From the Kba Media-bar Chair
| Publication year | 2022 |
| Pages | 18 |
July, 2022.
How Kansas Played a Unique Role in Forming Modern U.S. Defamation Law
By Eric Weslander
Our Kansas Constitution provides, at Section 11 of the Bill of Rights, "The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights." Did you know that?
This strong recognition of the importance of exchange of ideas"” and perhaps more importantly, this limitation on the government's ability to punish expression of "sentiments on all subjects" —is a bedrock feature of Kansas' history and legal tradition. Thanks to our state Bill of Rights, we Kansans enjoy additional protections above and beyond the free speech protections guaranteed by the First Amendment to the U.S. Constitution.
In fact, decades before the U.S. Supreme Court issued its landmark ruling in New York Times v. Sullivan, setting one nationwide "actual malice" standard for defamation claims by public officials under the First Amendment, "actual malice" had been established as the law in Kansas.
Citing Section 11 of the Bill of Rights, the Kansas Supreme Court held nearly 120 years ago in Coleman v. MacLennan, 78 Kan. 711 (1908), that the actual malice standard applied to the sitting attorney general's claim against a newspaper that had reported on the attorney general's handling of his "official conduct in connection with a school fund transaction[.]"
Holding that "it is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages[,]" the Court in Coleman looked to the law of other states including North Carolina, Texas and Michigan to adopt a then-minority view that the law protected news reporting on public officials that the speaker believed to be true and made in good faith, even if the allegations were "untrue in fact and derogatory to the character of the plaintiff." The decision concluded, "The history of all liberty, religious, political, and economic, teaches that undue restrictions merely excite and inflame, and that social progress is best facilitated, the social welfare is best preserved, and social justice is best promoted in the presence of the least necessary restraint."
The Coleman court made clear the importance of allowing room for free debate over matters of honesty or...
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