Here is How You Sue the News for Lying

Is that false news really false?

This is another article that callers have compelled me to write, so that I have a recourse I can send them to that explains this important point of law.

We begin with Civil Code section 45, which defines libel:

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

Thus, as a beginning point, a statement must be verifiably false to be defamatory.

But as the rest of the statute makes clear, falsity is not enough. If I publish an article falsely stating that you own a home in Beverly Hills, I have told a lie about you, but it would not be defamatory or actionable. That is the first point that many people struggle with. They grew up hearing “liar, liar, pants on fire,” and they assume that there must be some remedy against someone who tells a lie. (At a minimum, their pants should combust.)

Such is not the case. Lying about your home in Beverly Hills is not actionable, because that claim does not expose you to “hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” There is simply nothing wrong with owning a home in Beverly Hills.

Now as is always the case in analyzing statements to see if they are defamatory, context is everything. If you were known as the person who swore off all material possessions in order to live with and assist the homeless, and I publish a story falsely claiming you own a home in Beverly Hills, in that context the statement could be defamatory because it amounts to calling you a liar. But the first step in the analysis is to determine if the statement is false, and whether, if taken as true, the statement would subject you to hatred, contempt, etc.

Next comes the part that is at the heart of the article; the issue of what is false.

This usually arises from stories on the news. The caller was arrested for, say, credit card fraud. He owns a business, and customers claimed that he was making unauthorized charges on their cards. He is ultimately arrested, and several media outlets report that he was arrested for credit card fraud. And just to set up the story for another point, let’s say he was charged with 15 counts of credit card fraud, but some of the outlets reported it as 20 counts.

Then one of three things occurs. Although he was arrested, the District Attorney takes a look at the case and decides not to prosecute. Alternatively, he goes to trial and is found not guilty. Or, he goes to trial and is found guilty, but the charges are later expunged or he is pardoned.

Now this person calls me and wants to sue the media outlets for defamation, claiming that he never committed credit card fraud, as evidenced by the dropped charges, acquittal, or expungement/pardon.

It doesn’t work that way, because the statements by the news organizations were ENTIRELY TRUE. The caller WAS arrested for credit card fraud. Whatever occurred thereafter as regards the caller’s guilt does not negate the fact that the caller was arrested, so the statement was not false.

Sometimes callers cannot be made to see this fact. They argue that they could not have been arrested for a crime they did not commit, so the statement is therefore false. In their minds, the statement, “Joe Dokes was arrested by the Riverside Police for 20 counts of credit card fraud” translates to “Joe Dokes committed credit card fraud.”

Taking it a step further, after I explain the concept of falsity, they will assert that this case is different, because the news came right out and reported that he had committed the crime. They will ask if they can send me the video from the news station, where the reporter supposedly flat-out states that this person is guilty of credit card fraud. I explain, without seeing the video, I can say with 95.7% certainty that the report will contain enough “allegedly” and “as reported” language to make clear that the reporter is not making a claim of guilt, but they assure me such is not the case. I agree to watch the video if they will give me the timestamp for that portion where the reporter looks into the camera and states that they committed the crime.

Without exception, every time I have been provided a video where the caller swears that the reporter claims they are guilty of the offense, when I get to that point in the video, is simply says something like, “Police Investigator John Billingsworth stated that the customers claimed that after signing up for fitness training, they would later find charges on their credit card statements for sessions they did not authorize or attend.”

It is surprising to me that after going through the video in the detail necessary to find me the time stamp, the caller still believes that statement is an affirmation that they committed the crime. Unless it is the case that Investigator Billingsworth never made such a statement to the media, then presumably it is true that is what the customers told him, and the media report is therefore, again, entirely true.

What about the point that the some media outlets reported 20 charges, when there were only 15?

The law requires only that the “gist” of the statement be true, and that is determined by whether the statement “would have a different effect on the mind of the reader from that with the pleaded truth would have produced.” Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 517.

Let me give you a real life example that just came down today.

A CBS station did a story on a pain killer epidemic in West Virginia, detailing how some doctors were allegedly running pain killer dispensaries, assisted by a named pharmacy that “was filling more than 150 pain prescriptions a day from one clinic alone.” The pharmacy sued CBS, claiming that it was not doing anything illegal, and it was certainly not filling 150 prescriptions per day.

The defamation case was dismissed today on a motion for summary judgment, after the court found that the statements, while potentially misleading, correctly captured the “gist” of the situation.

The pharmacy contended that the quoted statement implied that it was filling over 150 pain killer prescriptions per day, when in fact that had only occurred on seven occasions. The court found that this difference between reality and how it was reported would not have a different effect on the mind of the reader.

The Employment Test

I use what I call the employment test, to help callers analyze their case. Let’s use the case of this pharmacist to illustrate the point. Let’s say he is applying to be a pharmacist at CVS, in two parallel universes. In one universe, he tells the interviewer the true version – that he was filling lots and lots of pain killer prescriptions, and on seven but only seven days he filled more than 150 pain killer prescriptions from a single clinic. In the other universe, he provides the media version, telling the interviewer that he “was filling more than 150 pain prescriptions a day from one clinic alone.”

If the CVS interviewer sees such a difference between those two versions, that he or she hires the pharmacist in the first universe but not the second, then that would be a sufficiently “different effect on the mind of the reader” to support an action.

We haven’t yet figured out how to move between parallel universes, but the mental test is sound. If the caller can honestly claim that he would be hired under one interpretation but not the other, then the case is viable. Some will actually try and argue that it is the case that they would be hired with just 15 charges of credit card fraud, but 20 charges is too many, but they are not able to provide any basis for that position.

At this point in the conversation, the caller will often, out of frustration, exclaim, “so you are telling me they can tell all the lies they want about me and there is nothing I can do about it?”

I’m not saying that at all. The entire point is that they are not lies, and that is the point the caller is refusing to accept. In my 30 years of practice, I have taken just two cases against media outlets, and I have prevailed on both, specifically because they did precisely what all these callers are claiming; they went beyond merely reporting what had occurred and stated guilt as a fact.

If the news station did in fact report that you committed credit card fraud when you didn’t, that would be false and that would be actionable. But in the vast, vast majority of cases, the station will not make such a claim.

And one final point on the situation where someone’s criminal record was expunged or they were pardoned. They get into an on-line argument, and the opposition does a little digging and uses the former conviction as ammunition in the debate. They call me wanting to sue, asserting that it is a false statement to claim that they were convicted of domestic abuse, since that conviction was expunged.

Again, the statement is true. At a point in time, the caller was in fact convicted of domestic abuse. The fact that a court later decided to give the caller a fresh start by expunging the conviction does not alter the fact that it occurred. It may help in the case of a subsequent conviction since it will not be used as a prior, and there may be some rule that the person no longer needs to report it on a job application, but none of that alters the fact that the online troll is truthfully reporting a prior conviction. A ruling be the court does not alter reality.

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Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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