We have been discussing the increasingly common use of defamation lawsuits as a way of amplifying positions or correcting public accounts as in the recent dubious lawsuit by Alan Dershowitz against CNN. When criminal cases become the subject of widespread protests or commentary, courts are placed in an uncomfortable position between deterring defamatory statements and curtailing free speech.
This is obvious a case at the apex of public debate and controversy. Mattingly was one of the officers who served a no-knock warrant on the residence on March 13. The Grand Jury found that the officers did knock and announce themselves before entering, but Taylor’s boyfriend, Kenneth Walker fired his gun at them, hitting Mattingly in the leg. The officers fired at least 30 shots, shooting Taylor, an emergency medical technician, six times and killing her.
As a legal matter, the Grand Jury found no basis for a murder charge and only charged former LMPD officer Brett Hankison with three counts of wanton endangerment for shooting his gun into a neighbor’s home where a family was sleeping.
On its face, being called a murder is not just defamatory (if untrue) but defamatory per se. Kentucky follows the standard common law rules on libel and slander. E.W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700 (Ky.App. 1978). Mattingly must show that an alleged defamatory statement (1) was spoken to someone other than the person defamed; (2) is false; (3) is unprivileged; and (4) tends to harm the defamed person’s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him.
While damages are presumed in libel (written defamation), they are only presumed in slander (or spoken defamation) in cases of slander per se. Those per se categories include (1) “imputation of certain crimes” to the plaintiff; (2) “imputation . . . of a loathsome disease” to the plaintiff; (3) “imputation . . . of unchastity to a woman;” or (4) defamation “affecting the plaintiff in his business, trade, profession, or office.” CMI, Inc. v. Intoximeters, Inc., 918 F. Supp. 1068 (W.D. Ky. 1995). Notably, the federal district court in Kentucky held that “to constitute defamation per se, the alleged defamatory speech ‘must tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society. But it is not necessary that the words imply a crime or impute a violation of laws, or involve moral turpitude or immoral conduct.'” Harrod v. Phillip Morris (quoting CMI at 1083 (quoting Sweeney & Co. v. Brown, 60 S.W.2d 381 (Ky. Ct. App. 1933)).
In many states, the line between libel and slander is being erased and per se categories are often used with reference to different forms of defamation in general. Moreover, broadcasts are treated in most states as libel not slander.
In this case, Mattingly is being called a murderer and that would be defamatory per se, absent “truth as a defense.”
The court, however, would still have to decide whether Mattingly is a public official or public figure. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” by articulating that standard that now applies to both public officials and public figures.
In this case, however, there is an argument that the public statements issued on behalf of Officer Mattingly would make him a public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
That still leaves us with the question of what is permitted commentary, including opinion, in a major matter of public debate. The Supreme Court dealt with such an overheated council meeting in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:
It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.
Of course, calling someone repeatedly a murderer is more than simply “rhetorical hyperbole.” However, it is also part of a public debate that is heavily laden with protected political speech.
Any news organization calling Mattingly a “murderer” as a statement of fact would be risking a defamation action. Context is everything. This is a highly charged environment where terms like “murder” are often used in the context of protests over systemic racism and police abuse. However, it is also being used in the specific context of a criminal charge. Many believe that this did meet the standard of murder and that is a protected opinion of the underlying criminal code and facts in this case. A court, like this Grand Jury, may disagree, but it is an opinion on a matter of intense public debate.
It is hard to see an actionable case in this context, though again news account stating that this was murder as a fact could raise a cognizable claim. I am however skeptical in finding a case that was not heavily laden with opinion on the elements of crime or the proper interpretation of this case.