From an AP story:
The Supreme Court has rejected a plea by former Army scientist Steven J. Hatfill to revive his libel lawsuit against The New York Times over columns falsely implicating him in the deadly 2001 anthrax attacks.
The justices did not comment Monday in turning down Hatfill's appeal of a unanimous ruling by the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. A three-judge panel affirmed a lower court's dismissal of the libel claims on the grounds that Hatfill is a public figure and failed to prove that columns written by Nicholas Kristof were malicious....
No, actually the panel reasoned that Hatfill failed to prove that the columns were published with what libel law calls "actual malice": "that The Times had knowledge that the columns were false or published them with reckless disregard of whether they were false." "Actual malice" is thus a legal term of art that has little to do with what English speakers actually call malice (in the sense of ill will).
So this is partly the fault of the lawyers. You'd hope that "malice" in law would mean what "malice" means in English, but if it doesn't, at least you'd hope that "actual malice" would actually mean that. No such luck.
But mass-market journalists' job is to translate jargon into English, and to know jargon when they see it. Unfortunately that didn't happen here.
More broadly, keep an eye out for this sort of slip: When you hear "malice" talked about in articles about libel lawsuits, it probably means "knowledge the statement was false, or reckless disregard of whether it was false." Except, unfortunately, when it doesn't, since sometimes "malice" even in libel lawsuits does really mean "malice" in the sense of "ill will." Arggh.
Thanks to Bill Poser (Language Log) for the pointer.
UPDATE: Added a link to the panel opinion (sorry to have omitted it originally); that should help answer people's questions about why the panel concluded Dr. Hatfill was a "limited-purpose public figure."
"In order to recover, plaintiff must prove X"
"X does not mean what any sane person would understand, but Y."
It'd be so much easier if the Court just said "Y is the law."
Once encountered some case law, fortunately not from my State, which was:
1. In order to prove legal malpractice, negligence must be proven by clear and convincing evidence.
2. But since the attorney is in a fiduciary relationship. clear and convincing evidence in this context means "more likely than not."
If someone publishes a defamatory statement, with knowledge that it is false or with reckless disregard of the truth, then it seems reasonable to infer that he had a malicious motive. And conversely, if the defendant acted with diligence to try to verify his statements before publishing them, then it seems to reasonable to conclude that he didn't act with any sort of malice that the court should take note of. Of course, there are edge cases, but in the common cases, the legal and common-English denotations seem to largely coincide.
I can't find the 4th Cir. Opinion, but I was curious; the media cannot bootstrap someone into being a public figure by defaming them. Did they rule that he was a public figure (NY Times) or a private figre in a matter of public concern (Gertz). If the latter, was this about presumed damages (for actual malice)?
"that...columns were malicious..."
meaning:
"that...columns were actual malice..."
Colloquially, wouldn't an act of "actual malice" be malicious?
[malicious (adj.) Having the nature of or resulting from malice]
(I can't resist adding that of Littlewood's more amusing anecdotes concerns ignorance of math in British law. If you pick up the book, look on p. 55 for a reference to the Rent Act.)
Even the winner is sometimes in doubt, as demonstrated with the NSL ruling where a potentially strong defeat is wrapped in the guise of a victory?
Regardless of whether he was a public figure, the anthrax attacks were of major public concern. As he was involved in something so important, at least with regard to the anthrax attacks the constitutional malice standard should apply... (though its my understanding the clearly non-public figure in a public controversy is a somewhat untested area of law)
Also, if anyone cast him in to the light, it was whoever leaked the info, not the paper that carried it.
Mathematics doesn't appear in the popular literature too often, but when it does the results are hilarious. When "Chaos" by James Gleick was translated to Hebrew, the translator didn't think consulting with a mathematician about the terms was necessary. He got the terms for "group" and "set" backwards, and similarly for "composite" and "complex".
To this day people in Israel talk about the "Mandelbrot group" though it has no group structure.
Watch a film character who is supposed to be a specialist in a field you are familiar with. Invariable the character will not sound like a specialist to you. The reason is that the script writer is using the language the way he imagines specialists would use it, not the way they do it in the real world. This is not a problem for most viewers, of course, since they usually share the misconceptions.
The characters of "A beautiful mind" sound like mathematicians; the ones in "Good will hunting" speak a load of gobblygook. Similarly, a journalist who paraphrases a legal ruling by saying that the question was whether the writings were "malicious" captures what the average person would have (mis)understood from the ruling, but completely fails to use language the way a lawyer would, thus getting things completely wrong: the word "malice" carries a specific defined meaning in this context which is not shared by the word "malicious".
FWIW, I'm not sure that "exculpate him or arrest him" ought to be considered defamatory, although I understand that that is a question of fact.
OTOH, I never practiced in this area so what do I know?
e.g., getting close to deadline, wasn't able to reach the person who was in the best position to confirm the story, and afraid that someone else was going to publish it first and beat you out of the story.
Agreed. It's especially ironic when the author probably had a copy of The Associated Press Stylebook and Libel Manual* sitting on his desk. As the title suggests, the book spells out it what libel is in terms a laymen can understand.
* I'm dating myself here. The title of the book has changed bit (The AP Stylebook and Briefing on Media Law) in the past ten years, but the content is still there.
This isn't a trivial argument at all, and applies broadly. When do(es) the inflicter(s) of actual harm (*not* the accuser) take responsibility for having decided to act upon an accusation? Accusing a man of kidnapping and killing small children in public parks might very well be reasonably considered an incitement to violence by individuals or the State, but can this thought extend to say accusing a man of being a pervert (whatever that might mean) who hasn't actually committed a crime as defined under the current law in his jurisdiction, even in a conservative area known for physical attacks on "perverts"?
The practice of oral sex comes to mind, if one must be graphic about it.
What of dancing around an accusation that a man has been bilking his elderly clients of their life savings? "It's odd that Mr. Accused seems unable to prove that he hasn't simply stolen the life savings of his forty clients, some of whom were seen crying in public." What of saying plainly that a man has been committing adultery in a jurisdiction in which an old and unenforced law does say that adultery is a crime? For that matter, what does it mean anyway to communicate a meaning, let alone what may be said to amount to an accusation? "I'd rather play with a great white shark after slathering myself with barbecue sauce, than give this man a single dollar of my money."
The fundamental problem is that far too little emphasis has been placed on holding listeners responsible for what they voluntarily chose to feel, to think, to believe, in the face of a sea of very easily issued accusations. I won't even go into how cops and prosecutors in particular have gotten a free pass for having maliciously and substantially destroyed the lives of millions of people with casually issued false accusations.
At least AP spelled "malice" correctly.
Jim O'Sullivan,
I don't agree. First, this one didn't require a JD. As Eugene mentions, I was the one that pointed this out to him (by email). I do not have a JD, nor have I ever attended law school. I'm a layman interested in certain areas of law.
Second, this isn't some highly technical and obscure area of law. If a newspaper reporter doesn't understand the rule against perpetuities or know what an emphyteutic lease is, that may be understandable, but the law of defamation is something that comes up constantly in public affairs and is of particular relevance to journalists. Ignorance of its fundamental principles is not a good sign.
Third, some technical areas are less relevant overall to the topics that most reporters deal with than others. It isn't all that often, unless a reporter works for a specialized scientific publication, that a knowledge of chemistry or electrical engineering beyond the very basics will be relevant to his or her work, but law is central to many of the topics on which journalists write.
Agreed. I majored in journalism in college and the law of defamation was hammered into us in at least three classes. One of the degree requirements was a three-credit class called "Journalism and the Law." I specifically recall that the most basic class in the journalism department included a lesson on what actual malice is and is not.
There is simply no excuse for a journalist who does not know the meaning of actual malice.
"More commonly, an individual voluntarily injects himself or
is drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues."
What this definition seems to say is that anyone who takes a position in public on an issue -- even perhaps a poster to this blog who injects him or herself into a discussion -- becomes a public figure for the issues in question and is thus fair game for anyone who attacks that person by regaling what they claim as facts imparted by others. And if the maligner is a news person, he or she can hide behind a First Amendment-based claim of protection of sources. That seems to me to take Sullivan far beyond its original context. Being unable to defend one's reputation in court puts a chill on advocacy and discourages free speech. I think Hatfield should have prevailed.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.