By John Bussian…
In the lore of the American First Amendment, truth as a defense to libel is an article of faith. As it should be. Since the fabled 1735 trial of New York publisher John Peter Zenger, there has not been a serious, much less a successful effort to argue that truth of the underlying facts in a publication or broadcast is not a complete defense to criminal or civil libel claims. At least until last year when a state court judge in a recent, major public official libel trial against an institutional media interest proclaimed in open court that truth is not necessarily a defense to every libel claim, the opportunity for a publisher to mount a truth defense has remained clear.
The culprit planting the seed of jurisprudential error, it appears, was the trial judge’s misapprehension of the implications of a paragraph in a well-known treatise on American libel law. Rodney A. Smolla, Law of Defamation (1986). For it was arguably the unintended twist of Smolla’s treatise that led the state court judge down the path of reversible error in the 2016 libel trial, led to an appeal of the judge’s exclusion of the defendant publisher’s post-publication evidence, and triggered this brief refresher on First Amendment history and the defense of truth.
Zenger’s lawyer in the 1735 trial, Andrew Hamilton, has appropriately been credited with breaking new ground in successfully arguing that libel law dating to the 1606 Star Chamber case de Libellis Famosis, 77 Eng. Rep. 250 (K.B. 1606) (Coke) should be rejected in developing American colonial jurisprudence. The Star Chamber’s famous holding in that case, “the greater the truth the greater the libel,” froze speech directed at public officials in Britain and the American colonies for over a century. Zenger was tried and acquitted by an American colonial jury for publishing third-party commentary on corrupt conduct by the then-governor of New York.
Fast forward to 2016. An American newspaper publisher and two of its reporters are targeted with a libel suit for attributing statements about a public official’s conduct in carrying out her official duties to third-party experts. An intermediate appeals court remanded for jury trial six statements that were part of an award-winning investigative reporting series: four direct quotes and two summaries of expert commentary on a state crime laboratory agent’s ballistics work. At the time of the first appeal, the publisher had not discovered certain post-publication reports on the agent’s work and, therefore, had no opportunity to make the reports part of the record on appeal. In the course of the ensuing jury trial, the trial judge excluded from evidence the post-publication investigation reports, along with testimony by the ballistics experts who led the investigation for the national group that accredited the state crime lab. The judge considered the information to be irrelevant. The jury went on to return a verdict in excess of $8 million in compensatory and punitive damages based upon jury instructions that essentially confined the jury’s assessment of the publisher’s truth defense to the question whether the attributions to the expert sources were accurate and not whether the underlying facts were also true.
Commenting on the trial judge’s decision to exclude the investigation reports – in an amicus brief to be submitted in support of the publisher’s appeal – noted First Amendment scholar William Van Alstyne recently wrote that the evidence should have been admitted to prove truth of the underlying facts, regardless of when that evidence was discovered. Van Alstyne cites Justice Felix Frankfurter for the general proposition that “wisdom” can never come too late. Even more compelling for Professor Van Alstyne is the fact that a ruling excluding post-publication evidence of truth defeats the public’s First Amendment right to receive vital information about government officials. Van Alstyne, who has forgotten more about the First Amendment than most lawyers will ever know, observed that the judge’s error in excluding the evidence harkened him back to the 1965 case of LaMont v. Postmaster General, 381 U.S. 301 (1965). LaMont held unconstitutional a federal statute requiring the postmaster to stop mailed material containing “communist political propaganda” and require the addressee to affirmatively sign for such material to accept its delivery.
The constitutionalization of the truth defense in the context of public official libel litigation is well charted; the LaMont holding, less so. Yet together they form an unassailable argument that an investigation or other development of facts underlying an attribution to a news source – following publication of allegedly libelous statements about government officials – is always admissible to prove truth of the challenged broadcast or publication.
Noted First Amendment litigator Wallace Lightsey has written forcefully on the subject:
Although the common law was historically ambivalent about the role of truth against a claim of defamation, a fundamental shift in the Supreme Court’s First Amendment jurisprudence over the past fifty years has led to the elevation of truth to a position of central importance in cases brought by a public official over a publication concerning her conduct in office. The upheaval began with New York Times v. Sullivan, 376 U.S. 254 (1964).
In Sullivan, the Supreme Court focused squarely on First Amendment protection accorded the dissemination of truth as its primary justification for placing constitutional restrictions on the application of the common law. There, the Court ruled, for the first time, that criticism of government and its officials, even if false and defamatory, was to receive a constitutional immunity in order to provide “breathing space” for the publication of truth. “That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive’ seems obvious.” Id. at 271-72. In addition, the Court was deeply concerned by the likelihood of self-censorship of truthful criticism of public officials because of the difficulty of proving truth – the fear that the “critic of official conduct” would be deterred from speaking what was in fact true “because of doubt whether it can be proved in court or fear of the expense of having to do so.” Id. at 279. Accordingly, the “actual malice” prerequisite for liability under Sullivan is defined as knowledge of falsity or reckless disregard for the truth.
The following Term, the Court said flatly that truth could never be actionable in any lawsuit, for defamation or otherwise, “where the discussion of public affairs is concerned.” Garrison v. Louisiana, 379 U.S. 64, 74 (1965). Two years later, in Time, Inc. v. Hill, 385 U.S. 374 (1967), a privacy case, the Court held unanimously that truthful publications concerning matters of public interest are absolutely protected from liability. Id. at 383, 387-88. The full Court further agreed that some falsehood must be protected in order “to give added ‘breathing space’ to truth.” Id. 405 n.2 (Harlan, J., concurring). Similarly, in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Court concluded that a public official or public figure could not recover for the tort of intentional infliction of emotion distress “without showing … that the publication contains a false statement of fact which was made with ‘actual malice.’” Id. at 56.
In 1986, the Court held that even a private-figure plaintiff must bear the burden of proving an alleged libel to be false, “at least where a newspaper publishes speech of public concern.” Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69 (1986). Justice O’Connor, writing for the Court, drew on precedent establishing that “a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation,” id. at 775, to find that “the common law’s rule on falsity – that the defendant must bear the burden of proving truth – must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity.” Id. at 776. Justice O’Connor reasoned that in cases in which the burden of proof as to truth or falsity is outcome determinative, if the burden of proof is on the defendant, some true speech will be wrongly punished, whereas if the burden is on the plaintiff, some actionable injury will go uncompensated. The First Amendment commands rejection of the first risk, she concluded, notwithstanding the risk that some falsehood may go unpunished. The deterrence of speech about public officials or matters of public concern that could result from the common law presumption of falsity is “antithetical to the First Amendment’s protection of true speech on matters of public concern,” and “could only result in deterrence of speech which the Constitution makes free.” Id. at 777 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1968)).
In Sullivan, the Court emphasized that the “central meaning of the First Amendment” lay in the role it played in ensuring the conditions of self-government by protecting the publication of true statements concerning the conduct of government officials. 376 U.S. at 273. “[T]he Constitution created a form of government under which ‘[t]he people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels.” Id. at 274 (citation omitted). This form of government necessitated an altogether “different degree of freedom” as to discussion about government officials and conduct than had previously existed prior to the founding of the Republic. Id. at 275; see Kalven, The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 208-09.
Following from – and necessary to ensure – Sullivan’s protection and promotion of discussion about government affairs was the correlative right of the public to receive information about the government. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); accord Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (“In a variety of contexts this Court has referred to a First Amendment right to ‘receive information and ideas.’” (citation omitted)). This line of doctrine culminated in the decisions prohibiting the closure of courtrooms or attempting to restrict access to court records except in narrowly defined and compelling circumstances. See, e.g., Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
In a similar vein, and during roughly the same time period, the Supreme Court effected a dramatic change in constitutional law concerning the right of public employees to comment on matters of public interest notwithstanding the desire of their employers that they remain silent. In the 1968 decision of Pickering v. Board of Education, 391 U.S. 563 (1968), a public high school teacher had written a letter to the editor of a local newspaper criticizing the way the Board of Education and the district superintendent of schools had handled several recent bond measures proposed to raise new revenues for the schools. The Board concluded that Mr. Pickering’s publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and ordered his dismissal. The state trial court and supreme court upheld the Board’s actions, reflecting the attitude that Pickering’s terms of employment could legitimately include the requirement that he refrain from public criticism of the school administration.
The U.S. Supreme Court reversed unanimously, explaining:
To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court.
Id., 391 U.S. at 568 (emphasis added). The opinion noted that, notwithstanding factual inaccuracies in Mr. Pickering’s letter, his speech was nonetheless protected under the rationale of Sullivan that some margin of error must be allowed so as not to inhibit people in his position from venturing into public debate on a local political issue. See Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review, 53 L. & Contemp. Probs. 79, 94-95, 102-05 (1990) (discussing the significance of Pickering).
These several strands of First Amendment jurisprudence come together to place public discussion of the conduct of government and public officials at the very heart of constitutional protection of free speech. Any action that restricts the “breathing space” the courts have repeatedly recognized as essential in this context must be viewed with constitutional skepticism, and a person sued by a public official for publishing statements critical of the official must, constitutionally, be given wide latitude to prove the substantial truth of the publication. As the Supreme Court noted in Hepps, “[w]hen the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law.” 475 U.S. at 775.
Considered in this light, a state court judge’s decision to exclude evidence bearing on the truth of statements at issue in a libel trial ought compel reversal on appeal.
Because of the absolute nature of the truth defense, information proving the truth of a publication discovered during the course of litigation is as effective a defense as truth known at the time of publication.
[I]t makes no difference that the true facts were unknown until the trial. A person does not have a legally protected right to a reputation based on the concealment of the truth. This is implicit in the rule that truth – not just the known truth – is a complete defense to defamation.
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993) (citations omitted).
This conclusion is tied inextricably with the doctrine of substantial truth, the rule that proof of truth or falsity must go to the “gist” or “sting” of the defamation. E.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17 (1991). Under this standard, the test is whether the alleged libel as published “would have had a different effect on the mind of the reader from that which the pleaded truth would have produced.” Id. at 517.
The rule of substantial truth is based on a recognition that falsehoods which do no incremental damage to the plaintiff’s reputation do not injure the only interest that the law of defamation protects. …
… Falsehoods that do not harm the plaintiff’s reputation more than a full recital of the true facts about him would do are thus not actionable. The rule making substantial truth a complete defense and the constitutional limitations on defamation suits coincide.
Haynes, supra, at 1228 (emphasis in original). If a “full recital of the true facts,” including facts discovered or arising after the publication, would cause the same injury to a plaintiff’s reputation as did the alleged defamatory publication, then the publication is substantially true and cannot sustain an action for defamation.
This was the basis of the Texas Supreme Court’s holding in McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990), that the post-publication findings of an investigation into the subject matter of an allegedly defamatory statement are relevant and admissible as to the substantial truth of the publication – a decision in direct conflict with that of the Superior Court here. Likewise, in Moore v. Davis, 27 S.W.2d 153, 156-57 (Tex. App. 1930), the defendant was allowed to introduce evidence of misconduct by the plaintiff that occurred after the allegedly defamatory publication for the purpose of proving substantial proof. The plaintiff in that case was a state court judge who had been accused in an article of fraudulent and dishonest conduct and, accordingly, unfit to be a judge. Id. at 154-55. In addition to evidence of prior misconduct by the plaintiff, the trial court also admitted evidence that, after the publication of the alleged libelous article, the plaintiff had caused another judge’s orders to be stricken from the court record without the other judge’s knowledge or consent. Id. at 156-57. The appellate court affirmed, finding that the later acts were relevant because they “tended to show the plaintiff an unfit person for district judge.” Id.
Consequently, evidence that tends to prove the substantial truth of an alleged defamation is relevant and properly admissible regardless of when the defendant learned of it or, indeed, when the evidence itself came into existence.
Neither does it matter if the defendant doesn’t know the truth of the matter when he makes the defamatory statement. So long as what he says turns out to be true, he is free from liability; the truth, whenever discovered, serves as a complete defense. See [Restatement of Torts] §581A, cmt. h; W. Page Keeton, Prosser and Keeton on Torts, §116 at 840–41 (5th ed. 1984). In American law, defamation is not about compensating for damage done to a false reputation by the publication of hidden facts. It’s about protecting a good reputation honestly earned.
Bustos v. A & E Television Networks, 646 F.3d 762, 764 (10th Cir. 2011) (emphasis added).
Thus, it is of no moment that the evidence of truth was generated after the publication news or broadcast.
At the end of the analysis, a few of James Madison’s words, originally offered in the context of promoting public education, are apposite to the search for truth in the libel context and bear repeating here:
“Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
Letter to W.T. Barry
August 4, 1822
Any trial should be a search for truth and that includes libel trials as well.
John Bussian litigates First Amendment matters for media interests across the country and serves as First Amendment and Legislative Counsel to the North Carolina Press Association.
 The author would like to acknowledge and thank his mentor, William Van Alstyne, W.R. Perkins Professor of Law, Emeritus at Duke University School of Law for sharing his thoughts on the constitutional foundation of the truth defense to a defamation action, as well as the contributions of his colleagues, Wallace K. Lightsey of Greenville, S.C., and Mark J. Prak of Raleigh, N.C., in connection with this piece.
 Richard Kluger, Indelible Ink: The Trial of John Peter Zenger and The Birth of America’s Free Press (W.W. Norton, 2016).
 Speiser thus foreshadowed recognition of the constitutional infirmity of placing the burden of proving truth on the defendant in a First Amendment case. Six years later the Court recognized in Sullivan that, in a suit by a public official, requiring the defendant to prove truth as an affirmative defense imposes too great an inhibition upon free speech. See Sullivan, 376 U.S. at 278-80.
 As a jurisprudential matter, Justice White’s opinion for the Court in Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), states in dicta that the Court has “left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamation action brought by a private person.” Id. at 490. The suggestion that this question remains undecided can no longer tenably be sustained in light of Hepps and other decisions affirming the First Amendment protection for truth, and is fundamentally at odds with a constitutional framework that protects the publication of some defamatory falsehood for the sole purpose of facilitating the publication of truth. B. Sanford, Libel and Privacy: The Prevention and Defense of Litigation, at 166 (1987).