October 10, 1994

DEFAMATION LAW ALERT!

The U.S. Court of Appeals for the Ninth Circuit has announced a position unfavorable to the news media on the burden of proof shouldered by a defamation plaintiff.

In Rattray v. City of National City (No. 92-55791), decided October 7, 1994, the Ninth Circuit held by a two-to-one vote that a defamation plaintiff who is a public official or public figure need not prove falsity by "clear and convincing evidence" -- the standard by which such a plaintiff must prove "actual malice" -- but need prove falsity only by a "preponderance of the evidence." The court expressed agreement with a similar holding by the Second Circuit in 1969. The U.S. Supreme Court has never directly addressed the issue.

Judge Mary Schroeder, whose majority opinion was joined by Judge Robert Boochever, wrote that in cases where the allegedly defamatory statement "relates to an individual's state of mind" -- as in Rattray, in which the challenged statement was that the plaintiff had lied -- "'clear and convincing evidence' may be very difficult indeed to come by. In such a case, a requirement that defamation plaintiffs prove the actual falsity of the statements at issue by clear and convincing evidence would serve only as a constitutionally unnecessary barrier to recovery." In Judge Schroeder's opinion, free speech interests are adequately protected by requiring that the plaintiff prove by clear and convincing evidence "that the speaker actually knew that the statement was false or had a high degree of awareness of probable falsity" -- i.e., actual malice -- "in combination with the requirement that the actual falsity of the statements and the other elements of a defamation claim be proved by a preponderance of the evidence."

Judge Procter Hug, Jr., dissenting, wrote that it was "illogical to separate" the "closely interwoven" elements of actual malice and falsity by imposing different standards of proof. He criticized the majority's citation of Justice William Brennan's majority opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for the proposition that falsity is difficult to prove. Judge Hug wrote: "It is apparent Justice Brennan was concerned with the difficulty the defendant would have in establishing the truth of a statement and the chilling effect this would have on free speech. . . . Justice Brennan's words do not justify making it easier to prove the falsity of a statement than to prove the defendant's knowing it was false. It would have an equally chilling effect on free speech if the plaintiff were not required to prove the falsity of a statement with the same convincing clarity as the knowledge it was false."

The Rattray case was brought by Samuel Rattray, Jr., a former National City, California, police officer who resigned after he was investigated for alleged sexual harassment and for allegedly lying about the harassment. After Rattray sued the city for race discrimination and invasion of privacy, the police chief publicly stated that Rattray had faced termination for dishonesty and that the police department had strong evidence of something Rattray did which he had lied about. Rattray then added defamation to his complaint. A jury found in Rattray's favor on the defamation claim. The trial judge ordered a new trial, then granted summary judgment to the defendants when Rattray conceded that he could not prove falsity by clear and convincing evidence. The Ninth Circuit reversed the grant of summary judgment.

Please direct questions and comments about this DEFAMATION LAW ALERT! to Martin Kassman at (415) 564-6732. For fax communications, please note the new fax number, [a fax number, no longer current appeared here].

© Martin Kassman 1994, 2005