12 March 2012 / The New York County Lawyer
Committee Connection
Misconceptions about New York State Libel Law By Evelyn Konrad, Esq. The First Amendment of the U.S. Constitution, especially Freedom of Expression, continues to be the most emulated part of our Constitution throughout the world.* The Freedom of Expression, however, is also one of the most misunderstood areas of constitutional law. And New York courts are known to make it harder to litigate a libel case than for a camel to glide through the eye of a needle.
I have been a plaintiff in a New York State libel suit, and today, two years after its commencement and after an Appellate Division decision, my questions are based on my Record on Appeal and on my research which may help other libel litigators in this State. Current New York State libel law
In his opinion in the Sandals(1) case, the Hon. David B. Saxe of the New York State Supreme Court Appellate Division, First Department, demystified libel law in New York State:
“The approach now used in this State for determining which statements are protected opinion and which are unprotected factual assertions is based on a four-part formula enunciated in Ollman (2). . . The four factors of the Ollman formula are: (1) whether the statement at issue has a precise meaning so as to give rise to clear factual implications; (2) the degree to which the statements are verifiable, i.e. ‘objectively capable of proof or disproof’;... “
Justice Saxe added that the two context parts of the Ollman formula were changed by the U.S. Supreme Court:
“The United States Supreme Court substantially altered the last two ‘context’ considerations of this formula in Milkovich(3), which decision ‘put an end to the... misperception – traceable to dictum in Gertz(4) that... there is a wholesale defamation exemption for anything that might be labeled ‘opinion.’” Opinion Can be Actionable in New
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York State and Words Matter
The Hon. Judith Kaye, former Chief Justice of the New York State Court of Appeals, put it this way in her majority decision in Immuno(5): “... We did not, and do not, hold that all letters to the editor are absolutely immune from defamation actions, or that there is a wholesale exemption for anything that might be labeled ‘opinion.’” “... In determining whether speech is actionable, courts must . . . consider the impression created by the words . . .from the point of view of the reasonable person.”
In brief, it is the “reasonable person” who would construe a statement as defamatory.
In another recent decision by the Appellate Division, 1st Department, namely in GS Plasticos Limitada(6), the court said, “Based on use of the words ‘it is likely’ and ‘may’ when describing defendant’s purported misconduct, an average reader would understand these words ‘as mere allegations to be investigated rather than as facts.”** This the same rationale won the defendant a decision in the oft-quoted and often misunderstood Brian(7) case. But it is the court that determines what statements have evidentiary value and which ones do not. In libel cases especially, this choice of evidence can be a challenge to objectivity.
The Reasonable Person Is Supposed to Determine Meaning of a Word
A layman’s interpretation of many words is likely to differ sharply from the meaning that judges might give it. The court in my libel suit held that the word “discharged” was not defamatory because an attorney may be discharged by a client at any time, with or without cause. This fact is well known to the legal community. But what about the “reasonable person” who gets his news from a Village newspaper and from cable news channels? Might that “reasonable person” interpret “discharged” as “fired,” with all its negative implications?
From their decision dismissing the libel suit being discussed here: “The assertion that plaintiff, an attorney, had been discharged by a client, was true. . .” But three of the appellate judges ignored their own unanimous decision, reprinted in the voluminous Record on Appeal, where the same three judges had granted plaintiff’s 6 October 2009 motion “for an order relieving her as appellant’s counsel,” after eighteen months of successful litigation. Substantial Truth Since truth of a statement is a complete defense against a libel action, the phrase that a statement is “substantially true”
takes on enormous evidentiary weight. Yet the standard most frequently misconstrued is the libel defense called “substantially true.” The courts often rely on a 1934 case, the Fleckenstein(8) case. This case states that “substantially true” is applicable only within shadings of facts, not contradiction. Two examples:
If an attorney claims that he stated the same facts in seven motions or memoranda of law, but he had stated those facts either in six or in eight court documents. Then, in accordance with Fleckenstein, the attorney’s statement is “substantially true.” Suppose, however, that a litigant states that “Roger is alive and well,” but it turns out that Roger died two months earlier. Is the statement “Roger is alive and well” to be judged “substantially true”? Clearly not. Are Malice or Prior Defamation Insurmountable Obstacles to a Libel Claim?
Proving malice becomes important only in the case of a “public figure” or someone who has become a “limited public figure.” However, malice is defined in one of two ways: (1) the defendant wrote the defamatory statement knowing it was false or with reckless disregard for he truth, or (2) the common-law standard of ill will. The fact that a false accusation had previously been published “does not mean that the fact that the plaintiff had been falsely accused earlier means that he could not be further injured,” in Stern(9). And, in Charles Atlas(10), the court held that “an individual’s challenge to a current statement that had not been challenged earlier did not support a finding that an individual was libel-proof.” In the defendant’s letter to the editor, at issue in the dismissed libel case, the defendant boasts that he had never met the plaintiff nor spoken to her. In Immuno(5), the editor had sent the McGreal letter to the plaintiff before publication, giving the plaintiff a chance to make corrections.
Libel cases may arise out of contract disputes, out of employment practices, in a professional competition, and even in the context of volunteer services. And the court decisions and the precedent cases are as varied as the situations ending in a libel suit. The libel suit mentioned in this article which I was a plantiff occurred after six years of contentious land-use litigation and it involved much of the libel law outlined above. * From a study by Prof. David S. Law of Washington University and Prof. Mila Versteeg of the University of Virginia, previewed in “We the People’ Loses Followers,” The New York Times, February 7, 2012, and to be published in
(See Libel Law on page 13)