Iowa Supreme Court amends the opinion in Bertrand v. Mullin

Readers may recall that, two weeks ago, I blogged about Bertrand v. Mullin (Iowa May 16, 2014), a very interesting and thoughtful libel law opinion that nonetheless seem to have an internal inconsistency in its holding. A footnote said that there was controversy about whether a “defamation-by-implication plaintiff must prove the defendant subjectively endorsed or intended the implication in the publication,” and that, “In light of the absence of thorough briefing on the issue or the necessity that we decide it as a factual matter, we decline to address the subjective-intent requirement in this opinion.” But the body of the opinion did indeed address the subjective-intent question, and relied on the absence of proof that there was such a subjective intent in this case. The question then was: What is the actual precedent set by the case on this issue?

Ryan Koopmans (On Brief, Iowa’s Appellate Blog) reports that the court has just issued a “correction order” amending its opinion, partly to resolve the problem. The footnote remains, and the textual passages that are inconsistent with it have been deleted.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · May 30