Senate candidate Roy Moore is threatening to sue news outlets, including The Washington Post, for reporting on allegations that he groped, harassed or otherwise pursued teenage girls when he was in his 30s. If he actually follows through — this could be nothing more than a scare tactic — the Alabama Republican will have a hard time proving that he is a victim of libel.
As his state's former chief justice, Moore surely knows the relevant legal standards. But here's a reminder, courtesy of the Legal Information Institute at Cornell:
The U.S. Supreme Court's 1964 decision in New York Times v. Sullivan has restricted defamation claims, limited by the First Amendment concerns. Thus, for instance, public officials and public figures (people who are famous) must show that statements were made with actual malice to recover in an action for defamation.
Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether it was false. In addition, a plaintiff must show actual malice by “clear and convincing” evidence rather than the usual burden of proof in a civil case, preponderance of the evidence.
When Sarah Palin sued the New York Times for libel in June, I asked Jonathan M. Albano, a partner at Morgan, Lewis & Bockius in Boston, which has represented the Boston Globe for decades, to explain how the precedent set by Times v. Sullivan applies to contemporary cases. He told me that “reckless, in this area of the law, does not mean extremely negligent. It means that the defendant entertained serious, subjective doubts about the truth of the statement, sometimes rephrased as publishing with a 'high degree of awareness of probable falsity.'
“Proof of negligence is not enough to show actual malice — the plaintiff has to prove more than that a reasonable investigation or a reasonable person would have or should have known the statement is false.”
The Palin case is instructive here because it shows that merely demonstrating a news article's inaccuracy is not enough to win a libel suit. The former GOP vice-presidential nominee sued the Times over an editorial published on the day of the shooting at a Republican practice for the Congressional Baseball Game. Palin argued that the Times defamed her by falsely suggesting that her political action committee inspired the shooter in the rampage that targeted congresswoman Gabby Giffords (D-Ariz.)
The editorial's claim was indeed false; the Times acknowledged the error. But a mistake — even a rather careless one — is not the same as “actual malice.”
“What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” Judge Jed S. Rakoff of Federal District Court in Manhattan wrote in his ruling. “Negligence this may be; but defamation of a public figure it plainly is not.”
Even if Moore could somehow disprove the accusations made against him by five women, published in The Post and other news outlets, he still might not have enough evidence to win a libel case.