No actual malice shown in defamation case

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A former prosecutor and unsuccessful candidate for attorney general cannot continue his libel and slander lawsuit against a newspaper and the administrator of a nonprofit agency.
On May 17, the Wisconsin Court of Appeals affirmed a trial court’s dismissal of the suit against a newspaper for an article falsely stating he had been convicted of accepting bribes.

The court concluded that no reasonable jury could find that the defendants acted with “actual malice” when they made the defamatory comments about former Outagamie County District Attorney Vincent R. Biskupic.

The court reached that holding, despite its conclusion that Biskupic presented “substantial evidence that journalistic standards were not followed.”

Attorney John C. Peterson, of Peterson, Berk & Cross, in Appleton, who represented Biskupic, said no decision has been made whether he will seek review by the Supreme Court.

However, he said he was disappointed that, even though it was undisputed the defendants grossly failed to meet journalistic standards, they can walk away without any accountability.

Peterson said he was especially troubled by the nature of the charge — bribery — being leveled at a lawyer and former prosecutor — someone to whom integrity means so much.

Biskupic Reference

Biskupic was Outagamie County District Attorney from 1994 until January 2003. In 2002, he ran unsuccessfully for Wisconsin Attorney General.

During that campaign, it was revealed that Biskupic aggressively used payments to crime prevention groups and nonprofits as an alternative to criminal prosecution.

Biskupic did not profit from the payments and was not affiliated with any organization that received them; after an investigation, he was not sanctioned by the Ethics Board.

In 2004, the circuit court judges in the Ninth Judicial Administrative District voted to stop the practice.

That August, the Shawano Leader wrote an article about the decision, and interviewed Stacey Cicero, the executive director of a domestic abuse prevention organization that had been receiving money.

The article stated:

“‘I believe it was done in response to the bribery and graft cases involving former Winnebago County District Attorney Vince Biskupic,’ said Cicero.

“Biskupic was convicted of accepting bribes to dismiss cases. Some of the money that defendants paid to have their cases dismissed went to organizations that he (Biskupic) was involved in or into his own pocket.”

The next day, the Leader ran a correction of the article, and ran a second in September in response to a demand letter from Biskupic.

Biskupic brought suit against Cicero, the Leader, and others, alleging defamation.

Meant to Say Paulus

During discovery, Cicero admitted she was accurately quoted, but said she inadvertently used Biskupic’s name instead of Winnebago County District Attorney Joe Paulus, who was convicted of accepting bribes in 2004.

It was also revealed that the Leader reporter had discarded his notes prior to filing of the lawsuit.

Shawano County Circuit Court Judge Fred W. Kawalski granted summary judgment in favor of all defendants, finding that Biskupic was a limited purpose public figure, and the actual malice standard applied.

Judge Kawalski found that no jury could find actual malice, and the Court of Appeals agreed, in a decision by Judge Gregory A. Peterson. However, the Court of Appeals found that Biskupic was a public figure for all purposes, not a limited purpose one.

Although Biskupic ceased to be a public official in January 2003, when his term as district attorney ended, the court concluded that he remained a public figure for all purposes in 2004, because of ongoing publicity.

Actual Malice

As a result, Biskupic had to show actual malice — either knowledge the statement was false, or that the statement was made with reckless disregard for whether it was true or false.

Biskupic did not maintain that the defendants knew the statements were false, but contended that the reckless disregard standard was met.

However, the court disagreed, finding no evidence the defendants “in fact entertained serious doubts as to the publication’s truth.”

Biskupic proffered the following facts to show reckless disregard: neither Cicero nor the reporter attended the judges’ meeting; both Cicero and the reporter had time to investigate further had they chosen to do so; none of the individuals talked to Biskupic; and the reporter destroyed his notes before litigation.

However, the court disagreed, citing the general rule that the failure to verify information, without more, is not evidence of actual malice. Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis.2d 905, 918-19, 447 N.W.2d 105 (Ct.App.1989).

The court found that the reporter had no reason to question Cicero’s motives or the veracity of her information, and there is no evidence Cicero’s mistake was anything other than a failure to double check the name of the former Winnebago district attorney.

Accordingly, the court held, “While Biskupic has produced substantial evidence that journalistic standards were not followed here, he has not produced evidence creating a material factual dispute as to whether Cicero or the Leader ‘in fact entertained serious doubts’ about the truth of the statements in the article.”

Mistaken Identity

Gregory B. Conway, the newspaper’s attorney, observed that the holding is not groundbreaking, except that it is the first case in Wisconsin involving mistaken identity resulting in defamation.

Conway, of Liebmann, Conway, Olejniczak & Jerry, SC, stated, “I think the real significance is that the court has resolved the mistaken identity issue the same as other jurisdictions. People do mistake names with some frequency.”

Spoliation

The court also concluded that actual malice could not be inferred from the fact that the reporter threw his notes away prior to filing of suit.

As with the court’s holding regarding mistaken identity, Conway noted that this holding is consistent with other jurisdictions.

Conway cited Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1090 (7th Cir. 1990), in which the court wrote, “any inference from the missing notes could not supply clear and convincing evidence of malice unless [the reporter] wrote something like: ‘Tipster says X, but because I have not verified it I know X is untrue.’ Reporters do not write such notes to themselves, and the possibility that [the reporter] jotted down thoughts showing her disbelief of the source’s claims is so remote that it does not defeat a motion for summary judgment.”

The court therefore affirmed the grant of summary judgment in favor of all the defendants.

Case analysis

The Internet could be called, without exaggeration, “a defamation factory.”

However, it can also be used as a tool to prevent defamation.

The reporter in this case could have conducted a Google search
or visited the state courts or State Bar Web sites and, in a matter of minutes, identified problems with Cicero’s comment.

Thus, while it is longstanding law that failure to verify facts alone cannot give rise to an inference of reckless disregard of the truth, this case provides a strong reason for a reconsideration of the rule.

Where the damage value of the false statements is extremely high, and the cost of verifying the truth of the statements is extremely low, a jury should be able to find reckless disregard for the truth.

The general rule dates back to long before the Internet, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3003 (1974). This case demonstrates why the rule should be revisited in light of modern technology, given the ease with which facts may be verified or refuted on the Internet.

However, according to Rodney A. Smolla, Dean of Washington & Lee University School of Law, and the author of numerous books on defamation, and the treatise, “Law of Defamation” (West Group 2d edition 2000), no court has yet changed the standards despite the advances in information technology.

The current law is clear, Smolla said, “Stupid or sloppy is not enough. To prove actual malice, a plaintiff must show ‘subjective doubt’ that the story is true. No case holds that the mere failure to use some objective sources of verification goes beyond negligence to the level of actual malice.”

Smolla stated that, to meet the reckless disregard standard based on failure to verify, the evidence would need to suggest that the reason the reporter failed to verify an allegation was because doing so would ruin the story.

Under this standard, the court reached the correct result in that the information was incidental to the main story, which was not the bribery itself, but the courts’ actions regarding the practice of avoiding prosecution by making payments to crime-prevention groups.