Are News Reports Offered as Factual Assertions?

factual assertion

Sacramento Kings center Richaun Holmes is suing his ex-wife, Allexis Holmes, the Sacramento Bee, and one of its opinion writers, Robin Epley, for defamation. In the course of a custody battle, Allexis made allegations of abuse against Richaun, which were reported and opined on by the Sacramento Bee. Richaun claims the publication damaged his reputation.

The case illustrates an important aspect of defamation claims. Namely, when a newspaper reports what someone else has said, is it liable if the statements are false?

Let’s begin our analysis with the elements of defamation:

The elements of defamation are “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

Sanchez v. Bezos, 80 Cal. App. 5th 750, 763 (2022).
But the second element, requiring that the statement be false, has an added qualifier under the law. It must imply a “provably false factual assertion.”

“We apply a ‘totality of the circumstances’ test to determine whether a statement is fact or opinion, and whether a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” (Ibid.) Under this test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense …. Next, the context in which the statement was made must be considered.” Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” Balla v. Hall, 59 Cal. App. 5th 652, 678 (2021).

In my never to be humble opinion, a report by a news outlet almost never implies the truth of the statements it is making. Unless the reporter is reporting something he or she saw, how could anyone take the statements as anything other than hearsay?

The format of a news story is usually the same. The opening paragraph will set forth the accusation of criminal conduct, and end with, “authorities said.” The next paragraph will throw in additional details about the time, place, and location. In the next paragraph, it’s back to the disclaimers, ending with something like, “police said” or “court documents allege.” Some paragraphs may not contain a disclaimer, but that does not make the article defamatory since the disclaimers in the other paragraphs make clear that the news item is based on third-party statements.

Here, the articles confirmed that Richaun denies the allegations, and even that the court – after considering Allexis’ allegations – granted full custody to Richaun.

I have not read all the articles, but it would generally be the case that a reader could not reasonably take the statements as factual assertions. Presumably, the paper just reported what Allexis was claiming.

That said, the same argument the Sacramento Bee is using as a defense, could be its downfall. They claim the articles were opinion pieces, and in most all instances an opinion is not actionable. But within that context, they make statements such as:

“Regardless of the outcome in the courts, victims of abuse likely see shades of their own experiences in Allexis Holmes’ struggle to protect her 6-year-old son and get a fresh start.”
“The latest ruling granting Richaun full custody underscores how hard it is for domestic violence victims to find justice in the court system, and the desperate lengths they will go to get the outcome they seek.”
Hold on a minute there, Sacramento Bee. If you have no idea what occurred, and are only reporting Allexis’ allegations, how can you say that she is struggling to protect her 6-year-old son? Protect him from what? It certainly sounds like you are implying he needs to be protected from Richaun.

Similarly, why is the fact that Richaun was granted custody proof that it is hard for domestic violence victims to find justice? That sure sounds like you are saying Richaun committed domestic violence.

“Though mere opinions are generally not actionable,” a “statement that implies a false assertion of fact is actionable.” Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [“simply couching such statements in terms of opinion does not dispel these false, defamatory implications”]. Balla v. Hall, 59 Cal. App. 5th 652, 677–78 (2021).

Richaun is a public figure, making it more difficult to prove defamation, since he must also show malice. In other words, he not only needs to show that the statements were false, but that they were made with malice. One way to prove malice is by showing that the defendant acted with reckless disregard for the truth. Given that a court reviewed all the evidence and found that Richaun should be awarded custody (and denied Allexis’ request for a restraining order), wasn’t it rather reckless to offer these “opinions”?

Defamation can come from an implication that the speaker is aware of undisclosed facts that support his opinion. I have discussed here before the case of Joe the alcoholic. As stated in the Restatement (Second) of Torts, if Bill simply states that Joe is an alcoholic, with no additional facts, Joe can successfully sue for defamation if he can prove that he is not an alcoholic. The defamation comes from the assumption that Bill would not have made such a claim if he did not have facts to back it up.

But if Bill says that he formed that opinion based on the fact that every night he sees Joe sitting is his backyard, holding a beer, while watching the sunset, then he has provided the facts upon which he based his opinion. So long as the facts are true, Joe cannot successfully sue for defamation, because the listener or reader knows the basis for the opinion, and can make their own determination as to whether that would make Joe an alcoholic.

The statements set forth above arguably fall under the first scenario. In spite of all court findings, after interviewing Allexis, the Bee made statements that only make sense if they have concluded that Allexis was a victim of domestic abuse. A reader could infer that the Bee possesses information that refutes the findings of the court.

I will be following this case with great interest, to see how it all plays out.

Some details of the case reported here were taken from an excellent article written by Michael McCann for Sportico.

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Aaron Morris
Morris & Stone, LLP
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Lake Forest, CA 92630
(714) 954-0700

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