A pair of lawsuits highlight libel law’s complexity

One of my first editors used to joke that you haven’t really lived as a journalist until you’ve been threatened with a libel lawsuit. He wasn’t being cavalier about the duty to report accurately—he was just lamenting the pervasiveness of the threat.

For various reasons, threats usually don’t become lawsuits. But last week featured some news and developments in notable cases involving Rolling Stone, The New York Times, and the Charleston City Paper.

Here are the CliffsNotes versions:

  • A dean at the University of Virginia filed a libel suit against Rolling Stone, alleging that its now-retracted story on an alleged fraternity gang rape falsely portrayed the dean as indifferent to campus sexual assault.
  • A federal judge threw out a libel suit against The New York Times filed by a Loyola University New Orleans professor, who alleged that the paper falsely portrayed him as racist.
  • A high school football player filed a libel suit against the alt-weekly Charleston City Paper, alleging that it published statements falsely portraying his team’s post-game rituals as racist.

I won’t use any space here to dissect the Rolling Stone case—the magazine’s liability has been well analyzed here, here, and here—but the Times and City Paper cases are worthy of attention. They have some key themes in common, and they raise interesting legal issues. Let’s take each one separately …

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Suit tossed under anti-SLAPP law

In the Times case, the paper published a story in January 2014 examining the political philosophy of Sen. Rand Paul (R-KY). It reported that Walter Block, an economics professor at Loyola, was “highly critical of the Civil Rights Act” and that he said slavery was “not so bad.” The story also reported that Block believed businesses like Woolworth’s were within their rights, historically, to exclude blacks.

Block sued the Times for libel, claiming “the quotations [were] taken out of context to give the impression that [Block] is a racist, a supporter of slavery, and/or against the Civil Rights Act … solely because of racial prejudices,” according to the judge’s order.

In response, the Times filed a motion to dismiss the suit and recover court fees under Louisiana’s anti-SLAPP law, which is intended to protect free speech and allow courts to weed out frivolous claims.

Under the anti-SLAPP law, defendants can get a libel suit tossed if the case involves an exercise of the freedom to speak on a public issue, and if the plaintiff fails to “demonstrate a probability of success on his or her own claim.”

The story obviously was an exercise of the paper’s freedom to speak, and the court quickly concluded it concerned a public issue: It featured a senator and presidential candidate, and it analyzed the nature of libertarian ideology, using Block as an example.

Next, with the burden on Block, the court said he failed to prove he’d likely win, ruling that the story’s content was neither false nor defamatory. First, Block did make the statements attributed to him. Second, taken as a whole, the article “does not rationally lead to an impression that Professor Block is racist”—it portrays him instead, the court said, “as an economist who supports limited government.”

For those reasons, the judge dismissed the suit against the Times.

Why libel cases can be hard to predict

In the City Paper case, as the local daily The Post and Courier reported last week, a football player at Academic Magnet High School in North Charleston, SC, filed a libel suit against the City Paper and a “diversity consultant” for the school district. The move follows four similar suits initiated by other players or parents who say they were defamed by school officials and by media characterizations of the football team’s postgame victory ritual.

In this case the player, identified in the complaint only by his initials, alleges that a school diversity consultant “falsely published to others that the football team made animal sounds and drew a monkey face on [a] watermelon” during postgame celebrations. The complaint alleges that the consultant’s statements—and the City Paper’s related coverage—falsely portrayed the team as racist. It also alleges that a school investigation revealed “no evidence of any racial” motivation for the ritual.

In response to the earlier suits, the City Paper has argued that the claims should be dismissed because its coverage simply restated what the consultant and school officials said—and that otherwise the coverage amounted to opinion protected by the First Amendment. (South Carolina has no anti-SLAPP statute, and even if it did, it might not apply on these facts.)

My quick take: Generally, news outlets are liable for republishing defamatory statements made by others. The fact that a source made the statement is not a defense. This is called the “republication rule.”

However, there are exceptions. One is the “fair report privilege,” which allows news outlets to repeat statements made by public officials without being liable for their content. The privilege applies if the news outlet fairly and accurately describes the content, and properly attributes the statement to the source.

South Carolina recognizes the “fair report privilege,” and City Paper’s lawyers cite it in their motion. But, while the publication argues that the privilege extends to “information provided informally by authorized public officials to the press,” traditionally it has been understood to apply only to statements in court, at hearings, during legislative sessions, or in official government reports. Whether the court here adopts a more expansive understanding bears watching.

Another exception is “neutral reportage,” which is the principle that if a prominent person makes a claim on a matter of public interest about another prominent person, there’s value in knowing what was said, regardless of whether it was true or defamatory.

It’s not a widely adopted principle, but South Carolina is one of a few states that recognizes “neutral reportage.” Still, it would probably not work as a defense here—and the City Paper’s motion doesn’t cite it—because it would be hard to argue that the subjects of the statement, high school athletes, were sufficiently prominent.

Which leads us to the issue of opinion. A libel claim must be based on a factual assertion as opposed to an opinion or hyperbole, which are usually granted First Amendment protection. The paper’s lawyers argue that any claims in its reporting not covered by the “fair report” privilege are constitutionally protected statements of opinion. (From the motion: “The only thing that distinguishes [City Paper] from the other media that reported on this matter is the strong editorial position taken in the City Paper’s op-ed.”)

I won’t even hazard a guess how that argument will fare: Fact-opinion analysis is highly dependent on both the case’s facts and the context of the statements in question, which makes it difficult to predict how any court will rule.

That underscores something these cases have in common, other than their racial overtones: libel law’s complexity. It’s a state creature, so it varies from place to place—and with complexity comes cost. A libel suit is expensive to bring and expensive to defend. And difficult to predict, too, because the analysis is so fact-dependent. Plus, in some places, like South Carolina, libel law is messier than it needs to be.

Consider these comments from Jean Toal, now the chief justice of the Supreme Court of South Carolina, who wrote in 1998, as an associate justice, that the state’s libel law was “mindnumbingly incoherent.” The absence of a clear analytical framework, she said, made difficult the resolution of libel disputes, which “often turn on chance, on whatever aspect of defamation law happens to arrest the parties’ or court’s attention in that case.”

If City Paper does not succeed in getting these suits dismissed before they proceed to trial, we may find out which aspect of this case is most arresting.

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.