The original post is really quite careful in its epistemic status and in clearly referencing to sources claiming something. You could run this by a lawyer with experience in libel law, and I think they would conclude that a suit did not have much of a chance of success.
I am not a lawyer, and none of the following should be construed as legal advice, only a personal opinion about the scope of libel law based on a quick dive into relevant national court cases, with no attempt to address the merits of this situation specifically. I got curious about all of this and wanted to take a closer look at elements of the legal issues in play. I’m placing this comment here out of convenience, though it has relevance to my conversation with @RamblinDash as well.
I’ll touch on a few legal points that seem relevant, though this is necessarily a partial list, filtered approximately by “what was easily in reach in the casebook I had on hand”.
1. Referencing claims made by specific sources:
Under Restatement (Second) of Torts § 578, a broadly but not universally accepted summation of common law torts, someone who repeats defamatory material from someone else is liable to the same extent as if they were the original publisher, even if they mention the name of the original source and state they do not believe the claim. Claims of belief or disbelief, while not determinative, come into play when determining damages.
Two important Supreme Court cases, St. Amant v. Thompson, 390 U.S. 727 (1968) and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), while focused primarily on the question of what constitutes actual malice, take for granted that publishers can be held liable for the claims of their sources. St. Amant focuses on a defendant who read questions he had asked someone else, Albin, about a public official, and Albin’s false answers. In Harte-Hanks, the defendant publisher of the Journal News ran a story quoting false claims from one Alice Thompson that a judicial candidate, Connaughton, had bribed her and her sister.
Harte-Hanks is particularly useful to understand the scope of libel and the bar to meet for libel against a public official, the “actual malice” standard. Thompson’s allegations of wrongful conduct were denied by Connaughton and five other witnesses. Thompson’s sister Patsy Stephens, who had allegedly been present, was available for interview, but the newspaper did not interview her. The Journal News editorial director wrote an editorial two days before the article indicating that an article about impropriety would surface soon, taken as evidence that it had decided to publish the article before verifying its sources. The First Amendment has been interpreted since New York Times v. Sullivan as presenting a high bar to prove defamation against public figures (the above “actual malice” standard), with a high value placed on protecting freedom of speech; this case (with several indications of serious impropriety) fails that standard and the publication was ruled libelous.
2. Epistemic uncertainty:
Restatement (Second) of Torts § 566 touches on expressions of opinion, clarifying that opinions are actionable to the extent they are based on express or implied defamatory factual claims.
Per Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), opinions that rest on factual claims (e.g. “In my opinion John Jones is a liar”) can imply assertions of objective fact, and connotations that are susceptible to being proven true or false can still be considered. Opinions are not privileged in a way fundamentally distinct from facts.
There’s a lot more that goes into the determination, including the hard-to-pin-down idea of what makes someone a public versus a private figure, privileges that can be asserted, differences between case law in different jurisdictions, and so forth, and I am neither qualified to make a sound declaration on the merits nor interested in doing so. I’ve just been curious about the specifics of libel for a while and now seemed like as good a time as any to familiarize myself a bit more with the case law.
Thanks for the research! I’m guessing that there’s probably a lot of nuance here, such as if, e.g. the President falsely accuses someone, then the false accusation is independently newsworthy and that might be protective of the media outlet who repeated it while saying that it doesn’t believe the President’s accusation. But I’ve updated my view on the core question and disendorsed my initial comment.
Yes, my understanding (again: not lawyer, not legal advice) is that a lot of that gets covered under the Fair Reporting privilege, which allows reporters to provide fair and accurate summaries of public meetings (eg rallies, speeches, Congress), including defamatory comments made by public officials at those meetings. It’s also worth mentioning the broader Neutral Reportage privilege, adopted in a few jurisdictions but rejected in others, providing freedom to neutrally report untrue statements made by a public official or prominent organization, about a public figure or public official, relating to or creating a public controversy. Edwards v. National Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977) (in which the New York Times faced lawsuits for reporting that the Audubon Society had accused several scientists of being paid by pesticide companies to lie) is the key case to look at there.
I would be curious for that to occur and will make no confident proclamations about what they would or would not say. I suspect the epistemic status markers included are not nearly as protective as you would assume to the extent actual, materially harmful falsehoods were published, but I could be mistaken.
1. The republication rule: Say that Alan writes, “Betty alleges Charlie committed armed robbery.” Alan’s statement is literally true: Betty did make the allegation. But the statement Alan is reporting on (Betty’s statement) is false. American libel law has long adopted the “republication rule,” under which Alan is potentially liable for defamation — if Betty’s allegation actually proves to be false — even if he expressly attributes the statement to Betty. (See Restatement (Second) of Torts § 578.)
And this is true even if Alan distances himself from the allegation, for instance by saying that Charlie has denied the statement, or that Betty has reason to lie. The principle is that “Tale bearers are as bad as the tale makers.”
Yes, just citing someone is not sufficient, though from what I read it does still pretty substantially matter to how these kinds of suits go.
The more relevant dimension where this matters is that the prosecution would have to prove that Ben knew the information was inaccurate, which is a lot harder if the post is pretty clear about its sources and epistemic status and evidence that was available.
The original post is really quite careful in its epistemic status and in clearly referencing to sources claiming something. You could run this by a lawyer with experience in libel law, and I think they would conclude that a suit did not have much of a chance of success.
I am not a lawyer, and none of the following should be construed as legal advice, only a personal opinion about the scope of libel law based on a quick dive into relevant national court cases, with no attempt to address the merits of this situation specifically. I got curious about all of this and wanted to take a closer look at elements of the legal issues in play. I’m placing this comment here out of convenience, though it has relevance to my conversation with @RamblinDash as well.
I’ll touch on a few legal points that seem relevant, though this is necessarily a partial list, filtered approximately by “what was easily in reach in the casebook I had on hand”.
1. Referencing claims made by specific sources:
Under Restatement (Second) of Torts § 578, a broadly but not universally accepted summation of common law torts, someone who repeats defamatory material from someone else is liable to the same extent as if they were the original publisher, even if they mention the name of the original source and state they do not believe the claim. Claims of belief or disbelief, while not determinative, come into play when determining damages.
Two important Supreme Court cases, St. Amant v. Thompson, 390 U.S. 727 (1968) and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), while focused primarily on the question of what constitutes actual malice, take for granted that publishers can be held liable for the claims of their sources. St. Amant focuses on a defendant who read questions he had asked someone else, Albin, about a public official, and Albin’s false answers. In Harte-Hanks, the defendant publisher of the Journal News ran a story quoting false claims from one Alice Thompson that a judicial candidate, Connaughton, had bribed her and her sister.
Harte-Hanks is particularly useful to understand the scope of libel and the bar to meet for libel against a public official, the “actual malice” standard. Thompson’s allegations of wrongful conduct were denied by Connaughton and five other witnesses. Thompson’s sister Patsy Stephens, who had allegedly been present, was available for interview, but the newspaper did not interview her. The Journal News editorial director wrote an editorial two days before the article indicating that an article about impropriety would surface soon, taken as evidence that it had decided to publish the article before verifying its sources. The First Amendment has been interpreted since New York Times v. Sullivan as presenting a high bar to prove defamation against public figures (the above “actual malice” standard), with a high value placed on protecting freedom of speech; this case (with several indications of serious impropriety) fails that standard and the publication was ruled libelous.
2. Epistemic uncertainty:
Restatement (Second) of Torts § 566 touches on expressions of opinion, clarifying that opinions are actionable to the extent they are based on express or implied defamatory factual claims.
Per Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), opinions that rest on factual claims (e.g. “In my opinion John Jones is a liar”) can imply assertions of objective fact, and connotations that are susceptible to being proven true or false can still be considered. Opinions are not privileged in a way fundamentally distinct from facts.
There’s a lot more that goes into the determination, including the hard-to-pin-down idea of what makes someone a public versus a private figure, privileges that can be asserted, differences between case law in different jurisdictions, and so forth, and I am neither qualified to make a sound declaration on the merits nor interested in doing so. I’ve just been curious about the specifics of libel for a while and now seemed like as good a time as any to familiarize myself a bit more with the case law.
I also appreciate this!
Thanks for the research! I’m guessing that there’s probably a lot of nuance here, such as if, e.g. the President falsely accuses someone, then the false accusation is independently newsworthy and that might be protective of the media outlet who repeated it while saying that it doesn’t believe the President’s accusation. But I’ve updated my view on the core question and disendorsed my initial comment.
Yes, my understanding (again: not lawyer, not legal advice) is that a lot of that gets covered under the Fair Reporting privilege, which allows reporters to provide fair and accurate summaries of public meetings (eg rallies, speeches, Congress), including defamatory comments made by public officials at those meetings. It’s also worth mentioning the broader Neutral Reportage privilege, adopted in a few jurisdictions but rejected in others, providing freedom to neutrally report untrue statements made by a public official or prominent organization, about a public figure or public official, relating to or creating a public controversy. Edwards v. National Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977) (in which the New York Times faced lawsuits for reporting that the Audubon Society had accused several scientists of being paid by pesticide companies to lie) is the key case to look at there.
I would be curious for that to occur and will make no confident proclamations about what they would or would not say. I suspect the epistemic status markers included are not nearly as protective as you would assume to the extent actual, materially harmful falsehoods were published, but I could be mistaken.
“The original post is really quite careful in its epistemic status and in clearly referencing to sources claiming something.”
This is insufficient. See: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/13/when-there-is-serious-reason-to-doubt-rumors-and-allegations-is-it-libelous-to-publish-them/
Yes, just citing someone is not sufficient, though from what I read it does still pretty substantially matter to how these kinds of suits go.
The more relevant dimension where this matters is that the prosecution would have to prove that Ben knew the information was inaccurate, which is a lot harder if the post is pretty clear about its sources and epistemic status and evidence that was available.