Libel Law and the Covington Boys

Facts vs. opinions; compensatory/presumed/punitive damages; negligence, recklessness, and knowledge; libel per se; timing; choice of law; and more defamation law fun.

Some readers have been asking me about whether the Covington High School boys could sue various people who have said various things about them. (For more on the story, see this Robby Soave [Reason] article, and this Caitlin Flanagan [The Atlantic] article.)

It's hard to tell, because to my knowledge no lawsuits have been filed, so we don't know exactly who would be suing whom over what statements. Still, let me offer a few general thoughts. (Note that this is entirely apart from the important matters of media ethics and personal ethics that this incident implicates; I'm focusing here solely on the legal questions, because that's where I think I have something to contribute.)

[1.] Fact vs. opinion. A lot of derogatory, even unfairly derogatory, criticism is treated as pure opinion, and thus not legally actionable. For instance, claiming that someone's appearance in some video (especially one that you link to) reflects a "smirk" (rather than a pained smile) and stems from racism, is likely to be seen as an opinion: A reasonable reader would understand it as the poster's subjective judgment about the video subject's motivations, and thus as speculation rather than an assertion about provable fact. To quote a nice summary from a recent federal district court case,

Statements indicating that Plaintiff is racist are clearly expressions of opinion that cannot be proven as verifiably true or false. While there appears to be no North Carolina court expressly addressing this issue, many courts in other jurisdictions that have faced the issue of defamation claims based on accusations of bigotry or racism have held the statements to be nonactionable statements of opinion. See, e.g., Stevens v. Tillman, 855 F.2d 394, 403 (7th Cir. 1988) (holding that neither general statements charging a person with being racist, unfair, unjust, nor references to general discriminatory treatment, without more, constitute provably false assertions of fact); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995) (holding that calling a judge "anti-Semitic" was a non-actionable opinion); Ward v. Zelikovsky, 643 A.2d 972, 980 (N.J. 1994) (accusation that plaintiffs "hated Jews" nonactionable); Covino v. Hagemann, 627 N.Y.S.2d 894, 895 (N.Y. Sup. Ct. 1995) (dismissing defamation claim based on statement that plaintiff was "racially insensitive," observing "an expression of opinion is not actionable as a defamation, no matter how offensive, vituperative, or unreasonable it may be" and "[a]ccusations of racism and prejudice" have routinely been found to constitute non-actionable expressions of opinion); Williams v. Kanemaru, 309 P.2d 972 (Haw. Ct. App. 2013) (accusation of racism based on disclosed facts not actionable for defamation); Lennon v. Cuyahoga County Juvenile Court, No. 86651, 2006 WL 1428920, *6 (Ohio Ct. App. May 25, 2006) ("[W]e find that appellant's being called a racist was a matter of one employee's opinion and thus is constitutionally protected speech, not subject to a defamation claim.").

On the other hand, claiming that a person made a particular statement would be a factual assertion, and might well be libelous if false and defamatory (i.e., if the statement, if made, would reflect badly on the person).

[2.] Speaker's mental state. Say that a speaker had made a false factual assertion about one of the Covington boys. What mental state would the plaintiff have to show on the speaker's part? From a First Amendment perspective, that turns on whether the plaintiff is a public figure or public official, and whether the speech is on a matter of a public concern.

The boys are private figures, not public officials or public figures; they weren't famous or influential before this event. One could become a "limited purpose public figure" by voluntarily entering some particular debate; then one would be treated as a public figure as to claims relevant to that debate. But I doubt that just showing up at a rally would qualify, and in any event the rally they voluntarily joined was a "March for Life," not a rally focused on racism or Indian-white relations or the way to deal with protesters banging drums and chanting.

On the other hand, the criticisms of the boys were tied to questions of broader public concern, rather than purely private figures. In private figure/public concern cases,

• The First Amendment allows plaintiffs to recover proved compensatory damages (such as loss of business opportunities, loss of social standing, and emotional distress stemming from those harms) based on a showing that the defendant speakers' errors were negligent.
• But before plaintiffs recover other damages—such as "presumed damages," which don't require a showing of specific loss, or punitive damages—they have to show that the defendants knew their statements were false or likely false (the misnamed "actual malice" standard).

My guess is that the plaintiffs would have a hard time showing specific damages stemming from a particular Tweet or even a statement in an out-of-town newspaper. They may well be damaged by the controversy as a whole, but that doesn't mean they can show such damage stemming from a particular defendant's speech. They would therefore need to claim presumed or punitive damages; and that requires more or a less deliberate lie, not just a negligent mistake.

[3.] Libel per se? The boys appear to be from Kentucky, so it seems likely that any suit they bring will be governed by Kentucky law. (That's the general choice-of-law rule in cases of libel by media that crosses state boundaries.) Under Kentucky law, and under the law of many other states, a plaintiff may only recover presumed damages for accusations that are "defamatory per se"—"those which attribute to someone a criminal offense, a loathsome disease, serious sexual misconduct, or conduct which is incompatible with his business, trade, profession, or office." (The same rule likely applies to punitive damages as well.)

So if a teenager is just being accused of being rude or racist, I doubt this would qualify as "per se" defamation; he then would need to show proved compensatory damages, or what are often called "specific damages" rather than the presumed "general damages." (One can argue that accusations of racist smirking, even at a political rally, may eventually harm the boys' business prospects in their future professional lives; but while that may be factually plausible, I don't think such long-term potential harm in a future business, trade, profession, or office would qualify under the "per se" test.)

As I mentioned above, such specific damage to reputation might be hard to show for most Tweets and out-of-state newspaper publications. On the other hand, if someone is accused of hitting or threatening people, that's an accusation of crime, and thus defamatory per se.

Note that the rule seems to be somewhat different in Ohio, where other statements that "hold [plaintiff] up to a public hatred, contempt or scorn" can qualify as defamatory per se; so if some of the boys live in Ohio (that seems possible, since I think Covington Catholic High School is very near Cincinnati), they might have a stronger case.

[4.] Knowledge/negligence as of when? Say that someone posted an accusation sincerely believing it to be true, but then it was shown that the accusation was false, but the poster refused to take it down. Can the plaintiff successfully argue that keeping the post up with knowledge of falsehood or likely falsehood is libel, or does it matter only what the defendant knew when he initially posted the material?

Likewise, even if the negligence test applies, say that, when an accusation was posted, the poster reasonably believed it to be true—but then learned of facts that would lead a reasonable person to no longer believe that. If the poster refuses to take down the post even then, can the plaintiff argue that keeping the post up is negligent, or does it matter only whether the defendant was negligent when he initially posted?

Surprisingly, that is not a well-settled question; the cases are split, and there are good arguments on both sides. On one hand, the Restatement (Second) of Torts § 577(2) states:

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 [once he learns about the defamatory statement].

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, and to publishers who knew about the statements from the outset but only later learned that they were false. (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.) On the other hand, some courts have held that, under the so-called "single publication" rule, the validity of a libel claim is judged solely as of the time the libel was initially published. I'm writing a law review article on this subject right now, and I hope to post more about it in coming months.

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There's more to be said, but the post is long enough as it is. I'll leave it at that for now, though I might have more follow-up posts in days to come.