A Progressive on the Prairie

The chance, however small, that our law firm might somehow become involved in the defamation lawsuit Dan Scott started this week against the Argus Leader and its editor, Randell Beck, demands circumspection. Thus, I won’t discuss or assess the merits of any allegations, the personalities or my personal views. Still, informed public discussion requires some knowledge of the legal issues so here’s an overview of what, on first review, appear to be some of the keys.

It seems the biggest issue is one that arises in many libel actions — whether Scott is a public figure or a private figure engaged in a matter of public concern. If he is either, he must show not only false statements but that such statements were made with actual malice, in other words, with knowledge they were false or with reckless disregard of whether they were false or not. Scott’s complaint recognizes he may face this burden. His lawyer, former Gov. Bill Janklow, set out the public figure standards as alternative counts. (Janklow himself is no stranger to core concepts of libel actions by public figures, having unsuccessfully sued both Newsweek and author Peter Matthiessen.)

Given the content of the column giving rise to the lawsuit, the question of whether it contained statements of fact, satire or opinion will also be important. Although containing significant, if not crucial, factual differences, the U.S. Supreme Court ruled that Jerry Falwell could not recover against Larry Flynt and Hustler magazine for infliction of emotional distress as a result of a parody ad that said Falwell’s “first time” was with his mother. The decision was based on the actual malice standard and that a jury rejected Falwell’s libel claim because it concluded the ad could not “reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated.”

The Supreme Court’s decision is limited to the emotional distress claim. Scott does not make such a claim, alleging instead libel and what is known as false light invasion of privacy. Moreover, the Falwell decision adds the gloss of whether the column could “reasonably be understood as describing actual facts . . . or actual events.” A variation of that is also relevant with respect to whether the column is “opinion” protected by the First Amendment.

In 1990, the U.S. Supreme Court ruled that opinion is not absolutely protected from defamation claims. Rather, “opinion” is actionable if it “reasonably implies false and defamatory facts.” The South Dakota Supreme Court followed this decision when it was presented the issue some nine years later, overruling its holding in Janklow’s suit against Matthiessen and Viking Press that opinions are absolutely protected by the First Amendment. Now, the “dispositive question” is “whether a reasonable factfinder could conclude that the statements [claimed to be opinion] imply a false assertion of objective fact.” If so, the plaintiff can recover. If not, he or she can not.

The complaint reveals two other interesting and perhaps more esoteric items. One is that the complaint specifically alleges that the column led to “various internet blogs ridiculing” Scott. That is not a claim against those blogs but, rather, a reflection of the fact blog commentary can be viewed as part of the damage caused by alleged defamation. Second, the complaint also says Scott sent the Argus a retraction notice on August 1. South Dakota law says that if a daily newspaper publishes “a full and fair retraction” within three days of receiving such a notice, the plaintiff cannot recover punitive damages. No retraction was published, reflected by the fact Scott’s complaint seeks an award of punitive damages.

Certainly, other issues may and likely will arise. But at the outset, it appears the battleground will be whether the actual malice standard applies and whether Beck’s piece could reasonably be understood to imply false assertions or descriptions of actual fact.

FULL DISCLOSURE (unintentionally omitted initially): I was one of the attorneys at our firm who represented the defendants in Bill Janklow’s libel action arising from the book In the Spirit of Crazy Horse. As noted, the state Supreme Court ruling in that case that “[o]pinion is protected even if it may be false” was overruled in 1999.

Paint Brush Corp. v. Neu, 1999 SD 120, ¶ 47
(quoting Milkovich v. Lorain Journal Co., 497 US 1, 18 (1990))