Public officials have an uphill battle when seeking to sue media outlets for defamation. The public has a legitimate interest in the workings of government and reporters have the right and privilege to communicate information about the actions of public officials so that the government can be held accountable. Consequently, the law has evolved to make it difficult for public officials to sue media organizations for libel, even if a news story about them contains inaccuracies. Specifically, public officials can’t prevail in a defamation action based on their official conduct unless they can prove, with clear and convincing evidence, that the false story was published about them with actual malice, generally defined as knowledge of falsity (or, at a minimum, reckless disregard of the truth). Private individuals, by contrast, generally are not required to meet this standard. The high bar for public figures is designed to strike a balance between the private right against unfair attacks on one’s reputation and the First Amendment right of writers and publishers to share information on matters of public interest and concern. A recent decision of the Eastern District of Virginia shows how difficult it can be for public officials to meet their burden of proof.
The case of Joseph E. Preston v. City Council of the City of Petersburg involved a dispute between the City of Petersburg and its former City Attorney, Joseph Preston. The basic facts, according to the summary-judgment opinion, are as follows. Preston was the City Attorney from October 2016 to September 2018. On September 4, 2018, while Preston was on vacation, the City Council held a special meeting in his absence and passed two motions. One motion terminated Preston’s employment, effective immediately. The second motion stated that Preston would be allowed back into City Hall to retrieve his personal belongings “only by appointment and only if accompanied by a police officer.” The reasons for the firing and the restrictions on Preston’s ability to enter City Hall are not clear.
Thirty minutes after the special meeting ended, the City Manager texted a WTVR reporter, saying “They just fired Joe.” The reporter responded with, “Wow. Good for them. Thx for letting me know Is he even there?” The City Manager replied, “Nope Immediately and to only be allowed back to pack under supervision.”
WTVR thereafter sent a reporter to cover a subsequent public meeting of the City Council. The reporter observed that Preston was not at the meeting. He spoke to at least one person there who confirmed that the Council had passed a resolution or motion saying that Preston “cannot come back without an escort.” Putting two and two together (or so he thought), the reporter assumed that Preston had been at the public meeting earlier, but had been escorted out. WTVR’s 11:00 pm news segment reported as follows:
And breaking news out of Petersburg. That’s where City Council members have unanimously voted … to dismiss City Attorney Joseph Preston – two years after he was hired. He was escorted out of tonight’s regularly scheduled meeting. Council also voted unanimously to make sure Preston is escorted by police anytime he steps into City Hall. The reason for his dismissal is unclear.
Preston had not, in fact, been escorted out of that meeting. He was never there to begin with. Preston did not appreciate the implications of the false statement, so he sued WTVR (and others) for defamation.
This case raises a lot of interesting issues from a defamation-law standpoint. For example, even if the statement about getting escorted from a meeting was false, would such a statement even carry defamatory meaning? Would it have a sufficient degree of sting to be considered actionable? Does the statement reflect more on Preston or on the Councilmembers who supposedly requested the escort? If the statement does not communicate defamatory factual assertions expressly, does it imply them? (Preston, for his part, argued that the motion requiring him to have a police escort implied, among other things, that he “is mentally unstable, would become violent upon learning of his termination,” and that he “would commit violent, felonious, or criminal acts in response to the termination of his employment.”) Was WTVR protected by the fair report privilege that immunizes fair and substantially correct reporting on the actions of government? And what about the substantial truth doctrine? After all, even though he wasn’t escorted out of that particular meeting, he was required to have an escort should he return to the building.
In the end, none of these issues mattered. The court recognized that sting and substantial truth were issues it might otherwise have to address, but the court found it unnecessary to reach them in light of the court’s determination that Preston was a public figure and was unable to produce sufficient evidence of malice to survive summary judgment.
Preston opposed WTVR’s motion for summary judgment primarily on three grounds: (1) that because he had been fired, he was no longer a public official and therefore did not need to prove malice; (2) alternatively, even if he were still a public official, he still did not need to prove malice because the report about him was not related to his official duties; and (3) even if the court disagreed with him on the first two points, a reasonable jury could find evidence of malice on these facts. “Preston is mistaken on all three points,” said the court.
First, it didn’t matter that Preston was no longer a public official at the time the news report aired, as his conduct was still the subject of legitimate public interest:
The concept of “public figure” or “public official” is defined by constitutional protections for free speech not state-law definitions developed for “local administrative purposes.” Rosenblatt v. Baer, 383 U.S. 75, 84 (1966). And, for the purposes of protecting the public’s right to criticize the government, including former officials, the fact that an individual left a position as a public official before the defamatory statement in question was made has no “decisional significance” if the performance of the former official’s duties is still a matter of public concern. Rosenblatt v. Baer, 383 U.S. 75, 87, n.14 (1966).
Second, the court found that the statement at issue did relate to Preston’s official duties, considering how broadly courts have interpreted this requirement. Citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971), the court wrote that “Anything which might touch on an official’s fitness for office can constitute official conduct.”
Finally, the court rejected Preston’s argument that he had produced sufficient evidence of malice to create a jury issue. Reckless disregard of truth generally requires evidence of bad faith publication, such as where a story is completely fabricated, where a story is so inherently improbable that only a reckless publisher would have put out the story, or where there are obvious reasons to doubt the veracity of the source. (See Amant v. Thompson, 390 U.S. 727, 732 (1968)). Mere failure to investigate is insufficient to establish actual malice. Here, Preston pointed to a text message that seemed to communicate to WTVR that Preston was not at the meeting from which he was supposedly escorted, but the text exchange was ambiguous as it was also consistent with an interpretation that he had been at the meeting prior to being escorted out. “Where a news outlet adopts one of multiple reasonable interpretations of a source’s statement, no reasonable jury could find that the news outlet acted with ‘actual malice.,” the court wrote (citing CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 296 (4th Cir. 2008)).
Finding no evidence of bad faith to support a claim of actual malice, the court granted WTVR’s motion for summary judgment and dismissed Preston’s defamation claim against it.