Defamation lawsuits brought by public figures require the plaintiff to show that the defendant wrote with “actual malice”, that is, knowing that the statement was false or possibly false. But of course, most media libel cases aren’t brought against writers alone; they are also being sued against media companies that published the libel. How do you determine what an organization knows?
As it turns out, generally (and particularly in libel cases) you focus on what it is employees know. So if a newspaper or magazine publishes a defamatory article of its employee and the employee knows that the statement is false, then the publication is also supported. But if he publishes an article written by a non-employee third party (for example, a union columnist or occasional writer), then he is only responsible if an employee (for example, an editor) knew that the article was bogus. .
Hence the result in Mann v. National Review, Inc., decided today by Judge Jennifer M. Anderson (DC Super. Ct.):
On July 15, 2012, Mark Steyn… posted an article titled “Football and Hockey” in the blog section of National Review Inc.’s website, The Corner. On July 23, 2012, plaintiff’s attorney, Dr. Michael Mann, sent a letter to National Review threatening to sue defendant Steyn’s post. On August 22, 2012, Rich Lowry …[,] editor of National Review, wrote an article in National Review, dealing with the threat of legal action of the plaintiff. On October 22, 2020, the plaintiff brought an action against the defendants National Review, Steyn, Competitive Enterprise Institute (“CEI”) and Rand Simberg. Plaintiff alleged defamation per se against defendant National Review for the allegedly defamatory statements in Defendant Steyn’s article and Mr. Lowry’s article [though the lawsuit over the Lowry article was dismissed on appeal].
The court allowed National Review’s motion for summary judgment:
[1.] “Real malice [i.e., knowledge that the post was false or was likely false] cannot be attributed to a business based on the mindset of a freelance writer. See Nader v. by Toledano, 408 A.2d 31, 57 n.15 (DC 1979). “Mann had not sufficiently alleged that Steyn was an employee of the National Review, although he was authorized to post on his blog, the National Review therefore cannot be hung up just because of the employer-employee relationship.
[2.] Mann had alleged that Steyn, as a blogger at The Corner, was the “agent” of the National Review, but that was not enough to put the blame: – the working relationship between them. “
[3.] The National Review could of course be held responsible if its own employees had the requisite knowledge of a possible lie; but “the plaintiff did not allege that a National Review employee was involved in the post that Defendant Steyn posted on National Review’s blog, The Corner, in July 2012, or knew or suspected that it was false . ” (Note that to my knowledge, Mann was not pursuing a theory that the National Review had continued to keep the article after learning that the article was bogus, therefore, the arguments in my new article on the duty to correct the law do not seem applicable here.)
The lawsuit against Steyn and the other defendants appears to be still ongoing.