AuthorVolokh, Eugene


Say that I accurately write that you have been convicted of a crime, but I knowingly fail to mention that the conviction has been reversed. (1) To make the matter particularly stark, say the conviction has been reversed on grounds that show you were innocent (rather than just for procedural reasons). Or say that I accurately write that you were charged with a crime, but knowingly fail to mention that you were acquitted.

Is that libelous? This question arose in the course of my writing a separate article in this issue, which deals with whether a later reversal triggers an obligation to remove or modify the account of the original conviction. (2) But the question is important even apart from that separate matter, so the editors kindly allowed me to answer it in this separate short Article.


    It turns out that the cases dealing with this question overwhelmingly answer it "yes." The law recognizes that even something that is literally true may be so incomplete and therefore misleading in its "gist"--its overall tenor--that it might be actionable libel. "[T]he law of libel has long recognized that omissions alone can render a statement false." (3) "[M]aterial omission of facts that would render the challenged statement(s) non-defamatory" can yield "implied defamation": "a defendant does not avoid liability by simply establishing the truth of the individual statement(s); rather, the defendant must also defend... the omission of certain facts." (4)

    The classic example of such libel by omission is Memphis Publishing Co. v. Nichols, where the Memphis Press-Scimitar wrote,

    A 40-year-old woman was held by police in connection with the shooting [of Mrs. Ruth Nichols] with a .22 rifle. Police said a shot was also fired at the suspect's husband. Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols. (5) What do you, as a reasonable reader, think happened? Well, here's what really happened, but the story neglected to mention: "The undisputed proof showed that not only were Mrs. Nichols and [the shooter's husband] at the Nichols' home but so, also, were Mr. Nichols and two neighbors, all of whom were sitting in the living room, talking, when [the shooter] arrived." (6)

    The article was therefore a half-truth, with "the clear implication ... that Mrs. Nichols and [the shooter's husband] had an adulterous relationship" (7)--an implication that would have been absent had the omitted details been included. And this made the story potentially actionable as libel. Such libel by omission is a special case of libel by implication or by innuendo. (8)


    Libel-by-omission claims generally prevail only in cases where the omission is particularly stark and critical to the story. But omitting a reversal when talking about a conviction would generally qualify. "It is a misleading half-truth to say that a person was convicted... without including the fact that his conviction was overturned on appeal."9

    Likewise, liability may thus be imposed when "a defendant widely publicizes that a plaintiff was charged with a criminal offense but knowingly [does] not mention that the charge was found to be...

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