D. High-Profile Litigants Refine Defamation Law in Three Cases

     A trio of cases involving well-known litigants yielded significant developments and refinement in the law of defamation in 2001.  The cases all involve highly publicized parties or issues in the context of cutting-edge questions surrounding defamation.  The cases are Atlanta Journal-Constitution v. Jewell; Weyrich v. New Republic, Inc., 235 F.3d 617 (D.C. Cir. 2001); and Tucker v. Fischbein, 237 F.3d 275 (3d Cir. 2001).

     In Atlanta Journal-Constitution v. Jewell, attorneys argued before the Georgia Court of Appeals (a mid-level court) on two issues: (1) Should reporters be forced to reveal confidential sources naming Richard Jewell as the original suspect in the detonation of a homemade bomb at the 1996 Summer Olympics in Atlanta, though this was later proved to be false; and (2) did Mr. Jewell become a public figure in the days immediately following that incident?  Federal authorities had named Mr. Jewell the prime suspect; this was immediately reported by the Atlanta Journal-Constitution.  In January 1997, Mr. Jewell sued the newspaper for libel. 

    In 1999, a state court judge declared in an unpublished opinion that two Journal-Constitution reporters would have to name the confidential law enforcement sources who provided information leading to this story.  Second, the judge found Mr. Jewell to be a public figure for purposes of this litigation. 

     In a key but unpublished ruling, the Georgia Court of Appeals affirmed the categorization of Mr. Jewell as a public figure.  It also threw out the requirement that reporters identify their sources, stating that the lower court did not adequately balance the plaintiff’s need for this information with the newspaper’s valid interest in protecting the privacy of its sources.  To compel disclosure, Mr. Jewell would have to demonstrate that he could not prove that the newspaper fabricated information about him without the testimony of these sources.  Mr. Jewell is expected to appeal the decision to the Georgia Supreme Court.

     Weyrich v. New Republic, Inc., 235 F.3d 617 (D.C. Cir. 2001), deals with the requirement that a plaintiff prove the defendant has published a defamatory statement of fact.  Paul Weyrich complained that he was defamed by an article in the New Republic magazine that claimed he was the “Robespierre of the Right.”  The article itself was peppered with anecdotes purporting to show that Mr. Weyrich, a leader in the conservative political movement, was emotionally volatile and ill-tempered, depicting him as a zealoted political extremist.  Mr. Weyrich claimed the article overstepped the bounds of protected political commentary and attempted to attribute to him an actual medical condition -- paranoia.  The U.S. district court disagreed, holding that the statements in the article constituted nothing more than mere opinion. 

     The U.S. Court of Appeals for the District of Columbia Circuit both affirmed and reversed.  On the one hand, it held that:

“Paranoia” is used in the article as a popular, not clinical, term, to embellish the author’s view of Weyrich’s political zealotry and intemperate nature.  The author’s musings on these scores are protected political commentary, for, in context, it is clear that his comments are meant only to deride Weyrich’s political foibles and, relatedly, to attack what the author sees as the inability of the conservative movement “to accept the compromising nature of power.”  In short, these comments cannot be reasonably understood as verifiably false, and therefore potentially actionable, assertions of mental derangement.  Weyrich, 235 F.3d at 620.

     However, the court of appeals also remanded the case to the district court because some segments of the article extended beyond protected commentary.  The court of appeals noted that “it appears that some of the anecdotes reported in the article are reasonably capable of defamatory meaning and arguably place Weyrich in a false light that would be highly offensive to a reasonable person.”  Id.  The court of appeals emphasized, however, that “to be actionable, the story must be materially false.  If the author has merely hyperbolized, provided colorful rhetorical description of appellant’s anger, that will not suffice.”  Id. at 627.  The key issue for the district court on remand would be whether the verifiable facts were also capable of containing a defamatory meaning; without both parts of this equation, the district court must rule in favor of the New Republic.

     The final case in our trilogy is Tucker v. Fischbein, 237 F.3d 275 (3rd Cir. 2001), in which the court grappled with three questions: how a defamatory fact is defined, how actual malice is proved, and how falsity is proved within the context of a high-profile dispute over free speech.  The case also involved a political activist, though this time of the liberal persuasion.

     Since 1993, C. Delores Tucker had crusaded against rap lyrics she considered misogynistic, pornographic, and violent.  Her efforts caught the attention of the rap music industry and she became public enemy number one in their eyes (at least when the artists were not fighting among themselves).  In 1995, Interscope Records filed suit against Ms. Tucker alleging that she had induced another record company, Death Row Records, to breach a contract with Interscope. 

     The Interscope suit was withdrawn, but in 1997 Ms. Tucker and her husband filed suit against the estate of deceased rapper Tupac Shakur, alleging that he had verbally attacked Ms. Tucker using sexually explicit messages, coarse language, and lewd and offensive words to describe her, which led to death threats upon Ms. Tucker.  Mr. Shakur’s record was produced by Interscope.  Ms. Tucker alleged that she was slandered, her privacy was invaded, and that she was intentionally subjected to emotional distress, which led to a loss of consortium, a claim that includes, but is not limited to, “an impairment of capacity for sexual intercourse.”  Tucker, 237 F.3d at 280 (citing Restatement (Second) of Torts Section 693 (1) (1977)).       

     This suit spawned a number of articles that focused on Ms. Tucker’s loss-of-consortium claim.  One printed in the Philadelphia Daily News was written by Richard Fischbein, who questioned the propriety of the claim: “It is hard for me to conceive how these lyrics could destroy her sex life ... but we can only wait for the proof to be revealed in court.”  Id.  A reporter from Newsweek magazine, Johnnie Roberts, began writing a story on the case as well.  In addition to contacting Ms. Tucker’s attorney, he interviewed Richard Fischbein, who told him that one of the claims in Ms. Tucker’s suit involved interference with sexual relations.  He also read the complaint itself. 

     Mr. Roberts’s article, published on Sept. 1, 1997, stated: “[Ms. Tucker] and her husband claim that a lyrical attack by Tupac iced their sex life.”  Id. at 281.  Ms. Tucker amended her complaint against Interscope to include Mr. Fischbein, Mr. Roberts, and their respective publications as defendants, claiming that their articles had defamed her by compromising her reputation as a moral leader when they characterized her suit as one to recover for the effect on her sex life.

     The defendants moved for summary judgment.  The U.S. District Court for the Eastern District of Pennsylvania granted those motions, holding that the statements in question were not capable of a defamatory meaning and, alternatively, that the Tuckers (who conceded they were public figures for the purposes of this lawsuit) could not prove the defendants acted with actual malice.  Tucker v. Fischbein, 27 Media L. Rep. (BNA) 1663 (E.D. Va. 1999).  The district court did not answer the question of whether the plaintiffs could prove the statements were false.

     The U.S. Court of Appeals for the Third Circuit analyzed each of these issues.  It first disagreed with the district court’s assessment that none of the statements at issue was capable of a defamatory meaning, stating: “Statements considerably milder than or comparable to those at issue here have been held by the Pennsylvania Supreme Court to be capable of a defamatory meaning.”  Tucker, 237 F.3d at 282 (citing Cosgrove Studio & Camera Shop v. Pane, 182 A.2d 751 (Pa. 1962), and Birl v. Philadelphia Electric Co., 167 A.2d 472 (Pa. 1960)). 

     The court of appeals concluded:

Because of the inherent implausibility of the idea that lyrics alone could cause millions of dollars of damage to a couple’s sexual relationship, the statements were capable of making the Tuckers look insincere, excessively litigious, avaricious, and perhaps unstable.  Furthermore, the statements tended to suggest the Tuckers are hypocritical, that after condemning the gangsta rap industry for profiting from pornography, the Tuckers were only too willing to open up their own sex life for public inspection in order to reap a pecuniary gain.  Tucker, 237 F.3d at 282. 

The court of appeals also pointed to evidence specifically introduced by the Tuckers, in the form of an Aug. 17, 1997 Chicago Sun-Times article, which opined that Ms. Tucker had suffered a self-inflicted blow to her credibility.

     Because the statements were capable of a defamatory meaning, the court of appeals was forced to determine whether the defendants acted with actual malice and whether the plaintiffs could prove the statements were false.  The court of appeals held that Mr. Fischbein did not act with actual malice with regard to the loss-of-consortium claim.  The court found nothing in the record to indicate that Mr. Fischbein acted with anything other than negligence in jumping to the conclusion that the loss of consortium was related to sex. 

     However, the court of appeals determined that after Mr. Fischbein read the complaint itself, he should have entertained serious doubts about the statements he made.  But the court of appeals did affirm the district court’s finding that Mr. Roberts and Newsweek did not act with actual malice because they had been led to believe by authoritative sources that the case involved a loss of sexual relations.

      The Third Circuit also found that sufficient evidence of falsity existed to allow the case to go to the jury.  It held that a jury could conceivably find, based on the complaint itself, that the Tuckers were not alleging damage to their sex life.

     The case was affirmed with regard to the grant of summary judgment for Mr. Roberts and Newsweek.  However, the court of appeals remanded the case to the district court with regard to Mr. Fischbein.

-- Richard M. Schmidt, Jr. and Kevin Goldberg