Public Official Suing Local Paper Will Need to Prove Malice

When local politicians sue media defendants over false and defamatory stories related to their official conduct, they need to show that the article in question was published with actual malice. That means that it’s not enough to show negligent reporting or that some of the facts in the article are untrue; a successful public official bringing a defamation claim against a newspaper must show that the paper either knew the facts were wrong or that they were most likely wrong, and proceeded to publish them anyway.

In Hanover County, Virginia, Supervisor Sean M. Davis is taking a crack at the publisher of Style Weekly and its reporter, Peter Galuszka, over an article written last December that questioned whether Mr. Davis was exerting improper influence on a local high school’s curriculum. After noting that several books and movies had been banned from Hanover High School, the article described “some students, former teachers and parents” as saying that Supervisor Davis had “personally intervened to have teachers suspended or face other disciplinary actions if they present ideas or images that Davis considers too liberal.” In truth, claims his lawsuit, Davis “had absolutely nothing to do with the suspension or firing of any teacher or the banning of any book.” His challenge is going to be in proving that the reporter republished the accusations against him with knowledge that they were untrue, or at least with a high degree of awareness that the accusations were probably untrue.

One quick observation about the complaint is that it doesn’t clearly identify which statements are claimed to be false. It claims, for example, that the following statement is false: “Also banned are the novel ‘The Color Purple’ and the films ‘In Cold blood’ and ‘Capote’ because they are rated R, students say.” It’s unclear whether Davis is alleging that those titles are not banned, are not rated “R”, or that “students” never said those things.

A second observation is that the article is careful to attribute most of the statements at issue to others and not represent those statements as actual fact. Most of the assertions Davis complains of are attributed to students and parents, not the author of the article. So one issue is going to be whether Style Weekly can deflect responsibility by pointing out that the reporter was merely quoting parents and students and informing the public booksof their subjective concerns, not passing along their concerns as actual facts. Still, most courts do not allow newspapers to escape liability that easily, at least not when libel suits are brought by private individuals who need only demonstrate negligence in reporting (as opposed to malice).

Davis’s main concern appears to be with the suggestion that he was involved with arranging for books to be banned and teachers to be suspended or fired. He argues that the reporter intentionally relied on biased sources with ulterior motives and that he should have known their allegations were false. While it is certainly understandable that Davis would be upset by a one-sided, politically motivated portrayal of his performance of official duties, lack of balance and fairness in reporting is not the legal equivalent of actual malice. (See Time, Inc. v. Pape, 401 U.S. 279 (1971) (holding that where facts are ambiguous, selectively reporting facts that the reporter subjectively believes will ordinarily not establish malice)). The court may not care, for example, if Mr. Galuszka failed to interview “Supervisors, School Board Members, teachers, students, and parents who would have flatly contradicted the negative statements and accusations levelled by the persons quoted in the Style Weekly article,” as alleged in the complaint. Even if that were true, most courts would likely draw a distinction between wilful failure to interview a knowledgeable source with a deliberate misrepresentation of fact, which the malice test requires of public officials.

Still, this doesn’t mean the case is destined for a quick dismissal. The jury will need to decide whether the statements were false and whether the reporter knew them to be false, and the judge might allow “lack of balance” evidence to be considered as indicative of the presence of malice, even if the two concepts are different. If, as Davis alleges, the reporter conducted a negligent investigation of the facts, presenting a “predetermined and intentionally ignorant account” of what happened at the school, a court might find evidence of a desire to actively avoid learning the complete truth. If evidence shows the reporter usually is more thorough in his investigations or that he usually presents more balanced accounts of local school activities, the court might allow the jury to consider these factors as evidence of possible malice. Still, it’s going to be an uphill climb for Mr. Davis.

There’s also an insulting-words claim, but that one is doomed to fail. To accuse someone falsely of trying to remove certain books from a school curriculum and urging the dismissal of teachers who disagreed with him is not the sort of thing one would expect would naturally lead to imminent violence, especially in the context of politics. If the statements are false, they may be defamatory, but they’re not sufficiently insulting to satisfy Virginia’s insulting-words statute in my opinion.

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