Choosing the Standard of Care in Private Individual Defamation Cases
Caudill, Susan, Journalism Quarterly
Some states use 'reasonably prudent person' while others use 'reasonably prudent publisher' as standard for negligence.
Judicial discussion of whether expert testimony from the media is necessary to establish negligence in private figure defamation cases provides an inside look at how judges view the concept of journalistic professionalism within the parameters of these cases. One legal scholar says:
Some courts have analogized the defamation action to malpractice actions and have held that expert testimony is required to prove journalistic malpractice. On the other hand, many courts have rejected this reasoning, holding that only ordinary negligence need be shown.1
In cases where the "journalistic malpractice test" is employed, the standard of care is set by the media industry. In cases where ordinary negligence is required, the jury is considered capable of determining what a reasonably prudent person would do under the same set of circumstances.
These two different standards of care for assessing liability have created an implicit argument over whether journalists are professionals in the sense that newsgathering and dissemination require expertise, or whether journalists are nonprofessionals in the sense that how their work is done can be understood by almost anyone.
This study will focus on private individual defamation cases that involve some discussion of whether the reasonably prudent publisher/editor or the reasonably prudent person should set the standard of care when negligence is at issue. After a brief discussion of negligence as a standard of fault in the post-Geriz era, the study examines judicial reasoning in adopting one standard of care rather than the other in cases reported through February 1988 and considers the implications of the reasoning.2
It is generally agreed that Gertz v. Welch3 delimited substantial media protection in defamation suits to public officials, public figures and issues of public interest. Prior to Gertz, the U.S. Supreme Court had declared that in order for a public official to recover damages for a defamatory falsehood he had to prove with clear and convincing evidence that the statement was made with actual malice.4 In Curtis Publishing Co. v. Bulls,5 statements about public figures were similarly protected and in order for a public figure who was not a public official to collect damages, a showing of highly unreasonable conduct representing an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers had to be made.
A divided Supreme Court in Rosenbloom v. Metromedia6 extended the actual malice standard to matters of public or general concern regardless of the public/private status of the person involved, but the Court in Gertz repudiated Rosenbloom, deciding that the states had a legitimate interest in protecting the reputations of private individuals who must be afforded greater protection under the law because of their limited access to the media.7
We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoodfs] injurious to a private individual. This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.8
Standards of Care
How have the states defined the appropriate standard of liability in private individual defamation cases? At least 30 states and the District of Columbia have adopted a negligence standard.9 Judicial discussion in Gertz itself anticipated that the states would adopt some kind of negligence standard. Justice Blackmun, concurring, said, "The Court now conditions a libel action by a private person upon a showing of negligence as contrasted with a showing of willful or reckless disregard. …