The Supreme Court has defined ‘actual malice’ as knowledge that a statement is false or has a reckless disregard for the truth. This article is aimed at exploring a Public Figure’s ability to bring a defamation claim—and, accordingly, what a Public Figure is required to prove to win their claim. Here, we will discuss two groundbreaking judicial opinions that set out the requirements and consider the requirements’ meaning and application.
We begin our exploration of defamation claims with New York Times v. Sullivan, which was decided in 1964—during the heat of the Civil Rights Movement. The Court’s opinion concerned an advertisement in the New York Times which requested financial contributions to provide Martin Luther King, Jr.—who had been accused of—and subsequently charged with—perjury in Alabama, with an attorney. The defamation claim was brought by L.B. Sullivan, Montgomery, Alabama’s Public Safety Commissioner. According to Mr. Sullivan, the advertisement contained inaccuracies about the actions the Alabama police had taken with respect to Mr. King. While the advertisement never mentioned Mr. Sullivan by name, Mr. Sullivan contended that the allegations against the Alabama Police—Mr. Sullivan’s subordinates—reflected negatively on him in his position as Commissioner.
Mr. Sullivan was unsuccessful in his claim. However, New York Times Co. v. Sullivan serves as the cornerstone opinion regarding a Public Figure’s ability to bring—and win—a defamation claim. The Supreme Court held that, to bring a successful defamation, claim under the First Amendment, a Plaintiff is required to prove either: (1) that the Defendant knew that the statement was false at the time it was published; or (2) the Defendant was reckless in publishing the statement in that they published the information without investigating its accuracy.
Oilman v. Evans, decided in 1984, twenty years (to the year) after New York Times v. Sullivan, explores—and sets a somewhat pliable “standard”—contrasting “constitutionally protected expressions of “opinion” and “actionable assertions.” The Court’s opinion (no pun intended) concerned a national column authored by Rowland Evans and Robert Novak. One of the pairs’ columns, entitled “The Marxist Professor’s Intentions, criticized Oilman, a well-respected Marxist Professor of Political Science at the University of Maryland. Prior to the column’s release, Oilman earned a nomination as Chair of the Department of Government and Economics. Evans’ and Novak’s column—questioning the nomination—resulted in the nomination’s retraction. Due to the now-lost opportunity, Oilman claimed that his reputation had been harmed.
Like Mr. Sullivan, Mr. Oilman was also an unsuccessful claimant. Here, the Court was presented with a somewhat novel circumstance. The Court’s opinion centered around contrasting “opinion” with “fact.” While the Court noted that there is, “…no constitutional value in false statements of fact,” the Court declined to construct a bright-line rule in determining what constitutes an opinion and what constitutes fact. Rather, the Court applied a “totality of the circumstances” approach—a conglomerate of components that can be applied to distinguish the two. The components include: (1) considering the “common usage” of the defamatory language used; (2) the degree to which the statement can be “verified;” (3) the “context” in which the defamatory statement occurs; (4) the use of “cautionary language;” and (5) the “social context” in which the defamatory statement is situated.
Who is a “Public Figure”?
A Public Figure is an individual that “lives” in the “public eye.” A Public Figure can be a government official, a politician, a celebrity, a businessperson, a movie star, or a sportsman. A simple method in determining who is considered a Public Figure is measuring the individual’s general notoriety. For example, Joe Biden, George W. Bush, Paris Hilton, Bill Gates, Meryl Streep, and Tony Romo are all considered “Public Figures.” How can you tell? Well, the odds are that you have heard about at least one—if not all—of these individuals to some extent. It would be reasonable to assume that those individuals consistently publicized or are “trending” via TV, internet, or in print, would be considered a Public Figure. So, who isn’t a Public Figure? Your pastor who rallies the community against gay marriage, your local newscaster, and the guy you went to high school with who’s still trying to “make it” as a rapper.
What is “Defamation”?
“Defamation” can be explained as a statement which harms a third-party’s reputation. Defamation is considered a “tort”—a civil wrong—and can be either written or spoken. Written defamation is known as “libel” whereas spoken defamation is known as “slander.”
Is it Defamation if its True?
Put simply, a statement that is true (and based in fact) is not considered defamation—even if the statement will hurt—or does hurt—the third party’s reputation. Indeed, the “truth” of a statement is commonly a “complete defense” to defamation. However, what is true—and “factual”—and what is merely a matter of opinion can be murky, as acknowledged in Oilman v. Evans. This is where the “totality of the circumstances” element-test comes in.
In Fact, it’s a Matter of Opinion…
The loose “Fact versus Opinion Standard” laid out in Oilman v. Evans is complicated at best. It is so complicated that many Courts ignore it altogether. You should know that this approach has been strongly criticized by legal scholars and the Courts alike. However, let’s delve into the nitty gritty and look at what these components really mean:
“Common Language”
Here, the Court is ultimately looking at whether the alleged defamatory statement has a “precise meaning.” Supposedly, if a term has a precise meaning, then it can create a “clear implication.” This is based on societal norms. For example, think about criminal allegation. Most people would understand a criminal allegation as creating serious and damaging implications. Contrast an article alleging that Kanye West committed tax fraud (which was not independently verified), with an article alleging that Kanye West is a loser. An allegation of tax fraud has one, clear meaning, whereas the term “loser” could ostensibly have more than one meaning.
“Verification”
If a statement cannot be verified as true, it is probably an opinion—and there can be no such thing as an untrue opinion.
“Context” and “Cautionary Language”
The Court in Oilman recognized that, to understand whether an alleged defamatory statement is indeed defamatory, it must be viewed in conjunction with the entire statement, article, etc. This consideration isn’t clear cut. What appears to be a truthful opinion, could easily be untrue provided what the remainder of the statement coveys. This ties into the “cautionary language” aspect. For example, if the article starts with, “In my opinion…,” it is probably an opinion.
“Social Context”
This is another problematic consideration and will be highly dependent on the surrounding circumstances. The setting in which the statement is given. For example, think about Steven Crowder (the “Change My Mind Guy”). He is no “expert,” and intentionally puts himself in a position to invite debate. Would you consider anything that he said as 100% accurate and reliable? Probably not. The discussion he intends to cite is appropriately based on opinion. Or, what about The View? This controversial show starring talk-show personalities like Joy Behar and Whoopi Goldberg necessarily invites opinion. Contrast these examples with our current Press Secretary, Jen Psaki. At a press briefing, you would automatically assume that what she reports is based on reliable, accurate knowledge not based on mere opinion.
What’s the First Amendment got to do with it?
As you may know, the First Amendment to the U.S. Constitution protects—among other things— “free speech.” However, if you have done any research on the First Amendment, you may have realized that “free speech” doesn’t mean you are free to say anything you want. Indeed, the Government can regulate the time, place, and manner of speech. New York Times v. Sullivan, Oilman v. Evans, and Palin v. The New York Times Co. embody the principle that speech can—and should—be regulated. Ultimately, the Court’s goal in the above-discussed opinions is to balance the need to protect one’s reputation with the freedoms guaranteed by the Constitution—and as you can see, it is no easy feat.
