Last Thursday the First Circuit issued a two-fer:  a case with both interesting facts and law.  Levesque v. Doocy, Case No. 08-1814.  It was a Maine case, and the issue is defamation.

First, the facts.  The case relates to the ham incident at Lewiston Middle School.  A student put a lunch bag with ham on a table where Somali Muslim students were sitting.  Plaintiff Leon Levesque was the school Superintendent.  The assistant principal classified the incident as "hate crime/bias" in the school's computer system.  Levesque was interviewed by a report for the Lewiston Sun Journal, was quoted as saying this was a "hate incident" and making various comments.  Four days later, someone named Nicolas Plagman uploaded a piece he wrote about the incident for "Associated Content," a website platform.  He purported to report actual quotes from Mr. Levesque that were not (e.g, he quoted Levesque as saying "ham is not a toy.")  

The next morning a producer for a Fox News program discovered the article, and that morning on the air the announcers on that show quoted the quotes.  This lawsuit against Fox News and the associated Fox employees ensued. 

Now to the law.  The threshold question was whether the statements were defamatory.  Judge Hornby found some were, and Judge Stahl, writing for the unanimous panel (Torruella and Howard) agreed.  There's a nice quote from Judge Hornby's decision where he notes that when you put quotation marks around something or say its a quote, you're saying that that was exactly what the person said, verbatim.  Because that was not true here, and the made-up quotes could be read as making Levesque sound ridiculous, this hurdle for suing was met.

That led to the primary issue in the case:  since this was an issue of public concern, was there actual malice?

As a threshold matter, Judge Stahl was careful to note that the issue was the constitutional term of art "actual malice" and not Massachusetts' "malicious intention "standard (p. 10 n. 4).  I blogged about the First Circuit defamation case applying that latter standard recently.  Judge Stahl underscored that the Massachusetts standard was differnet, and that the previous case did not involve a matter of public concern.  (As my previous post on that case indicates, it remains an open queston whether the Massachusetts' standard meets constitutional requirements in the private sector context.)

So now we get to the meat of the decision (ouch) – was Fox News so reckless in just grabbing this internet posting off the ether that there is a fact issue about malice?  The First Circuit said no.  The overall lesson I glean from the decision is that these cases are very, very fact specific.  Some interesting points from the decision:

– the First Circuit cited the law on investigation, and it's all over the map (p. 17) – one the one hand, case law saying that one can infer malice at least under some circumstances from a grossly inadequate investigation, and on the other hand, decisions law saying failure to investigate alone doesn't establish bad faith, and malice can be shown from an inability to corroborate only if somebody tries in the first place and can't do so.  These latter decisions lead to the question whether a reporter can avoid liability by not trying to corroborate at all, which would be rather strange.

– The Court of Appeals found for the Defendants as a matter of law basically because it said the Plagman article looked reliable.  Although it was on an "Associated Content" site, which wasn't exactly the New York TImes, the Court said it looked reliable, in that it quoted the Lewiston Sun Journal article and appeared to be based on reliable sources.  The Court also noted that nothing suggested that the defendants deliberately limited their inquiry.  (p.19)  This last observations again leads to odd potential results:  If Carl Bernstein doesn't seek corroboration, then that could be suspect because he's a reporter who typically does his homework; if he doesn't do it in a specific instance, that could raise questions about his motives.  Conversely, if some Fox morning show guys don't investigate, that may not mean anything because there's no such solid reputation to suggest they aren't just being stupid or lazy.  In short, the lousier a reporter you are, the more protected you may be from a defamation claim.

These at first blush counterinuitive results can perhaps be given logic if you parse the malice standard and the reasons for it.  We make it very difficult to sue when public issues are concerned because being wrong isn't enough constitutionally.  The First Amendment means we all must live with some heavy duty negligence.  There has to be more than dereliction of duty, boneheadedness or other dimwited-ness on the part of the defendant if its a matter of public concern.

The real lesson here is how the internet and 24 hour news demands we have today increase geometrically exposure to such boneheadness.   I've blogged in the past about how the SJC has acknowledged the diminution of reliance on old-fashioned newspapers (in the context of service by publication).  It's a fact of life that lots of people are now getting their news off the internet, and not the old tried and true  reporting agencies like the AP.  I've also blogged about the critical need to be careful when citing an internet source to a court, given this wild west who knows if it's true potential.  If you refer to the internet in a brief, it had better be a source like an official government site for example, and even then, there are real issues sometimes as to whether you should be able to cite it for the truth of the matter asserted.

So in the end, this opinion reflects and responds to our new growing reality.  Anybody can say anything on the internet.  Someone posts something, and even if it was initially accurate, it gets garbled as it's repeated by others, like a game of telephone.  The consequences of this phenomenon will be spelled out in lots of legal contexts, including defamation law.