Monday, September 17, 2007

Why no actual malice in NYTC v Sullivan

Press practitioners and advocates know already that the significance of the New York Times Co v L.B. Sullivan decision in 1964 established the actual malice doctrine.
Perhaps, the most significant statement by the United States Supreme Court in that decision was:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

This has become widely known as the actual malice doctrine.

The issue in defamation is not so much about determining whether or not the published material was false, but whether the publisher exercised reckless disregard of whether the defamatory published matieral was false or not.

The issue in defamation is determning whether the publisher knew the material to be false, and yet proceeded to publish it.

So how do we know whether the publisher "knew the material to be false"?
So how do we know whether the publisher exercised "reckless disregard" of whether the defamatory mateiral was false or not?

To answer this, one really needs to look at the environmental facts, specially those facts which arose prior, or even contemporaneous to the publication.
Knowing a defamatory material to be false is a state of mind.
How do we know the publisher knew beforehand that the defamatory mateiral was false?

In the Sullivan decision, the U.S. Supreme Court took steps to look at the surrounding facts, before it concluded that the New York Times Company, or its editors, were not in reckless disregard of the truth, and thus did not have actual malice as to hold them liable for defamation.

Let us review the NYTC v Sullivan decision.

The Montgomery police commissioner sued NYTC for publishing falsities in a full paid page ad containing ten paragraphs.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang `My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."
Sixth paragraph:
"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times -- for `speeding,' `loitering' and similar `offenses.' And now they have charged him with `perjury' -- a felony under which they could imprison him for ten years. . . ."

It was cleart that some of the published statements in the ad were false.

The U.S. Supreme Court of course ruled that there was no actual malice on the part of NYTC. And here is what the Supreme Court found out:

"Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of a personal character"; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice."

Note that in this paragraph, the U.S. Supreme Court clearly distinguished between negligence and recklessness.
Negligence is constitutionally protect. Recklessness is not.

(I am forced to draw the case of Eugenio Lopez Jr. v Court of Appeals (1970), a case of journalistic negligence [the case of unintentional photo swapping, remember?].
It did not follow the NYTC v Sullivan ruling, did it?
But that's another insightful discussion.)

1 comment:

Rolly Cavan. said...

Me. Editor,

At issue in the Tagbilaran defamation case, Aumentado v. Ariga. et al, should be: "are defamatory falsehoods regarding public officials protected by constitutional guarantees of freedom of speech and press?"

Unless proven that the statements involved was made with "actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." The constitutional protections do not turn upon the truth,popularity, or social utility of ideas and beliefs which are involved. Rather they are based upon the theory that erroneous statements are inevitable in free speech and press and must be protected if such freedom is to survive. And, only where malice is involved where the protection ceases.

"In St. Amont v. Thompson, the court ruled that recklessness was not to be measured by the reasonable man standard, but rather by the subjective standard of whether or not the defendant in the case subjectively entertained serious doubts about the truth of his statements."(Richardson:1987)

Chances are, that the decision of the Magdaso Court, in Tagbilaran, RTC, could be reversed on appeal.