"We Express No View on This Issue": The Standard of Proof for the Element of Falsity in a New York Public Official/figure Defamation Action
Weininger, Daniel William, St. John's Law Review
An individual's ability to protect his reputation and good name "reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty."1 Defamation law serves an integral peacekeeping function within the state because it provides an avenue for members of society to vindicate the harm caused to their public identity.2 The ancient common law actions of libel and slander emerged in the 17th century3 and were "designed to effectuate society's 'pervasive and strong interest in preventing and redressing attacks upon reputation.' "4 Nevertheless, in a democratic society that values freedom of speech and freedom of the press,5 the state must "balance [its] interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression."6 The United States Supreme Court engaged heavily in this balancing act over the past half century7 and produced a complex body of jurisprudence8 that often shunted standard of proof questions in defamation claims to state and lower federal courts.9
In response, New York courts attempted to fill the void in the Supreme Court's general guidelines, forging a body of state law that incorporated some of these principles. As with most torts, the heart of the claim rests in its elements. In both New York and federal law, the elements of a defamation claim are dependent on the status of the plaintiff. New York law defines a public official plaintiff as a person "among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs."10 Likewise, public figure plaintiffs are "persons of pervasive power and influence who have assumed roles of special prominence in the affairs of society and those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."11 In New York State, the basic elements of a libel claim for plaintiffs that are considered public officials or public figures are: (1) a defamatory statement; (2) referring to the plaintiff; (3) publication; (4) falsity; (5) actual malice; and (6) financial loss.12 While these elements are clearly set out and defined, questions still remain as to their respective standards of proof.
Recently, in DiBella v. Hopkins,13 the United States Court of Appeals for the second Circuit considered the important question of whether the standard of proof for the element of falsity in a New York libel action was the traditional preponderance of the evidence standard or the more stringent requirement of clear and convincing proof.14 Predicting that the New York Court of Appeals would follow the more rigorous standard of clear and convincing proof,15 the second Circuit cast even greater uncertainty as to the proper standard of proof for falsity in New York defamation law.16 The court's decision prompts both the student and the scholar to further examine this area of law and the policy decisions that shape this crucial element in an action for libel.
This Comment seeks to clarify the standard of proof for the element of falsity in a New York public official/figure libel claim. Part I will provide an overview of the United States Supreme Court's treatment of defamation law and the constitutional implications of its decisions. At the center of this body of caselaw lies the reconciliation between the First Amendment and the state's protection of the individual from defamatory statements. These cases are important because they are a roadmap to the logical evolution of defamation law and also provide the historical context of the times in which they arose. Part II will examine the underlying facts of the DiBeIIa decision, and the second Circuit's rationale for the clear and convincing standard of proof. It concludes that the second Circuit erred in its holding. …