The Volokh Conspiracy - So Say There's a Pair of Identical Twins,

and they work for the same employer. Twin Richard is accused of serious misconduct; a TV story reports on the story, showing Richard's picture (which naturally looks just like twin Robert), and referring to Richard by last name (which naturally matches Robert's). Can Robert sue the TV station for libeling him, on the theory that many viewers might assume the story is about Robert?

You'd think that was a law school exam hypothetical, but it's a real case, Siena v. Meredith Corp., 2009 WL 1140531 (Conn. Super. Mar. 30). An excerpt:

These counts arise from three news reports and one “tease” broadcast aired on WFSB on February 27 and 28, 2006, concerning Richard Siena, the plaintiff's identical twin brother. Both the plaintiff, Robert, and his brother, Richard, were members of the Middletown police department (department) at the time of the broadcasts. The plaintiff and his identical twin brother both have similar hair styles and both have a mustache. While both brother's shared similar physical features and were employed as police officers, they had different ranks in the department and sexual orientations. The plaintiff, Robert was openly homosexual.

During the course of the broadcasts, the defendants reported that Richard Siena admitted to viewing pornography on a police department computer on numerous occasions while on duty and that the department disciplined him with a written warning but subsequently promoted him to lieutenant. The defendants reported that “Officer Siena” was investigated by the Middletown Police Department. The investigation was about pornography involving sexually explicit photos of young adult and teenage males and was referred to as kiddie or child porn during some of the broadcasts. Susan Raff, Dennis House and Jessica Scheider, codefendants and employees of WFSB Channel 3, identified the person who was the object of the news in several ways. They called him “Siena,” “Officer Siena,” “Rick Siena,” “Sergeant Richard (Rick) Siena,” and “Lieutenant Siena,” during the broadcasts....

The plaintiff does not dispute the accuracy of these broadcasts as they apply to his brother, Richard. Instead, he alleges that the defendants' reports injured him because they negligently, willfully, recklessly and/or intentionally caused viewers to believe that the plaintiff rather than his brother, was the subject of the department's investigation....

In the present case, the defendants' broadcasts specifically identified an individual officer at the Middletown police department as the subject of its pornography investigation. The plaintiff argues that a reasonable viewer could interpret the broadcasts to find that the plaintiff, and not his brother, was the subject of the investigation, and therefore the broadcasts were “of and concerning” the plaintiff. The defendant argues that no reasonable viewer could find that the broadcast was “of and concerning” the plaintiff as a matter of law. In this case, the question of mistaken identity is somewhat unique in that it involves identical twins. Under these unique facts, the court concludes that the issue of whether the broadcasts are “of and concerning” the plaintiff is the primary, material issue of fact disputed by the parties in this case and that it should not be decided as a matter of law because there is sufficient evidence for a jury to reasonably find that the broadcasts were “of and concerning” the plaintiff....

The comments to Restatement (Second), Torts § 564 (1977), provide an appropriate analysis for these unusual facts. Comment (b) states: “If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him.” Furthermore, “[i]t is not necessary that the plaintiff be designated by name; it is enough that there is such a description or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.” ...

Having demonstrated that there is an issue of material fact concerning whether the broadcasts were “of and concerning” the plaintiff, the plaintiff has the additional burden of proving that someone who saw the defendants' broadcasts actually understood that the broadcast referred to the plaintiff.... [The plaintiff pointed to several such people. -EV] ...

Because the plaintiff is a public official, he may not prevail unless he can prove that the defamatory broadcasts were made with “actual malice,” which the United States Supreme Court has defined as “knowledge that it was false or with reckless disregard of whether it was false or not.” ...

The court concludes there is an issue of fact concerning whether the defendants acted with actual malice in their broadcasts, because there is evidence that the defendants were aware that the plaintiff had an identical twin brother and acted in reckless disregard of this fact by broadcasting the plaintiff's name and a picture that resembled the plaintiff in connection with a story about his brother without sufficiently distinguishing between them to viewers....

If anyone has a pointer to a publicly accessible copy of the full opinion, please pass it along. For now, I hope the excerpts do it justice.

	[Eugene Volokh, May 6, 2009 at 10:04pm] Trackbacks So Say There's a Pair of Identical Twins, and they work for the same employer. Twin Richard is accused of serious misconduct; a TV story reports on the story, showing Richard's picture (which naturally looks just like twin Robert), and referring to Richard by last name (which naturally matches Robert's). Can Robert sue the TV station for libeling him, on the theory that many viewers might assume the story is about Robert? You'd think that was a law school exam hypothetical, but it's a real case, Siena v. Meredith Corp., 2009 WL 1140531 (Conn. Super. Mar. 30). An excerpt: These counts arise from three news reports and one “tease” broadcast aired on WFSB on February 27 and 28, 2006, concerning Richard Siena, the plaintiff's identical twin brother. Both the plaintiff, Robert, and his brother, Richard, were members of the Middletown police department (department) at the time of the broadcasts. The plaintiff and his identical twin brother both have similar hair styles and both have a mustache. While both brother's shared similar physical features and were employed as police officers, they had different ranks in the department and sexual orientations. The plaintiff, Robert was openly homosexual. During the course of the broadcasts, the defendants reported that Richard Siena admitted to viewing pornography on a police department computer on numerous occasions while on duty and that the department disciplined him with a written warning but subsequently promoted him to lieutenant. The defendants reported that “Officer Siena” was investigated by the Middletown Police Department. The investigation was about pornography involving sexually explicit photos of young adult and teenage males and was referred to as kiddie or child porn during some of the broadcasts. Susan Raff, Dennis House and Jessica Scheider, codefendants and employees of WFSB Channel 3, identified the person who was the object of the news in several ways. They called him “Siena,” “Officer Siena,” “Rick Siena,” “Sergeant Richard (Rick) Siena,” and “Lieutenant Siena,” during the broadcasts.... The plaintiff does not dispute the accuracy of these broadcasts as they apply to his brother, Richard. Instead, he alleges that the defendants' reports injured him because they negligently, willfully, recklessly and/or intentionally caused viewers to believe that the plaintiff rather than his brother, was the subject of the department's investigation.... In the present case, the defendants' broadcasts specifically identified an individual officer at the Middletown police department as the subject of its pornography investigation. The plaintiff argues that a reasonable viewer could interpret the broadcasts to find that the plaintiff, and not his brother, was the subject of the investigation, and therefore the broadcasts were “of and concerning” the plaintiff. The defendant argues that no reasonable viewer could find that the broadcast was “of and concerning” the plaintiff as a matter of law. In this case, the question of mistaken identity is somewhat unique in that it involves identical twins. Under these unique facts, the court concludes that the issue of whether the broadcasts are “of and concerning” the plaintiff is the primary, material issue of fact disputed by the parties in this case and that it should not be decided as a matter of law because there is sufficient evidence for a jury to reasonably find that the broadcasts were “of and concerning” the plaintiff.... The comments to Restatement (Second), Torts § 564 (1977), provide an appropriate analysis for these unusual facts. Comment (b) states: “If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him.” Furthermore, “[i]t is not necessary that the plaintiff be designated by name; it is enough that there is such a description or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.” ... Having demonstrated that there is an issue of material fact concerning whether the broadcasts were “of and concerning” the plaintiff, the plaintiff has the additional burden of proving that someone who saw the defendants' broadcasts actually understood that the broadcast referred to the plaintiff.... [The plaintiff pointed to several such people. -EV] ... Because the plaintiff is a public official, he may not prevail unless he can prove that the defamatory broadcasts were made with “actual malice,” which the United States Supreme Court has defined as “knowledge that it was false or with reckless disregard of whether it was false or not.” ... The court concludes there is an issue of fact concerning whether the defendants acted with actual malice in their broadcasts, because there is evidence that the defendants were aware that the plaintiff had an identical twin brother and acted in reckless disregard of this fact by broadcasting the plaintiff's name and a picture that resembled the plaintiff in connection with a story about his brother without sufficiently distinguishing between them to viewers.... If anyone has a pointer to a publicly accessible copy of the full opinion, please pass it along. For now, I hope the excerpts do it justice.