Day on Torts
A recent Court of Appeals case serves as a reminder of the difficulty of proving actual malice in a false light claim made by a public official.
In Eisenstein v. WTVF-TV, No. M2015-00422-COA-R3-CV (Tenn. Ct. App. May 3, 2016), plaintiff was a Davidson County General Sessions Judge suing a TV station and various reporters regarding a story aired in 2011. The story focused on whether plaintiff “hired an unlicensed individual to act as a psychologist for the drug court program.” The Court of Appeals opinion contained a transcript of the broadcast, which revolved around a Dr. Casey who was paid by the drug court and allegedly held out to some drug court defendants to be a psychologist, but who was not in fact licensed as a psychologist in Tennessee. The report included a statement that plaintiff judge “wanted to put Casey on staff using federal money, writing in this memo that Casey had proven himself an excellent psychologist.” The broadcast showed the reporter approaching plaintiff judge, and plaintiff not answering questions posed by the reporter.
Plaintiff argued that the “broadcast placed him in a false light by implying that he lied on a federal grant application and by indicating that he was uncooperative.” Because plaintiff was a public figure, he had to show actual malice to prove his false light claim, and defendants moved for summary judgment on the basis of plaintiff’s inability to make such a showing.
In its analysis, the Court first addressed Tennessee’s interpretation of actual malice, stating that it “refers to the publication of a statement with knowledge of falsity or with reckless disregard as to truth or falsity.” (internal citation and quotations omitted). To show actual malice, a plaintiff must prove “clearly and convincingly” that the defendants “had a high degree of awareness of…probable falsity.” (internal citation and quotation omitted). Here, plaintiff advanced five arguments that he asserted showed actual malice on the part of the defendants.
First, plaintiff pointed out that the broadcast did not mention a letter sent to the station by plaintiff’s attorney before the story aired. This letter that stated that once the plaintiff learned that Casey was not licensed, he did not pursue the federal grant application (and that he did not have a way to withdraw it from the system). The letter also provided information regarding the court’s independent contractor agreement with Casey. Plaintiff argued that the omission of this letter, which contained more information about the federal grant briefly mentioned in the report and which he alleged showed that he was not “uncooperative,” showed actual malice. The Court, however, disagreed, stating that even if the purported inference had been created, this evidence did not provide “clear and convincing proof that the defendants created the inference [that plaintiff lied to the Justice Department] with knowledge of its falsity or with reckless disregard as to its truth or falsity.”
Second, plaintiff pointed to the letter from his attorney again, asserting that the TV station had access to the true facts but failed to use them. Plaintiff also said that because of the letter, the statement in the report that “Still, the judge has nothing to say” showed actual malice. The Court held, however, that “[i]mprecise language, by itself, does not establish actual malice” and that “[a] shoddy investigation…is not the equivalent of actual malice.” (internal citations omitted).
Third, plaintiff argued that the series of events leading to the broadcast showed actual malice. Defendant reporter had previously done a story about ticket fixing, and plaintiff judge was one of the judge’s covered in the story. Sometime later, the reporter was issued two citations for the same parking violation, and the police department self-initiated a withdrawal of the second ticket, though the reporter actually paid both. When the matter of the removal of the second ticket came before plaintiff, he had a hearing, without noticing plaintiff, wherein he made some statements that were upsetting to the reporter and station. Thereafter, the TV station sent a letter to the Tennessee Court of the Judiciary expressing their concerns about the hearing and the judge’s statements. Shortly after writing the letter, the station aired a report questioning whether the plaintiff judge was under investigation by the Tennessee Court of the Judiciary (which was the subject of a previous appeal). About seven months later, the broadcast at issue aired. Plaintiff drew “a conclusion of ‘ill will, spite, and even hatred’ on the part of the defendants from this series of events.” The Court noted, though, that “actual malice is unfortunately confusing in that it has nothing to do with bad motive or ill will,” and that these events did not show actual malice on the part of defendants.
Fourth, plaintiff pointed to an admission by the defendant reporter that he believed the judge’s “conduct at [the hearing mentioned above] was an effort to embarrass him rather than an effort to pursue any legitimate objective.” The Court noted that this admission alone “prove[d] nothing.”
Fifth, plaintiff had a journalism expert testify that the report was not up to journalistic standards, citing the criticisms of the station’s investigative process and use of “ambush journalism.” The Court stated, though, that “even highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers’ does not establish actual malice.” (internal citation omitted).
After addressing each of plaintiff’s theories, the Court also addressed his assertion that the evidence above, when viewed together, showed actual malice. Looking at the case as a whole, the Court held that “the totality of the evidence falls short of clearly and convincingly proving actual malice. An inference of ill will alone is not sufficient, and an investigative story using a poor choice of words combined with the referenced transgressions of journalistic standards will not suffice to raise the evidence to the level of clear and convincing proof of actual malice.” Accordingly, the Court affirmed summary judgment for the defendants.
The plaintiff in this case was faced with a highly difficult task—proving actual malice based on a news report that made no overtly false statements. Plaintiffs’ lawyers reading this case should remember that when representing a public figure or public official in a false light case, you must have some evidence regarding defendant’s knowledge or reckless disregard of the falsity of the statements made. Otherwise, a defendant in a case like this will likely prevail on summary judgment.