Where do U.S. courts fall on the issue of defamation by implication? Do First Amendment rights render the notion unconstitutional? We’ll answer these questions by applying a “lawsuit that never was” involving everyone’s favorite (allegedly) crack-smoking mayor from Toronto, Rob Ford.

Toronto’s scandal-engulfed mayor, Rob Ford, conjured another maelstrom. During a televised interview with the infamous Conrad Black, Ford plopped a sack of rumor dung at the doorstep of a Toronto Star reporter. The politically neutered mayor quipped:

“He’s taking photos of little kids. I do want to say that word, but you start thinking ‘what’s this guy all about.’”

Soon after the interview aired, Dale sent Ford a libel notice demanding an apology and retraction. At first, Ford played it as you might expect him to play it…badly. At a press conference, he said he stood by “every word” of his Interview.

When asked about the interview, Conrad Black — with the confidence of prime-time lawyer sporting a soft-spot for the powerfully put upon — tossed some suspect gotcha-logic into the mix, admonishing the media outlet for evoking the word pedophile, pointing out that Ford never uttered the phrase.

Black, however, may have been wrong, because the Canadian Criminal Code clearly states:

“Defamatory libel may be expressed directly or by insinuation or irony in words legibly marked on any substance or by any object signifying a defamatory libel otherwise than by words.” [emphasis added]

Fast forward a few days. Someone must have alerted Ford to his mistake, because he publicly apologized to Dale and offered a clear retraction of his insinuation. Case closed.

Defamation by Implication in the United States?

But the whole ordeal got us thinking: If Dale v. Ford had been tried in a U.S. court, would Dale have won? Where do U.S. courts fall on the issue of defamation by implication? Do First Amendment rights make it impossible under United States law?

We’ll answer these questions below by looking at historical defamation by implication case law precedence.

First, A Quick Summary of Defamation Law in the United States

In part thanks to the First Amendment, the United States has the most defendant-friendly slander and libel laws in the world. The Second Restatement of Torts (§ 559) defines defamation thusly:

“A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

The rules for slander and libel are straightforward:

1. If the statements in question are true, they won’t be considered defamatory nearly all of the time. (Every so often an individual wins a slander or libel case even if the defendant reported the truth. Plus, plaintiffs can use other torts similar to defamation.)
2. Opinion does not constitute defamation. In trash-talk terms, labeling someone a “dirtbag” is not defamatory because one person’s “dirtbag” could be another person’s “prince.”
3. In order for a statement to be libelous or slanderous, it must contain a false statement of fact.
4. The material must have been imparted to people.
5. The plaintiff must show that the statements under review led directly to some material harm, such as lost wages, lost job – anything quantifiable. In some jurisdictions, plaintiffs don’t have to show harm when accused of:
   • a crime;
   • having a loathsome disease;
   • not being able to conduct business ethically or materially;
   • sexual misconduct.

These are called defamation per se cases, meaning the statements are egregious enough to be understood as innately harmful.

Why Does Defamation by Insinuation Present A Legal Quandary? (Hint: Actual Malice)

The legal premise of “actual malice” plays a prominent role in U.S. defamation law. It’s when a person knowingly publishes a lie or offending statement with reckless disregard for the truth. It applies in cases where the plaintiff is a public figure.

Now, what constitutes “reckless disregard for the truth” is nebulous and differs depending on jurisdiction. As a general rule of thumb, the ruling in Schiavane Construction v. Time Inc. is often used as a benchmark. It states:

“[T]he defendant in fact entertained serious doubts as to the truth of the statement or that the defendant had a subjective awareness of probable falsity.” To add, Herbert 441 U.S. at 160 suggests, “Proof of actual malice depends upon the defendant’s actual state of mind.”

The Tricky Thing About Implications

When it comes to defamation by implication, the duality of insinuation creates a legal dilemma. After all, implications “have two possible meanings, one that is defamatory and one that is not,” (American Jurisprudence 2d Libel and Slander §158). Moreover, legal precedence demands that the innocent connotation of an implied statement must be accepted as the speaker’s intent.

When the claimant has to prove actual malice, the matter becomes further complicated since “[t]he need to show intent necessarily means that the actual malice standard will have different elements of proof in ordinary defamation cases than in defamation by implication cases.”

Actual Malice Definition

United States defamation law differentiates between public and private figures. If a public figure files a slander or libel lawsuit, he or she must prove actual malice; a private citizen does not. In simple terms, actual malice is present when the plaintiff can prove that the defendant knowingly printed a lie, had serious doubts about the validity of the information but publicized it anyway, or acted with reckless disregard for the truth (shoddy due diligence).

If The Plaintiff Is A Public Figure That Must Prove Actual Malice in a Defamation by Implication Case, How Can He or She Show Intent?

In actual malice cases, the plaintiff must prove the defendant knowingly made questionable information public. So, what happens in a defamation by insinuation suit? After all, by definition, a public figure plaintiff must prove the defendant intended to convey the insidious meaning, as opposed to the innocent meaning, of the doubly connoted statement.

The Third Circuit addressed this issue when reviewing Kendall v. Virgin Island Daily News in March 2013.

Kendall v. VI Daily News: A Defamation By Implication Case Study

In 2007, Judge Leon Kendall let a guy (we’ll call him “Nigel”) out on bail. While awaiting his next hearing, Nigel allegedly raped and killed a 12-year-old girl. A reporter for the Virgin Island Daily News published an article insinuating that Kendall let Nigel out despite knowing his violent background. The incident sparked protests outside the courthouse.

Upset over the accusations, Kendall filed a defamation lawsuit against the journalist and VI Daily arguing defamation by implication. Ultimately, the case turned on the following line:

“Kendall found probable cause to charge [Nigel] but released him pending trial – despite [Nigel’s] history of violence including charges of rape, assault and weapons.”

Kendall and crew argued that the protests meant the public “understood that judge Kendall had released [him] despite his history of violence,” which presumably meant he was responsible for the victim’s death.

Sounds horrible, right? Well, it turns out that Kendall wasn’t as culpable as the paper made it appear. The reason Kendall granted bail was because past plea agreements prevented the judge from seeing his violent past. On paper, Nigel came across as a non-violent suspect.

The case went to trial. In the end, the jury sided with Kendall and awarded him $240,000 in defamation damages. Displeased, the Virgin Island Daily News moved for a bench judgment, which the Superior Court granted, and the justices reversed the jury’s decision.

Then Kendall appealed the decision. The bench, however, affirmed the lower court’s decision. Case closed, right?

Not so quickly. Despite confusion as to whether or not the Third Circuit was in a superior position to the Virgin Island Supreme Court, it granted certiorari and released an opinion on the Kendall case. In this instance, the Third Circuit wanted to make sure the VISC properly applied the standard of actual malice.

What is Certiorari?

Certiorari is when a higher court calls up the records of a lower court for review. In non-fancy words, it’s like a teacher reviewing a student teacher’s work. It’s also the primary way in which  the Supreme Court of the United States calls up cases.

Kendall’s position as a judge made him a public figure. So, not only did the case involve tricky defamation by implication elements, but also actual malice. Because of all the outstanding elements, Kendall v. VIDN became a precedent setting case.

As stated above, the rub of public figure defamation by implication cases is proving actual malice. After all, since 2 meanings are possible, the plaintiff must convince a judge or jury that the defendant intended to impart the insidious meaning – a tricky feat in a free speech-principled country.

One school of thought argues that disregarding the defamatory meaning of an implied statement satisfies the actual malice standard. In Kendall, however, the court ruled, “if mere knowledge [was] sufficient to find defamatory intent, then actual malice would be found no matter how unlikely it is that a listener would interpret the statement as having a defamatory meaning” – and, therefore, an invalid argument.

Examples of Defamation by Implication Rulings From United States Courts

Kendall is not the first time the question of actual malice in defamation by implication cases has arose. In the past, judges have demanded that plaintiffs “show with clear and convincing evidence that the defendant is intended or knew of the implications that the plaintiff [was] attempting to draw from the allegedly defamatory material” – (Saenz 841 F. 2d – Compuware Corp)

In Price v. Viking Penguin the bench ruled:

“We do not recognize defamation by implication” because statements couldn’t pass the specificity test for fact/opinion dichotomy.”

In Woods v. Evansville Press Co:

Seventh Circuit affirmed, “an implied statement, just as a statement made in direct language, can be defamatory.” During the course of the hearing, however, the plaintiff failed to prove intent on the part of the defendant, not meeting the standard “to create a triable issue.”

In Newton v. National Broadcasting, Co.:

Newton sued NBC Universal for implying the company used mafia ties to finance a hotel acquisition. Unlike other defamation by implication cases, the plaintiff originally won because NBC edited the material, thereby assuming culpability.

Defamation by Implication Attorneys

Defamation by implication cases are nuanced. To win, you must have rock solid arguments and evidence to support your side.

Kelly Warner handles defamation by implication cases. We understand the particulars of such cases. If you have questions about a defamation by implication issue, get in touch today.

Additional Source: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2870&context=flr