Prosecuting a Defamation Case

Good name in man and woman, dear my Lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; “’twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.” – Iago, Act I, Scene 3, Othello

Shakespeare’s Iago valued his reputation more than gold. Yet we live in a time where powerful media corporations coin gold by trashing the good names of private citizens. Defamation law provides the only defense.

Still, defamation as a practical tort remedy against falsehood in the media is only recently experiencing resurgence after many years of uncertaindecline. Actions defending reputation were seriously compromised in 1964, when the U.S. Supreme Court announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686 (1964), that the First Amendment limits a state’s authority to award damages for libel. In the wake of that constitutional determination, plaintiffs seeking to recover for defamation shouldered a heavy burden.

The challenges of successfully prosecuting a defamation action in the 1970s and 1980s became so onerous that even conservative courts took notice. The California Supreme Court estimated in the landmark decision Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 257 Cal.Rptr. 708 (1989), that only about 1% of all liable cases ever made it to trial, while nearly 70% of libel awards granted by juries were subsequently overturned on appeal. “In short, a defamation victim faces almost insurmountable obstacles to recovery within the constitutional limitations. As one plaintiffs’ lawyer put it, “It’s like going up a greased pole at a 90-degree angle.” Id., 48 Cal.3d at 750-751, 257 Cal.Rptr. 708.

Oddly, even as courts grew ever more hostile towards plaintiffs recovering for broken bones or torn flesh, the notion that private citizens should be granted redress when their good names are trampled by the media found favor with conservative courts.

“A reasonable degree of protection for a private individual’s reputation is essential to our system of ordered liberty.” Brown, 48 Cal.3d at 743, 257 Cal.Rptr. 708. “It is of great importance in a republic, not only to guard against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.” 48 Cal.3d at 743, 257 Cal.Rptr. at 708, citing The Federalist No. 51 (J. Madison) (Cooke ed. 1961) p. 351).

In 1998, in Khawar v. Globe International, Inc., 19 Cal.4th 254, 79 Cal.Rptr.2d 178 (1998), that pro-citizen trend translated into a boost for reputational law practitioners when the California Supreme Court affirmed a $1,175,000 jury award to a photojournalist who had been falsely identified in a tabloid article as Robert F. Kennedy’s assassin. Iago, it seems, can have his day in court.

Check back tomorrow for more on this subject.

Filed Under Civil Procedure


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