had circulated a map putting 20 Democratic representatives—including Giffords—under “stylized cross-hairs.” Accordingly, the editorial argued that the “link to political incitement was clear.” Interestingly, speech inducing “incitement” is not protected under the Constitution.

New York Times subsequently edited the allegedly defamatory editorial two days later, correcting the assertion that there was a link between Palin and the 2011 shooting, but that didn’t stop Palin from initiating a claim. Just two months after Palin filed the claim, the Federal District Court in Manhattan dismissed Palin’s claim, stating that, while the New York Times’ connection between the 2011 shooting and Palin was ostensibly negligent, it was not defamation of a public figure. The following year, a judicial panel overturned the Federal District Court’s decision and reinstated Palin’s claims on procedural grounds, holding that the District Court relied on evidence not within the pleadings. However, the panel did not consider the merits of Palin’s claims.

On remand, the Court interestingly acknowledged that the Times’ subsequent rewrite tended to indicate that the New York Times acted with “actual malice”. In addition, the District Court noted that the New York Times may have ignored additional materials that there not in line and inconsistent with the New York Times’ angle on the editorial, which could be an indication that the New York Times acted with “regardless disregard” for the truth. A trial has not occurred on Palin’s claim, and the last report indicates that a trial on Palin’s claims was scheduled for a court date of February 1, 2021.

 A Defamation Claim Settled: Sandmann v. The Washington Post

Nick Sandmann, a student attending Covington Catholic High School in Kentucky gained national attention when he attended the annual March for Life rally at the Lincoln Memorial in Washington, D.C. The controversy began when Sandmann and other Covington High students allegedly surrounded Nathan Philips, a Native American activist and leader of the Omaha Tribe, who participated in the Indigenous People’s March—also occurring at the Lincoln Memorial that day. The video and article captured and published by the Washington Post portrays Nick Sandmann, wearing a “Make America Great Again” hat, as “taunting” Mr. Phillips as he beat a hand-held drum. Several days later, a new video emerged showing a group of black men—later identified as the Black Hebrew Israelites—taunting Sandmann and other Covington High students, along with Indigenous People participants, by using racial slurs and other provocative language.

Sandmann stated that he was not taunting Phillips. Rather, he was attempting to moderate an ongoing situation by remaining still and silent. However, by the time the second video and subsequent articles had been released—portraying an alternative version of events with members of the Black Hebrew Israelites as the “instigator”— Sandmann claimed the damage had already been done. Sandmann alleged that, upon returning to Kentucky, he was not permitted to attend school and that he and his family faced severe scrutiny in their community based on the allegedly false reporting.  

Sandmann filed several lawsuits against various news outlets, including CNN, NBCUniversal, the New York Times, CBS News, ABC News, Rolling Stone, and more notably—the Washington Post. In an enormous $250 million complaint against the Post, Sandmann alleged that he was defamed by the Post’s portrayal of Sandmann as the instigator and what was perceived as “racist conduct.” The Post adamantly defended their conduct, and appeared to shift blame onto Phillips, as the Post alleged that they were merely reporting on Phillips’ observations, which would legally constitute opinion and not a truthful assertion. To see a detailed discussion on what a Court considers in determining whether a statement is an opinion or truthful assertion. The Post filed a Motion to Dismiss on this basis, subsequently dismissing all 33 of Sandmann’s defamation claims. However, upon a Motion of Reconsideration, filed by Sandmann and his attorneys, the Court allowed the reinstatement of only three, severely limiting Sandmann’s ability to recover damages. Sandmann and the Post eventually settled for an undisclosed amount, making it difficult to assess whether Sandmann would have eventually been successful in his claim. However, the Sandmann case provides relevant, important context with respect to the relative success of other potential defamation claims—specifically, with respect to Kyle Rittenhouse.

A Potential Defamation Claim: Rittenhouse v. Biden?

If you didn’t hear about Nick Sandmann in 2019, you most certainly have heard about Kyle Rittenhouse, who was found not guilty by a jury last week based on self-defense after he killed two men and wounded one amidst protests in Kenosha, Wisconsin over the shooting death of Jacob Blake. Now that Rittenhouse has overcome the criminal charges that were against him, his attention could turn to bringing a civil case against several media outlets and even our commander-in-chief—Joe Biden—concerning allegations, or at minimal, innuendos, suggesting that Rittenhouse is a “white supremacist.”

This controversy dates to the Trump-Biden election campaign when Joe Biden released a Tweet denouncing Trump for allegedly not condemning white supremacists on the debate stage. The Tweet, posted along with a video states, “There’s no other way to put it: the President of the United States refused to disavow white supremacists on the stage last night.” The brief video presented images of (some) self-proclaimed white nationalists marching through Charlottesville, North Carolina, along with other images produced to evoke a sense of white supremacy and white nationalism. Notably, the video contained an image of Mr. Rittenhouse—carrying an AR-15—on the night that led to the criminal charges that were against him. The tweet and attached video can be seen here.

To be clear, the victims (Anthony Huber, Joshua Ziminski, and Gaige Grosskreutz) in the Rittenhouse case were all white men. The allegation that Rittenhouse is a “white supremacist” appears to stem from the circumstances surrounding why Rittenhouse was in Kenosha to begin with: the protest of the Jacob Blake, a black man, shot by local police.

            Rittenhouse would likely argue that in positioning his picture amongst “known white supremacists” and presenting imagery of events thought to be motivated by race—along with Rittenhouse’s picture—create a natural implication that Rittenhouse is a white supremacist, too. Criminal charges necessarily create truthful assertions, which are ostensibly protected under the Constitution. However, now that Rittenhouse has been acquitted, continued remarks regarding Rittenhouse as a white supremacist could strengthen a potential defamation claim.

What does Rittenhouse need to bring a successful claim?

Whether or not Rittenhouse can bring a successful defamation claim will predominantly rest on the specific language used by the media—and the President. However, the first hurdle Rittenhouse was required to overcome is his status as a “public figure.” For all intents and purposes, Rittenhouse is a public figure by way of his involvement in a significant public controversy. Rittenhouse remains in the public eye, even post-acquittal. Next, Rittenhouse cannot rely on the false reporting of media outlets known to do so. Notice that in the Sandmann case, discussed above, all the media outlets named as parties to the defamation action are trusted, reputable news sources with significant viewership. Accordingly, success of a claim bought by Rittenhouse could be largely dependent on who made the statement, not the statement itself. Lastly—and most surprisingly—regular ole’ name-calling is protected by the First Amendment. To bring a successful claim, Rittenhouse will be required to prove that the statements made by individual news outlets constitute a “factual assertion” not mere “opinion” and subsequently harmed Rittenhouse’s reputation. To be actionable, the statement must be known to be true, or the “defamatory entity” exhibited a “reckless disregard for the truth.”

But can you sue the President of the United States?

Under these circumstances, yes. While Presidents enjoy immunity from civil and criminal litigation during their tenure as President, they only enjoy that privilege with respect to acts committed during their Presidency. Because now-President Biden was merely a presidential candidate at the time Tweet was released—and the alleged defamatory statement was made—President Biden would be required to answer to a lawsuit brought by Rittenhouse. However, whether Rittenhouse could be successful in a defamation lawsuit is yet to be determined. What is apparent, though, however, is that Rittenhouse would—at minimal—have an actionable claim. 

The Media’s Effect on Defamation Claims

            One thing that the above-discussed causes of action and the potential cause of action have in common is mass media. The defamation landscape sixty years ago, when New York Times v. Sullivan and Oilman v. Evans (prior to the advent of the world-wide web) were decided, is vastly different than that of today. Where an editorial once reached a limited number of readers, now, a single article can receive thousands if not millions of views in an instant.

While the instant dissemination of information doesn’t necessarily change the legal standard the court will apply, it could be argued that this rapid-fire spew of information could play into the actual malice standard decided in New York Times v. Sullivan. With a wide range of information available with a single click, the media and other publishers can easily investigate the relative truth of what they are publishing to the public. Consider what the District Court in Palin implied on remand: the New York Times’ decision to amend the editorial could serve as evidence that the knew their claim was untrue. Prior to the invention of the internet, editing an article would be a tedious task, if not impossible. It leads one to wonder if the ability to edit and fact-check—and a publisher’s ensuing corrections on this basis—could begin to affect how court’s view the actual malice standard.

With respect to Sandmaan and Rittenhouse, we see a variance in how liberally the court is willing to apply the “public figure” standard. For all intents and purposes, Sandmann and Rittenhouse were regular teenage dudes prior to the internet taking their lives by storm. Without the mass media coverage present today, the odds of both Sandmann and Rittenhouse becoming notorious for their involvement in public controversies such as these is unlikely. The mass dissemination in information and the ability of the media to reach millions of viewers at any given time certainly will continue to affect who is deemed a public figure with respect to defamation claims. While the First Amendment and the courts still appear to exhibit a great desire to protect the Press and their right to “free speech,” the landmark defamation cases didn’t consider the internet. While there currently appears to be no major changes to defamation law as we know it, we can predict that it could receive a major face lift as the media—and the internet—continue to evolve.

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