"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

Although the Court in New York Times limited its holding and reasoning to public official plaintiffs, "the underlying rationale paved the way for application of the 'actual malice' standard to a broader class of plaintiffs," namely, public figures.74 In Curtis Publishing Company v. Butts,75 the Supreme Court extended the New York Times actual malice requirement to defamation actions concerning public figures.76 In Curtis, a 1962 Saturday Evening Post article accused the respondent, Wally Butts, of conspiring to fix the results of a University of Georgia football game played against the University of Alabama.77 Butts was the athletic director for the University of Georgia and held the reigns of its entire athletic program.78 Since retiring as the football team's head coach, Butts entertained several offers to coach professionally.79 In fact, at the time of the article's publication, he "maintained an interest in coaching and was negotiating for a position with a professional team."80 The article, entitled "The Story of a College Football Fix," recounted how an Atlanta insurance salesman overheard Butts give Georgia's playbook to Paul Bryant, head coach for the University of Alabama football team.81 It also implied that Johnny Griffith, the then-head coach of the Georgia football team, forced Butts's resignation upon learning of the allegations.82 Butts eventually brought a diversity suit for libel, claiming five million dollars each in both punitive and compensatory damages.83

At trial, evidence seemed to contradict some of the basic premises underlying the piece-the accuracy of the overheard conversation, the article's characterization of the game, and the Georgia players' statements about Alabama's fortuitous performance.84 The trial judge instructed the jury that it could award punitive damages if it found that the Post acted with actual malice.85 Under the common law applied in the case, actual malice was defined as " 'the notion of ill will, spite, hatred and an intent to injure one ... a wanton or reckless indifference or culpable negligence with regard to the rights of others.' "86 The trial judge, however, never instructed the jury on the United States Supreme Court's definition of actual malice because the trial occurred before the Court's ruling in the New York Times case.87 Soon after the jury found for Butts, the Court handed down its decision in New York Times.66 When Curtis Publishing's ("Curtis") attorneys moved for a new trial, the district court judge refused.89 Distinguishing the facts of the case from New York Times, the district court judge held that the New York Times decision was inapplicable because it applied exclusively to public officials.90 Alternatively, the judge also contended that the evidence offered at trial supported a finding of actual malice as defined in New York Times.91 On appeal to the Fifth Circuit Court of Appeals, a three-judge panel affirmed the lower court in a 2-1 vote.92 The Fifth Circuit reasoned that the defendant, Curtis, waived any constitutional defenses arising out of the New York Times case because its failure to raise the issue at trial "amounted to 'an intentional relinquishment or abandonment of a known right or privilege.' "93 The dissenter on the panel, Judge Rives, argued that Curtis did not waive its right to a constitutional defense94 and concluded that the lower court erred when it charged the jury with the wrong definition of actual malice.95