Burden of Proving Truth or Falsity in Defamation Cases in the U.S.:

Some comments in the Mental Tyranny of Legal Concepts made clear that this is not a broadly known rule, so I thought I'd just mention it here:

In a defamation case, at least when the speech is on a matter of public concern, "the plaintiff [must] bear the burden of showing falsity, as well as [the defendant's] fault, before recovering damages." This is true whether the plaintiff is a public figure or a private figure. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). The common-law rule was that the defendant must prove truth, but Hepps changed that for First Amendment reasons.

Note: Before arguing whether this is the right result, please at least skim the Hepps reasoning.

It's odd that there was ever a presumption of falsity. I would have thought that, as an element of the tort, falsity had to be proven by the plaintiff.
10.26.2006 3:45pm
lucia (mail) (www):
I'm not a lawyer, so forgive the potentially dumb question, but isn't the burden of proof usually on the plaintiff? (Example: plaintiff alleges you own him money. He has to prove it?)
I guess I hope the answer is yes!
10.26.2006 4:07pm
In the old days, truth was an affirmative defense, and, as such, had to be proved by the defendant. Why that was so, when it seemed more logical to regard falsity as an element of the tort and put the burden on the plaintiff, I never understood, unless it had something to do with the seeming difficulty of proving that you weren't, for example, a crook.
10.26.2006 4:23pm
Duffy Pratt (mail):
Whether a statement is true or false has nothing to do with whether it is defamatory.

From one standpoint, the common law rule made some sense. Suppose someone is defamed by another who called him a pedophile who routinely had sex with little boys. It's bad enough that the plaintiff has to repeat these comments in detail when making his complaint, but suppose now that he also had to prove that the statement was false.

A rule that makes the defendant prove the statement was true to escape liability would have the effect of making people a bit more cautious about what they say of others. In the first amendment area, it makes some sense not to impose that extra caution on speakers.
10.26.2006 5:24pm
David M. Nieporent (www):
I'm not a lawyer, so forgive the potentially dumb question, but isn't the burden of proof usually on the plaintiff? (Example: plaintiff alleges you own him money. He has to prove it?)
I guess I hope the answer is yes!
The burden of proof of the 'elements' of a particular cause of action is on the plaintiff. So if he is alleging you owe him money because you breached a contract, he must establish that there's a valid contract that was breached.

But there's a concept called 'affirmative defenses'; those are items which the defense has to prove. An example is the statute of limitations. The plaintiff doesn't have to prove that his case was filed within the statute of limitations in order to prevail; the defense has to prove that it wasn't.

And for most affirmative defenses, if the defendant fails to raise the issue in a timely manner, he may 'waive' it.
10.26.2006 5:31pm
David M. Nieporent (www):
It's odd that there was ever a presumption of falsity. I would have thought that, as an element of the tort, falsity had to be proven by the plaintiff.
Not that odd, Bruce. If I call you a rapist, how can you prove it false? Call every woman on the planet to the stand and ask her whether you raped her? I'm the one making the accusation, so I must have some basis for making it, so it's much easier for me to try to prove it true than for you to try to prove it false.
10.26.2006 5:35pm
Realist Liberal:

It's odd that there was ever a presumption of falsity. I would have thought that, as an element of the tort, falsity had to be proven by the plaintiff.

This isn't that odd because at common law falsity was not an element of the tort. In order to prove murder, the prosecution does not have to prove that the defendant is "not insane" because lack of insanity is not an element of murder. Insanity and the common law idea of truth are both affirmative defenses.
10.26.2006 5:51pm
def (mail):
Im not a lawyer (yet), but when someone asked me to use westlaw to look up some stuff on defamation a couple weeks ago, I think I saw something about Defamation Per Se, as would be the case with chastity or the lack thereof. I think the burdens switch on this to the plaintiff.
10.26.2006 6:08pm
Christopher Cooke (mail):
The presumption was that everyone had a good reputation and so a defamatory statement must be false, but the defendant could show it was true.

I think it is nice to believe that everyone has a good reputation, it is kind of like assuming the best about everyone.

I don't think this case (Hepps) was a big departure in light of Gertz' requirement that a private figure, suing over an allegedly defamatory statement on a matter of public concern, had to show "fault" on the part of the defendant to prevail. As O'Connor points out, proving fault will likely require you to prove falsity.
10.26.2006 6:27pm
Enrique Armijo (mail):
As many of you probably know, the U.S. system's placement of the burden of proof on the plaintiff in libel cases, combined with the opportunity for worldwide publication that the Internet presents, has resulted in a new kind of forum-shopping in libel litigation: suing, or threatening to sue, U.S. journalists in British and other foreign courts. See, e.g.,
10.26.2006 6:54pm
Oh, OK, I'll actually look it up. Here's the elements of defamation under the Second Restatement of Torts:

ยง 558. Elements Stated

To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

So, in (a), falsity is (part of) an element.

The reason for the presumption is probably what Duffy said -- it allows the plaintiff to bring his or her case without delving into the details of the defamatory statement. But I don't think difficulties of proof are a big issue. All the plaintiff has to do is testify that he or she is not a [so-and-so]. As long as the plaintiff is minimally credible, the burden will shift back to the defendant to put in some evidence in opposition.
10.26.2006 7:00pm
David M. Nieporent (www):
def: Defamation Per Se has to do with whether one needs to prove damages; it doesn't shift the burden of proof on truth or falsity.
10.26.2006 7:07pm
Public_Defender (mail):
Let me amend the argument I made in the other thread:

The main point is, if the acquitted person you want to label a "murderer" or a "child molester" or whatever is not a public figure, be prepared to back up your accusation in court. And be prepared to pay damages if the person you're accusing proves that you are negligently wrong.

How much investigation must a person do before making an accusation that an acquitted person is actually guilty? That still seems like a risky allegation.
10.26.2006 7:11pm
lucia (mail) (www):
Thanks David M. Nieporent.
10.26.2006 11:53pm

Moyers sues the guy for defamation for claiming Moyers used his program to promote Democrats.

Who wins?
10.27.2006 1:05am
Anthony A (mail):
The plaintiff does not actually need to prove the statement was false, but merely show that the statement was made "with a reckless disregard for the truth". Proving "reckless disregard for truth" seems incompatible with journalist shield laws, as proving that would require pretty extensive discovery.

we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.

This statement privileges "media defendants" over all other potential defamers, while the damage which media defendants are capable of is significantly greater than that of other potential defamers.
10.27.2006 3:51am
lucia (mail) (www):
Once again, I'm not a lawyer-- so I'd be interested in what people suggest. For one thing, I was wondering if the allegation that he used his program to promote Democrats is, strictly speaking, defamatory?

I recognize it's not what Moyers wants people to believe. He may think he's not doing it. Heck, for all I know, he isn't doing it. But, would it be illegal, obviously immoral and / or obviously subject Moyers to public approbrium? Could it just be an opinion-- like waying Fox news is right leaning and the New York Times left leaning?

(BTW: I don't mean these rhetorically to make a point. I'd actually like to know!)
10.27.2006 11:52am
David W Drake (mail):
I think David M. has the right answer as to why the presumption should be with the plaintiff--the very great difficulty of proving a negative. The plaintiff can, of course, simply testify, e.g. "I am not a rapist." But that wouldn't persuade a jury in the case where the news story did real damage to the plaintiff's reputation, which is to say almost every libel case that is worth bringing.

It would seem to be much fairer for the defendant to be required to give the grounds for the statement: e.g. "I called him a rapist because I (or my informant) saw him running away from Ms. ____________'s home and Ms. _______ came to the door sobbing that she had been raped." This should then shift the burden back to the plaintiff who would then only to have to refute the claim that he had been the one running from the home that night rather than to prove that he had never raped anybody. In other words, placing the burden on the defendant is more likely to lead to the discovery of the truth.
10.27.2006 1:08pm
Eugene Volokh (www):
Anthony A: No, the plaintiff (in public figure/public concern cases, or to recover punitive or presumed damages even in private figure/public concern cases) must prove *both* that the statement was false *and* that the defendant knew the statement was false or was acting with reckless disregard for whether it was false.

To recover compensatory damages in private figure/public concern cases, the plaintiff must prove *both* that the statement was false *and* that the defendant was negligent in its investigation of the matter.
10.27.2006 3:08pm
Richard Ragsdale (mail):

The presumption of falsity still lives in some states, perhaps many, in narrow circumstances. The U.S. Supreme Court allowed the presumption of falsity and presumed damages and punitive damages in Dunn &Bradstreet v. Greenmoss Builders, 472 U.S. 479 (1985). This was a private plaintiff harmed by a false credit report that had no public interest. Of course it was not much of an issue because D &B's report that the plaintiff had gone out of business was demonstrably and admittedly false.

Common sense suggests that one who publishes a defamation should have a factual basis for the charge; the defamer can therefore logically be required to prove the truth of his defamatory statement. The law frequently places the burden of proof on the party who has superior access to the facts, especially where the other party would be placed in the position of proving a negative (I am not a philanderer, say). Think of the defense of payment--produce the canceled check or signed receipt; after all, the seller can only endlessly repeat that he didn't get paid.

A more interesting question regarding the plaintiff's burden of proving falsity is whether the proof of falsity must be clear and convincing if the standard of liability is actual malice--which requires clear and convincing proof. The issue is not settled; some courts hold, correctly I think, that clear and convincing proof of reckless disregard for the truth necessarily requires that the falsity of the defamation be proved by clear and convincing evidence.

In many cases it won't matter, but if the truth is hotly contested, the clear and convincing burden of proof is a huge advantage for the defendant.
10.27.2006 4:36pm

Nobody took up the issue much, but the answer is based in the Volokhian post, remembering, that Moyers is a public figure, in politics and commentary for decades:

the plaintiff (in public figure/public concern cases...) must prove *both* that the statement was false *and* that the defendant knew the statement was false or was acting with reckless disregard for whether it was false.

It is an extremely difficult burden, almost impossible, for a public figure to meet, especially in the Moyers case where his entire life is commentary and "journalism" - he may introduce evidence to show he did not use his program to promote Democrats, but the Rev. gets to introduce evidence to show he did. And the Rev's evidence also will show he did not act with reckless disregard for the truth or falsity, or that it was false to begin with.

For an entertaining version of Moyer's problem, check out "Absence of Malice" with Paul Newman and Sally Field. There are a few scenes that specifically address the issue of defamation suits against public figures.
10.28.2006 1:30am
excuse me: .......defamation suits by public figures.
10.28.2006 1:30am
lucia (mail) (www):
Thanks Lev. I just went to Netflix to check out the movie. ( Can there be any better way to get a legal education than a combination of movies, people's court and legal blogs? {{ grin }})
10.28.2006 1:29pm
LUCKI the Blogger (mail) (www):
Eugene, thanks for the reminder! I'm about to file my pleadings (as plaintiff) based on defamation I noted in my LAIKA blog, here.

Brief notes: Haven't read Hepps, but I'm about to. After I do, I'll re-comment if appropriate, or, if the comment period has expired, I'll just e-mail you (again).

My inclination is: bad holding, because my studies in Philosophy of Science (e.g. Popper, Lakatos, et al.) indicate that proving a negative statement is no more theoretically amenable to proof than proving a positive statement is. Hence, burden of proof should not be any different than in traditional cases. If we are to hold on to the notion of "libel per se", a showing of truth should be required for defendant to prevail.
10.29.2006 9:14am