Opinion
CIVIL ACTION NO. 01-382
July 18, 2003
Memorandum and Order
Plaintiff, Richard Sprague, is suing defendants, the American Bar Association ("ABA"), the ABA Journal ("Journal"), and journalist Terry P. Carter ("Carter"), for defamation. Currently pending before the court is defendants' combined motion for summary judgment, under Federal Rule of Civil Procedure 56(b), on the issue of actual malice. Because a genuine issue of material fact exists regarding actual malice, I will deny the motion.
BACKGROUND
The following relevant material facts are not disputed. The October 2000 edition of the Journal contained an article, authored by defendant Carter, that discussed plaintiff, who is a prominent Philadelphia attorney. Mot. for Sum. J., Ex. A ("Cops in the Crossfire"); id. at 5. The article's primary focus was the perceived escalation of political tensions between the black community of Philadelphia and the District Attorney's Office, both historically and directly following the shooting death by city police of a young black man. Id. at 5 and Ex. A ("Cops in the Crossfire"). In this article, defendant Carter examined the key players in this situation, including members of the legal community representing those directly involved. Id. Within this context, the article referred to plaintiff as "perhaps the most powerful lawyer-cum-fixer in the state."
As this court has already thoroughly examined the context surrounding this labeling of plaintiff, I will not review it here. For a detailed analysis of it, see Memorandum and Order, at *4 (Yohn, J., Nov. 14, 2001).
Prior to publication, this article progressed through several drafts. Id., Exs. D, E, F. It was also reviewed by a series of editors. Defendant Carter's supervising editor, Steven Keeva, received the first draft and marked the manuscript with his comments. Id. at 11 and Ex. K. Following this, Managing Editor Debra Cassens reviewed it, submitted questions, and requested additional information of defendant Carter. Id. at 13 and Ex. N. Finally, two copy editors reviewed the article for substance, language, and grammar. Id. at 14 and Exs. O and P.
Soon after the article's publication, plaintiff through his counsel, complained to defendant Carter about being labeled a "fixer." Id., Exs. G and H. In response, the Journal printed a statement in its "Clarifications and Corrections" section explaining that it had intended a laudatory meaning of the term "fixer." Id., Ex. J. Plaintiff, however, was not satisfied.
Specifically, it explained the intended meaning as "known for his problem-solving skills in politically nuanced cases." Id.
On January 11, 2001, plaintiff filed an action for defamation in the Court of Common Pleas of Philadelphia County, which defendants promptly removed to the Eastern District of Pennsylvania on January 25, 2001. Not. of Remov. Plaintiff asserts that defendants' use of the term "fixer" constituted defamation because it implied that he secured favorable judicial decisions through illegal means. In contrast, defendants aver that they intended, as indicated by the article's context, that the term communicate plaintiff's respected stature, experience, and reputation. Id. at 5.
The court has previously determined, as a matter of law, that the term "lawyer-cum-fixer" as employed in defendants' article was capable of two meanings: one defamatory, the other not. Memorandum and Order, at *4 (Yohn, J., Nov. 14, 2001). In addition, the court has approved the parties' agreement that plaintiff "is held to be a limited public figure as a matter of law for purposes of this defamation action." Order (Yohn, J., April 1, 2002). When a public figure sues for defamation, that plaintiff must demonstrate that defendants acted with "actual malice" as this term has been defined by the courts. It is this issue upon which defendants now move for summary judgment.
STANDARD OF REVIEW
Either party to a lawsuit may file a motion for summary judgment, and it will be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). In addition, "[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). While the moving party bears the initial burden of showing that there is no genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), Rule 56(c) "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," Id. at 322.
When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Additionally, "all justifiable inferences are to be drawn in [the non-movant's] favor." Id. At the same time, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). The non-movant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
When the issue of actual malice relating to a limited public figure is raised on a motion for summary judgment, there is a "heightened evidentiary requirement. . . ." Anderson, 477 U.S. at 242. In order for a plaintiff to survive this challenge, there must be sufficient evidence in the record to support a jury finding of actual malice by "clear and convincing evidence." Id. at 257; Mason v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991).
This heightened standard applies to the court's inquiry on summary judgment because the substantive law requires this standard of proof for proving actual malice at trial. Anderson, 477 U.S. at 244 (citing New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964)). As the Supreme Court has stated, "the determination of whether a given factual dispute requires submission to the jury must be guided by the substantive evidentiary standards that apply to the case." Id. at 256. Pursuant to Rule 56(c), this court could not grant defendants' motion for summary judgment if "a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Applying this rule to the issue of actual malice, there is no need for trial unless there is sufficient "evidence in the record [to] support a reasonable jury finding that the plaintiff has shown malice by clear and convincing evidence. . . ." Id. at 255-56.
DISCUSSION I.
The parties concur that as a limited public figure for purposes of this defamation claim, plaintiff must demonstrate actual malice. Pursuant to the applicable heightened evidentiary standard, defendants posit that plaintiff has failed to present clear and convincing evidence of actual malice, and thus, they are entitled to summary judgment. The court disagrees.Although defamation is generally an issue of state law, the First Amendment limits application of such law. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). One such limitation "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'. . . ." New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). "Actual malice" is defined as acting with "knowledge that [the defamatory material] was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 280; Masson, 501 U.S. at 510. This standard is satisfied if the defendants "in fact entertained serious doubts as to the truth of [the] publication," St. Amant v. Thompson, 390 U.S. 727, 731 (1968), or proceeded to publish despite a "high degree of awareness of . . . probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
This rule regarding public "officials" includes public "figures," both "all-purpose" and "limited" public figures. See Gertz v. Welch, Inc., 418 U.S. 323, 342-50 (1974) (extending actual malice requirement to include public figures and defining two categories of such figures); Schiavone Construction Co. v. Time, Inc., 847 F.2d 1077-78 (3d Cir. 1988) (employing the Gertz distinction and applying the actual malice standard to limited public figures).
In order to understand the application of actual malice to this case, one must understand its role within the context of a defamation claim. In Pennsylvania, a defamation plaintiff has the burden of showing, inter alia,: (1) the communication's defamatory character; (2) defendant's publication of it; (3) its application to the plaintiff; (4) the recipient's understanding of its defamatory meaning; and (5) the recipient's understanding of its intended application to the plaintiff." 42 Pa. Cons. Stat. Ann. § 8343; Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001); Corabi v. Curtis Pub Co., 273 A.2d 899, 904 ( Pa. 1971). It is the role of the court initially to decide whether a statement is capable of a defamatory meaning, and only if this inquiry is answered in the affirmative, then "it is for the jury to determine whether it was so understood by the recipient." Corabi, 273 A.2d at 904; Tucker, 237 F.3d at 281-82 (citing Corabi and stating this rule). In the instant case, the court has already completed the first step by determining that defendants' reference to plaintiff in their article is capable of defamatory meaning. Memorandum and Order, at *4 (Yohn, J., Nov. 14, 2001). As Pennsylvania law dictates, it is now a question for the jury whether readers of the ABA article interpreted it in its defamatory sense. As this element remains an open question, the court must consider actual malice in light of both possibilities. The jury may decide that in the context in which it was used, this term was construed by the reader in its laudatory rather than defamatory sense. In this instance, of course the actual malice issue will never be reached because plaintiff will have failed to establish one of the core elements of a defamation claim. In contrast, it is possible that the jury will determine that this term was used in its defamatory sense, and thus, the court must engage in the actual malice inquiry.
Specifically, the court found that, within the context of the entire article, the term "lawyer-cum-fixer" could have two connotations: either that plaintiff "is a challenging adversary on the political and legal playing fields, or . . . he has a reputation for conducting illegal activities for the benefit of his clients." Id. Clearly, the latter is defamatory while the former is not.
II.
The facts of this case are unique, and they present a question of law that our circuit has not yet addressed. The novel issue now presented is how to apply the actual malice standard to a publication that contains a word of dual meaning, where one meaning is unquestionably defamatory, and the other is unquestionably not. Id. I will apply the actual malice standard as it has recently been applied by our sister circuits to factual scenarios like the present, which is also the application that defendants' implore this court to apply. Doing so, I conclude that summary judgment must be denied because there are disputed issues of material fact, which, taken in the light most favorable to the nonmoving party, could support a rational jury finding of actual malice pursuant to the "clear and convincing" standard.
Although there are numerous federal cases that address the issue of ambiguity in the context of defamation, they involve either 1) ambiguity in a publisher's sources, rather than ambiguity in the published material, or 2) they do not address actual malice because plaintiff is not a public figure or the case is decided on another issue.
As its name reflects, the crux of the actual malice test is that plaintiff's evidence must relate to defendants' actual subjective state of mind, not the state of mind of a reasonable author or publisher. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989); St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Where a plaintiff's defamation case depends on material that is capable of both defamatory and innocuous meanings, other circuits have interpreted the appropriate inquiry to be defendant's state of mind as to a reader's potential defamatory interpretation of the material in question. See, e.g., Howard v. Antilla, 294 F.3d 244, 254 (1st Cir. 2002); Salano v. Playgirl, 292 F.3d 1078, 1084 (9th Cir. 2002); Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309, 1318 (7th Cir. 1988). Saenz, 841 F.2d at 1318; Solano, 292 F.3d at 1084. Specifically, the Ninth Circuit articulated the actual malice standard in such instances as whether the defendant "either deliberately cast its statements in an equivocal fashion in the hope of insinuating a false import to the reader, or that it knew or acted with reckless disregard of whether its words would be interpreted by the average reader as false statements of fact." Solano, 292 F.3d at 1084. "A plaintiff may `rarely be successful in proving [actual malice] from the mouth of the defendant himself.'" Schiavone, 847 F.2d at 1089 (quoting Herbert v. Lando, 441 U.S. 153, 170 (1979)). Importantly, as the Supreme Court articulated:
In their motion for summary judgment, defendants mistakenly argue that Bose Corp. v. Consumers Union controls this case. 466 U.S. 485 (1984). Bose did not involve the employment of an ambiguous word; it involved a report of an ambiguous event, specifically how plaintiff's stereo speakers sounded to listeners present. This event "bristled with ambiguities and descriptive challenges for the writer." Id at 513. As such, Bose simply stands for the unremarkable proposition that the First Amendment protects an author from liability when "adoption of language chosen was `one of a number of possible rational interpretations' of an ambiguous event because this "represents the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies." Id. Here, however, in the event that a jury finds that "lawyer-cum-fixer" was perceived in its defamatory sense, the falsity of this statement would not be the result of defendants' rational interpretation of an ambiguous event; instead, it would be the result of their choice to use a word capable of defamatory meaning. In essence, the ambiguity in this instance is of defendants' own creation, and thus does not implicate the factual scenario in Bose.
Furthermore, the present situation does not implicate the same First Amendment concerns underlying Bose. The Court emphasized the need to require some culpability to "eliminate the risk of undue self-censorship and the suppression of truthful material." 466 U.S at 513 (citing Herbert v. Lando, 441 U.S. 153, 171-72 (1979)). Here, if the jury decides that the relevant term was perceived in its defamatory capacity, then the culpability lies within defendants' decision to employ a word that has a defamatory meaning, thereby running the risk of defamation. Self-censorship and suppression of truth are of little concern because defendants' knew that calling plaintiff a "fixer" in the defamatory sense was false; the only censorship that would be promoted is ceasing use of terms that are commonly used in derogatory ways when derogation is not intended and is known to be false.
Defendants also mistakenly suggest that the applicability of Pierce v. Capital Cities Communications, Inc., 576 F.2d 495 (1978), supports summary judgment in their favor. The Pierce Court applied the very same actual malice standard that I apply here, focusing on the defendants' subjective states of mind. Id. at 508-10. Moreover, in Pierce, the Court concluded, in contrast to the present case, that the material in question was not capable of a reasonable defamatory interpretation. Id. at 508. Consequently, Pierce is not helpful to defendants' position.
[t]he defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, . . . when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation." St. Amant, 390 U.S. at 732.
Because of the unlikelihood that a defendant will admit a subjective state of mind that is a ground for liability, "objective circumstantial evidence" may be sufficient to show actual malice. Schiavone, 847 F.2d 1090; see also Masson v. New Yorker Magazine, 501 U.S. 496, 521 (1991) (listing items of circumstantial evidence regarding defendant's state of mind at the time of publication which raised genuine issues of material fact as to actual malice for jury consideration); St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1318 (3d Cir. 1994) (same).
The instant case is no exception. In their motion for summary judgment, defendants deny intending or even anticipating that readers of the Journal would interpret the term "lawyer-cum-fixer" in the defamatory way. Mot. for Sum. J. at 24. Conversely, plaintiff contends that this defense is at odds with common sense since it is the expertise of authors and editors to know the meaning of words. More importantly, plaintiff presents objective circumstantial evidence from which a rational jury could conclude that by publishing the article in question, defendants acted with actual malice. The record presents several pieces of evidence that could support a jury finding that when defendants employed the label "lawyer-cum-fixer" they either deliberately cast this description in an ambiguous light in the hope of insinuating a false import to the reader, or that defendants knew or recklessly disregarded the possibility that its words would be interpreted by the average reader as false statements of fact.
As articulated above in the Standard of Review, the applicable standard is the "quantum and quality of proof necessary" to support a rational finder of fact in finding actual malice with "convincing clarity." Anderson v. Liberty Lobby, 477 U.S. 242, 254 (1986); Schiavone, 847 F.2d at 1089. It is important, however, to apply this standard within the posture of a motion for summary judgment. Anderson, 477 U.S. at 255. As the Supreme Court cautioned, this standard "does not denigrate the role of the jury. . . . Credibility determinations, the weighing of the evidence, and the drawing of legitimate conclusions from the facts are jury functions, not those of a judge. . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Treating plaintiff's evidence as true, and drawing all reasonable inferences thereof in his favor, the court finds that a rational trier of fact could find actual malice, thereby precluding summary judgment.
First, there is the deposition testimony of defendant Carter, the author of the potentially defamatory Journal article. Defendant Carter admitted that he looked up a dictionary definition of "fixer" and that one meaning included among the definitions was the defamatory meaning. Mot. for Sum J., Ex. B (Dep. of Terry P. Carter, p. 108).
Q. Did you ever look up the dictionary definition of fixer?
A. I have.
Q. Does one of the definitions include to influence a result by improper or illegal means?
A. In the dictionary I used, that is listed later as a colloquial meaning.
Although the deposition does not pinpoint precisely when defendant Carter looked up this definition, given the current posture of the case, it is a reasonable inference in the non-movant's favor that it was prior to the publication of the article in question.
Second, further evidence of knowledge is found in the deposition testimony of Managing Editor Debra Cassens who reviewed the article before its publication. This evidence relates directly to the defendants' awareness of how "lawyer-cum-fixer" would be perceived by the average Journal reader. Ms. Cassens conceded that she assumed that the average reader of the Journal would be familiar with both meanings of the word "fixer," including the defamatory one. Mem. In Oppose. to Sum J., Ex. Y (Dep. of Debra Cassens, pp. 70-71).
Q. Is it your understanding that the typical reader of the ABA Journal would be familiar with the use of the word fixer as referencing a lawyer who uses bribes or other unlawful means to prearrange the outcome of cases?
A. My assumption is that the reader would be familiar with both negative and positive meanings of the word.
Q. And, therefore, the reader would be familiar with the meaning — use of the word fixer to mean a lawyer who prearranges the outcome of cases through bribes or other unlawful means? [Objection and question repeated]
A. That is one meaning of the word that they would be familiar with.
Third, the Journal has previously, on multiple occasions, published articles containing words with the root "fix" in a defamatory capacity. Mem. In Oppose. to Sum J., Exs. 1-3 (FBI Corruption Probe: Chicago Judge, Politicians Charged with Fixing Cases in Operation Gamba, (date omitted); Acquittal Doesn't Stop Prosecutors: Retrial of Alleged Hit Man Sought After Informant Claims Case was Fixed, April 1994; And Now an Encore: Libel Lawyer Files Lawsuit Alleging Trial abuses, (date omitted)) (including use of "fix," "fixer," and "fixing" in their negative capacities). Such prior negative use is valid evidence supporting a jury finding that Journal editors knew of the defamatory capacity of "lawyer-cum-fixer."
Although defendants have submitted previous Journal articles in which they employed the laudatory usage of the root "fix," this does not negate the import of the articles in which they used it in its negative capacity, for two reasons: (1) showing that defendants used the word in its laudatory, non-defamatory way on other occasions does not negate their subjective intent or awareness in this instance; and (2) on a motion for summary judgment, it is proper to draw justifiable inferences from plaintiff's evidence. Anderson, 477 U.S. at 255. A reasonable jury could infer defendants' awareness of the defamatory meaning of "fixer" from prior uses in that vein, regardless of how many times defendants used it positively.
Fourth, defendant author Carter and the Journal editors who reviewed his article chose to omit language that would have stripped "fixer" of its defamatory capacity such that no reasonable reader could interpret it as such in context. As this court has already determined, defendants employed "lawyer-cum-fixer" in reference to plaintiff "without direct modification" leaving it subject to a "reasonable defamatory meaning." Memorandum and Order, at *4 (Yohn, J., Nov. 14, 2001).
See, e.g., Masson v. New Yorker Magazine, 501 U.S. 496, 521 (1991) (listing defendant's "progression from typewritten notes, to manuscript, then to galleys provides further evidence of intent. . . ." as proper circumstantial evidence that could support a jury finding of actual malice); Time, Inc. v. Pape, 401 U.S. 279, 640 (1971) (cautioning that although a word's omission alone was not enough to establish actual malice where the context does not support a defamatory effect, it could evidence actual malice in other instances); Schiavone, 847 F.2d at 1092 ("Smith's decision to simply delete language that cast a very different and more benign light on the facts he reported, could itself serve as a basis for a jury's finding by clear and convincing evidence that Time acted with [actual malice].").
Notably, it appears that in every Journal article submitted by defendants in which some form of the root word "fix" was used in its laudatory capacity, the context of the article was fraught with direct modifiers and other clues such that no reasonable reader could doubt that it was used in its positive sense.
Fifth, plaintiff asserts that changes made from the drafts to the final version of the article, specifically excising additional information about plaintiff's experience, reflect defendants' actual malice. Mot. for Sum.J., Exs. D, E, F. Although the inferences suggested by such deletions is highly debatable, the deletions are proper evidence for jury consideration because, taken in a light most favorable to plaintiff, they may bear on the actual malice issue.
Sixth, and finally, defendant Carter acknowledged in his deposition that it would take time, and might even be impossible, to think of an accusation against a lawyer that is more defamatory then accusing one of being a fixer. Mot. for Sum J., Ex. B (Dep. of Terry P. Carter, p. 177). To a reasonable juror who has decided that defendants knew of the defamatory meaning of "fixer," the fact that they were also aware of the extent of the potential reputational harm that could result from such interpretation could further support a finding of recklessness.
Q. Have you ever read any articles or stories or seen movies where lawyers were called fixers?
A. I have seen instances where lawyers have been accused specifically of criminal corrupt acts, often it says allegations of trying to fix a case.
Q. Can you think of anything more demeaning, more derogatory, more defamatory than that?
A. If you were to use that, it's pretty bad, if it's used like that. There may be something more derogatory, and it would take time for us to work that out.
The defendant author and his editors contend that they did not anticipate that the readers would perceive the term "fixer" in its negative capacity. This is testimonial evidence that the jury will be permitted to weigh as it deems warranted.
As demonstrated, there is sufficient evidence to support a jury finding with convincing clarity either that defendants used an ambiguous word with the intent of creating an impression of false facts or that they knew or acted with reckless disregard of whether the term "fixer" would be interpreted by the average reader as false statements of fact; therefore, there is a genuine issue of material fact for the jury's consideration.
Defendants argue that a defendant's discredited testimony alone is insufficient to draw a contrary conclusion with reference to actual malice. As this review of plaintiff's evidence makes clear, there is more than simply a discrediting of defendant's testimony for the jury to consider in rendering its finding on actual malice.
In reaching this conclusion, it is important to emphasize that in citing the above evidence as to "what a jury could find on the actual malice question, [I] in no way intimate what [I] believe the correct resolution of this question should be." Schiavone, 847 F.2d at 1092. From the court's restricted procedural posture of considering defendants' summary judgment motion, I find simply that there is evidence that, if believed and weighed as plaintiff urges, could support a jury finding, by convincing clarity, that defendants' publication was imbued with actual malice. At the same time, the court recognizes "that there are reasonable interpretations of the evidence, suggested by [defendants], that would preclude such a finding." Id. Therefore, this is a genuine issue of material fact proper for jury determination.
The court is aware of another possible method of applying the actual malice standard to the facts of this case. Although this application would not change the outcome of defendants' motion for summary judgment, in the interest of thoroughness, I will briefly discuss it.
The actual malice test is an inquiry into a defendant's subjective state of mind as to the truth or falsity of his or her publication. In this case, the fact-finder will only reach the actual malice inquiry if it first finds that "lawyer-cum-fixer" was defamatory in its context. Accordingly, if the jury reaches this issue because it has already decided that "lawyer-cum-fixer" was perceived as referring to plaintiff as a fixer in the negative sense, then arguably the actual malice inquiry would be whether defendants had knowledge, or recklessly disregarded the possibility that, plaintiff was in fact not a fixer in its negative sense. Defendants do not contest that at the time they published the relevant article, they knew that plaintiff was not a "fixer" in the defamatory sense. Consequently, actual malice would then be admitted. As this result illustrates, in factual situations like the present, actual malice is inextricably linked to the fact finder's determination of whether the statement was defamatory in the context used.
The facts of this case are strikingly similar to those of Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970). In Bresler, the focus of the libel action was defendant's use of the word "blackmail" in referring to plaintiff's negotiating position with city council. Id. at 8. Plaintiff argued that use of this term charged him with a crime, and that because defendants knew that he had not committed this crime, they were liable for defamation. Id. at 13. In contrast to the present case, the Bresler Court found that use of the term "blackmail"was not libelous when reported because the article's context made it so clear that "[n]o reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense" Id. at 14-15; cf. Memorandum and Order, at *4 (Yohn, J., Nov. 14, 2001). As such, the Bresler court never had the occasion to apply the actual malice standard to those similar facts.
The most compelling part of the opinion for purposes of the present case is found in Justice White's concurring opinion. Foreseeing the very issue that has arisen here, Justice White, speaking only for himself, posed the question that this court now faces: "Should New York Times v. Sullivan [citation omitted], be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not." Id. at 22 (White, J., concurring). Justice White reasoned that the policy underlying the New York Times standard is not implicated in such instances. He explained that:
The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascertaining the truth of allegations about a public official whom the newspaper is investigating with an eye to publication. Absent protection for the nonreckless publication of facts that subsequently prove to be false, the danger is that legitimate news and communication will be suppressed. But, it is quite a different thing, not involving some danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader. I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstood — if they are — by the ordinary reader of their publications.Id. at 22-23.
Justice White, articulating how the actual malice analysis would affect Bresler, expounded that "if one assumes that the jury found the crime of blackmail was charged [i.e., was perceived in its defamatory meaning], `malice' is conceded, since the defendants admittedly knew such a charge was false." Id. at 23 (White, J., concurring). Similarly in the present case, if the jury finds that "lawyer-cum-fixer" meant that plaintiff "has a reputation for conducting illegal activities for the benefit of his clients," malice is conceded under Justice White's analysis since the defendants admittedly knew that such a charge was false. Accordingly, just as Justice White explained in Bresler, they admit knowledge of the falsity, which is the definition of actual malice. Of course, such an admission easily satisfies the clear and convincing requirement for actual malice.
Additionally, in Schiavone Construction Co. v. Time, Inc., our Court of Appeals encountered similar facts, and its reasoning lends some support to this alternative application of actual malice. 847 F.2d 1069 (3d Cir. 1988). In Schiavone, the court determined that the publication in question was capable of a defamatory interpretation. Id. at 1083. The Third Circuit explained that because a jury could find that the publication was defamatory, it had to consider whether there was sufficient evidence of actual malice. Id. at 1091. In conducting this analysis, the court examined whether there was sufficient evidence to support a jury finding by clear and convincing evidence that defendants knew, or recklessly disregarded the possibility, that the defamatory interpretation was false. Id. at 1090-1093. The court did not inquire into the state of mind of any of the defendants regarding the potential for readers to perceive the publication's defamatory meaning.
Under this possible interpretation of Schiavone, if the jury in the present case decides that defendants' use of the term "fixer" was defamatory, defendants here will have admitted actual malice because they concede that they knew plaintiff was not a fixer in the negative sense. Therefore, even under this approach to actual malice, defendants' summary judgment motion must be denied.
CONCLUSION
For the aforementioned reasons, I will deny defendants' motion for summary judgment on the issue of actual malice. Applying the appropriate standard, as conceptualized by our sister circuits, there is sufficient evidence from which a jury could find actual malice with convincing clarity. This conclusion precludes summary judgment because there remains a genuine issue of material fact.An appropriate order follows.
Order
And now, this ___ day of July, 2003, upon consideration of defendants' motion for summary judgment and memorandum of law in support thereof (Doc. 74) and plaintiff's memorandum of law in opposition thereto (Doc. 94), as well as various filings thereafter (Docs. 82, 93, 95, 99, 102, 140, 143, 144), it is hereby ORDERED that defendants' motion for summary judgment on the issue of actual malice is DENIED.