Libel

Peter Parker: Spider-Man wasn’t trying to attack
the city, he was trying to save it. That’s slander.

J. Jonah Jameson: It is not. I resent that.
Slander is spoken. In print, it’s libel.

— “Spider-Man,” 2002

John Peter Zenger was in trouble. Publisher of the New York Weekly Journal, a paper politically opposed to the colonial government, he had printed articles accusing the governor of threatening the “liberties and properties” of the people. The governor responded by charging Zenger with seditious libel and ordering the Journal “burned by the hands of the common hangman.” Fortunately, the publisher had friends in high places, and his one-man legal dream team, Andrew Hamilton, helped him beat the charges. In the process, the two established for the first time in the New World that the truth could be a defense against a libel claim.

Today, we take it for granted that a libelous statement is untrue, but under British common law it merely meant any statement that might harm the reputation of a member of the upper class. Seditious libel, which Zenger was charged with, was reserved for statements that might undermine the reputation of a political official. In practice, that meant that most criticism of the government brought a risk of jail time or fines. Of course, the First Amendment and other constitutional guarantees made sedition claims harder to prosecute in the United States, but libel is civil law, not criminal. You could say what you wanted, but you still might get sued, especially if you got the facts wrong.

In 1964, the tide began to turn. It was the height of the Civil Rights struggle, with angry mobs and demagogic Southern politicians squaring off against peaceful protesters and black ministers like the Rev. Martin Luther King, Jr. Hoping to bring the nation’s attention to police abuses in their area, a group of Alabama clergymen paid for an advertisement in The New York Times. In the ad, they made a few mistakes — at one point saying that a group of college protesters refused to register for class, singing the “My Country ‘Tis of Thee.” (In fact, they boycotted one day’s classes and sang “The Star-Spangled Banner,” a much more difficult tune.) A county commissioner, who was not named in the ad, sued, claiming he was defamed by the misrepresentations since he oversaw the sheriff’s department. The case went before the Supreme Court.

In New York Times v. Sullivan, the court sided with the clergymen, arguing that “robust free speech” means that citizens have the right to get the facts wrong sometimes. From then on, public officials suing for libel would have to prove “actual malice” — knowledge that the statement was false and a decision to print it anyway. This fundamentally changed the calculus of libel; the burden of proof from then on would be on the plaintiff, not the reporter.

In later cases, the court extended the “actual malice” test to public figures — unelected citizens who have thrust themselves in the public eye — but not to private individuals, whose rights vary depending on the state. (In North Carolina, private citizens only have to prove “negligence” — the failure to take the same care for accuracy that a “reasonable person would use under reasonable circumstances.”) Other rulings have created the category of limited public figures, people who could be considered notable on just one issue. On that topic, they would have to prove actual malice, but in other aspects of their life, they would only have to prove negligence.

To understand the difference, think of a tobacco farmer from Wendell. If untrue defamatory statements about him were published, he could sue for libel. As a private individual in North Carolina, he would only have to prove negligence to win. If he began publicly advocating for relief for tobacco farmers, appearing in the legislature and in various media to promote his cause, he would be considered a limited public figure, so long as the libelous report was about his lobbying or the tobacco issue, and not, say, a messy divorce. If he began starring in Hollywood movies, he would be considered a public figure, and if he were elected governor, he would be considered a public official. In both cases, he would have to prove actual malice on any libel claim.

A successful libel case must prove the material was: 1) published, 2) of and concerning the plaintiff, 3) defamatory, and 4) false; and 5) the defendant is at fault. Some thoughts: 1) To be considered “published,” an article need only have been seen by one person, so swift changes will not necessarily protect you. 2) One reason that newspapers include full name, age, city of residence and occupation is that it narrows your liability. There may be more than one “Jeff Smith,” but chances are there’s only one “Jefferson T. Smith, 39, a Zebulon plumber.” 3) In North Carolina, defamatory statements include accusing someone of “an infamous crime,” charging that they have an infectious disease, impeaching their trade or profession and writing anything that “tends to subject one to ridicule, contempt or disgrace.” 4) The Supreme Court has said that in most cases you need only prove that a story was “substantially true.” 5) Determining fault is where the “actual malice” and “negligence” standards come into play.

There are a few cases where libel suits are still not valid, even if they meet the five standards listed above. You cannot libel the dead. You are mostly safe writing about groups, as long as you don’t say that every member of the group is guilty of something, or even that most are. You are also on safe ground when writing about limited public figures who have since faded into obscurity, as long as you are writing about the issues for which they were famous. You can repeat anything a politician says about someone in a public meeting, but you would be held liable if it was said afterward in a private interview. You can write hyperbole or obviously untrue statements in an opinion column, as long as you don’t imply that you know something that you’re not including. And finally, printing a retraction will lessen the damages you have to pay if the plaintiff wins.

Still, like John Peter Zenger, your best defense is to get your facts straight in the first place.

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