Press freedom and private people: the life and times (and future) of Chapadeau v. Utica Observer-Dispatch.

• Author: McCraw, David E.
• Position: New York

1. INTRODUCTION: THE ROOTS OF THE GROSS IRRESPONSIBILITY STANDARD IN LIBEL

   On a June night in 1971, a high school teacher in Utica, New York, was arrested for heroin possession, and a small revolution in the law of libel in the state of New York was set into motion. Four years later, the teacher's libel case made its way to the Court of Appeals, and a unanimous court, in an ostensibly modest decision by Judge Wachtler, affirmed the Appellate Division's dismissal of the complaint. (1) The teacher did not deny that he had been arrested or that police had found heroin and a hypodermic needle in his possession. Instead, Chapadeau complained that the Utica Observer-Dispatch libeled him by saying that he had been at a party in a Utica park where police found drugs and beer and made two other arrests. "The trio was part of a group at a party in Brookwood Park where they were arrested," the newspaper wrote. (2)

   On the basis of that concededly false statement, Chapadeau charged into a public courtroom to defend what remained of his reputation, apparently outraged that he, a lone wolf heroin user, would suffer the indignity of being accused of party attendance. It was a thin case for defamation, and the newspaper moved for summary judgment, only to be denied by the Supreme Court. On appeal, however, the Appellate Division found for the paper, and the case may well have faded into obscurity at that juncture except for a quirk of historical timing. It arrived at the Court of Appeals shortly after the U.S. Supreme Court had decided Gertz v. Robert Welch, Inc. (3)

   1. From Sullivan to Gertz to Chapadeau

      Over the preceding decade, the Supreme Court had wrestled with the issue of precisely what minimal standards the states had to set in their libel jurisprudence to comply with the First Amendment. In 1964, with New York Times Co. v. Sullivan, the Court had transformed the law by holding that the Constitution applied to the tort of libel, and that liability could not be imposed in a case involving a public official unless the plaintiff demonstrated that the defendants had acted with "actual malice"--reckless disregard of the truth (4) The Court extended that rule to all public figures in Curtis Publishing Co. v. Butts. (5) Subsequently, in the plurality opinion in Rosenbloom v. Metromedia, Inc., the Court appeared ready to apply the actual malice rule to any libel case involving a publication about a matter of public concern, even when the plaintiff was a private individual. (6) Gertz reversed course. It held that while the states could not impose strict liability in cases involving private plaintiffs and matters of public concern, the states were not required by the Constitution to apply the actual malice standard. (7) What remained for the states after Gertz, then, was deciding what fault standard to use: negligence, Sullivan's actual malice, or some other test.

      Into that legal void wandered plaintiff Chapadeau. What emerged--with no apparent legal roots--was the "gross irresponsibility" standard. (8) No New York case had previously employed such a term, and the Court cites no precedent for it. The Court of Appeals simply pronounced that henceforth in New York, no publisher could be held liable in private-figure, public-concern libel cases unless the publisher "acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." (9) The Court concluded that the Observer-Dispatch had met that standard. The newspaper had consulted two authoritative sources--the police officer and the police report--and two editors reviewed the article before it went to press. While neither source had told the reporter that Chapadeau was at the party in the park, the Court was untroubled by that fact. "[I]t appears," the Court ruled, "that the publisher exercised reasonable methods to insure accuracy." (10)

   2. Chapadeau's Impact: An Overview

      Unlike Sullivan, with its sweeping pronouncements about the role of a free press in society and its march through the common law and constitutional principles, complete with provocative concurrences, Chapadeau is a workmanlike, sure-handed, and swift resolution of the immediate matter before the Court. Yet, it too has been a defining legal precedent for New York publishers and broadcasters--and established a libel doctrine that is unique to New York. To look back at the decision now, in light of its impact on New York libel law over more than three decades, is to be struck by the cursory nature of the opinion. Indeed, it left unaddressed two central analytical questions: what would distinguish plain negligence--upon which there could now be no liability--from this newly minted "gross irresponsibility" construct, and how were the courts to determine what topics were of "legitimate public interest"?

      Despite Chapadeau's humble beginnings, a review of the more than sixty New York appellate decisions that have applied Chapadeau, and analyzed whether a publisher or broadcaster acted with gross irresponsibility, suggests that the Chapadeau standard has succeeded in achieving its underlying public policy goal: creating First Amendment "breathing space" by discouraging libel suits--suits that would otherwise saddle publishers and broadcasters with prohibitive legal costs and potential liability, and might ultimately lead to a retreat from aggressive reporting. (11) Judging from the trends in the appellate decisions, the number of private-figure libel actions has declined significantly in the past two decades, and suits over trivial or technical errors by the press have become a rarity. But the cases also show that the full articulation of the Chapadeau standard was far from automatic, with the courts struggling to determine how closely they should examine the conduct of journalists, what factors were relevant, and what precisely the "gross irresponsibility" standard meant. In the end, though, the cases underscore two notable trends that have been present in almost all of the modern First Amendment jurisprudence of the Court of Appeals: a commitment to protecting the autonomy of news organizations, and a sensitivity to the day-to-day realities of how news organizations have traditionally operated, and the conditions under which news reporting is done.

      Now, of course, the world of news publishing and broadcasting is being reinvented. The Internet has made potential publishers of everyone; has given plaintiffs and would-be plaintiffs broad access to the marketplace of ideas that was once controlled by the traditional media; has spawned news sites that neither employ nor want editors; and has obscured the line between private concerns and public matters through YouTube, Facebook, and countless personal blogs. Inevitably, these changes raise interesting questions about whether the public policy underpinnings that gave birth to Chapadeau thirty-five years ago in the wake of Sullivan and Gertz have fallen away, and whether it remains the right calibration of the balance between reputational protection and press freedom in the age of the Internet.

2. THE COURT OF APPEALS AND THE CABINING OF LIBEL CLAIMS

   Chapadeau v. Utica Observer-Dispatch stands as one in a line of Court of Appeals post-New York Times Co. v. Sullivan decisions in which the Court has decisively shifted the balance away from libel plaintiffs and toward defendants and, in so doing, broadly promoted vigorous press coverage in New York. Lawyers for New York media organizations recently reported that the number of libel cases brought against their organizations has dwindled, and one reason for this is undoubtedly the number of strong defenses that have emerged out of the Court of Appeals libel jurisprudence over the past forty-five years. (12)

   The Sullivan decision was a watershed, not only because of its creation of a constitutional standard to rein in libel claims, but also because of the clear voice it gave to the concern that libel suits were often being used not to remedy reputational harm, but to silence the press. In effect, it served as a not-so-subtle prod to courts across the country to rethink libel cases, to see them not as just another tort claim adjudicating one individual's rights, but as a part of a larger mosaic that ultimately shaped the quality and quantity of information that would be available to the public debate.

   Even prior to Sullivan, the intertwining of the libel tort and the constitutional guarantee had been recognized by the New York Court of Appeals. In Julian v. American Business Consultants, Inc., the Court upheld a defense verdict in a case involving the now notorious publication, Red Channels, which spent the McCarthy years tracking down purported Communists in academia, education, and elsewhere. (13) Joe Julian, an actor accused by Red Channels of having Communist leanings, sued for libel. Viewed today from the distance of fifty-five years, much of the majority's opinion reads as a reminder of how the Cold War mentality shaped both public sentiment and judicial opinion. Judge Fuld's dissent (14)--filled with deep suspicion about Red Channels and its poisonous writings--seems prescient in hindsight. But the majority, in upholding the magazine's defense that its statements constituted "fair comment" and not libelous assertions of facts, nonetheless embraced the central concern of Sullivan: that in constructing the rules of libel, courts cannot ignore their implication for First Amendment rights. (15) "We may not brush aside constitutional rights by setting up a double standard for comment. Any invasion of the freedom of the press justifies a concern about the inviolability of that great right," Judge Burke wrote for the majority. (16) It also recognized that in advancing the broad social goal of a robust free press by imposing limits on libel claims, courts necessarily extracted a price from individual plaintiffs...