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Sep 6, 2016

Court Finds No Actual Malice in Communist Claim

I've written before how courts in California, Minnesota and Washington have held that calling someone a Communist can be the basis of a valid libel claim when the audience is the Vietnamese-American community. One of these cases ended with a $4.5 million jury verdict, which led to the takeover of the newspaper defendant in that case.

Now a Texas appeals court has affirmed the dismissal of a suit by an Assembly candidate against a the editor of a Vietnamese language magazine for accusing the candidate of sympathizing with the communist regime in Vietnam.

The magazine editor successfully had the suit dismissed by the trial court under the Texas Citizens Participation Act, the state's version of anti-SLAPP laws that allow for early dismissal of lawsuits meant to stifle discussion of issues of public concern. After the defendant making the motion shows that the lawsuit is such as case, these statutes generally require that the plaintiff show a likelihood that the case has merit.

The trial court held that the magazine editor did not show this, and the appeals court agreed.
[A]ppellant was required to present “clear and specific” evidence that appellees published the statements knowing they were false or with reckless disregard for their truth. ... Appellant presented no such evidence.
For the purposes of this decision, the appellate court assumed -- without specifically decicing the issue -- that the statement that the Assembly candidate sympathized with the communist rulers in Vietnam actually harmed the candidate's reputation. But as a candidate for public office -- and, since the candidate was a former Houston city councilman -- a former public official -- the plaintiff had show that the magazine editor has made the statements with "actual malice": either knowledge that the statements were false, or with reckless disregard of whether they were true or not. The plaintiff, the trial and appellate courts both held, had not shown this.

While the court did not decide whether such an accusation is indeed harmful in the Vietnamese community, the other court cases -- including the damage awards -- show that it can be. Which raises an interesting question of defamation law: when measuring damage to someone's reputation, what is the audience that matters?

h/t Courthouse News

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