Quoting Others' Allegations as Libel:

I'm finishing up the third edition of my First Amendment and Related Statutes textbook, and for it I wrote up a brief summary of the libel law rule when a speaker (e.g., a newspaper, a blogger, a book author, and the like) accurately reports someone else’s statement, which turns out to be false and defamatory. Since people had asked me about this in the past, I thought I'd blog my summary here.

Assume that blogger Alan writes, "Betty alleges Charlie committed armed robbery." Alan’s statement is literally true: Betty did make the allegation. But the statement Alan is reporting on (Betty’s statement) is false, and Alan has the mental state that would make him culpable if he were the original accuser (for instance, he entertained serious doubts about the truth of Betty’s allegation, which is enough to make him liable under a recklessness theory, even if Charlie is a public figure).

a. The general "republication rule" is that a speaker is responsible for the factual assertions in others’ statements (assuming the speaker has the constitutionally required mental state), even when he expressly attributes the statements to others. The truth or falsity of Alan’s statement is evaluated as to the allegation that it repeats (Betty’s report), and not only as to the assertion it literally makes (that Betty reported it). Restatement (Second) of Torts § 578.

And this is true even if Alan distances himself from the allegation, for instance by saying that Charlie has denied the statement, or that Betty has reason to lie. The principle is that "Tale bearers are as bad as tale makers."

b. Some recent cases disagree, and evaluate the statement’s truth based on whether the allegation had indeed been made, not based on whether the allegation (which the statement reports) is true. See, e.g., KTRK Television v. Felder, 950 S.W.2d 100 (Tex. App. 1997); In re United Press Int’l, 106 Bankr. 323 (D.D.C. 1989). This, though, is a minority view; the view mentioned in (a) remains dominant.

c. But say that a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such speech must in some measure be immune from liability, even when under the general rule (see 6.a above) the reporter’s speech would be actionable. Under the common-law fair report privilege, the reporter and the newspaper are protected against liability for evenhanded and substantially accurate reports of government proceedings. In many states, this is an absolute privilege, applicable even when the reporter knows that the statements within those proceedings are false (or are likely to be false).

In the other states, though, this privilege is merely a "qualified" privilege, which means that it can be lost when the reporter is acting with "actual malice." Such a qualified privilege still offers some protection, for instance when the statements are about a private figure and would thus be actionable if said negligently -- the reporter would then get the benefit of the "actual malice" test under the qualified privilege, rather than just the negligence test that would be applicable without the privilege. But if the reporter knows the statement in the government proceeding is false (or is reckless about the possibility), he and his employer can be held liable. The Supreme Court has never decided whether an absolute fair report privilege is constitutionally mandated.

d. What if the statement is outside a government proceeding? Consider this incident, from Norton v. Glenn, 860 A.2d 48 (Pa. 2004): "[City councilman Glenn] claimed that [council president Norton] and [city mayor] Wolfe were homosexuals and ... strongly impli[ied] that Glenn considered Norton and Wolfe to be ‘queers and child molesters.’ ... Glenn [also] asserted that Nortion had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn’s penis ...." A newspaper published an article accurately describing the charges, and quoting Norton’s unequivocal denial; the newspaper didn’t adopt or concur in Glenn’s statements. Norton and Wolfe sued both the newspaper and Glenn. The jury in the lawsuit against Glenn found that the statements were false.

e. Some courts would hold that the newspaper would nonetheless be protected under a First Amendment "neutral reportage" privilege, because the charges themselves were newsworthy even if they were false. (Why might that be?) "[W]hen a responsible, prominent organization ... makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges," even when the reporter has serious doubts about the accuracy of the charges. Edwards v. National Audubon Soc’y, 556 F.2d 113 (2d Cir. 1977). Some later cases have extended this to certain charges on matters of public concern against private figures, and to statements made not just by responsible, prominent organizations but by any public figure, or even by any nonanonymous source.

f. Other courts, however, have rejected the neutral reportage privilege. In Norton v. Glenn, for instance, the Pennsylvania Supreme Court held that Norton’s and Wolfe’s lawsuit against the paper could go forward, and the paper could be held liable if it published Glenn’s statements knowing of a high probability they were false. The case eventually settled for an undisclosed amount.

Extending this to verbal repetition shows why the general 'replication' rule makes no sense. This blog repeatedly has defended professors who used, say, the word "nigger" in lectures about the Jim Crow or antebellum South, without meaning it as a racial insult but instead quoting historical figures who did. That doesn't seem to me to be substantially different from quoting libelous allegations. A reasonable person should be able to tell the difference between someone honestly reporting what someone else said, someone reporting in order to denounce the libel, and someone hiding behind the fact that it's a quote in order to spread the story, just as a reasonable person would be able to tell the difference between someone quoting a racial slur for educational value and someone using the quote as a veil for their own racism.
3.25.2008 11:20am
Texas Stickler:
KTRK Television v. Felder, 950 S.W.2d 100 (Tex. App. 1997)

Do you mean KTRK Television v. Felder, 950 S.W.2d 100 (Tex. App. - Houston [14th Dist.] 1997, no pet). Why does no one outside of Texas cite or reference our arcane writ and petition history? ;)
3.25.2008 11:27am
JB--I think it's substantially different simply because using a particular word isn't an assertion of fact of the sort that gives rise to a libel/slander claim in any event.
3.25.2008 11:43am
David Schwartz (mail):
I thought that true statements could never form the basis of a libel charge. Isn't "truth" supposed to be an absolute defense to libel? Apparently not, and I find that severely troubling.

Does anyone have citations to cases where a libel charge was upheld despite absolutely no false statements?
3.25.2008 11:45am
Say I wrote something like: "Person X is a despicable human being. Whenever anyone questions him his immediate response is to accuse that person of homosexuality. When Person Y said that Person X's statements about healthcare were wrong, Person X responded with 'Person Y is a known homosexual who has often been seen frequenting gay bars with underage paid male escorts.'"

Would I then be liable to Person Y? That seems...faulty.
3.25.2008 11:50am
David Schwartz:

That is true, but the Supreme Court has already limited the "truth defense" in ways quite relevant to this rule. For example you can't say, "It is my opinion that X is a child molester," and then claim this is not libelous because it is merely your opinion. Your statement might literally be true -- you do think he is a child molester -- but if he is not actually a child molester, your statement might be defamatory (depending on standard of fault, etc.). Similarly, if I know for a fact that X is not a child molester, I shouldn't be allowed to escape liability by "laundering" my statement through someone else.

In these cases, though, I would argue for a higher standard of fault -- at least actual malice and perhaps even actual knowledge. I should only be liable for repeating someone else's defamatory statement if I know if is untrue or should have known it is untrue. Anything less than that is troubling.
3.25.2008 12:23pm
Temp Guest (mail):
In Suffolk County Massachusetts, DAs have effectively used the principle to convince the public that they have solved high profile crimes when they have not but are up for re-election. Do a search on, e.g., "Leonard DeSalvo" or +"Leonard Paradiso" +"Joan Webster" for details.
3.25.2008 12:25pm
gattsuru (mail) (www):
I'd really like to see the this sort of viewpoint used against 'real' journalists more often, just for yucks. It'd at least get Jesse Jackson's crusade against lawful gun shops off the news for a couple days.
3.25.2008 12:26pm
Dave N (mail):
I bet the Parkersburg Town Council meetings (the locale of Norton v. Glenn) were very interesting during this period.

For what it is worth, I think Tarheel has proposed a good standard.
3.25.2008 12:31pm
So the two kinds of speech restrictions (libel and hate speech) are qualitatively different?

I can see how that would be the case, but that doesn't strike me as a terribly logical system.
3.25.2008 12:52pm
This leaves me confused (right, nothing new). Say that Smith libels Jones, Jones sues and wins. In commenting on the verdict, I can cite the libellous statement if I'm a journalist but if I'm an ordinary citizen I'm committing a fresh libel?
3.25.2008 1:14pm
Let me make that a little more concrete: William F. Buckley once sued Gore Vidal (and won) for calling him a "[bad name]." Am I in violation of the law if I specify what that bad name was?

Doesn't seem reasonable.
3.25.2008 1:20pm
Temp Guest (mail):
Correction: make that "Albert DeSalvo"
3.25.2008 1:22pm
The standard in part e. seems more reasonable than the standard in part f. It seems like the consequence of the latter rule would be for journalists to obfuscate potentially defamatory statements when the making of those statements is newsworthy. mnarayan's example points to the fact that actually repeating the defamatory statement can be the best way to reveal the character of the accuser, and that can be true even without the explicit condemnation found in that example.

But what do you think, EV? You clearly pose a question for thought, but we have to guess what your answer is.
3.25.2008 1:24pm
Bill Poser (mail) (www):
The republication rule has always seemed to me to be a peculiar residue of the aristocratic British law of defamation, one that ought long ago to have been eliminated from American law if not as contrary to the First Amendment then as contrary to the value of free expression that underlies it. It is a real wart on American law.
3.25.2008 1:29pm

Let me make that a little more concrete: William F. Buckley once sued Gore Vidal (and won) for calling him a "[bad name]." Am I in violation of the law if I specify what that bad name was?

There's an old saying that goes, "you can't defame the dead."
3.25.2008 1:29pm
Samir Chopra (mail) (www):
JB, Jay: Just curious. Imagine a situation in which a professor is teaching a class on the civil rights movement, and often deploys sentences like "White southerners frequently used the terms 'nigger' and 'coon'" or "The local police ran down the street, yelling 'nigger' as they did so" and so on (I hope you get the picture). Can the supposed overuse of such references in a classroom setting lead to an allegation of hate speech? That the constant use of these terms in the class creates a hostile atmosphere? (or something like that at least, I'm not being terribly specific here).
3.25.2008 1:36pm
Sean O'Hara (mail) (www):
What if the person repeating the claims specifically notes that they're unsubstantiated, i.e., Alice says, "Carol accused Bob of being a pederast, but her only evidence is a picture of him hugging a boy after a Little League game, so I don't know if I believe her."
3.25.2008 1:36pm
Eugene Volokh (www):
PersonFromPorlock: I can't be positive that this is so in all 50 states, but my sense is that the fair report rule generally applies to everyone -- journalists or others -- who are reporting on government proceedings.

JB: Note that there is no "hate speech" exception to the First Amendment; the quoting-"nigger" argument generally comes up in the context of professional ethics or the government's power as employer, not in the context of civil (or criminal) liability. The analogy might be interesting nonetheless -- I need to think more about it -- but I just want to stress that the analogy is limited in that "hate speech" and "libel" are not parallel categories for First Amendment purposes. (Whether and when such statements might be actionable under hostile environment harassment law, which I've argued is in some instances unconstitutional, is a different story. I know of no hostile environment harassment caselaw relating to the quoting issue.)

Sean O'Hara et al.: Generally speaking, simply giving the evidence on the other side, and even explicitly expressing doubt, doesn't provide immunity (setting aside those states which recognize some version of the neutral reportage privilege). Whether explicitly expressly confidence the allegation is false -- e.g., "X was accused of doing something, but he has been exonerated" or "X was accused of doing something, but I know this isn't true" -- suffices to avoid liability is a tougher question. The cases I've read are mixed on the subject, but there are very few of them, especially when a flat rejection of the quoted accusation is involved.
3.25.2008 1:58pm
Gregory Conen (mail):
The standard in (a) strikes me as absurd. Taken at face value, it makes numerous helpful statements libelous.

Consider: "We know that Alan is a liar, because he said Bob attacked him, but Bob was out of state at the time" makes you liable to Bob.

"It is claimed by the prosecutor that [my ex-wife] Abby and I abused our children, which is false." Even answering the charges against me makes me liable to Abby.
3.25.2008 1:58pm
Alaska Jack (mail):
Another thing to consider - reporting another's allegations can be a useful service to the public in indirect ways.

For example, if I read Reporter Snuffy's account of how Glenn accused Norton and Wolfe of pederasty etc. with no evidence, it might make me conclude, not that Norton and Wolfe are pederasts, but that Glenn is a yahoo and loose cannon whom I should not vote for next election. By withholding this allegation, the reporter is depriving me of important information.


- Alaska Jack
3.25.2008 1:59pm
AK (mail):
If Abel makes the entirely true statement, "Baker accused Charlie of pederastry," Abel has defamed Charlie. By the same standard (describing the allegations of others is the same as alleging them yourself), if Charlie says "Baker accused me of pederastry," hasn't Charlie just admitted molesting kids?
3.25.2008 2:10pm
Related, if slightly off-topic, can the denial of an accusation that would be defamatory if false itself be defamatory? When Roger Clemens's trainer says under oath that Clemens took steroids, under circumstances where the trainer would know the truth and is either telling the truth or lying, is Clemens's denial that he took steroids a defamatory assertion that his trainer is a perjurer? Can the trainer make accusations against Clemens then sue him for denying the accusations?
3.25.2008 2:26pm
Bored Lawyer:

mnarayan wrote:

Say I wrote something like: "Person X is a despicable human being. Whenever anyone questions him his immediate response is to accuse that person of homosexuality. When Person Y said that Person X's statements about healthcare were wrong, Person X responded with 'Person Y is a known homosexual who has often been seen frequenting gay bars with underage paid male escorts.'"

Would I then be liable to Person Y? That seems...faulty.

I've been wondering about this myself.

In New York, judges are allowed to review the complained of libel to determine if they are capable of a defamatory meaning.

It seems to me (although I have no caselaw to back it up) if your quote of the initial libeller (X in the above case) is one that is disparaging and calls it into question, then that is not really defamatory of the target (Y).

IOW, using mnarayan's example, Y has not really been defamed because the gist of the report is that X is a jerk who spouts off unsubstantiated, if not false, accusations.
3.25.2008 2:34pm
EV writes

PersonFromPorlock: I can't be positive that this is so in all 50 states, but my sense is that the fair report rule generally applies to everyone -- journalists or others -- who are reporting on government proceedings.

I hope so; otherwise, the description of Norton v. Glenn in Eugene's original post might be defamatory. And libel casebooks might be very difficult to write.
3.25.2008 2:45pm
George Weiss (mail) (www):
wouldn't it be fairly simple to protect yourself from libaility by saying

"X says Y is a homosexual-but theres no evidence of that." or is that still liable?
3.25.2008 2:46pm
What if Goerge calls John a liar for saying Thom is a pedophile?
3.25.2008 2:49pm
George Weiss (mail) (www):
I hope so; otherwise, the description of Norton v. Glenn in Eugene's original post might be defamatory. And libel casebooks might be very difficult to write.

well yes-except for libel you have to show you were damaged-at least i think-so casebooks and stuff like this would probably not further damage the reputations of the people involved.
3.25.2008 2:49pm
Gregory Conen (mail):
@George Weiss: Apparently not, under standard (a). As Eugene describes, repeating the allegation, even to refute, seems to be libel. Which is why I said it was absurd.
3.25.2008 2:50pm
LM (mail):
What's the status of bloggers and blog commenters for purposes of the reporting privilege?
3.25.2008 3:17pm
LM (mail):
... or letters to the Editor?
3.25.2008 3:18pm
JB: I just want to stress that the analogy is limited in that "hate speech" and "libel" are not parallel categories for First Amendment purposes.

This is one reason why I'm not a lawyer. It seems to me that in both cases the quoter is doing pretty much the same thing, and I just can't wrap my brain around the idea that it should have different results.
3.25.2008 3:30pm
a speaker is responsible for the factual assertions in others’ statements (assuming the speaker has the constitutionally required mental state)

Are there any presumptions regarding mental states? Is it reasonable to assume that a newspaper editor has the mental state and motivation that editors usually have, until persuaded otherwise?
3.25.2008 3:50pm
George Weiss (mail) (www):
Gregory Conen

yep i didn't see the second paragraph of standerd A.

however-while it has been clear that the republisher can be liable even if he does not vouch for the authenticity of the statement(as EV said and as in the restatement)...and the restatement claims that he can be liable even if he disagrees with the statement or claims its probably untrue...the restatement cites cases where the person's only real defense is that he didn't vouch for the truth.

there is a distinction between not vouching for the truth of the statement one the one hand-and calling it into question on the other...i just did some digging and really couldn't find a case either in the restatement-or a case that is cited in a case linked to by the restatement-where someone was held liable in the ladder case-but i could be missing something.
3.25.2008 4:15pm

Courts are not supposed to pay any attention to evidence of motivation. Just because a newspaper editor has had run-ins with a particular politician and has shown personal animus towards him does not mean the editor acted with the proper mental state to be liable on a particular occasion.

The problem is that the legal term for the required mental state -- actual malice -- confuses many courts into looking for evidence of "malice" even though that is supposed to be irrelevant.
3.25.2008 4:19pm
Soronel Haetir (mail):

I have to agree with those above who point out penalizing reporting on the statements of a city councouncilman deprives the public of valuable information on thier officials. Merely saying that X put forward unsubstantiated claims is insuffient for the public to assertain the degree of disconnect from reality.
3.25.2008 4:24pm
Crafty Hunter (www):
Such hair spitting as appears in the above thread and the original post illustrates the absurdity of libel laws and rulings that make a man liable for damages or even criminal charges for speaking exact truth and reality.

Consider the following:

"I can't allege that Mr. X is a vicious baby killer who eats kittens alive because then he could sue me, or even sic the cops on me in Colorado for alleged criminal libel."

That is on its face a simple statement of law. Is this itself grounds for actual litigation or criminal charges?

Consider further this:

"I'm not saying that Mr. X. performs fellatio on underage Doberman Pinschers. Heh-heh, I sure don't want to be sued."

That last illustrates perfectly what I mean.
3.25.2008 4:42pm
George Weiss (mail) (www):
crafty makes a good point-

although it should be pointed out that criminal liable laws are pretty much zaped now in nearly every jurisdiction.

if its true that "x says y is a homosexual but i cant vouch for that" could be liable

than why on earth cant
"im not saying that y is a homosexual-i don't want to get sued" also be liable?

on the other hand-your
"I can't allege that Mr. X is a vicious baby killer who eats kittens alive because then he could sue me" is probably controlled by the "truth is an absolute defense" doctrine
3.25.2008 4:52pm
jgshapiro (mail):

You might want to add another paragraph to your summary discussing an online exception under 47 USC 230. Under 230, the lack of an exception for the blogger who quotes the defamer does not apply to the facilitator of the blogger, even if the facilitator knows (or has reason to know) of the falsity of the claim by the defamer, or the knowledge (or reckless disregard) of the blogger as to the same.

This seems particularly relevant given the recent news reports over
3.25.2008 4:58pm
Soronel Haetir (mail):

I should also add that I would think reporting on comments made by a city councilman outside a meeting that follow on comments made at a meeting would fall into the government affairs category. Possibly even if they weren't a follow-on as they give insight into the dynamics of the city government.
3.25.2008 4:58pm
The statement need only be reasonably susceptible of a defamatory meaning, so it is quite possible that Crafty's second statement would be actionable too.

That said, I agree that defamation law is a confused/incoherent area of law that is, more than most other areas of law, plagued by trial courts that don't understand the rules and more often than not get it flat wrong.
3.25.2008 5:00pm
George Weiss (mail) (www):

im pretty sure that truth is an absolute defense-and that would include a statement which is "reasonably susceptible of a defamatory meaning" AMJUR LIBEL § 249
3.25.2008 5:06pm

I think if the statement includes a laugh (as the one Crafty Hunter came up with did) and let's say a wink, then I'm not sure you would be in the clear. The question is what the gist of the comment was, not what it's literal meaning was.
3.25.2008 5:47pm
Crafty Hunter (www):
The statement:

"I'm not saying that Mr. X. performs fellatio on underage Doberman Pinschers. Heh-heh, I sure don't want to be sued."

... can be refined, perhaps usefully, to:

"The reason why I don't say that Mr. X. performs fellatio on underage Doberman Pinschers is because I don't want to be sued."

The first layer of meaning, of course, is the factual statement itself, and the second layer is the more subtle aspect that out of all the possible things the man could have said, he chose not to talk about how to grow roses or about a recent victory by a sports team, but about his reluctance to make that specific allegation, and further that it was because of laws forbidding him to do so without the risk of being destroyed financially. At least, I hope this is an accurate dissection.

Another, fairly similar statement with an interesting twist, which (hypothetically) appears on YouTube:

"I learned today exactly why owning a gerbil is illegal in California. (said with a large smirk) Thank you, R****** G***! (followed by sniggering and cackling)"

I need not explain that the above contains no actual statements of fact, accurate or not, other than having allegedly learned something about the (presumably hidden and shameful) impetus behind specific legislation.

Further still:

"I understand that allegations of bestiality have been circulated recently about a man who appears to be extremely similar physically to Mr. X, who when asked about these allagations, exploded into a tirade about minding your own goddamned business."

(The one outright misstatement in the above hypothetical statement is that Mr. X said directly that the questioner should mind his own business, with a probable implication to the average man that Mr. X is indeed performing unnatural acts and merely wishes that people would look away from this).

The same logic applies to statements about financial misconduct, or family misconduct, or any other potential minefield of human conduct. I used bestiality for the examples because it's fairly simple, evokes strong emotional reactions, and I think doesn't confuse the issue as would, say, alleged insider trading or allegedly importing Cuban cigars in defiance of existing law.

It is possible to refine and refine such statements into a thin smear (I offer the pun purposely) of innuendo which (unlike the last example) contains no misstatements of fact at all, but which nonetheless can be said to lead a listener into inaccurate and otherwise libellous beliefs.

I could go into much more detail about semantic trickery, but it is to be hoped the point is clear. It seems that much libel law as it exists now is essentially an attempt to frighten people into not committing "thoughtcrime", even if the recourse (in the United States) is "only" civil and not criminal. This is the slippery slope well followed, that in the end, it's all about using the heavy hand of law to frighten people into not saying anything at all that could possibly lead to false impressions by the most knee-jerk and paranoid listener.

At what point does the listener himself become responsible for his own voluntary thoughts and feelings?
3.25.2008 5:48pm
Pat C (mail):
"Assume that blogger Alan writes, 'Betty alleges Charlie committed armed robbery.'".

OK, but what if we replace "Betty" with "the State of California". (Because Charlie who may in fact not be guilty has actually been charged with armed robbery). Is Alan still committing libel?
3.25.2008 5:58pm

Help me out here. Is motive irrelevant to the republication of the statement, or irrelevant to intent to cause harm, or both? Can motive be relevant to a defense, even if it isn't to a plaintiff's claim?

I ask 'cause I don't know.
3.25.2008 6:00pm
George Weiss (mail) (www):
ok your probably right that semantic meaning doesn't trigger a truth defense-that it must be the gist of what your saying is true not the semantic meaning..

my bad
3.25.2008 6:11pm
Crafty Hunter (www):
OK, but what if we replace "Betty" with "the State of California". (Because Charlie who may in fact not be guilty has actually been charged with armed robbery). Is Alan still committing libel?

Let's confuse the issue further, while we're at it:

Alan says on his blog, "I heard Betty say that she heard the State of California is considering prosecuting Charlie for armed robbery."

(This in a case in which Charlie forcefully seized property he said belonged to him, from a man Charlie alleges took it from him unlawfully with which to begin, and in doing so briefly flashes a hidden club which Charlie says was merely a sturdy steel flashlight with dead batteries. Further, the District Attourney actually did consider it briefly according to unconfirmed reports, but dropped consideration of criminal charges).

Might as well toss in hearsay and lots of difficult qualifications.
3.25.2008 6:17pm

As to republication, I really don't know but I assume the law is the same as if you had said the statement yourself originally. Thus, all that matters is that you had the required standard of fault (negligence, actual malice, whatever) when you decided to republish. It should not matter that your motive was to damage someone, as long as you were not negligent or (roughly speaking) reckless.

As to intent, motive is supposed to be irrelevant -- at least where actual malice is the required standard. Of course, in the real world judges and juries always use the fact that publisher A has a long-running dispute with Politician B and has told people he hates him as a proxy for actual evidence of recklessness in deciding to publish something defamatory. This is why 40 percent of plaintiff-friendly verdicts in libel cases get overturned outright on appeal.

On the last question, I don't know but that is an interesting question for sure.
3.25.2008 6:19pm
Burt Likko (mail) (www):
Pat C -- The State of California's statement is obviously privileged, likely absolutely so. Betty may enjoy a qualified privilege if her accusation is made to someone she believes to be related to law enforcement. Alan does not seem to be within the scope of any privilege.
3.25.2008 7:25pm
Will Schendel (mail):
You might take a look at Jackson v. City of Columbus, from the Ohio Supreme Court on March 13, 2008: Jackson v. Columbus
The Court rejected the "public interest privilege" asserted by the former Public Safety Director with regard to the Director's summary of allegations contained in a publicized investigative report that had found the allegations "unproven" and "suspect," because the evidence could support a determination that the Director had a "high degree of awareness of [the statement's] probable falsity."
3.25.2008 8:04pm
Professor Volokh, what was the rationale behind the "republication rule" of (a)? Is there a case that explains why that's good law?
3.25.2008 8:16pm
Is there an action for publishing or republishing things that aren't libelous, but nonetheless actionable for unauthorized disclosure, like medical records?

And if I'm not trying anyone's patience, are there certain reputations that are not protected? For instance, if Theodore is a drug dealer, and Woodrow says "Theodore is selling bad ganja weed" can Theodore sue Woodrow? What if the reputation is not illegal, but disfavored, like "Theodore is a Photoshopping pornographer," assuming that Theodore is some other kind of pornographer?
3.25.2008 9:26pm
Brett Bellmore:
I have to admit this subject conflicts me; One the one hand, I take that "no law" very seriously, and the notion of legal sanctions for truthful speech is outrageous. On the other, my interactions with the news industry have convinced me that choosing to quote liars is nothing but a tool to journalists, it's the way they lie with deniablity.

I think I'm going to have to go with "no law". But I'd shed no tears to see a journalist sanctioned for deliberately quoting a liar, and carefully refraining from exposing the lie.
3.25.2008 9:28pm
David Schwartz (mail):
So we seem to have two exceptions to the "truth" defense:

One is when you republish another's defamatory comments. You essentially repeat the damage their defamation did. Saying "Jack said Edward is a child molester" can do just as much harm (or more) as the harm Jack did when he said that. In fact, the repetition is the harm of the original statement.

The other is when you say something literally true but reasonably implies something that is defamatory. "I have no reason to think Jack is not a child molester" might be an example of this, as might, "Jack might be a child molester".

Is that it? And does anyone have any citations to cases where the statements made were literally true and not crafted deceptively, but defamation was found.

For example, is there any case where someone said something like "I think Charlie is a child molester" and can establish that they really did think that, and that their sole purpose in making the statement was to communicate that they thought that and yet defamation, slander, or libel was found? I just read through the elements of things like defamation and false light and they don't seem to require an intent to cause harm to reputation.
3.26.2008 12:36am
A.W. (mail):
Okay, i have to be missing something here...

So let me get this straight... suppose a presidential candidate, let's call him "Barry," has a crazy preacher named "James." The preacher says that AIDS was introduced into America by Donald Trump as part of a larger racist conspiracy against black people. So then Barry's opponent, Hillary, says, "Barry's preacher is so crazy he accused Donald Trump of introducing AIDS into America."

Then Donald Trump can sue Hillary?

That CAN'T be right.
3.26.2008 10:10am
TruePath (mail) (www):
Well the standard should require (both for repeating and original statements) making the statement in such a manner as to make a reasonable person inclined to accept the truth of the claim being presented. In fact I would go further and say the standard should require that the statement induce the listener to believe 'libelous' content that is not reasonably supported by the evidence that the speaker possesses.

In other words a successful libel verdict should require that the speaker acted to induce damaging beliefs about someone that weren't justified by he evidence he possessed at the time of the speech. This would allow lawsuits in the case of, "There is a rumor going around that Hillary Clinton blows horses." when context shows that this statement might induce someone to believe that Hillary really does do something of this kind. However, this standard would block lawsuits in the situation where someone reports, "A prominent Obama supporter made the absurd claim today that Hillary blows horses," assuming they in fact did so.

Libel law, however, is just really really messed up. The problem is that the common law that our torts have derived from was formed at a time when most people lived in small closely knit communities with a clear notion of what was damaging speech. In such a circumstance people could be reasonably held responsible for spreading rumor since they could reasonably be expected to judge the reliability of the individual who reported the news to them and charged with going back to the source to verify the story if they really wanted to repeat it. Moreover, there were common community standards that made it quite clear what was and wasn't libel. However, none of these assumptions really apply in the modern world anymore.

For instance when should it be libel to alledge that someone came out of the closet. Gay communities would view this as a positive thing. On the other hand many other communities would view it as a grave insult. If the speaker views the remark as a compliment but it actually damages the subject is that libel? What if the speaker has malicious (common language concept) intent but the remark brings praise from the subject's community? When am I in danger of a libel suit for suggesting that someone is gay?

In short I think the whole concept needs to be thrown overboard and rejiggered for a different age.
3.27.2008 5:17pm