These defamation cases featured plaintiffs Wally Butts, former athletic director of the University of Georgia, and Edwin Walker, a former Army general who had been in command of the federal troops during the school desegregation event at Little Rock, Ark., in the 1950s.
“Because the Georgia State Athletic Association, a private corporation, employed Butts, and Walker had retired from the armed forces at the time of their lawsuits, they were not considered public officials. The question before the Supreme Court was whether to extend the rule in Times v. Sullivan for public officials to private figures.
Five members of the Court extended the Times v. Sullivan rule in cases involving “public figures.” Justice John Paul Harlan and three other justices would have applied a different standard and asked whether the defamation defendant had committed “… highly unreasonable conduct constituting an extreme departure from the standards investigation and reporting ordinarily adhered to by responsible publishers.”
Of course, this standard is no standard at all because it is based on a moving target – the professionalism of journalists, editors and publishers in the highly competitive – some say cut-throat – business of reporting news in a timely and entertaining fashion in order to sell their product and make a profit.
Notable cases of journalistic fraud included noted journalists such as Jason Blair, Jack Kelley, George Baghdadi, Mike Barnicle, Paul Bradley, Janet Cooke, Emily Davies, Mike Finkel, Steven Glass and Diana Gregg Erwin who have all had works published in prominent publications that contained absolute falsehoods or fabrications. Some even won awards for their “professionalism”. I could go on. Look them up.
“The Supreme Court clarified the limits of the “actual malice” standard and the difference between public and private figures in the defamation case of Gertz v. Robert Welch, Inc. (1974). The case involved a well-known Chicago lawyer named Elmer Gertz, who represented the family of a young man killed by police officer Richard Nuccio. Gertz took no part in Nuccio’s criminal case, in which the officer was found guilty of second-degree murder.
Robert Welch Inc. published a monthly magazine, American Opinion, which served as an outlet for the views of the conservative John Birch Society. The magazine warned of a nationwide conspiracy of communist sympathizers to frame police officers. The magazine contained an article saying that Gertz had helped frame Nuccio. The article said Gertz was a communist. The article contained several factual misstatements. Gertz did not participate in any way to frame Nuccio. Rather, he was not involved in the criminal case. He also was not a communist.
Gertz sued for defamation. The court had to determine what standard to apply for private persons and so-called limited-purpose public figures. Then, the Court had to determine whether Elmer Gertz was a private person or some sort of public figure. The news-media defendant argued that the Times v. Sullivan standard should apply to any defamation plaintiff as long as the published statements related to a matter of public importance. Justice Brennan had taken this position in his plurality opinion in the 1971 case Rosenbloom v. Metromedia.
The high court disagreed, finding a distinction between public figures and private persons. The Court noted two differences: (1) Public officials and public figures have greater access to the media in order to counter defamatory statements; and (2) public officials and public figures to a certain extent seek out public acclaim and assume the risk of greater public scrutiny. [I assume the Court wistfully contemplated a free and unbiased national media in their opinion.]
For these reasons, the Gertz Court set up a different standard for private persons: “We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” [Wow! The High Court finally recognized that the States can handle (a least some crumb) of sovereignty.]
This standard means that a private person does not have to show that a defendant acted with actual malice in order to prevail in a defamation suit. The private plaintiff usually must show simply that the defendant was negligent, or at fault. However, the Supreme Court also ruled that private defamation plaintiffs could not recover punitive damages unless they showed evidence of actual malice.
In its opinion, the high court also determined that certain persons could be classified as limited-purpose public figures with respect to a certain controversy. The Court noted that full-fledged public figures achieve “pervasive fame or notoriety.” However, the court noted that sometimes an individual “injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” These limited-purpose public figures also have to meet the actual-malice standard.
The high court then addressed the status of Gertz. The high court determined that he was a private person, not a limited-purpose public figure. “He took no part in the criminal prosecution of Officer Nuccio,” the court wrote. “Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so.”
These cases show that perhaps the most important legal issue in a defamation case is determining the status of the plaintiff. If the plaintiff is a public official, public figure or limited-purpose public figure, the plaintiff must establish that the defendant acted with actual malice with clear and convincing evidence.
If the plaintiff is merely a private person, the plaintiff must usually only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice.
The most egregious case of defamation occurred to Alaska’s sitting Republican Senator Ted Stevens and was committed by the government of the United States. As summarized by popular liberal icon, Lanny Davis:
“On July 29, 2008, Stevens was indicted by a federal grand jury on seven counts of failing to properly report gifts, a felony, and found guilty at trial three months later (October 27, 2008). The charges relate to renovations to his home and alleged gifts from VECO Corporation, claimed to be worth more than $250,000. The indictment followed a lengthy investigation by the Federal Bureau of Investigation (FBI) and the Internal Revenue Service (IRS) for possible corruption by Alaskan politicians and was based on Stevens’s relationship with one Bill Allen.
Allen, then an oil service company executive, had earlier pleaded guilty—with sentencing suspended pending his cooperation in gathering evidence and giving testimony in other trials—to bribing several Alaskan state legislators, including a disputed claim about Stevens’s son, former State Senator Ben Stevens. Stevens declared, “I’m innocent,” and pleaded not guilty to the charges in a federal district court on July 31, 2008. Stevens asserted his right to a speedy trial so that he could have the opportunity to clear his name promptly and requested that the trial be held before the 2008 election.
US District Court Judge in Washington, DC, Emmet G. Sullivan, on October 2, 2008, denied the mistrial petition of Stevens’s chief counsel, Brendan, due to allegations of withholding evidence by prosecutors. Thus, the latter were admonished, and would submit themselves for internal probe by the US Department of Justice. (Brady v. Maryland requires prosecutors to give a defendant any material exculpatory evidence. Judge Sullivan had earlier admonished the prosecution for sending home to Alaska a witness who might have helped the defense.)
The case was prosecuted by Principal Deputy Chief Brenda K. Morris, Trial Attorneys Nicholas A. Marsh and Edward P. Sullivan of the Criminal Division’s Public Integrity Section, headed by Chief William M. Welch II; and Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke from the District of Alaska.
On October 27, 2008, Stevens was found guilty of all seven counts of making false statements. Stevens was only the fifth sitting senator to be convicted by a jury in U.S. history, and the first since Senator Harrison A. Williams (D-NJ) in 1981 (although Senator David Durenberger (R-MN) plead guilty to a felony more recently, in 1995). Stevens faced a maximum penalty of five years per charge. His sentencing hearing was originally arranged February 25, but his attorneys told Judge Emmet Sullivan they would file applications to dispute the verdict by early December. However, it was thought unlikely that he would have seen significant time in prison.
Within a few days of his conviction, Stevens faced bipartisan calls for his resignation. Both parties’ presidential candidates, Barack Obama and John McCain, were quick to call for Stevens to stand down. Obama said that Stevens needed to resign to help “put an end to the corruption and influence-peddling in Washington.” McCain said that Stevens “has broken his trust with the people” and needed to step down—a call echoed by his running mate, Sarah Palin, governor of Stevens’s home state. Senate Minority Leader Mitch McConnell, as well as fellow Republican Senators Norm Coleman, John Sununu and Gorden Smith also called for Stevens to resign. McConnell said there would be “zero tolerance” for a convicted felon serving in the Senate—strongly hinting that he would support Stevens’s expulsion from the Senate unless Stevens resigned first.
Late on November 1, Senate Majority Leader Harry Reid confirmed that he would schedule a vote on Stevens’s expulsion, saying that “a convicted felon is not going to be able to serve in the United States Senate.” Had Stevens been expelled after winning election, a special election would have been held to fill the seat through the remainder of the term, until 2014. Some speculated Palin would have tried to run for the Senate via this special election. No sitting Senator has been expelled since the Civil War.
Nonetheless, during a debate with his opponent Mark Begich days after his conviction, Stevens continued to claim innocence. “I have not been convicted. I have a case pending against me, and probably the worst case of prosecutorial misconduct by the prosecutors that is known.” Stevens also cited plans to appeal. Begich went on to defeat Stevens by 3,724 votes.
On November 13, Republican Senator Jim DeMint of South Carolina announced he would move to have Stevens expelled from the Senate Republican Conference (caucus) regardless of the results of the election. (Absentee, provisional, and early ballots were, at the time, still being tallied in the close election.) Losing his caucus membership would cost Stevens his committee assignments. However, DeMint later decided to postpone offering his motion, saying that while there were enough votes to throw Stevens out, it would be a moot point if Stevens lost his reelection bid. Stevens ended up losing the Senate race, and on November 20, 2008, gave his last speech to the Senate, which was met with a rare Senate standing ovation.
In February 2009, FBI agent Chad Joy filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that could have resulted in a verdict of “not guilty” in Stevens’ case. In his affidavit, Joy alleged that prosecutors intentionally sent a key witness back to Alaska after the witness performed poorly during a mock cross examination.
The witness, Rocky Williams, later notified the defense attorneys that his testimony would undercut the prosecution’s claim that his company had spent its own money renovating Sen. Stevens’s house. Joy further alleged that the prosecutors intentionally withheld Brady material including redacted prior statements of a witness, and a memo from Bill Allen stating that Sen. Stevens probably would have paid for the goods and services if asked. Joy further alleged that a female FBI agent had an inappropriate relationship with Allen, who also gave gifts to FBI agents and helped one agent’s relative get a job.
As a result of Joy’s affidavit and claims by the defense that prosecutorial misconduct caused an unfair trial, Judge Sullivan ordered a hearing to be held on February 13, 2009, to determine whether a new trial should be ordered. At the February 13 hearing the judge held the prosecutors in contempt for failing to deliver documents to Stevens’s legal counsel. Judge Sullivan called this conduct “outrageous.”
On behalf of Obama U.S. Attorney General and Democrat partisan Eric Holder, Paul O’Brien submitted a “Motion of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice” in connection with case No. 08-231 early on April 1, 2009. Federal judge Emmet G. Sullivan soon signed the order, and since it occurred prior to sentencing it had the effect of vacating Stevens’s conviction.
During the trial, Sullivan expressed concern and anger regarding prosecutorial conduct and related issues. Holder, who had taken office only three months earlier, was reportedly very angry at the prosecutors’ apparent withholding of exculpatory evidence and wanted to send a message that prosecutorial misconduct would not be tolerated under his watch. After Sullivan held the prosecutors in contempt, Holder replaced the entire trial team, including top officials in the public integrity section. It should be noted that, even though Holder’s decision was the right one, the prosecutors were Republican appointees.
The final straw for Holder, according to numerous reports, was the discovery of a previously undocumented interview with Bill Allen, the prosecution’s star witness, that raised the possibility prosecutors had knowingly allowed Allen to perjure himself on the stand. Allen stated that the fair market value of the repairs to Stevens’s house was around $80,000—far less than the $250,000 he said it cost at trial.
More seriously, Allen said in the interview that he didn’t recall talking to Bob Persons, a friend of Stevens, regarding the repair bill for Stevens’s house. This directly contradicted Allen’s testimony at trial, in which he claimed Stevens asked him to give Persons a note Stevens sent him asking for a bill on the repair work. At trial, Allen said Persons had told him the note shouldn’t be taken seriously because “Ted’s just covering his ass.” Even without the notes, Stevens’s attorneys claimed that they thought Allen was lying about the conversation.
Later that day, Stevens’s attorney, Brendan Sullivan, said that Holder’s decision was forced by “extraordinary evidence of government corruption.” He also claimed that prosecutors not only withheld evidence, but “created false testimony that they gave us and actually presented false testimony in the courtroom”—two incidents that would have made it very likely that the convictions would have been overturned on appeal.
On April 7, 2009 federal judge Sullivan formally accepted Holder’s motion to set aside the verdict and throw out the indictment, declaring “There was never a judgment of conviction in this case. The jury’s verdict is being set aside and has no legal effect,” and calling it the worst case of prosecutorial misconduct he’d ever seen. He also initiated a criminal contempt investigation of six members of the prosecution. Although an internal probe by the Office of Professional Responsibility was already underway, Sullivan said he was not willing to trust it due to the “shocking and disturbing” nature of the misconduct.
In 2012, the Special Counsel report on the case was released. It said, “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”
The fairness, quality and accuracy of the Special Prosecutor’s Report has been called into question, however, including the Special Prosecutor’s opinion that the exculpatory material allegedly withheld would not have made much of a difference in the outcome of the trial, and whether the material was deliberately concealed.
Upon the release of the Special Counsel report, the Stevens defense team released an analysis of its own which stated, “The meticulous detail paints a picture of the government’s shocking conduct in which prosecutors repeatedly ignored the law. The Report shows how prosecutors abandoned their oath of office and the ethical standards of their profession. They abandoned all decency and sound judgment when they indicted and prosecuted an 84-year old man who served his country in World War II combat, and who served with distinction for 40 years in the U.S. Senate.”
Most people assume, or have concluded, that Sen. Ted Stevens is guilty. After all, didn’t a D.C. grand jury indict Mr. Stevens on seven felony counts? Haven’t the U.S. government and its federal prosecutors concluded that Mr. Stevens failed to disclose taking more than $250,000 worth of gifts on his Senate financial disclosure forms?
But just suppose all these media stories began with the following paragraph:
“Sen. Ted Stevens, who must be presumed to be an innocent man until he is proven guilty by the U.S. government beyond a reasonable doubt, today was indicted on charges of filing false statements in Senate financial disclosure forms. As is normal, the grand jury voted the indictment based on one-sided evidence presented by prosecutors, without Sen. Stevens or his attorneys having an opportunity to be present, to cross-examine witnesses, or to present contrary evidence that could have created a reasonable doubt regarding his guilt.”
Of course the media hype and page one, above-the-fold headlines about these charges lead to the public impression that Senator Stevens must be guilty of, well, something. Most media people and government prosecutors would probably say such a lead would be naive and ridiculous. What they couldn’t say is that a single word of the above paragraph is untrue.
Actually, the “presumption of innocence” appears nowhere in the U.S. Constitution. In 1895, the U.S. Supreme Court in Coffin v. U.S. held that such a presumption must be inferred from the 5th, 6th, and 14th amendments and guilt must be proven beyond a reasonable doubt. Here are a few examples to remember in case anyone forgets the importance of this presumption:
Remember the three Duke lacrosse team players indicted on rape charges in the spring of 2006 by Durham County District Attorney Mike Nifong? There was show host Nancy Grace on CNN proclaiming guilt before trial when she said, “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”
But then in 2007 came the findings of the North Carolina attorney general, who completely exonerated the indicted players and caused all charges to be dropped, accusing the since retired and disbarred Mr. Nifong of a “tragic rush to accuse.”
Remember Richard Jewell? During the 1996 Atlanta Olympics, he was publicly accused by the media in the Centennial Park bombing after having been lauded as a hero for having helped evacuate the park. The Atlanta Journal Constitution, citing anonymous law-enforcement officials, reported that he fit an FBI profile of a lone bomber and that the U.S. government was investigating him on that basis. He faced 24/7 media stakeouts in front of his home and news coverage every day that assumed his guilt. He was never even indicted.
Then, in April 2005, Eric Robert Rudolph plead guilty to planting the bomb and Mr. Jewell was completely exonerated. But not before his life was ruined and his heart broken long before he died, of diabetes and kidney failure at the age of 44.
Then there is Steven J. Hatfill, a former scientist at the U.S. Army Research Institute of Infectious Diseases at Fort Detrick, MD. Mr. Hatfill was named through anonymous leaks from “law enforcement sources” as a prime suspect in the anthrax scare. His life too was virtually ruined, his reputation forever tarnished by law enforcement leaks to the media rather than by evidence heard under the rules of due process.
And then the FBI has identified another suspect, Bruce E. Ivins, as the virtually certain source of the anthrax mailings at the same time it “settled” a civil case with Mr. Hatfill for a reported $5 million. Mr. Hatfill could be asking the same question as was once famously asked by former Republican Labor Secretary Raymond Donovan after a Bronx, N.Y., jury quickly acquitted him of multiple felony charges.
Mr. Donovan had suffered years of media innuendo fed largely by partisan Democrats making what turned out to be false charges of Mafia ties and corruption. When a reporter congratulated him after his quick acquittal on all charges, Mr. Donovan answered:
“Thank you: Now where do I go to get my reputation back?”
So, we all should learn and repeat the following Latin words: “Ei incumbit probatio qui dicit, non qui egat.” (“The burden of proof rests on he who asserts, not he who denies.”)”
So, where do all these people – and the literally thousands of other who have been destroyed by a government we created to protect our rights – go to obtain justice for lives of hard work destroyed by careless or malevolent but immunity protected, government functionaries?
Based upon the relevant facts presented above, it is apparent that there is no accepted standard concerning the issue of defamation for the courts in general, both State and federal, and the Supreme Court in particular, to follow. The tests described and the definitions of public, private and limited-public figures are entirely too subjective. The result has been that the debates in the public square – and even the arguments in the nations courts – have become free-for-alls with seemingly no limits to what can be said and written about any person – no matter how far from the truth such statements are, no matter how innocent a victim might be and no matter the damage wrought from deliberately defamatory speech.
The current state of affairs began to develop when exceptions to the traditional common-law consideration of defamation began to be “found” by the Supreme Court. For the Founders and Drafters of the Constitution, truth and honor were among the most important virtues in society and violating the sacred ground upon which each citizen’s reputation was built was tantamount to the most vile and vicious crimes imaginable. Settling such matters, on many occasions, came down to a duel. See Burr v. Hamilton.
That course of action is, of course, not recommended here but, that does not mean that the value an American citizen places on his or her reputation in the community has diminished in any way from colonial times.
The truth of the matter is that creating exemptions and finding exceptions and special considerations that benefit one class of persons and penalize another is unconstitutional on its face in that it treats citizens unequally with respect to their opportunities in our society.
Why should public persons – including public officials – and private persons be treated differently? Public persons have private lives and non-public persons have occasion to act in the public sphere – especially in the Internet Age and the advent of social media. The press/media don’t treat public and private persons differently – only progressive/ liberals and conservatives – all are newsworthy if politics, airtime or space for newsprint are available.
Even more to the point – that defamation law is chaotic and therefore unjust – is the timeless fact that truth matters. To say, in effect, that truth does not matter in some instances of defamation law and precedent is completely antithetical to the Judeo-Christian ethic upon which this nation was founded and which informed the Drafters of our Constitution.
The status of no citizen is necessary or sufficient to excuse or provide protection from making defamatory statements. This means that there are no exemptions for lawmakers in any forum, no exemption for perjuring witnesses in court, no exemptions for the failure of the press, in their reporting or editorializing, to exercise the standard level of care expected of professionals granted access beyond that available to other citizens.
Because of the nature of defamation – that once written or uttered, the damage is done – the issue of malice must become irrelevant to a finding that defamation has occurred. Malice may become a mitigating or contributing factor in the consideration of damages for the act of defamation but, not for the act itself.
A retraction of the same length and in the same location in the same periodical that published a defamatory item may mitigate damages while the failure of a reporter and editor to double check the veracity of the statements of a confidential (perhaps imaginary) source before publishing a defamatory story may contribute to enhanced damages.
Finally, defamation is injurious no matter if it was written or uttered, no matter if it involves public issues for private persons, private issues for public persons or vice-versa and no matter if it was accomplished with malice, contempt for the truth or carelessness.
Those defamed, slandered, libeled or likewise abused must have absolute recourse to the means to make them as whole as possible again – whether financially, professionally, personally, mentally, whatever. And the cost for that rehabilitation of one’s life, reputation, professional standing, financial well-being, etc. must be borne, in considerable part, by the defamer.
What delicious poetic justice that would have been for Senator Ted Stevens and what a bitter – but much deserved – pill to swallow by his peers in Washington, DC.
Next: Hate Crimes