The Volokh Conspiracy
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The AP reports:
Actress Lindsay Lohan and her mother have filed a lawsuit accusing Fox News, TV host Sean Hannity and guest commentator Michelle Fields of defamation for claiming the actress and her mother did cocaine together.
Court papers filed Monday say the claim was made during a discussion of celebrity overdoses on Hannity's show on Feb. 4, 2014, two days after actor Philip Seymour Hoffman died of a heroin overdose. …
Fox News says it removed the clip from its archives and issued an on-air apology last year.
The complaint alleges (paragraph 42) that Fox "failed to remove the segment airing the derogatory comment, and its associated blog post from its website."
Here are some tentative thoughts:
A. In the clip that I've seen, Michelle Fields (of Fox) says, "Lindsay Lohan's mom is doing cocaine with her." This carries within it three assertions:
- Lindsay Lohan "is doing cocaine," which in context likely means that she has been doing cocaine in the relatively recent past.
- Dina Lohan has relatively recently been doing cocaine.
- Dina Lohan has relatively recently been doing cocaine with her relatively young daughter, which is an allegation of much more culpable behavior than just doing cocaine on one's own.
Of course, that if any of the three assertions I described above true, then there can be no liability as to those assertions; what follows will therefore assume that the assertions are false. (Of course, I don't know the facts myself, but U.S. News (Steven Nelson) reports that (a) "Lohan … a renowned wild child who has spent time in jail and rehab, told Oprah Winfrey six months before the Fox segment that she used cocaine about 10-15 times," (b) "[i]n 2012, she claimed in a leaked conversation her mother, Dina Lohan, was using cocaine, though she later recanted," and (c) "[i]t's unclear if Lohan ever said she used the drug with her mother, or if any proof exists that they did.")
B. Lindsay Lohan is a public figure, and my sense is that Dina Lohan is, too. I don't follow entertainment much, but between the reality shows, the Dr. Phil appearance, and various other things, she would either be a general purpose public figure or a limited purpose public figure with respect to comments about Lindsay and her relationship with Lindsay. The plaintiffs must therefore prove that Fox and Michelle Fields knew that some of the assertions made in the statement were false, or knew they were likely false but proceeded despite that likelihood.
As to the original airing of the statement, the question is what Fields sincerely believed at the time. If Fields sincerely—whether or not unreasonably—believed that Lindsay Lohan's cocaine use was recent, that Dina Lohan had used cocaine (maybe Fields had heard and believed Lindsay's accusation but hadn't heard the denials), and that the two had used cocaine together (perhaps because Fields sincerely ran Lindsay's admitted use and Dina's alleged use together in her mind, and recalled it as their using cocaine together), then there'd be no liability. At the same time, if there is no evidence at all that Lindsay and Dina had used cocaine together, then a jury might conclude that Fields made things up rather than just misremembering.
As to the original airing, Fox would be liable only if Fox's employees knew Fields' statement was false or likely false when they made the decision to broadcast it. Fox wouldn't be liable for Fields' statement based on an employer-employee relationship (what lawyers call a "respondeat superior" theory), since as best I can tell Fields wasn't an employee of Fox in February 2014, when the program aired.
C. But what about Fox's keeping the statement up on the Web—if, as the Lohans allege, Fox did so—after the Lohans notified Fox that they contend the statement was false? I'm glad you asked!
In principle, even a publisher that sincerely believes a statement is true when it publishes it may still be liable for continuing to make the material available once it learns of the material's falsity or likely falsity (so long as the statute of limitations hasn't run since the material was first published; in this instance, it hasn't). The Restatement (Second) of Torts announces this general principle in § 577(2):
One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.
Comment: … The basis of the liability is his duty not to permit the use of his land or chattels for a purpose damaging to others outside of the land. … So far as the cases thus far decided indicate, the duty arises only when the defendant knows that the defamatory matter is being exhibited on his land or chattels, and he is under no duty to police them or to make inquiry as to whether such a use is being made. He is required only to exercise reasonable care to abate the defamation, and he need not take steps that are unreasonable if the burden of the measures outweighs the harm to the plaintiff. In extreme cases, as when, for example, the defamatory matter might be carved in stone in letters a foot deep, it is possible that the defendant may not be required to take any action at all. But when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it.
Illustration: 15. A writes on the wall of the men's washroom in B's tavern a statement that C is an unchaste woman. B fails to discover the writing for an hour. After he discovers it, he fails to remove it for another hour, although he has ample opportunity to do so. During the second hour the writing is read by several men. B is subject to liability for the continued publication of the libel during the second hour, although not for the original publication. [That illustration is drawn from an actual California court case. -EV]
The logic of this provision seems to apply to Web sites owned by the publisher. (Because the Restatement is an influential summary of court cases, not a statute, courts can apply it by analogy even to situations that may fall outside its literal words.) A 2007 federal district court case has indeed applied this principle to Web sites, and a 2008 Georgia case seems to have endorsed this principle as to Web sites, but concluded it was inapplicable on the facts (since the failure to remove was only negligent and not deliberate). I know of no case that has rejected this principle as to Web sites.
But wait: Here the statement was by Fields, who, as I mentioned, was apparently not a Fox employee at the time. And though Fox's program was first aired by cable, the supposed continued availability of the statement, after the Lohans asserted to Fox that the statement was wrong, was on the Internet.
The medium of distribution matters, because it means that 47 U.S.C. § 230 might kick in. That statute generally protects Internet content providers from defamation liability (and other liability) based on material provided by others. (That's why I'm not liable for defamation posted by you in the comments, not that you should do that.) And that remains true even when the people making the statements are expressly invited by the content provider to speak on the provider's platform. See Blumenthal v. Drudge (D.D.C. 1998), holding that America Online, which had a special deal to distribute the Drudge Report on its site, wasn't liable for alleged defamation in a Drudge Report story.
Maybe this logic might also apply to FoxNews.com hosting statements by Michelle Fields, even if those statements first came up on a cable TV show, a medium that isn't covered by § 230. Or maybe not: Maybe a court will conclude that a broadcaster's online redistribution of a show that it frames as its own show, with its own invited guests, once the broadcaster learns some of the guests' statements are false or likely false, would be the broadcaster's responsibility. Hard to tell for sure.
D. So, as usual, a libel lawsuit, especially one brought by a public figure, faces an uphill battle. But what I said above is my tentative sense of what arguments on the Lohans' part might prevail.
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