"WE EXPRESS NO VIEW ON THIS ISSUE": THE STANDARD OF PROOF FOR THE ELEMENT OF FALSITY IN A NEW YORK PUBLIC OFFICIAL/FIGURE DEFAMATION ACTION

St. John's Law Review, Winter 2007 by Weininger, Daniel William

An individual's ability to protect his reputation and good name "reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty."1 Defamation law serves an integral peacekeeping function within the state because it provides an avenue for members of society to vindicate the harm caused to their public identity.2 The ancient common law actions of libel and slander emerged in the 17th century3 and were "designed to effectuate society's 'pervasive and strong interest in preventing and redressing attacks upon reputation.' "4 Nevertheless, in a democratic society that values freedom of speech and freedom of the press,5 the state must "balance [its] interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression."6 The United States Supreme Court engaged heavily in this balancing act over the past half century7 and produced a complex body of jurisprudence8 that often shunted standard of proof questions in defamation claims to state and lower federal courts.9

In response, New York courts attempted to fill the void in the Supreme Court's general guidelines, forging a body of state law that incorporated some of these principles. As with most torts, the heart of the claim rests in its elements. In both New York and federal law, the elements of a defamation claim are dependent on the status of the plaintiff. New York law defines a public official plaintiff as a person "among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs."10 Likewise, public figure plaintiffs are "persons of pervasive power and influence who have assumed roles of special prominence in the affairs of society and those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."11 In New York State, the basic elements of a libel claim for plaintiffs that are considered public officials or public figures are: (1) a defamatory statement; (2) referring to the plaintiff; (3) publication; (4) falsity; (5) actual malice; and (6) financial loss.12 While these elements are clearly set out and defined, questions still remain as to their respective standards of proof.

Recently, in DiBella v. Hopkins,13 the United States Court of Appeals for the second Circuit considered the important question of whether the standard of proof for the element of falsity in a New York libel action was the traditional preponderance of the evidence standard or the more stringent requirement of clear and convincing proof.14 Predicting that the New York Court of Appeals would follow the more rigorous standard of clear and convincing proof,15 the second Circuit cast even greater uncertainty as to the proper standard of proof for falsity in New York defamation law.16 The court's decision prompts both the student and the scholar to further examine this area of law and the policy decisions that shape this crucial element in an action for libel.

This Comment seeks to clarify the standard of proof for the element of falsity in a New York public official/figure libel claim. Part I will provide an overview of the United States Supreme Court's treatment of defamation law and the constitutional implications of its decisions. At the center of this body of caselaw lies the reconciliation between the First Amendment and the state's protection of the individual from defamatory statements. These cases are important because they are a roadmap to the logical evolution of defamation law and also provide the historical context of the times in which they arose. Part II will examine the underlying facts of the DiBeIIa decision, and the second Circuit's rationale for the clear and convincing standard of proof. It concludes that the second Circuit erred in its holding. Part III asserts that the proper standard of proof for the element of falsity is a preponderance of the evidence. First, an examination of both federal law and the law of several states demonstrates widespread support for this contention. second, a thorough analysis of New York private person defamation law is also illuminating. In cases where the New York Court of Appeals weighed First Amendment freedoms against an individual's right to defend his reputation, the same balancing act as implicated in public official/figure cases, the court chose the preponderance standard for other key elements in a libel action.

I. CATCHING THE WIND: THE ELUSIVE DEVELOPMENT OF THE FIRST AMENDMENT, DEFAMATION LAW, AND THE ELEMENT OF FALSITY

A. Public Officials/Figures

At old common law, libel and slander were strict liability torts.17 That is, even if a newspaper published a defamatory statement without knowledge of the statement's falsity, the publication could be found responsible for libeling the subject of the article.18 In Cassidy v. Daily Mirror Newspaper Ltd.,19 the Daily Mirror, an English publication, announced that Mr. Cassidy proposed to a woman whose photograph ran in the paper.20 Prior to publication, the newspaper failed to discover that Mr. Cassidy was already married.21 Although not yet divorced from his legal wife, Mr. Cassidy and his fiancé permitted the paper to publish an article about their engagement along with the accompanying photograph.22 Shortly thereafter, the estranged Mrs. Cassidy sued the paper alleging libel on the grounds that the Mirror defamed her character.23 Mrs. Cassidy offered as evidence the testimony of her "acquaintances," who testified "that they inferred from the article that Mrs. Cassidy was not in fact married to Cassidy, with whom she was living."24 Under the common law regime, the paper could have asserted truth as an affirmative defense,25 but, for reasons that are unclear, the paper failed to carry this burden and Mrs. Cassidy prevailed.26 Today, Mrs. Cassidy would almost never be able to prevail in an American court. Amidst much controversy,27 the United States Supreme Court has revised the state of American defamation law to the point where defamation is no longer a strict liability tort,28 and truth is no longer an affirmative defense to be proven by the defendant.29 Currently, even a defendant who negligently publishes a defamatory article can thwart liability in certain cases.30 In other words, the Cassidy case would not even reach a jury.