USCA First Circuit, March 19, 2009

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In a suit filed by the superintendent of public schools in Lewiston, Maine, the First Circuit affirmed a grant of summary judgment and held that the defendants’ failure to adequately research the reliability of an article posted on the Internet was negligent, but it did not rise to the level of actual malice, a requirement in a defamation suit brought by a public official.

In April, 2007, a student at Lewiston Middle School placed a bag containing leftover ham on a table where Somali Muslim students were sitting. The school characterized the incident as a hate crime and suspended the student who put the ham on the table. The Lewiston Sun Journal published an article about the incident that included quotations from the plaintiff.

A few days later, Nicholas Plagman wrote an article, labeled as originating from the Associated Press, about the incident, but added fabricated quotations that he attributed to the plaintiff. The Plagman article quoted the plaintiff as saying, “These children have got to learn that ham is not a toy” and “[i]t’s akin to making these kids feel like they’re being shot at back in Mogadishu and being starved to death.” The article also falsely stated that the plaintiff was developing an “anti-ham” response policy.

A line producer for the Fox News Channel morning program Fox and Friends discovered the Plagman article. Fox News researched the article and found several articles from reputable sources that corroborated the basic story (but not the fabricated quotes). The defendants did not contact the plaintiff before discussing the incident on the air. After the plaintiff complained about the broadcast, Fox issued a retraction and an apology.

The plaintiff sued Fox and the hosts of the program for defamation for five statements. The plaintiff stipulated that he is a public official. In Maine, a public official advancing a defamation claim must show by clear and convincing evidence that the challenged statement was made with “a high degree of awareness of probable falsity. . . . In other words, the defendant must act either with actual knowledge of the falsity or with reckless disregard for the truth.”

The plaintiff argued that the defendants’ failure to corroborate the fabricated quotes from the Plagman article coupled with incredulous statements during the cablecast (e.g., “I hope we’re not being duped” and “I thought this was a joke”) establish that the defendants acted with reckless disregard for the truth. The district court disagreed, and granted summary judgment for the defendants, and the First Circuit affirmed.

Although the court held that some of the defendants’ statements were false, the plaintiff failed to show the defendants acted with actual malice. According to the court, “[i]n certain contexts, a statement like ‘I hope we’re not being duped’ likely would raise a genuine issue of material fact on the question of actual malice. But in the context of a consistently irreverent (and to many, insensitive) morning television show, such statements frequently are used as devices to magnify the presentation and grab viewers’ attention.” (citations omitted)

The court concluded by saying “[t]he defendants were negligent in their failure to question adequately the reliability of the Plagman article and conduct further research before attributing the outrageous quotations to Levesque, and like the district court, we hope that this conduct was ‘an extreme departure from professional standards.’ That the negligence was accompanied by derisive contempt and ridicule directed at Levesque makes all the more distasteful the defendants’ carelessness. But while the defendants reported as true false statements, they did so after verifying the underlying facts of the April 11 incident. Their vetting process was perhaps too cursory and perfunctory, but no facts indicate that the defendants purposefully avoided the truth, and we think the substantial truth of the story which they reported obviates a finding of actual malice.”

The court concluded by stating “[t]his action reminds us that in a court of law, sympathy does not always to the victor go.”