The Volokh Conspiracy

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Free Speech

"Libel by Omission of Exculpatory Legal Decisions"

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I've also split off this short separate piece from my "The Duty Not to Continue Distributing Your Own Libels," since it might be useful even to those who aren't interested in that article (though the two can also work well together). I think of this sort of separated section as a subroutine, or, if you prefer, a lemma. It too has just been published in the Notre Dame Law Review, volume 97, pp. 351-55. The abstract:

Is it libelous to write that someone has been convicted of a crime, but to fail to mention that the conviction has been reversed? Or to write that someone has been charged, without mentioning the acquittal? The answers, it turns out, are often "yes"; this Article lays out the precedents that so conclude.

Here too, I'd love to hear what readers think, and how lawyers find it useful (if they do).

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  1. Facts supporting a claim of defamation by omission would seem to often also support false light invasion of privacy, at least in jurisdictions that recognize it. How complete is the overlap?

  2. "Is it libelous to write that someone has been convicted of a crime, but to fail to mention that the conviction has been reversed?"

    I don't know if this counts as an omission. A reversal is usually based on a finding that the person had not been properly convicted in the first place.

    1. I'm not seeing your your first sentence follows from your second.

      1. ISTM that if a court finds that your conviction was defective enough to merit reversal, you haven't been convicted. So it's not a deception through omission to say that they were convicted, it's a misstatement of fact.

        1. Interesting and thoughtful point. I can see that.

        2. I didn't look up all the cases he cites, but it appears to me that Prof. Volokh is thinking of a statement like "Following a two week trial, a jury convicted TwelveInchPianist of [whatever] on January 4, 2022." It is true that following the reversal, you wouldn't have a valid conviction on your criminal record. It is also true that, as a matter of historical fact, you were convicted.

          1. In your hypo, it's hard to find a policy reason for finding liability. But I guess they are talking about "X was convicted on Jan 4...and the conviction was reversed on June 1." If you wrote the article in, say, July, then I can see how you have been intentionally/negligently misleading. You accidentally or deliberately left out half the story.

            But if you wrote you story in April, then I'm not sure what duty, if any, you have. At the time, your story was 100% accurate. Now that there are new facts, your story is still 100% accurate (X was convicted on Jan 4) but is now misleading. If you do have a duty to update and correct; what is that duty? If your writing was only online; can you merely put the correction at the top of the story? Do you also need to edit the story, to remove the (now-)false info? Or do you need to publish an entirely new story that gives the correction?

            It's an interesting topic...I hope that others will post, with their thoughts or answers.

  3. In the world of internet published article, in my opinion, part of the issue is the continued publishing of factually incorrect and potentially libelous material. Unlike a printed news paper which is largely a 1x event, the LA Times website that allows for the instant retrieval of that same article without the Omission of Exculpatory decisions is a continued publishing of libelous information.

    Let's say that on 1/2/2022 somebody was acquitted of a crime. But on 1/3/2022 the LA Times published an article outlining how they were arrested and all the evidence against them looked bad and that people could rightly conclude they were guilty. Would that 1x publishing be a libelous event?

    If so, then what does it look like if the same article is published on 12/31/2021 and 10 people read it, but after the verdict on 1/2/2022 there is a huge Google search increase and 10,000 people read this 'libelous' article. It is as if it has been republished. This is very different than if the article was only published in print.

    1. This was part of the WaPo's problem in the libel suit by Sandmann; Even after they'd acknowledged that their original story was wrong, (And they took a long, long time doing it, though the evidence it was wrong was available within hours.) they didn't go back and correct the reports in their system for a couple weeks, during which anybody looking him up would find the original libel, with no hint that it was wrong.

      1. Makes sense, thanks for the info!

    2. I appreciate that, and my other Notre Dame article ("The Duty Not to Continue Distributing Your Own Libels") discusses that general issue.

  4. I could easily point out dozens if not hundreds of MSM blurbs along these lines.

    Classic recent examples are things like calling 6 Jan 2021 an insurrection but failing to point out that no one has been charged with the crime of insurrection. Both Clintons and Trump are often the subject of calls for criminal prosecution yet have never been criminally charged. I am reminded of the old LBJ joke when he was subject to abuse by the press when he commented if he walked on water across the Potomac River the headline would be "LBJ Can't Swim".

    1. "Insurrection" is an expression of opinion when applied to somebody who did enter the Capitol illegally on January 6. I can shout "treason! insurrection! crimes against fashion!" about the January 6 tourists. I can call ex-governor Cuomo or Kyle Rittenhouse a murderer despite the lack of prosecution (Cuomo) or not guilty verdict (Rittenhouse).

      1. As Brett mentioned earlier the Sandman v WaPo suit result was in favor of Sandman. I do understand the term insurrection is being used in a general sense at least mostly. But many "opinions" have claimed Trump was trying to incite an insurrection. Same for Rittenhouse being guilty of murder even after a not guilty verdict. While I might be able to justify involuntary manslaughter for Cuomo (if I stretch things) I don't see murder.

        Point is at some point opinion is objectively wrong in a legal sense and subject to liability.

        1. That's like the goofy 'Mueller's report totally exonerates because it doesn't say 'collusion!'

          And calling someone a murderer might not be the same thing as saying they were legally convicted of murder.

          1. Given the presumption of innocence, it wasn't Mueller's job to "exonerate" anybody, and he knew it. He either overcame the presumption of innocence, or didn't.

            And he didn't. No exoneration required or within his authority. It was something of a breach of ethics to even bring up the topic of "exoneration", it was meant to invert the burden of proof.

            1. To be clear, in order to be "exonerated", you have to first have been found guilty, 'exoneration' is the reversal of that finding.

              No finding that somebody is guilty, no exoneration.

              1. I think that confuses the legal meaning with a more general one.

              2. So you're saying that Trump was lying when he said it exonerated him?

                (I mean, he was, but for a very different reason than the fake one you just proposed based on a definition you just made up.)

                1. Well, mistaken anyway.

        2. Well, no, I don't think the Sandmann case helps Trump any. The WaPo, CNN, and so forth reports were factually inaccurate, in a way that the WaPo and company had proof of within hours of their first report on the topic, and they kept them up uncorrected for weeks. And Sandmann wasn't a public figure, either, so Sandmann didn't have to prove 'actual malice'.

          As long as you're not talking legal incitement, or legal insurrection, I think the claims about Trump are safely in the realm of opinion. Which is protected even if ungrounded in fact.

        3. As Brett mentioned earlier the Sandman v WaPo suit result was in favor of Sandman.

          How so?

          1. Only in that WaPo voluntarily settled, one presumes to avoid a loss, but it wasn't a court decision in his favor.

            1. one presumes to avoid a loss

              Why would one presume that?

              I see nothing in the confidential, no-admission-of-wrongdoing settlement or anything that's happened since to suggest that Sandmann received more than a nuisance payment.

              But if you have seen something, I would certainly welcome becoming better-informed about it.

              1. From a 'assuming facts not in evidence' objection you are right there is nothing to convince a court of law it was a loss for WaPo.

                On the other hand your claim does not pass the nine year old test (if you don't know what that means it is something along the lines of if you presented an argument to a nine year would they laugh in your face at how silly it was).

                No one with an IQ above room temperature would think Sandman wanted a confidential no admission agreement; only WaPo would want such an agreement. Lets not forget CNN got the same agreement and several other Sandman lawsuits got past motions to dismiss and are still likely in the negotiation stage.

                As someone who has been involved in a lawsuit involving my HOA I was shocked (well not really that shocked) that the HOA literally doubled the settle amount to get a confidential agreement. As much as I wanted a public humiliation of the HOA I wanted the long green more.

                Bottom line is when a suit like this is settled most folks would bet dollars to donuts WaPo paid more to get a confidential agreement.

                1. Well, more than they wanted, but probably less than Sandmann was asking for. Sandmann had a lottery ticket, and a pretty good one, the WaPo bought it off him to avoid finding out if it was a winner, because if it was, they'd be paying out the winnings.

                  If it had obviously been a loser, they'd have told him to go climb a tree.

                  1. Sandmann had something worth as much as the typical lottery ticket. There's no reason to think he got anything more than nuisance value.

                    Paying nuisance value is telling a plaintiff to go climb a tree.

                    1. No, worth much more than the average lottery ticket, or else media outlets wouldn't give him the time of day.

                      The fact is that they seriously screwed up the coverage, they know it, and Sandmann isn't a public figure, so he doesn't have to prove 'actual malice'. His chances of winning one of these cases might not be 50-50, but it's good enough the media outlets are willing to pay to keep it from a jury.

        4. As Brett mentioned earlier the Sandman v WaPo suit result was in favor of Sandman.

          Incorrect.

  5. What about pardons? Is it defamatory to say that, say, Michael Flynn was convicted of felonies and not mention that he was pardoned? The pardon, unlike a reversal, doesn't make Flynn innocent of what he pleaded to. If, in the context of the article, the point is that Flynn did what he did rather than his current status, is it defamatory to say he did what he admittedly did and was duly convicted for it?

    1. It's one of the reasons why I always refer to "Convicted felon Michael Flynn" and "Convicted perjurer Oliver North."

      Should be part of their legacies, and will hopefully be part of every (non-Fox-News) obituary.

      1. I was just recently remembering seeing somebody wearing an "Ollie North for President" back in the days when the Iran-Contra affair was news. Personally, I think he should have gotten an MBA or at least done something to improve his weak project management skills before running for high office.

    2. It's worth remembering that Flynn wasn't "convicted", as such, he just pled guilty as part of a plea agreement, to keep the feds from bankrupting his family, too.

      He then tried to withdraw the plea on account of prosecutorial misconduct, and looked to have a good enough shot at succeeding that the DOJ filed to withdraw the charges.

      When the judge refused to permit it, Flynn appealed to a higher court, and eventually got a writ of mandamus forcing Sullivan to permit the charges to be dropped. Sullivan challenged it, and the court fight was ongoing when Trump pardoned him to spare Flynn Sullivan's threat to initiate a prosecution for perjury over the coerced guilty plea.

      So, you'd be factually incorrect in saying he was a convicted felon, or at least saying so would be rather misleading.

      1. A coerced guilty plea still counts as "convicted". You can attach whatever weight you like to such a conviction.

        1. A guilty plea isn't a conviction. A guilty plea can lead to a conviction, but there are still other steps necessary.

        2. The difference was that there wasn't any adversarial process or trial. They simply subjected him to legal costs until he was bankrupt, then threatened to go after his family, too.

          They never had to prove him guilty, they just proved TO him that they could put his family in the poor house.

          1. When you express similar concern over lots of anonymous defendants in a similar boat, I'll take you somewhat seriously.

  6. "Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession."

    I'm not a lawyer, but I can copy/paste. It seems obvious to the non-professional that this definition covers that hypothetical. Assuming that the author had ill intent and the omission was intentional or at least willfully negligent.

    I probably misused all sorts of legal words in that paragraph.

  7. I have never heard the word "lemma" before. That's an interesting word with an even more interesting meaning i(a preposition of a preposition)

    1. Lockean, in mathematics a lemma is a proposition, not a preposition.
      Interestingly, the word also has a meaning in linguistics, but it still isn't "preposition". It is the uninflected form of a word suitable for labeling its dictionary entry. Search software often uses lemmatization algorithms to reduce search terms to a canonical form and is how Google can find variants of the word you searched for.

  8. Depending on the context, it might well be enduringly significant that someone had been arrested notwithstanding his later acquittal, or convicted notwithstanding later reversal. For example, experiencing an arrest could be expected to inform one’s perspective about police without much regard for the outcome of any subsequent proceedings. The fact of conviction—as it bears on whether the person likely committed the acts the jury convicted him of having committed—remains salient despite later reversal, which generally signifies not that the guilty verdict was factually incorrect in any respect, only that procedural error infected the trial at which the verdict was returned. When, as in the examples provided, the acquittal and reversal are not strictly “material” to the point in service of which the fact of earlier arrest or conviction, respectively, was invoked, neglecting to mention the second half of the full story would almost certainly not be libelous. That said, concerns for honesty, decency, and fullness-of-understanding would counsel against the kind of hairsplitting it takes to justify reciting events so selectively as to leave people less informed that one should reasonably expect they would prefer.

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