Kennedy v. Sheriff of East Baton Rouge: A Hollow Victory for Louisiana Defamation Plaintiffs?

• Author: Louis Edward Layrisson, III
• Pages: 299-

Louis Edward Layrisson, III. The author would like to thank Professors John Church and Frank Maraist for graciously providing guidance in the writing of this paper. All errors are my own.

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I Introduction

"What is said of a man is nothing. The point is who says it."¹Oscar Wilde may not have had defamation in mind when he penned those words, but their resounding message in the defamation context is fitting: The other "W" words-who, where, when, and why-are sometimes more important than the "what" in this complex area of tort law.² A survey of the past fifty years of jurisprudence in the United States shows a great fluctuation in defamation law. This fluctuation is demonstrated by the dramatic shift from the plaintiff-friendly era of strict liability under common law to the constitutional requirements placed on plaintiffs by the actual malice standard.³ Since the United States Supreme Court interjected its authority into defamation law in the 1960's, the states are now left the task of cleaning up the confusion created by the high court. Much of the states' difficulty stems from attempts to classify different types of plaintiffs and defendants, set different fault standards, and fill in gaps left by the Supreme Court's jurisprudence.⁴

Gaps in Louisiana defamation law became the central issue when Jack in the Box⁵ petitioned the Louisiana Supreme Court for Page 301certiorari to address a defamation claim against it arising from an incident at its Baton Rouge restaurant in December of 2001. Alfred Kennedy, III entered the drive-through lane of a Jack in the Box restaurant to make an order.⁶ When he tendered a one hundred dollar bill for payment, a restaurant employee suspected it was counterfeit and, after conducting a naked eye examination, notified law enforcement officers.⁷ Thereafter, Kennedy was handcuffed and detained at a sheriff's substation while the authenticity of the bill was investigated.⁸ The police later found the bill to be legitimate and released Kennedy, who then filed suit against the restaurant and sheriff's office seeking damages.⁹

Both defendants filed motions for summary judgment in response to Kennedy's complaint, and the trial court granted them both, dismissing the claims.¹⁰ With respect to Kennedy's defamation claim, the court found no sufficient showing of malice to support such a claim.¹¹ However, the Louisiana First Circuit Court of Appeal concluded the defendants, in accusing Kennedy of the crime without any training to detect counterfeit currency, "failed to show that they acted reasonably or without reckless disregard for Mr. Kennedy's rights."¹² Thus, the first circuit vacated the district court's order and remanded the matter for further proceedings.¹³

The Louisiana Supreme Court granted certiorari to address the Kennedy defamation claim: a claim that pits a private plaintiff against a non-media defendant in a matter of public concern.¹⁴

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More specifically, the court considered whether the Jack in the Box employee enjoyed a qualified privilege when reporting the suspected counterfeit currency to the police, and if so, what evidence would be sufficient for the plaintiff to prove abuse of that privilege.

Kennedy v. Sheriff of East Baton Rouge¹⁵ represents the Louisiana Supreme Court's most recent effort to answer the lingering uncertainties in Louisiana's treatment of defamation law. Three significant developments stand out from the decision: (1) the end of Louisiana's strict liability defamation regime due to broad constitutional protections afforded to all defendants, with the possibility of a small window left for strict liability only in matters of private concern;¹⁶ (2) the adoption of a uniform negligence standard for all private defamation plaintiffs; and (3) a heightened burden on plaintiffs to prove abuse of a qualified privilege, a burden that will influence many defamation cases and revive remnants of the New York Times¹⁷ actual malice standard for the foreseeable future.

This note seeks to guide the reader through the historical development of defamation law on the national and state level, critically analyze significant developments of the Kennedy decision, and predict its impact on future defamation litigation in Louisiana. Part II examines the common law-influenced history of defamation in Louisiana under Louisiana Civil Code article 2315, as well as constitutional developments by the U.S. Supreme Court. Part II ends with a short discussion of the uncertainties remaining in Louisiana that the Kennedy court sought to address. Part III critically analyzes the three significant areas of the decision: (1) constitutional protections afforded to all defendants; (2) the adoption of a uniform negligence standard for all private plaintiffs; and (3) the affirmation of a higher burden of proof for plaintiffs to prove abuse of a qualified privilege. Finally, the conclusion Page 303 scrutinizes the Kennedy decision and predicts its future impact on defamation law in Louisiana.

II Background

The depth of the Kennedy decision can not be fully appreciated by a cursory reading because it represents a culmination of years of defamation law. Louisiana defamation law has been a fifty-year consolidation of many issues: a base of common law tradition, blurred plaintiff and defendant classifications and standards of liability, and even a dash of constitutional law-compliments of the U.S. Supreme Court. The Kennedy decision is the Louisiana Supreme Court's attempt at a convergence of all of those ingredients-a convergence in which the historical development of defamation law plays an important role.

A Common Law Defamation in Louisiana

Defamation is a tort that involves the invasion of a person's interest in his or her reputation or name in the community.¹⁸ The Louisiana Supreme Court thoroughly addressed this tort in the 2004 decision Costello v. Hardy.¹⁹ Costello set forth four elements necessary for a successful defamation claim: (1) a false and defamatory statement concerning another;²⁰ (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher;²¹ and (4) resulting injury.²²

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In Louisiana, defamatory words are divided into two categories: (1) those that are defamatory per se because they either accuse another of criminal conduct or by their nature tend to harm the reputation of another; and (2) those that are susceptible of defamatory meaning given the circumstances.²³ Traditionally, when a plaintiff proves publication of defamatory per se words, the elements of falsity and malice (fault) are presumed, but the presumption can be rebutted by the defendant.²⁴ However, the plaintiff must prove all the elements of defamation in cases where the words are merely susceptible of defamatory meaning, or where constitutional protections²⁵ are in place.²⁶

A defendant may defeat a prima facie case by asserting one of the two most common defenses available: truth or privilege.²⁷ If the defendant proves that the alleged defamatory statement is true, then recovery is precluded because the tort's first element, a false statement, is not met. The second defense, privilege, is deeply rooted in the common law. It was originally developed as a remedy to the harsh system of strict liability, and the defense reflects the state's public policy of promoting free communication in certain instances.²⁸

There are two types of privileges: absolute and qualified. Absolute privileges are restricted to limited circumstances, such as Page 305certain communications during judicial proceedings.²⁹ Qualified privileges³⁰ are not restricted to specific circumstances but depend upon whether there is a justification to protect the interests of the communicator or the public.³¹ Louisiana courts recognize various qualified privileges dealing with both private and public interests. For instance, the "fair comment on public affairs" privilege often protects police officers giving interviews about arrests.³² In addition, private interests are protected by privileges in some circumstances, such as alleged defamatory remarks among an ecclesiastical board.³³ Regardless of whether it is a matter of public or private concern, the focus of the inquiries into the existence of a privilege is on the good faith of the communicator, whether the communicator has an interest or duty with regard to the communication, and whether it is disclosed to a person with a corresponding interest or duty.³⁴

A qualified privilege is ultimately the court's recognition of the need to balance the individual's right of reputation against competing interests of either a third party or the public. It is "a defense based on the weighing of (1) the protection of the interest of the offended person against the harm done to his or her reputation, and (2) the protection of the interest of the public in receiving the information if it were true."³⁵ Equally important to the application of a...