About 'of and concerning,' and libel under Trump

My latest column for the South Carolina Press Association:

A pair of sisters who were until recently students at the Medical University of South Carolina sued The Post and Courier for libel last month over articles alleging that although they had been found to have cheated on exams, a recommendation that they be expelled was overturned by the school’s dean because of their political connections. The sisters claim that although they were not named in the articles, they were clearly identifiable because they were the only students in the school who met this description.

The lawsuit raises one of the less-litigated issues in defamation law: the requirement that the contested statement be “of and concerning” the plaintiffs. This is often not an issue in defamation cases, since the person that the statement is about is often clearly named and identified: if an article is about Mary Smith and the challenged statement specifically identifies her by name (“Mary Smith robbed the bank”), it is clear that the statement is “of and concerning” her.

But the question gets murky when someone is identified vaguely, or not at all, but that person claims that at least some readers know who he or she is. In such situations, courts will look not only at the statement, but also the situation surrounding it, to determine whether at least some people will understand that the statement is actually about the plaintiff.

Thus a federal appeals court held that allegedly defamatory statements about a fictional character who had similar characteristics as a real person were “of and concerning” that person. Another federal appeals court held that a company that used another company’s name in reselling that company’s products was identified in comments about the original provider. And a third held that allegations of fraud and corrupt practices in actions taken by a corporation were “of and concerning” the president and chief executive officer of the company.

If a statement cannot be understood as referring to the plaintiff, that person cannot sue. Last month, New York’s highest court held that companies that provided management and talent services to a strip club accused of mob ties could not sue for libel, since the statements about the club said nothing of the other companies, and they could not be imputed to them.
As stated by the S.C. Supreme Court in a 1971 case, the standard is that “[t]he language used must … be such that persons reading or hearing it will, in light of surrounding circumstances, be able to understand that it refers to the person complaining, and it must have been so understood by at least one other person.”

This also means that statements about a group of people will generally not be actionable, unless the group is so small that individuals can be identified and associated with the comment. Thus a statement that members of a three-member government board are corrupt may be actionable by one of the members, because of the small number of people involved. But a statement that all lawyers are shysters would not be actionable, because no specific lawyers are identified.
Whether The Post and Courier’s articles referred to the sisters without naming them will be an issue for the court in that case to decide. But the case does raise the interesting issue of determining whether someone has been identified in a defamatory statement, and whether they can proceed with a lawsuit.

Trump and Libel Revisited

Last month I reviewed Donald Trump’s campaign promises to “open up our libel laws so when they [the media] write purposely negative and horrible and false articles, we can sue them and win lots of money." Although I explained that his statements showed a misunderstanding of the specifics of libel law, now that he is president-elect, we must explore whether he could actually fulfill his pledge.

The bottom line is that it would be difficult. The “actual malice” standard applicable to defamation claims by public figures and in matters of public concern is the result of a series of decisions by the U.S. Supreme Court since 1964. Changing them would require either a constitutional amendment – an exceedingly difficult process which requires either a convention of the states to propose such an amendment or approval from two-third of both houses of Congress and then from three-quarters of the states – or a decision by the U.S. Supreme Court. Even after filling the vacancy left by Justice Antonin Scalia by a like-minded jurist, the latter is unlikely, since the Court historically has been extremely reticent to discard extensive precedent and jurisprudence without compelling reasons. But media defense lawyers will still probably think twice about appealing libel verdicts and rulings adverse to the media to the highest court in the land.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communications, where he focuses on media law and ethics. He has worked in media law for 17 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.