Articles Posted in Fault

Indiana lawyer Mark K. Phillips has filed a libel and slander action against two media outlets, Nexstar Broadcasting Group and Mission Broadcasting, for mistakenly identifying him as a child molester. In 2011, Mark S. Birge, Phillips’ client, pleaded guilty to child molestation in an Indiana court. When the local news companies reported this story during the next two days, they mistakenly announced instead that Birge’s attorney, Mark Phillips, had been convicted of child molestation and would be sentenced to up to 16 years in prison. The media companies published a correction to the story over a month later, but Phillips filed suit anyway for slander per se, libel per se, and defamation. He seeks more than $1 million in compensatory and punitive damages.

Likely issues will include whether the lawyer is a “public figure” required to prove malice, the extent to which the media outlets are at fault for the mistaken report, and the legal effect of the subsequent correction.

Phillips asserts that the defendants are liable for defamation because they falsely identified him as the child molester knowing the statements to be false. As a result, he claims he “has suffered ridicule, damage to his TV.jpgprofessional and personal reputation within the community and the tri-state area, emotional and physical pain, disgrace, and stress within his marriage and with his family, embarrassment, and loss of opportunity to achieve his potential as a professional.” Phillips suggests that the severity of the impact of these stories on him is a result of the fact that he is an active member of the community. He has coached a Special Olympics basketball team for over 18 years, is a member of multiple legal professional groups and country clubs, and maintains an active legal practice in multiple states.

A federal court in Massachusetts has dismissed a defamation case against Barbara Walters brought by a woman claiming to be the former lesbian lover of Walters’ daughter. In Walters autobiography, Audition: A Memoir, she refers to the woman, Nancy Shay, by first name only in a two-sentence statement. Walters wrote that “Nancy” was kicked out of high school for “bad behavior” after being “found in a nearby town high on God-knows-what” with Walters’ daughter. Shay did not deny being suspended from school but claimed the statements were defamatory because they falsely portrayed her as a user of illicit drugs. The court found the allegations were insufficient to state a claim for defamation and dismissed the case.

In Massachusetts, as in Virginia and every other state, there can be no defamation liability without “fault” on behalf of the defendant. For private plaintiffs (as opposed to public figures), this requires (at a minimum) an allegation that the defendant acted negligently with respect to determining the truth. Moreover, a statement is incapable of defamatory meaning unless it would tend to hold the walters.jpgplaintiff up to scorn, hatred, ridicule or contempt “in the minds of any considerable and respectable segment in the community.” In other words, a statement will not be considered defamatory if only a very small group of persons would view it as derogatory.

In her brief, Shay argued that Walters was at fault for making a false statement as to the reason for her suspension and that the statement damaged her reputation amongst the former faculty and students of the high school from which she was suspended. Alternatively, Shay suggested that, even if the statement that she was expelled for “bad behavior” was true, the allusion to drug use was made maliciously.

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