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.

For the past week that I’ve been writing this series on defamation law in Minnesota, I’ve been focusing on the letter and spirit (as captured in case law) of the law.

Today, I’m going to go down a tangent, and talk about the mechanics of the law – specifically, how legal records work.

Or, rather, how they don’t work.

When you to google and search, for example, for “DUI Records Minnesota“, you get quite a few sites; once you get out of the ad hits with the pink backgrounds, you are helpfullly presented with  quite a few options purporting to allow you to “search Minnesota DUI records online!”.

Sounds promising!  And after all, isn’t that the wonder of the Internet? That all information is instantly available online?

I tried the first one after the ad links; “duirecords.org“, which promises that you can “Search MN DUI Public Arrest Records Online”.  And just to be curious, I typed in my own name.

And I got back something that made my heart sink into my stomach:

…that’s me!

But then I thought about it for a moment.  I’ve never had a DUI.  I’ve never had any form of impaired driving contact with the police – I’ve never been pulled over on suspicion of any sort of drunk driving.  Nothing,  Zero.  Zip.  Never.

There’s a reason for that.  I don’t drive drunk.  Indeed, I rarely have more than two drinks at a sitting.

And yet this site – this site that purports to “Search Public Records” to return DUI convictions – was saying that I’d had a DUI!

So I wondered – given that nearly 10% of Minnesotans do have a drunk driving record, what other Minnesotans have been convicted of driving under the influence?

I picked a few names, completely at random:  I started with Brian “Saint Paul” Ward, of Fraters Libertas, a bunch of known drinkers:

Wow.

Next,  I tried my friend and radio cohort, Ed Morrissey, who has publicly disclosed he lives in Eagan.

And I was shocked:

Holy crap.  You think you know a guy!

Next – since our last gubernatorial race was settled by a bogus “DUI” charge against Tom Emmer, I thought I’d see if what was fair for the goose were fair for the gander.  Does Mark Dayton have a “drunk driving record?”

Wow!  Someone tell the media!

But I’m starting to smell a rat.  It almost looks as if this site will turn up a record on almost anyone.

I tried Archbishop John C. Nienstedt, the supreme poobah (I’m a little fuzzy on the terms of the Catholic hierarchy) of the Archdiocese of Minneapolis and Saint Paul:

And, finally, just out of a fit of untrammelled serendipity, I entered the name of my favorite Twin Cities’ blogger, a person whose keen insights, nimble wit and sparkling writing have enlivened many an idle morning, Professor William Gleason, a chemistry professor at the U of M:

Note:  Someone pointed out that I got Gleason’s middle initial wrong.  No, I did not!  Go search the “database”; there are a plethora of William Gleasons out there!  Dozens!  Including the one with Professor and Blogger Gleason’s middle initial!

It  seems everyone has a DUI!

So I clicked on the “results” link:

What? I’ve gotta pay for public records?

Well,no.  The site above is an advertising site.  Indeed, it’s a form of spam.

Indeed, if you google virtually any form of legal activity – divorce, criminal records, bankruptcy – you will find pages and pages of these spam and scam sites, all designed to get you to pay money for what are, at most, slightly repackaged Google searches.

What “duirecords.org” does is take virtually any input you give it, run a search on, say, Google, spits back the results to make it look like it has something, sucks you in to a link to make you pay for…

…well, that’s as far as I pushed it.  I’m not going to pay to find out.

Now, you can get public records – or at least, names and charges and dates – from the official Minnesota court records (you have to click “Begin Search”, and accept the disclaimer).  Wherein you’ll find that in the past 15 years, there has been no “Mitchell P. Berg” convicted of DUI anywhere in Minnesota – and that I’ve been pulled over for expired tabs and forgetting my insurance card.

Expensive? Dumb?  Sure – but not DUI.

———-

The takeaway is this:  Say I were to write “John Doe, Age 46, of Mazeppa, was convicted of DUI” based on the output of the “DuiRecords.org” website…:

I specifically disclaim any insinuation that any Mr. Doe of Mazeppa has ever committed any crime, by the way. This is just an example.

… believing it to be a genuine public records website, rather than, as we’ve shown, an advertising site that turns up “records” on anyone.  

And ten, say, someone wrote to tell me, specifically, that “your “source” on Mr. Doe is an ad site, not a source of actual public records?”

And yet, I doubled down on my story – redoubling my assertion that Mr. Doe had been convicted of DUI?  Rather than retracting it and apologizing to Mr. Doe?

Well, that could fairly be seen as “failing to take reasonable care” to ensure that a defamatory statement (remember, accusations of infamous crimes are defamation per se under Minnesota law) is accurate”.

OK.  There is no serendipity at all in this series.  There’s a point.

We’re getting to it.

Since I started this series a couple of weeks back, we’ve enjoyed a fascinating journey of learning – in this case, about what “defamation” – libel and slander – really really mean.

Here’s an interesting bit; as we noted yesterday, “false” can mean either “what the defendant said is false”, or “the defendant, with reasonable care, should have known it was false”.  Indeed, the case law makes it pretty clear:

D. Negligence Is Standard Of Liability

In Minnesota, the defendant is liable if it “knew or should have known in the exercise of reasonable care” that the defamatory statement was false. Jadwin, supra. This is the standard formulation for liability based on negligence, that is, liability arising from failure to take due care.

This is a low standard of liability.

In other words, if you accuse someone of having committed an infamous crime because you didn’t take the reasonable care to know that it was not factual, you are liable.

But what about free speech?

However, First Amendment considerations substantially limit the application of this standard.

So the courts will err on the side of free speech if there is any way to do so.

Still – if I were to write “Wang Fui Schlabotnik of Eden Prairie has a child porn conviction”, and Mr. Schlabotnik does not, Mr. Schlabotnik’s attorney might well argue that the First Amendment, free speech, and the rights of an open, unfettered press (in all its forms) aren’t served by my lying about his client’s criminal record – and defamation needs to be false, and false claims of infamous crimes are “defamation per se” under Minnesota Law (as we discussed last week).

And I suspect he’d have a point.

OK.  I’ll cop to it. This series on the legalities behind defamation is not entirely an academic exercise, and it’s really not completely a flight of blitheful serendipity.

But there’s plenty of time to talk about that.

99 weeks, to be exact.

More later.

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..