7.17 Fault: Public Plaintiffs

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.17 FAULT: PUBLIC PLAINTIFFS

7.1701 In General.

The United States Constitution first intruded into defamation law in the cases brought by public officials and public figures.

7.1702 History.

Until 1964, Virginia and most other states treated defamation as a strict liability tort. Under this approach, defendants faced liability for false and defamatory statements even if they made the statements reasonably believing them to be true. Beginning with New York Times Co. v. Sullivan, ⁴⁷¹⁵ however, courts injected federal constitutional requirements arising from the First Amendment (and applied to the states through the Fourteenth Amendment) into state defamation law.

Federal involvement in what had been a state common law tort has not always produced clarity. Federal constitutional principles have seeped gradually into many areas of state defamation law, making it extremely difficult to determine what degree of fault is required when a plaintiff (private, public official, "all-purpose" public figure, or "limited-purpose" public figure) sues a defendant (media or nonmedia) for allegedly defamatory statements (that either relate or do not relate to matters of public concern). One excellent treatise devotes nearly two full pages to a chart outlining all the possible permutations. ⁴⁷¹⁶

In the years since New York Times, the United States Supreme Court has both expanded and contracted the constitutional principles that apply to defamation actions. In the mid-1980s, for instance, the Court announced a substantial retreat from its tendency to "constitutionalize" state law. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., ⁴⁷¹⁷ a plurality of the Court impliedly invited states to return to a strict liability standard for both compensatory and punitive damages in suits by private persons against both media and nonmedia defendants if the communication did not involve "matters of public concern." Virginia has not accepted this invitation to decrease plaintiffs' burden of proof.

More recently, Justice Clarence Thomas has called into question the New York Times doctrine:

New York Times and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own "'federal rule[s]'" by balancing the "competing values at stake in defamation suits." Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we. ⁴⁷¹⁸

7.1703 New York Times Doctrine.

In New York Times Co. v. Sullivan, ⁴⁷¹⁹ the United States Supreme Court ruled that public officials may not recover for a media defendant's defamation unless they establish with "convincing clarity" that the media defendant communicated the statement with "knowledge that it was false or with reckless disregard of whether it was...