Alito & the law of defamation
This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.
Tucker v. Fischbein displays the now-familiar hallmarks of a Judge Samuel Alito opinion — concise methodology, clear articulation of legal principles and the sense of a steady, careful tread toward an inexorable conclusion. In that 2001 3rd U.S. Circuit Court of Appeals opinion we see Alito applying these traits to a prickly defamation case involving a well-respected public-figure plaintiff, two national newsmagazines and a lawyer for the estate of a notorious rapper.
The spirited dissent by Judge Richard L. Nygaard highlights the cautious and measured nature of Alito’s approach. Alito’s strict application of the elements of defamation liability yielded mixed results here. The good news is that the summary judgments for the news media defendants were affirmed. The bad news is that the summary judgment for the non-media defendant was not.
The case arose in the course of a crusade against “gangsta-rap” by C. Delores Tucker, a lifelong civil rights advocate. In 1997, Tucker and her husband, William Tucker, sued the estate of late rapper Tupac Shakur and others. They claimed that she had been victimized by, among other things, Shakur’s reference to her in an album using “lewd and indecent words.” Ms. Tucker alleged a host of tort claims and she and her husband jointly alleged a claim of loss of consortium, which is defined as the loss by one spouse of the “aid, assistance, comfort and society” of the other. It includes, but is not limited to, “impairment of capacity for sexual intercourse.”
In a Los Angeles Times article about the lawsuit, Richard Fischbein, the attorney for Shakur’s estate, was quoted as saying: “[I]t 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.”
Thereafter, a Newsweek reporter called the Tuckers’ lawyer, Richard Angino, who said that “in the rarest of cases would you actually have a count that actually involves sex.” He later admitted under oath that he did not tell the reporter that this case did not involve sex. The reporter also called Fischbein, who said that the Tuckers’ claims involved interference with sexual relations. The Newsweek article — which ran with the headline “Grabbing at a Dead Star” — said that the Tuckers “claim[ed] that a lyrical attack by Tupac iced their sex life.” It quoted Fischbein as saying, regarding the loss of consortium claim, “I can’t wait to hear the testimony on that subject.”
Shortly after this article appeared, the Tuckers amended their complaint, adding Fischbein as a defendant. They alleged that he falsely stated that Ms. Tucker “filed suit because of a ‘loss of her sex life.’”
After receiving the amended complaint, Fischbein was interviewed by a Time reporter, whose article, “Shakur Booty,” stated: “The prize for the most bizarre suit … goes to anti-rap warrior C. Delores Tucker, who claims that the remarks made about her on Shakur’s Album All Eyez on Me caused her so much distress that she and her husband have not been able to have sex. She wants $10 million.” The reporter later testified that Fischbein told her that “this was a lawsuit about emotional distress and one of the things affected [was] her sexual relationship with her husband.”
These statements by Fischbein, and the articles that appeared in Newsweek and Time, became the basis for a second lawsuit by the Tuckers, who claimed they were defamed by the characterization of their loss of consortium claim as one for loss of sexual relations.
In their summary-judgment motion on this defamation case in the district court, the defendants argued: (1) it was not defamatory to state that a loss of consortium claim is a claim based on a loss of sexual relations; (2) even if the statements were deemed to have defamatory meaning, the Tuckers could not prove them false; and (3) the Tuckers did not have clear and convincing evidence of actual malice, required here as to both Tuckers, who were admittedly public figures.
The district court agreed that the statements were not defamatory and that plaintiffs could not prove actual malice with clear and convincing evidence. The lower court did not rule, however, on the issue of substantial truth.
Taken in context
At the outset of his analysis in Tucker, Judge Alito embraced the idea that the statements were defamatory: “Reading the statements at issue in this case in context and looking at the impression that they were likely to engender in the minds of the average reader, we conclude that each is capable of a defamatory meaning.” He thus concluded that the discussion of the claim as one regarding a loss of sexual relations was more than simply annoying or embarrassing. Alito compared these statements to others found by the Pennsylvania Supreme Court to be defamatory.
Such statements, he concluded, were “considerably milder than or comparable to those at issue here.” Each of these previous statements — taken from cases decided 40 years earlier — suggested a lack of integrity: One involved a statement that an employee had quit without notice; the other involved an advertisement that implied that a competitor used “bad business practices.”
Drawing a parallel here, Alito held that the statements about the Tuckers “tended to suggest that the Tuckers are hypocritical” because they, on the one hand, campaigned against pornography, but were nevertheless “only too willing to open up their own sex life for public inspection in order to reap a pecuniary gain.” Alito also held that “the statements were capable of making them look insincere, excessively litigious, avaricious and perhaps unstable.” Given some of the critical reaction the Tuckers received after the magazine articles were published, Alito had little difficulty concluding that the statements at issue were sufficiently damaging to their reputations to be defamatory.
(Point of interest: Also in January 2001, Alito joined Judge Dolores Sloviter’s opinion in Remick v. Manfredy, 238 F.3d 248, in which, among other things, one lawyer’s accusation to another that he was extorting money was deemed rhetorical hyperbole in the context of “bitter attorney communications,” and therefore not capable of defamatory meaning, even in view of Pennsylvania cases holding that an accusation of extortion is defamatory.)
Actual malice: what a jury could find
In analyzing the case, Judge Alito applied the standard for actual malice articulated in St. Amant v. Thompson (1986). That standard requires plaintiffs to demonstrate, with convincing clarity, that a reasonable jury could find that defendants made culpable statements while entertaining serious doubts as to their truth. Although Alito found that plaintiffs were able to meet the standard with respect to Fischbein, he ruled the evidence insufficient to support such a finding as to the magazine defendants.
Alito rejected without much ado the Tuckers’ argument that Fischbein, as a lawyer, should have known that a loss of consortium claim might not include a claim for lost sexual relations. He also discounted the Tuckers’ attempt to impute ill motive to Fischbein simply because he represented a party adverse to them, noting that “circumstantial evidence of Fischbein’s motive alone cannot satisfy the actual malice standard.”
To decide the issue, Alito ultimately drew a line, dividing Fischbein’s conduct into two periods: before and after he received the Tuckers’ amended complaint stating that Ms. Tucker was not seeking damages based on the loss of a sexual relationship. Fischbein was interviewed by Newsweek before he received the amended complaint. Thus, Alito concluded, Fischbein did not act with any doubt that he was correctly describing the consortium claim to Newsweek. At worst, the judge concluded, this behavior was no more than negligence.
In a separate concurrence and dissent, Nygaard took Alito to task for even suggesting that Fischbein might have acted negligently. (These two judges have sparred vigorously before. In ACLU v. Schundler (1999), Nygaard ardently dissented from Alito’s opinion holding that a Jersey City holiday display did not violate the establishment clause.)
Fischbein’s acknowledged receipt of the amended complaint before the Time interview, however, resulted in the reversal of summary judgment. Alito concluded that a reasonable jury could decide that Fischbein may have read the amended complaint before the interview, despite Fischbein’s sworn testimony that he had not done so. Alito held that a jury might disbelieve Fischbein and thus could properly find that he was saying one thing while knowing the opposite was true — i.e., acting with actual malice.
It is on this point that Nygaard’s dissent turned, stating emphatically that the amendment to the complaint was insufficient to put Fischbein on notice that his description of the lawsuit was inaccurate, pointing out, for example, that the amended complaint did not say that Mr. Tucker was not seeking damages for loss of a sexual relationship. Nygaard’s dissent portrayed the Tuckers as purposefully vague, a conclusion pointedly rejected by Alito, who accused Nygaard of usurping the role of fact finder.
The magazine defendants
There was complete agreement, however, that summary judgment was properly awarded to the magazine defendants. As to Newsweek, Alito held that Angino’s own description of his conversation with Newsweek’s reporter was too equivocal to support a finding of actual malice. With respect to Time, Alito credited none of the many theories advanced by plaintiffs to support a finding of actual malice. For example, he rejected plaintiffs’ claim that the reporter ignored their press release, thus avoiding the truth, which can be a basis for a finding of actual malice under Harte-Hanks Communications, Inc. v. Connaughton (1989). Alito concluded that even under Harte-Hanks there must first be clear and convincing evidence from which a jury could infer that the reporter doubted the truth of her story. Here, there was no such evidence. Nor would Alito permit plaintiffs to support their actual malice claim with the fact that Time’s publisher, Time Warner, was served with a copy of the amended complaint before the interview with Fischbein. Though this approach worked with Fischbein, it did not work with Time Warner, “a huge media and entertainment conglomerate.”
Finally, Alito reached the issue of falsity, although the district court had not. He ruled that plaintiffs had come forward with sufficient evidence — whether the standard is convincing clarity or a mere preponderance of the evidence — to support a jury’s finding of material falsity with respect to Fischbein’s statements to Time. That he decided this issue last is puzzling, since material falsity is the analytical predicate to actual malice. Indeed, the dissent, which focused on the vague nature of the amended complaint, could be viewed as taking issue with proof of falsity, but Nygaard did not mention it.
What does Tucker reveal?
Alito’s opinion in Tucker suggests a studied adherence to established defamation jurisprudence. His willingness to look back at cases that are now 40 years old to find defamatory meaning in contexts that are not applicable today is troubling, and suggests a somewhat constricted view of that element.
Similarly, it appears from Nygaard’s dissent that Alito’s application of the law on actual malice to the facts here may have been too miserly. Certainly, nothing in the opinion would lead us to suspect that Alito chafes under any aspect of defamation law, nor provides us with any sense that he would, if he could, expand the protections afforded to defendants in defamation cases. Thus, there is little reason to hope, at least on the basis of this opinion, that Alito would use his vote on the Supreme Court to ensure further First Amendment protection to the media — for example, in today’s important neutral-reportage or reporters’ privilege cases.
But all of that aside, in Tucker Alito once again secured for the defendant in a libel case the mighty protection of the actual-malice defense, reiterating that summary judgment is the right outcome when there is no clear and convincing evidence of actual malice.
The case was remanded and Fischbein again won summary judgment on different grounds. In January 2005, the Tuckers appealed. Ms. Tucker died last month at age 78. The appeal continues.
Gayle Sproul is a partner in the Philadelphia office of Levine Sullivan Koch & Schulz, LLP. She specializes in representing media entities.