"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

The relationship between plaintiff and defendant began to deteriorate after the unification bout.153 In several interviews with various publications and media,154 Hopkins claimed that he bribed DiBella with $50,000 while the latter was still employed by HBO, so that the network would feature him in prime-time bouts.155 HBO executives allegedly knew of this arrangement and did not object.156

In December, 2001, after learning that his former client accused him of soliciting bribes, DiBella sued Hopkins for libel in the Southern District of New York.157 The jury predicated their verdict in favor of DiBella on one interview, but failed to find for plaintiff based on three others.158 The jury's award to DiBella was $110,000 in compensatory damages and $500,000 in punitive damages.159 Both plaintiff and defendant appealed to the second Circuit Court of Appeals. DiBella claimed that the district judge erred when he instructed the jury that New York libel law required the element of falsity be proven by clear and convincing evidence.160 Therefore, he argued that the Second Circuit panel should reverse and remand the case for a new trial based on the claims the jury rejected, and that the jury should be instructed that the proper standard of proof for falsity was preponderance of the evidence.161

B. The Analysis

The Second Circuit panel began its analysis by enumerating the five elements of a claim for libel under New York law.162 The court then went on to hold that DiBella was a public figure because of his achievements in boxing promotion, "and the success with which he sought and obtained the public's attention by organizing and promoting boxing bouts seen by millions of HBO subscribers."163 As a result, the appellate court concluded that DiBella would have to prove actual malice by clear and convincing evidence.164 Speaking to the element of falsity, the three-judge panel recognized that its standard of proof was "an open question" that the United States Supreme Court left unsettled.165 Regardless, the panel skirted the direct constitutional problem of the standard of proof for falsity by citing Bell v. Maryland166 to decide the case on state law grounds.167 The appellate court determined that "under our diversity jurisdiction, we are obligated to apply New York's standard of proof for falsity, so long as we can safely determine the federal Constitution does not require a higher standard of proof."168

Since the Second Circuit sat in diversity jurisdiction, the panel faced the central question of how the New York Court of Appeals would rule on this issue. Since that court never addressed the standard of proof for falsity, the panel relied on three main sources of law: (1) New York Appellate Division cases; (2) Second Circuit Court of Appeals precedent; and (3) other scholarly sources, which will be discussed in turn.169

1. New York Appellate Division Cases

Three of the four appellate divisions of the New York Supreme Court170 have held that falsity must be proven by clear and convincing evidence.171 As the Second Circuit conceded in the DiBella opinion, however, "[t]hese cases are not entirely persuasive."172