Introduction
The tort of defamation occurs when an individual harms the reputation of another by publishing false statements to a third party. Black’s Law Dictionary (8th Ed. 2004). Generally, the defamatory language must either lower the esteem of the defamed party in the community or deter others from dealing with the defamed party. Restatement (Second) of Torts § 559 (1977). When a cause of action for defamation prevails, the plaintiff is permitted to recover money damages for harm to his reputation. Erickson v. Jones Street Publishers, LLC., 368 S.C. 444, 464-465 (2006); Holtzsheiter v. Thomas Newspaper, Inc., 332 S.C. 502, 508 (1998).
Consider the following hypothetical situation. Suppose Mark is running for governor in the state of Palmetto. One day, Mark opens The Palmetto Gazette to find an article about the gubernatorial race. As Mark reads the article, he comes across some harsh criticism of his campaign, but what really upsets him is the following sentence: “Mark is a terrible person because he hates dogs.” In fact, Mark really likes dogs, having had a yellow lab when he was growing up. Unfortunately for Mark, ninety-nine percent (99%) of the people in Palmetto own dogs and The Palmetto Gazette is the most widely circulated newspaper in the state. Moreover, no candidate in the past fifty years has won the race for governor without the support of the “dog vote.” Fearing this article will destroy his chances of winning the election; Mark contacts The Palmetto Gazette and asks them to print a retraction. When the newspaper refuses, Mark files a defamation claim against The Palmetto Gazette. Assume the state of Palmetto applies the same laws regarding defamation as does South Carolina. Keep this set of facts in mind, as the paper will refer back to this example to help illustrate some of the laws governing defamation and awards of damages.
Defamation in South Carolina
In order to maintain a cause of action for the tort of defamation in South Carolina, the Plaintiff must prove: 1) a false and defamatory statement concerning another; 2) an unprivileged publication to a third party; 3) fault on the part of the publisher; and 4) either actionability of the statement irrespective of a special harm or the existence of special harm caused by the publication. Holtzsheiter, 332 S.C. at 505-06; Restatement (Second) of Torts § 558. Defamation takes two forms: Libel and Slander. Libel consists of a publication in written or printed form, while Slander consists of spoken defamatory statements. Erickson, 368 S.C. at 464-65; Holtzsheiter, 332 S.C. at 508; Restatement (Second) of Torts § 568.
In addition to the above elements, defamation of a public figure requires proving the defamatory material was published with “actual malice.” Because media outlets engage in process of distributing useful information to the public, the Supreme Court has set a higher standard, of proving actual malice, in order to encourage awareness and debate about public officials and issues of public concern. Anderson v. Augusta Chronicle, 365 S.C. 589, 594-595 (S.C. 2005) (citing New York Times v. Sullivan, 376 U.S. 254, 269 (1964). The matter of actual malice in public defamation cases will be discussed in further detail later.
Referring back to the example laid out in the introduction, all of the elements of defamation are satisfied in Mark’s case. As to the first element of defamation, Mark actually likes dogs, so the newspaper’s statement is not true. Second, the paper published the article when it printed the story and distributed it for sale across the state. Third, the fault is on the publisher for printing a false statement and publishing it to third parties, particularly since a little research would have revealed that Mark does like dogs. Lastly, the publication harmed Mark by ruining his reputation in the community and destroying his chances of becoming governor.
Defamation Per Se v. Per Quad
Defamation is classified as either defamation per se or defamation per quad. A defamatory statement is defamation per se if the message or statement is defamatory on its face. For instance, “Mark embezzles money.” Here, the statement is clearly defamatory and requires no additional facts for the third party to understand the harmfulness of the statement. Holtzsheiter, 332 S.C. at 509.
When the defamatory meaning is unclear, requiring additional facts in order for a third party to ascertain the defamatory meaning of the statement, it is classified as defamation per quad. Instances involving defamation per quad require extrinsic evidence to prove the defamatory meaning. Holtzsheiter , 332 S.C. at 509. For an example of defamation per quad, remember the facts in the example from the introduction. The Palmetto Gazette published that Mark hates dogs, but on its face this statement is not harmful to Mark’s reputation unless it is known that 99% of the people in Palmetto own dogs. So, the extrinsic evidence that almost everyone in the state has a dog and recent governors have enlisted the support of the dog vote is necessary in order for Mark to prevail on a defamation claim. Thus, Mark’s claim is classified as defamation per quad.
Actionable Per Se v. Not Actionable Per Se
There is an important distinction between “defamation per se” and “actionable per se.” As discussed above, defamation per se refers to a statement in which the defamatory meaning is obvious on its face. If a defamation is actionable per se, then the judge has decided the defamation was obvious enough to proceed. “When a statement is actionable per se, then under the common law it is presumed the defendant acted with common law malice and the plaintiff suffered general damages. If a defamation is not actionable per se, then at common law the plaintiff must plead a prove common law actual malice and special damages.” Holtzsheiter, 332 S.C. at 510.[1]
When determining if a defamation claim is actionable per se or not, the difference between libel and slander is an important distinction. If the written statements on their face harm the reputation of the plaintiff, then the libel is actionable per se. Holtzsheiter, 332 S.C. at 510-511; Capps v. Watts, 271 S.E. 2d 606 (1978). Accordingly, almost “all libel is actionable per se.” Id. Slander, however, is only actionable per se when the spoken words fall under one of the following: 1) commission of a crime of moral turpitude, 2) contraction of a loathsome disease; 3) adultery; 4) unchastity; or 5) unfitness in one’s business or profession. Holtzsheiter, 332 S.C. at 510-511.
Referring again to the example from the introduction, Mark’s defamation claim is actionable per se because it involves libel that damages Mark’s reputation in the esteem of the community. Notwithstanding the public figures issue, Mark does not have to plead malice to recover general damages because malice is presumed.
Defenses to Defamation in South Carolina
The most common defenses against allegations of defamation are truth, privilege, and opinion. A defendant can overcome a claim of defamation by defeating one of the requisite elements of defamation. The most notable way to prevail over a defamation claim is simply to prove the statement is true. For instance, if The Palmetto Gazette can prove that Mark actually hates doges, perhaps with a video of him throwing rocks at puppies, then the claim will be dismissed because what the paper published is true. 19 AMJUR Trials § 499.
Another defense often used is the defense of absolute privilege and qualified privilege. An absolute privilege protects against defamation claims in circumstances where individuals are encouraged to engage in candid debate, such as in court or legislative sessions. In these instances, malice is allowed. A qualified privilege is also allowed, which gives journalist a license to discuss facts pertaining to public issues, public officials, and public figures, as long as the statements are not malicious. In these instances, the defendant must overcome the element of actual malice. For example, if The Palmetto Gazette can show the article was written with the intent of communicating accurate information about some of the candidates for governor and the alleged defamatory statement was simply a mistake, then the newspaper will likely overcome the charge of defamation. This is true because when the Palmetto Gazette writes about public figures, it is entitled to a constitutional privilege in order to promote public debate about the candidates. As will be discussed later, when the plaintiff is a public figures bringing a defamation case, they must overcome an additional burden of proving the alleged defamation was written with actual malice. Id.
In many instances, media outlets communicate opinions about public officials, public figures, or individuals involved in matters of public concern. In these cases, opinions are not only allowed but encouraged, and the statements will not constitute defamation because the defendant will likely be able to prove the opinions lacked the requisite actual malice element.
Two ways to mitigate the damages in defamation claims is to show there was no harm to the plaintiff’s reputation or prove the plaintiff already had a bad reputation. Id.
Damages
In civil cases, the term damage refers to “a sum of money awarded to a person injured by the tort of another.” Restatement (Second) of Torts § 902. The tort of defamation allows a plaintiff to recover for harm to his reputation. Erickson, 368 S.C. at 464-65. In defamation cases, a plaintiff may recover for compensatory damages and sometimes punitive damages as well.
Compensatory damages, or actual damages, are designed to compensate the injured party for injury sustained by him. Compensatory damages come in two forms: general damages and special damages. Restatement (Second) of Torts § 903. General damages may be awarded when the “harm so frequently resulting from the tort that is the basis of the action that the existence of the damages is normally to be anticipated and hence need not be alleged in order to be proved.” Whitaker v. Sherbrook Distributing Co., 189 S.C. 243 (1939). General damages are difficult to assess because in defamation cases it may be hard to identify the specific monetary value of the harm. For instance, general damages include injury to reputation, mental suffering, and hurt feelings, which do not have monetary value. Id. When the defamation is actionable per se, general damages do not need to be pled because proving harm to the plaintiff’s reputation is one of the elements of defamation. Therefore, special damages play a crucial role for plaintiffs in defamation cases.
Special damages are given for a specific harm other than one for which general damages are awarded. Essentially, special damages include specific money damages, which are capable of being assessed monetarily and are based on the particular harm to the plaintiff. Capps v. Watts, 271 S.C. 276 (1978); Restatement (Second) of Torts § 904. For example, the loss of an irreplaceable item or lost earnings would constitute special damages.
Punitive damages may be awarded for two reasons. First, punitive damages are awarded to punish a person “for his outrageous conduct and to deter him and others like him from similar conduct in the future.” Restatement (Second) of Torts § 908. Second, punitives “may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” In considering punitive damages, the fact finder can assess “the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.” Id.[2]
Generally, juries are given wide discretion in compensating a plaintiff for damages in civil law suits, such as in defamation cases. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 418 U.S. at 351. It is, therefore, important for the plaintiff’s attorney to come up with an amount that will adequately compensate the client for all the damages he has suffered.
With this overview of damages in mind, it may be helpful to analyze what damages would apply in the hypothetical from the introduction. Mark’s attorney will argue all the damages he can, starting with compensatory general damages. However, assessing mental suffering or damage to Mark’s reputation is difficult to monetarily evaluate. Counsel will have to argue Mark suffered damage to his reputation by proving he lost the election because of the defamatory article in The Palmetto Gazette and the article lowered him in the esteem of the community. Mark’s attorney will also argue the loss caused him extreme emotional distress and loss of opportunity to pursue public office in the future, among other issues, but will have to look to analogous cases to see what kind of awards have been given in the past.
Special damages are much easier to figure out because an exact monetary figure can be recommended to the jury. If Mark goes on to lose the election, then the first thing his attorney will do is come up with the amount of money spent on the election.[3] That number, combined with the amount of money Mark would have earned if he had been working instead of campaigning, will result in a pretty substantial sum. Moreover, the time Mark spent away from his familial duties, such as mowing the grass, spending time with his children, caring for his aging parents, and other responsibilities will add to the aggregate dollar amount he will ask for in special damages.
As for the punitive damages, Mark must first show malice in order for punitive damages to apply. Malice, in this context, requires a showing of malicious intent or recklessness. Gertz, 418 U.S. at 351. In this instance, the malice requirement will likely be satisfied if the publishing of the defamatory statement, Mark hates dogs, is proven to be completely erroneous. Accordingly, Mark’s attorney will be able to ask a jury for a hefty amount because The Palmetto Gazette is a very successful newspaper with a wide circulation. In order for the newspaper to be deterred from similar conduct in the future, it will have to suffer a significant financial loss.
Defamation and the Constitution
On a federal Constitutional level, liability in defamation cases has evolved through the years. The United States Supreme Court has established guidelines, which seek to balance the legitimate state interest of imposing liability in defamation cases, while honoring the Constitutional protections of freedom of speech and the press.
The cornerstone of contemporary defamation jurisprudence concerning public figures comes from the case of New York Times v. Sullivan, 376 U.S. 254 (1964). In the case, The New York Times sold an advertisement in its paper that allegedly contained defamatory comments about an elected commissioner in Montgomery, Alabama. The advertisement did not mention the commissioner’s name, but did accuse the Montgomery commissioner of racism and commanding the police force to use excessive violence against African-Americans, among other things.[4] Id at 256-65. The issue before the court was whether liability in a defamation case, brought by a public official against a newspaper publisher, abridges the publisher’s freedom of speech and freedom of the press. Id at 268.
The primary concern for the Supreme Court was this: if defamation cases against public officials could be brought simply because a newspaper embellished facts or accidentally published misinformation, then this would discourage media outlets and individuals from disseminating important information to the public. In turn, this would discourage public debate of vital issues, criticism of public officials’ job performance, and abridge the freedoms guaranteed in the First Amendment of the United States Constitution. The United States was founded upon the principles of liberty and the First Amendment to the Constitution legally establishes a commitment to the uninhibited debate of public issues, even “unpleasantly sharp attacks on government and public officials.” Id at 275.
The remedy for the court was to establish what is commonly called the New York Times Test,[5] which requires a showing of “actual malice” when a public official brings an action for a defamation case. Essentially, publishers may receive constitutional privileges from the law governing defamation when a public official brings a defamation case, requiring the public official to prove an additional element of “actual malice.” Writing the opinion of the court, Justice Brennan wrote, “The constitutional guarantees require, we think, a federal rule that 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’ – that is, with knowledge that it was false or with reckless disregard for whether it was false or not.” Id at 279-80.
This was the first time the United States Supreme Court recognized the necessity of protecting First Amendment Rights in defamation cases. In addition to the before mentioned rules established in the Sullivan case, the court made another striking departure from common law private defamation cases. The court shifted the burden of proof from the defendant having to assert an affirmative defense by proving the published statements were true, to the plaintiff having to show the newspaper published the defamatory statements with a malicious intent to harm the reputation of the plaintiff. Id at 281. In addition, the court elaborated on what it would take to pass constitutional muster under the actual malice doctrine: “The state of mind required for actual malice would have to be brought home to the persons…having responsibility for the publication.” Id at 292. In other words, the court applied a subjective test for determining the defendant’s state of mind, not an objective test based on the reasonable man standard. Here, Sullivan had to prove the New York Times subjectively acted with actual malice when publishing the article. Id.
As to the issue of “reckless disregard,” the Supreme Court further clarified the rule in St. Amant v. Thomas, 390 U.S. 727 (1968). When there is no evidence of “actual knowledge,” the court held, the actual malice requirement will be satisfied when the plaintiff can show “a reckless disregard for the truth.” The “reckless disregard” rule is not based on an objective reasonable man standard, but instead relies on a subjective approach. The defendant must have “in fact entertained serious doubts as to the truth of his publication.” Id.
Several years after the New York Times case, the Supreme Court extended the New York Times Test beyond public officials to include public figures as well. Public figures, while nonpublic persons, “are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Associated Press v. Walker, 388 U.S. 130, 162 (1967); see also Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967).[6]
The Supreme Court again addressed the question of when the media may claim constitutional privileges in 1971, broadening the New York Times Test to include defamatory statements about a private person regarding matters of public interest or concern. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). However, dissatisfied with an unqualified expansion of the scope of the New York Times Test, the Supreme Court readdressed the application of the test in Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974).
In Gertz, the plaintiff brought an action for libel against a magazine publisher for describing the plaintiff as a communist. The issue at hand concerned the “extent of a publisher’s constitutional privileges against liability for defamation of a private citizen.” Id. at 325. Unlike in Rosenbloom, where the court broadly extended the New York Times Test to include matters of public concern, Gertz attempted to narrow the scope of when constitutional privileges apply. The primary concern for the Gertz court was the federal government’s trampling of a states’ right to determine liability in defamation cases. The court was, however, concerned with the protection of constitutional rights; “Under the First Amendment there is no such thing as a false idea…(it) requires that we protect some falsehood in order to protect speech that matters.” Id. at 339-40. Consequently, the court stuck a balance between Constitutional protection of the media and states’ rights. On the one hand, the court held that “the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injuries to a private individual.” Id at 347. On the other hand, the court imposed limitations on the states based on Constitutional protections, holding:
We endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. But this countervailing state interest extends no further than compensation for actual injury…we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. Id at 348-349.
Moreover, because Gertz was not a public official or public figure, the publisher was not entitled to a constitutional privilege. The mere fact that Gertz was discussed in the same article as a well known issue (labeling him as a communist) does not dismiss his status as a private citizen and not a public official or figure. The New York Times Test did not apply, based on the public matters extension, because Gertz “did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” Id at 352.
The difference was that if Gertz were called a leader of the communist movement in America, then it would be an issue of public concern, but since he was just called a communist it was a private matter. Where the plaintiff is not a public official or figure, there must be a connection between the individual and the public issue for the New York Times Test standard to apply. Here, there was no connection because the plaintiff was simply a member of certain communist oriented organization and never purported to be leading the movement.
The rational for the New York Times Test and expanding the scope of when the media is entitled to constitutional privileges goes to the core values of the United States. Public officials, public figures, and matters of public concern will and should be discussed. Inaccuracies and mistakes are, therefore, inevitable. As long as what is written and spoken about these individuals and issues is done so without malice, there exists an immunity to protect the media and encourage lively debate. Otherwise, the free flow of information and exchange of ideas in American society would be severally restricted. America’s democratic values and concept of liberty would be vulnerable without the constitutional privileges afforded by the New York Times Test.[7]
The example from the introduction provides an illustration of how these constitutional considerations apply. First, Mark was not a public official and the issue was not one of public concern. However, because Mark thrust himself into the public eye when he elected to run for governor, he is considered a public figure. As a public figure, Mark has an additional requirement of proving The Palmetto Gazette maliciously published the article with the intent to defame Mark.
Assume the editor of The Palmetto Gazette just did not like Mark and wanted him to lose the gubernatorial race. Then, “actual malice” exits because the entire purpose of publishing the statement that Mark hates dogs was to make sure Mark lost the election.
On the other hand, assume the following information was known by the young writer of the article at the time of publication: 1) as a city councilman, Mark cut funding for local animal shelters; 2) Mark does not own a dog; 3) an unnamed source told the reporter that one day while he was out walking his dog, Mark yelled at him, “keep that mutt out of my yard.” Here, the question of “actual malice” is complicated by the fact that the writer of the article conducted research and found some reason to believe Mark hates dogs. Thus, the question is not whether the writer intended to defame Mark with malicious intent, but whether the statement was published with reckless disregard for the truth. In this instance, the question of actual malice would be put to a jury.
These Constitutional standards also have implications on damages. In private defamation cases, the P must show actual malice to get to punitives. In public defamation cases, one of the elements is actual malice, so the burden for arguing punitives has already been met. Thus, when the defamation involves a public figure, there is a strong likelihood a jury will be able to award punitive damages, provided it finds Constitutional actual malice.
In essence, The United States Supreme Court established the New York Times Test, which requires a plaintiff to prove “actual malice” when the defamatory language involves public officials, public figures, or involves matters of public concern. The court, subsequently, defined the scope of the New York Times Test by ensuring that states retained their power to impose liability in private defamation cases and allowing compensation for actual injury. However, when the New York Times Test applies, states may not impose punitive damages on a defendant absent a showing of “actual malice.” It is with this Constitutional framework that South Carolina has developed laws on defamation, determined who falls within the scope of federal immunity, and struggled to define “actual malice.”
Public Defamation in South Carolina
Working within the framework established by the United States Supreme Court, South Carolina has engaged in a process of refining public defamation laws through the courts. The following discussion analyzes the evolution of public defamation laws over the course of the past eleven years.
The General Law of Public Defamation in South Carolina
In 1998, the South Carolina Supreme Court, in Holtzscheiter,[8] provided the basic guidelines courts should follow when considering allegations of public defamation. In Holtzscheiter, the plaintiff’s daughter was murdered and the newspaper ran an article in which it quoted the victim’s doctor as saying ‘there simply was no family support to encourage [daughter] to continue her education.’ Id. at 508. In this defamation per quad case, the plaintiff claimed the statement defamed her. The paper argued the statement was a matter of public interest, which triggers constitutional protections. Initially, any defamation case in South Carolina requires the following elements: 1) a false and defamatory statement concerning another; 2) an unprivileged publication to a third party; 3) fault on the part of the publisher; and 4) either actionability of the statement irrespective of a special harm or the existence of special harm caused by the publication. Id. at 511.
As for the Constitutional requirements, the plaintiff must first show actual injury. Second, the burden of proof falls on the plaintiff to show the statement was indeed false, unlike private defamation where the falsity of the statement is assumed and the defendant must prove it was not false. Lastly, the plaintiff must prove the defendant acted with actual malice by clear and convincing evidence. That is, the paper knew the statement was false or had reservation about the truth of the statement. Id. Ultimately, the court found no reversible error on the part of the trial judge’s denial of a directed verdict on the issue of liability.
As for punitive damages in defamation cases, the South Carolina Supreme Court relied on Gertz, requiring the plaintiff to prove the newspaper acted with constitutional actual malice. Gertz, 418 U.S. at 347. In this case, the Supreme Court reversed the trial judge’s ruling denying the newspaper’s motion for a directed verdict on the issue of punitive damages. Holtzscheiter, 332 S.C. at 515.
Holtzscheiter, provides the basic framework on which the current law of public defamation began to take root in South Carolina.
Defining Actual Malice in South Carolina
One of the seminal cases on public defamation in South Carolina is Fleming v. Rose, 350 S.C. 488 (2002). In Fleming, four highway patrol officers were involved in an automobile accident following a holiday party. An ensuing investigation showed the highway patrolmen, including Fleming, engaged in a cover up to avoid the driver from being charged with a DUI. Id. Rose, the director of South Carolina Department of Public Safety (SCDPS), issued a press release that stated in part, ‘Lt. James Fleming learned key details about the accident from …Jerry Cobb within a few months of the accident, including the approximate speed of the van. Fleming did not report this information to his supervisor.’ Id. at 492. In response, Fleming sued Rose for defamation.
A prior South Carolina Supreme Court Case concluded that Highway Patrol officers are public figures, so initially it is clear that Fleming is a public figure and must show Rose published the statement with actual malice. State v. Bridgers, 329 S.C. 11, 16 (1997). Assuming the only contested element of defamation law was the third prong, ‘the publisher was at fault,’ the court honed in on whether that ‘fault’ was committed with actual malice. Id. at 494.
According to the Sullivan, actual malice requires the publisher to have known the statement was false or acted with reckless disregard as to the truth. Sullivan, 376 U.S. at 279-280. Moreover, Fleming had to prove with clear and convincing evidence that the statement was published with a malicious intent. Id. In considering the issue of actual malice, the court stated:
The constitutional actual malice standard requires a public official to prove by clear and convincing evidence that the defamatory falsehood was made with the knowledge of its falsity or with reckless disregard for its truth. A ‘reckless disregard for the truth, however, requires more than a departure from reasonable prudent conduct.’ There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubt as to the truth of his publication. There must be evidence the defendant has a ‘high degree of awareness of …probable falsity.’ Id. at 495 (citing Elder v. Gaffney Ledger, 341 S.C. 108, 114 (2000).
On appeal, the court found two pieces of evidence to support the conclusion that Rose acted with actual malice. First, the testimony of witnesses who stated the policy of the police department was not to release the names of police officers involved in disciplinary matters. Second, the investigation did not involve asking Fleming’s Supervisor directly whether Fleming had passed along information about the night of the incident. Fleming, 356 at 492.
The South Carolina Supreme Court rejected the Court of Appeals actual malice argument for failing to provide “clear and convincing” proof that Rose acted maliciously. First, while it may be a custom not to report the names of officers under instigation, it does not violate standards of professional conduct to disclose the names of officers. As to the second argument, Flemings Supervisor was interviewed by highly qualified investigators who concluded Fleming did not tell his supervisor he lied about the speed of the van. The court held:
There is no evidence, much less clear and convincing evidence, that Rose had knowledge that the statement setting forth the findings of the investigation with regard to Fleming was false, if it was indeed false, or that he had serious doubts as to the truth of the report. Moreover, actual malice cannot be shown from Rose’s failure to perform his own investigation because there were no obvious reasons to doubt the veracity of [investigator’s] report and no evidence that Rose was purposefully avoiding the truth. Id at 497.
Another important case in South Carolina defamation law involved the publication of an article by the Augusta Chronicle, claiming Anderson, a candidate for the state house, lied about his service in the National Guard. Anderson denied he ever told the reporter he served in the National Guard and sued the newspaper for libel. In fact, the newspaper knew Anderson never served in the National Guard prior to publication based on documentation Anderson submitted to the paper, Anderson’s age (he was 67 years old), and Anderson’s testimony. Anderson v. Augusta Chronicle, 365 S.C. 589 (2005).
From the beginning, it was clear Anderson was a public figure because he was running for public office. Thus, the New York Times Test applied. Here, the plaintiff argued the newspaper’s reckless disregard for the truth was enough to prove malice. An evaluation of the evidence in the cases, coupled with a subjective analysis of the paper’s intent, armed the court with enough ammunition to uphold the Court of Appeals’ reversal of the trial court’s directed verdict. Ultimately, the South Carolina Supreme Court concluded there was enough evidence of the newspaper’s “reckless disregard” for the question of actual malice to be submitted to a jury.
What is apparent in these South Carolina cases is that the state of mind of the defendant is an important factor in determining malice. In both Fleming and Anderson, the court seemed to harp on the defamer’s intent, requiring the plaintiff to prove the defendant maliciously intended the defamatory statements to harm the reputation of the plaintiff. However, in these cases, the court allowed circumstantial evidence to prove by clear and convincing evidence the defendant acted maliciously.
Referring again to the example from the introduction, it would be clear enough to prove malice if the Palmetto Gazette’s writer disliked Mark. For instance, if the writer’s brother was running against Mark or there was evidence of a long standing feud between the two, then malice would be easily proven. However, where there is no direct evidence of a malicious intent, Mark could still prove malice with clear and convincing evidence based on the Palmetto Gazette’s reckless disregard for the truth. Assume the Palmetto Gazette was supporting another candidate and the paper could easily have discovered that mark likes doges. Then, the writer could simply have called Mark and asked him if he likes dogs or could have talked to Mark’s friends and found out Mark grew up with dogs, but regretfully does not currently own a dog because he does not have a large enough back yard. Based on these pieces of circumstantial evidence, there is enough to prove the newspaper at least acted with reckless disregard for the truth and, thus, the Palmetto Gazette maliciously published the article.
Private Defamation and Actual Malice in South Carolina
In 2006, the South Carolina Supreme Court issued an opinion in Erickson v. Jones Street Publishers, LLC, 368 S.C. 444 (2006), in which it addressed some of the primary issues involved in a private defamation case against a media defendant. Erickson involved a defamation claim brought by a guardian ad litem (GAL) against The Charleston City Paper. The Charleston City Paper published an article about the GAL program, in which it proceeded to accuse the plaintiff of failing to property administer her duties as the GAL for a child whose parents were involved in divorce proceedings. Specifically, the article accused the plaintiff of failing to adequately evaluate the parents of the child, failing to notice obvious signs of sexual abuse, misleading the family court, and engaging in a romantic relationship with the father of the child. For purposes of this paper, there are two primary issues in the Erickson case: 1) Whether the GAL was a private citizen, public official, or limited public figure; and 2) How a private citizen receives punitive damages from a media defendant.
As to the first issue, a private GAL representing a child is not a public official because a GAL is neither a government employee nor does a GAL exercise “responsibilities for or control over the conduct of government affairs.” Erickson, 368 S.C. at 471.[9] The court held that the GAL was also not a limited public figure because the GAL “had no more access to channels of effective communication, such as the media, than any ordinary private person…did not voluntarily assume a role of special prominence in the controversy over reforming the guardian system, and she did not seek to influence the outcome of the controversy.” Erickson, 368 S.C. at 474. Therefore, the GAL in this case was treated as a private citizen.
As to the second issue of whether or not punitive damages should be allowed, the court held that a private citizen must prove constitutional actual malice. In this case, the issue of actual malice was given to the jury. The jury found there was actual malice based on the following four facts. First, the facts purported in the article were based on only a fifteen to thirty minute interview with the child’s grandmother who was admittedly “incensed. Second, the newspaper failed to even try to contact the plaintiff. Third, the newspaper never tried to contact the lawyers involved in the case. And, lastly, the newspaper never tired to obtain the publicly recorded divorce decree from the parent’s case, which would have refuted at least some of the article’s allegations. Id.
Currently, the law of defamation in South Carolina requires a showing of Constitutional actual malice when the plaintiff is a public official, public figure, or involved in an issue of public concern. When the plaintiff is a private citizen, as in Erickson, actual malice is not required to prove defamation. However, when a private citizen brings a deflation cases against a media defendant, the plaintiff must prove malice in order to receive punitive damages.
Defamation and the Internet: The Future of Defamation Law
The advent of the internet has brought to light some interesting issues for the future of defamation law. Specifically, there is an issue of permanence on the internet and issues involving standards of professionalism.
On the issue of permanence, the internet is a forum for communication, but it also allows that communication to exist potentially indefinitely. In the past, a newspaper or periodical would publish a defamatory statement, but it would immediately become irrelevant because the publication went out of print. Now, the internet allows publications to potentially exist in perpetuity. For instance, someone could post a defamatory comment on a web site or blog,[10] be found guilty of defamation, pay money damages, but the issue of taking the defamatory comments off the internet remains unresolved.
The issue of whether or not the equitable remedy of injunction should apply in defamation cases is particularly important in the context of the internet. An injunction requires a party to take some action, or refrain from doing something. SCRCP Rule 65; SCJUR Injunctions § 3. However, the general rule is that equity is not an appropriate remedy for defamation cases because the law provides an adequate cure. AMJUR Injunction § 97. Currently, the way to persuade someone to take down a defamatory post[11] is to sue the individual over and over again, which requires both parties to have disposable time and money to continue litigating the issue.
While injunctions are generally not allowed in defamation cases, in the context of the internet, courts may very well have to readdress whether or not injunctions could provide a more appropriate way to force individuals to take down defamatory material.
The other glaring issue created by the internet involves standards of professionalism. When the world read printed newspapers and periodicals, or listened to news on the television or radio, people expected a certain level of professionalism. In fact, the United States Supreme Court crafted the “actual malice” standard around standards of professionalism in journalism.[12] However, in a world of electronic communication, anyone can publish information on the internet, with absolute disregard for the truth because individuals are not held accountable for what they publish. In many instances, an individual can post a blog with defamatory statements and it’s impossible to uncover the identity of the blogger. But even where the publisher’s identity can be known, internet publishers often work with absolute disregard for any ethical considerations. Where members of the main stream media must abide by standard of professionalism in order to maintain credibility, which helps sell the publication, authors of information on the World Wide Web are not bound by standards of professionalism.
The issue of determining the identity of an individual who posts on a web site or blog, requires further consideration. While author’s of major media publications are always known to the reader, individuals who comment on a web site or post on a blog are rarely known to the reader. This is because people do not have to sign their name or verify who they are in order to contribute to a web site. Failing to identify the source of information would certainly breach generally acceptable standards of professionalism in journalism. But, who should be accountable for the information on a web site, the author of the statements or the individual who sets up the web site? These types of issues remain unresolved in contemporary defamation jurisprudence.
While some courts have tried to address defamation on the internet, there have been no established standards, probably because technology is constantly changing.[13] Because anyone can publish on a blog, a blogger could argue they were simply stating an opinion or claim the comments were intended in jest. But, where should the line be drawn between what is opinion and what constitutes defamation? Moreover, how should publishers on the internet be held accountable for their publications?
Lacking standards of professionalism and the ability to identify the source of defamatory material on the internet, coupled with the potentially indefinite nature of internet publications, the internet will likely continue to foster an environment where defamation of others will continue well into the future. Thus, the United States Congress, state legislatures, and courts will struggle with these issues in the years to come.
Conclusion
This paper has evaluated many of the issues involved in defamation cases and awards of damages. In conclusion, consider the following guidelines courts use in defamation cases, and think about the example from the introduction.
Generally, the trial judge decides issues of law and the jury decides issues of fact. In defamation cases, the judge must first determine if the statement is defamatory. If the statement is not clearly defamatory, then the question is one for the jury to decide. The trial judge must also decide whether or not the plaintiff is a public official, public figure, or whether the issue is a matter of public interest. In his analysis, the judge is charged with determining whether or not the alleged defamation falls under constitutional protections of free speech, requiring a showing of actual malice. SCJUR libel § 90.
Once the judge has made the above determinations, then the jury must decide the factual issues. Specifically, the jury must decide if the alleged defamation was 1) a false statement about another person, 2) if the statement was published to a third party, 3) if the fault is on the publisher, and 4) if the statement harmed the plaintiff. Holtzsheiter, 332 S.C. at 505-06. Where the judge has determined the statement is allegedly a public defamation, then the jury must determine whether or not the defamation was made with actual malice. SCJUR libel § 90.
If the jury decides all the elements of defamation have been satisfied and the defendant is liable for defamation, then it must come to a decision about how much to award the plaintiff in damages. The jury can award compensatory damages, and if the defamation was made with common law malice, it may award punitive damages.
Considering the example of the Palmetto Gazette, a court will likely conclude: In this defamation per quad case, brought by a public figure against a media defendant, all the elements of defamation have been pled, plus the constitutional element of actual malice. In addition, the issue of common law malice has been adequately pled for the issue of punitive damages to be placed before a jury. At the conclusion of trial, Mark will likely be able to recover for compensatory general and special damages, as well as punitive damages.
John I. Henderson is an attorney with Henderson & Henderson. He focuses he practice on business law and enjoys working with companies to create solutions to a host of business issues.
Notes:
[1] Note that common law malice is different from constitutional malice, which will be discussed later in the context of public officials.
[2] In a recent case, Limehouse v. Hulsey, before the Charleston Circuit Court, a jury awarded Limehouse 3.6 million in damages. The case has not been published, but based on reports by The Post and Courier, Hulsey accused Limehouse of racketeering and compared Limehouse to Tony Soprano. The article did not mention punitive damages, but the award was probably so large because it included punitive damages. According to Limehouse, Hulsey made the comments in an effort to entice other people to join a class action lawsuit against Limehouse. If upheld on appeal, Hulsey’s actions were certainly made with malice and thus constitute an award of punitive damages. The Post and Courier, November 13, 2009.
[3] How such an award would be distributed is outside the scope of this paper, but generally the money compensating Mark’s campaign would be placed in his campaign fund.
[4] Sullivan was an elected commissioner in Montgomery, AL. The author’s of the New York Times article where members advocates of the civil rights movement, particularly integration. Sullivan’s primary concern was that the advertisement made him look like a raciest because people in the community knew the advertisement was referring to him. Moreover, the advertisement contained false statements and exaggerations, which the authors and the New York Times should have known were false. The court declined to directly address the issue of false claims, focusing instead on the Constitutional implications. Id. at 256-65.
[5] The New York Times Test is often referred to by other titles, such as the “Actual Malice Test” or the “Sullivan Test.”
[6] Butts was the companion case to Walker, addressing the issue of public figures.
[7] The court in Sullivan and Gertz spend ample time elaborating on these Constitutional issues and addressing the value of free speech in American society. Sullivan, 376 U.S. 254; Gertz, 418 U.S. 323.
[8] This is the second time Holtzscheiter was considered by the South Carolina Supreme Court along with the precedents set in Capps v. Watts, 271 S.C. 276 (1978); Jones v. Garner, 250 S.C. 479 (1968); Whitaker v. Sherbrook Distributing Co., 189 S.C. 243 (1939); Merrit v. Great Atlantic & Pacific Tea Co., 179 S.C. 474 (1936); Wilhoit v. WCSC, Inc., 239 S.C. 34 (Ct. App. 1987); and Manley v. Manley, 291 S.C. 325 (Ct. App. 1987).
[9]The court continued, setting forth a five elements that must be met for a plaintiff to qualify as a limited public figure: “In order to properly hold that a plaintiff is a public figure for the limited purpose of comment on a particular public controversy, the defendant must show: (1) the plaintiff had access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public-figure status at the time of the alleged defamation.” Erickson, 368 S.C. at 474 (citing Foretich v. Capital Cities/ ABC, Inc., 37 F.3d 1541 (4th Cir. 1994).
[10] A blog “is a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order. ‘Blog’ can also be used as a verb, meaning to maintain or add content to a blog. Wikipedia, Blog.
[11] A post refers to the publishing of information on a web page or blog. Posting something on the internet usually occurs where someone is adding additional information about a particular subject.
[12] The court established the “actual knowledge or reckless disregard for the truth” standard based on a general assumption that publishers were in a position to do their due diligence before publication, requiring they have actual knowledge or to have subjectively neglected to pursue appropriate sources for information.
[13] For an example of a recent case in which a State Supreme Court addressed some of the issues involved in defamation on the internet see Doe v. Cahill, 884 A.2d 451 (Del. 2005).
