So in my series on Defamation law so far, I’ve focused on the elements of the defamation case.

But what if you’re accused of defamation?  How do you defend yourself against a defamation suit?

As you may have figured out from an earlier installment, the best way is to prove that what you said is true…

II. Defenses to Defamation

A. Truth

Truth is a complete defense to a defamation claim. This is simply the flip side of the requirement that plaintiff prove the falsity of the alleged defamatory statement.

…or at least not completely false.

And when there’s some public interest to the subject – say, the target/plaintiff is some sort of public figure, or the story relates to some important public issue?   Then it gets a little more complicated.

The Supremes have spoken on this issue directly, although if you’re not a lawyer, not especially clearly.

B. The First Amendment

1. Public Officials/Public Figures: Actual Malice must be proven.

The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a “reasonable person” knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense.

This is a tricky bit – the kind of thing that keeps lawyers in Lexuses.

Here’s how it works:  If I claimed that Brad Carlson (of the Brad Carlson blog – a public figure, to be sure,and the Northern Alliance’s “The Closer” show), was”convicted of drunk driving” [*], and Brad shows it was false, he’d also have to prove that I was being malicious, or acting in reckless disregard of the truth.

How would that happen?

Would it be considered “malicious” if I had spent months tweeting about my anger toward and hatred of Brad [**}?

Or, perhaps, if it were pointed out to me that the “source” I’d used was bogus – like in the example we showed yesterday – and I not only refused to apologize and retract, but indeed doubled own on my story?

Well, again, that’s the kind of thing that makes some lawyers happy, wealthy people.

Therre is more to it, of course.  It’s the law; there’s always more to it:

2. Matter of Public Concern: Actual Malice must be proven.

In cases where the media defendant is treating an issue of public concern, the First Amendment also requires proof of actual malice or reckless disregard of the truth, even if the plaintiff is not a public figure. Gertz v. Robert Welch, 418 U.S. 323, 349-50 (1974). See also Hepps, 475 U.S. at 775 (In non-public concern, non-public plaintiff defamation case, First Amendment does not bar application of mere negligence standard for defamation); Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (Powell, J., concurring).

In other words, if my quip about Brad’s (hypothetical) DUI were part of a larger story – say, Brad had uncovered a massive corruption scam at the Ramsey City Hall, and the defamation was part of the larger discussion?   Well, then Brad would have to prove that I acted maliciously, and the courts might well err on the side of protecting my right to free speech.

Maybe.  Probably.

But for purposes of this discussion, let’s just say there’s no larger issue; I just wanted to bag on Brad.  Then – if you read this the quote above at face value – the fact that I’d not gotten my facts straight would be considered, on its own, as malicious.

3. Matter of Public Concern: Plaintiff Must Prove Statement is False.

Proof of falsity required when media defendant addresses topic of public concern; regardless of public/private status of plaintiff. Hepps, 475 U.S. at 775-76.

4. Actual Malice must be Shown by “Convincing Clarity.”

Where the plaintiff is a public official, he must prove actual malice or reckless disregard of the truth with “clear and convincing proof”. New York Times v. Sullivan, 376 U.S. 254, 286 (1964); Gertz, 418 U.S. at 342; Hepps, 475 U.S. at 773.

That means the burden of proof would be on Brad.  And he’d pass that burden with panache, since the only place where Brad shows up as a drunk driver is here.

5. Falsity May Have to Shown by “Convincing Clarity.”

Public figure plaintiffs may have to prove falsity by “clear and convincing evidence” as protected under New York Times v. Sullivan. Sharon v. Time, Inc., 599 F. Supp. 538, 558 (S.D.N.Y. 1984); Firestone v. Time Inc., 460 F.2d 712, 722 (5th Cir. 1972), cert. den., 409 U.S. 875 (Bell, J., specially concurring).

In other words, gray areas are bad.

But there is no gray area there.  Brad never had a DUI, and there is no larger, compelling public interest in the story.

Smells like malice to me.

So go back to the first episode of this piece.  If I were to write – in earnest – that Brad “The Closer” Carlson had been convicted of drunk driving, and…:

1. …it’s clearly false (which it objective is, with no gray areas) and…
2. lt’s defamatory (and accusations of infamous crimes, including those involving potential jail time or moral turpitude are considered defamation per se under Minnesota law), and…
3. One or more third parties heard or read the accusation, and…
4. it can be shown that I made the accusation out of malice or reckless disregard for the facts at hand, and…
5. There is no larger public interest served by invoking the First Amendment to defend my right to accuse Brad of drunk driving…

…well, we have not a few lawyers tuned in here.  Do you think Brad’d have a case?

I’m just curious.

More in two weeks or so.

[*] Which he was not.  I mean, seriously.  Not at all. This is just an example.

[**] Which, to be sure, I have not.  I have nothing  but respect for my broadcast colleague.  Indeed, he’s one of the godfathers of conservative political satire in this state, via his tenure as as Protest Warrior.