Libel claims were given new life by three courts that chipped away at elements of libel defenses for the news media.
It was a tough summer for libel defense teams. State and federal appeals courts in three states reinstated defamation cases, ruling in two of the lawsuits that there is enough evidence of actual malice for the cases to proceed. In the third case, the court ruled that the reporting in question is capable of defaming and the dispute should go to trial. While the cases were unrelated, each case weakened the protection provided under the actual malice standard.
The three cases involve reporting on a 1994 roller-coaster accident in Kentucky, a 1996 candidate for the South Carolina House and the 2002 FBI investigation into the anthrax attacks. In all three, appellate courts reinstated libel claims or verdicts.
In Kentucky, the state Supreme Court in August reinstated a $2.97 million libel verdict against "WHAS-TV in Louisville. Although WHAS has applied for a rehearing, the decision sets a dangerous precedent for Kentucky media, said Russ Coleman, an attorney with Belo Corp., which owns WHAS.
The decision, overturning a lower appellate court ruling, determined that the operators of an amusement park presented sufficient proof that the television station acted with actual malice - knowledge of falsity or reckless disregard for the truth - in reporting about a roller coaster accident.
"Proof of actual malice is frequently circumstantial so that the reckless disregard of truth or falsity or the actual knowledge of falsity can generally be inferred only, rather than proven directly," Justice Donald C. Wintersheimer wrote for the divided court, which issued two opinions in addition to the court's holding - one concurring in part and dissenting in part and the other dissenting in part. "The evidence provided by Kentucky Kingdom sufficiently demonstrated that there was clear and convincing evidence of actual malice."
The dispute arose out of three WHAS broadcasts in 1994 and 1996 following a July 1994 collision of two roller coasters at Kentucky Kingdom amusement park. Among the statements by the reporters in the stories were: "State inspectors also think the ride is too dangerous," "the roller coaster ride that malfunctioned earlier this week," and "Kentucky Kingdom removed a key component of the ride."
Kentucky Kingdom sued for defamation in state court. In the 1998 jury trial, the jurors found that the amusement park had presented enough evidence to find WHAS committed actual malice and awarded the amusement park $2.97 million. The station appealed, claiming that Kentucky Kingdom had presented no evidence of actual malice. In 2000, an intermediate appellate court agreed with WHAS and ordered a new trial.
The state Supreme Court disagreed, reinstating the verdict because the park had presented enough evidence of actual malice. But, since the actual malice standard the Supreme Court used seemed to ignore the substantial truth of the stories, Coleman is optimistic about the chances for a rehearing.
"If the Kentucky Supreme Court decision last month is the last word on the subject then, yes, we would be concerned about adequate 'breathing space' for a free press to be able to report on matters of public importance, especially involving public figures," Coleman said. "We'd also be concerned about potential defamation liability for statements that are substantially true when viewed in context, or that are rational interpretations of events."
In the dissent, Justice William S. Cooper argued the same points. "The real tragedy of today's decision, however, is that it significantly diminishes the 'breathing space' that is imperative for a vigorous and competent press. The majority's conclusions . . . make no provision for substantially true speech . . . . When defamation liability is imposed in a manner that reduces the news media's margin of error in covering public figures and matters of public concern, self-censorship by the media in its conduct of its most essential role is the inevitable result. …