Apropos Not Much, Part IV

In the first couple parts of this series – admittedly something I’m writing out of pure unvarnished serendipity – I noted that Minnesota recognizes “defemation” when someone says something false and defamatory about someone, to someone else.

Today, we move on to the definition of “false”.  From this very useful site, which has been my source for much of this series, we will look – in effect, and with a nod to Bill Clinton – into what the meaning of the term “isn’t” is.

C. The defendant knew or should have known that the communication was false

Defamation allows recovery for unfair damage to reputation. As a consequence, if true statements are made about a person which damage their reputation, they cannot maintain a lawsuit.

That’s the first thing they teach you when you start learning how to be a reporter; make sure you’re writing the truth (or at least writing from verifiable fact).  And be ready to support the veracity of what you write; take good notes, and don’t toss them when the story’s done.  Have good solid cites for anything in contention.  Uses sources that you’re sure won’t burn you, and verify even the trustworthy ones. Don’t be a dummy.

Because the surest defense in a defamation suit is the truth.

It hasn’t always been this way:

This is a relatively recent development. One origin of libel and slander laws was a criminal cause of action by the English Crown used to silence its critics; hence, it was the truth of the alleged libel which provoked the lawsuit.

And this – the tradition of suiing over embarassing but true information – is one of the things that makes media work in the UK such a nasty, brutish business; it’s very easy to prove defamation.  And the absolutism with which our system approaches free speech (except when liberals are talking about talk radio) is at least in part a direct result of that tradition.

It’s part of Minnesota’s judicial canon.  I’m going to add just a little bit of emphasis to the following:

For example, the Minnesota Supreme Court has held:

We hold that a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false.

Remember those two bolded bits.  They may become important later.

Wait – I said this whole series was unvarnished serendipity, didn’t I?

Well, remember them anyway.

The conduct of defamation defendants will be judged on whether the conduct was that of a reasonable person under the circumstances.

Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985). Other cases follow this reasoning. See LeDoux v. Northwest Publications, Inc., 521 N.W.2d 59, 67 (Minn. App. 1994) (“In order for a statement to be defamatory . . . it must be false.”); Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985), cert. den., 479 U.S. 883 (1987) (“Libel, by definition, consists of publication of a false and unprivileged fact.”).

The article takes great pains to estabish that falsity is a big-kahuna element of defamation..  It’s important.

This part is also pretty vital: the whole statement needs to be false.

Minor inaccuracies are not subject to defamation claims if the overall substance of the statement is true. “The plaintiff cannot succeed in meeting the burden of proving falsity by showing that only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial.” Jadwin, supra, 390 N.W.2d at 441.

In other words, if I wrote “Todd Yamamoto, a Vikings fan from Edina, crashed into a tree”, and Mr. Yamamoto did crash into a tree, but was a Packers fan who is mortified to be associated with the purple and gold?  The suit is likely doomed!

But if I wrote “Bucky Yamamoto, Vikings Fan from Edina, crashed into a tree because he was free-basing with a drunk 16 year old girl”, and there was no freebase and the girl was 35 and his wife?  That’d be a problem.

(Dear Bucky Yamamoto – I don’t know that you exist. If you do, my apologies).

No Defamation by Implication. Failure to report all the facts may lead to a defamatory conclusion by the reader. But unless the overall substance of the statement can be proven false, no defamation claim will arise. “[T]he cause of action known as defamation by implication . . . is not recognized in Minnesota.” Kortz v. Midwest Communications, Inc., 20 Media Law Rep. (BNA) 1860, 1865 (Ramsey County Dist. Ct. 1992). A public official may not maintain a defamation by implication claim. Diesen v. Hessberg, 455 N.W.2d 446, 451 (Minn. 1990).

This was one that surprised, and sometimes infuriates me.  I thought the Strib’s Rochelle Olson defamed Alan Fine back in 2006, when it reported all the “facts” about his ancient domestic abuse arrest except the ones that could have exculpated him in the public eye, just in time for the election.  Not so; Ms. Olson and the Strib got the basic facts right; they just selected or omitted true facts in such a way as to ensure and maximize political damage to Fine and his campaign.

Slimy?  Sure – but not actionable.

Oh, the bit says that the defendant “knows or should have known” that their allegedly defamatory communication was false.

That means if they knew it was false, or they should have after taking reasonable care.

For example, say that I said that “Carrie Ann Trzeszelewska, age 22, of Forest Lake got a DUI”, and someone wrote me to say that there were two Carrie Trzeszelewskas – one age 22, that I wrote about and another woman, Carrie Raye Trzeszelewska, age 44 of Hugo, that actually had the DUI?  And that there was a state website where I could have checked that fact, either before writing the statement (as I should have) or as part of an immediate and humble retraction (as would have been the proper Plan B), but that I disregarded because I either didn’t care or was positive I had the right Carrie Trzeszelewska?

That might cause me a legal problem.

As I said, this entire series is borne of unvarnished serendipity.

OK.  Not entirely.

More tomorrow..

3 thoughts on “Apropos Not Much, Part IV

  1. That’s the first thing they teach you when you start learning how to be a reporter; make sure you’re writing the truth (or at least writing from verifiable fact).
    Now known as the Dan Rather Rule.

  2. Pingback: Apropos Not Much, Part V | Shot in the Dark

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