Welcome

Pittsfield Gazette.

March 4, 2010

Sherriff Massimiano recently ran an ad in the Eagle stating that he "intends to seek legal remedy against the Eagle" for a story they ran about the allegations of sexual abuse that occurred in the 70's which the Eagle should not have repeated by a James Monahan. Because the Sherriff is a public figure, under Times v. Sullivan, he will have to show the Eagle acted with "actual malice." Actual malice is a legal term of art and does not mean literal hatred or spite. "Actual malice" means the Sherriff must prove the Eagle acted "with knowledge that it was false or with reckless disregard of whether it was false or not."

"Actual malice" is more than the mere negligence needed in a libel suit involving a private person. Actual malice is something beyond mere neglect in following professional standards of fact checking. The fact that journalistic standards were not met, or that a reasonably prudent person would have investigated further, is not sufficient. Cases after Times v. Sullivan have established that a finding of "reckless disregard" requires proof, not of mere negligence, but that the author in fact entertained serious doubts as to the truth of his publication.

Evidence levels are also high. A reckless disregard of the truth will have to be shown by "clear and convincing evidence." A mere "preponderance of evidence," the usual burden in a civil suit, means it is only slightly more likely the Eagle acted with actual malice than did not. "Clear and convincing evidence," while incapable of being defined with metronomic precision, means it is substantially more likely the Eagle acted with actual malice than it did not.

For a libel defendant to enjoy the higher protection of having the plaintiff prove "actual malice" as opposed to just negligence, a defendant's speech must relate to a public official's official conduct or qualifications for office. However, a charge of criminal conduct against an official, no matter how remote in time or place, is always relevant to his fitness for office for purposes of applying the New York Times rule of knowing falsehood or reckless disregard of the truth. When a reporter is aware of an allegation's probable inaccuracy, however, a deliberate intent to avoid the truth may be adequate to establish actual malice. Reckless disregard has been defined as publishing with a high degree of awareness of probable falsity.

It is not readily obvious that if the Eagle accurately quoted James Monahan, and it did not state whether they believe the allegations to be true or not, they may still be held liable for slander. One may still be held accountable in libel for an accurate quote. According to the Restatement of Torts, one who repeats a slanderous statement originally made by a third person is subject to liability to the person defamed as though he had himself originated the statement. This is true although the speaker accompanies the slander with a statement that it is a rumor only, or designates the name of the person making the original statement. This "republication rule" is applicable to a newspaper like the Eagle who republishes in printed form matter originally published by word of mouth such as by Mr. Monahan. The customary newspaper evasion "it is alleged" does nothing to limit liability. In fact, the republication rule is still applicable even though the republisher expressly states that he does not believe the statement that he repeats to be true. In other words, "talebearers are as bad as talemakers."