Are Talk Radio Hosts Libel Proof?

| April 1, 2011

By Steven J.J. Weisman
Legal Editor

BOSTON –– The recent dismissal in California of soccer star, celebrity David Beckham’s libel lawsuit against In Touch magazine has brought attention to the nuances of American libel law.  Beckham sued the magazine for an article that asserted that Beckham cheated on his wife with a prostitute in New York in 2007.  Beckham provided affidavits to the court that indicated that on two specific instances stated in the In Touch article, he was not at the hotel she claimed.  In one instance he was visiting his father in England.

But Judge Manuel Real was unmoved by Beckham’s arguments because to Judge Real, it was irrelevant whether or not the story was true or not.  The only issue was whether or not the magazine had printed the story maliciously.

Since 1964, the United States Supreme Court has recognized that the media must be free to make mistakes when it reports the news.   In the case of New York Times v. Sullivan, the Supreme Court ruled that a public official cannot successfully sue for libel unless he or she can prove that the media acted maliciously by either printing something it knew to be false or with a reckless disregard for whether the false story was true.  Reckless disregard for the truth qualifies as malice where the media fails to do basic research to confirm a story.  First Amendment protection of the media was extended by the Supreme Court three years after the New York Times decision to cover statements made about public figures in the case of Curtis Publishing Co. v. Butts in which a public figure was defined as someone who is “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of public concern to society at large.”

In Beckham’s case, the judge ruled that there was no evidence that In Touch magazine had published the story with malice and also concluded that Beckham was a public figure and that allegations of infidelity by Beckham would be of interest to the public.

So what does this mean to talk radio?

Talk radio thrives on discussing hot topics involving public officials and public figures.  Thus any public official or public figure who believes that he or she has been libeled by harmful, untrue statements of a radio talk show host would find that he or she would have to meet that very high standard of having to prove that the radio talk show host had acted with malice.  This is indeed a difficult standard to prove.

But beyond this, there is the matter of opinion.  Talk radio thrives on opinion and opinion is strongly protected by the law.  When a matter is of public concern, the Supreme Court has given special protection to statements considered to be opinion rather than statements of fact.  And what do talk radio hosts do, other than provide their opinion?

But not all opinion is protected by the First Amendment.  An important element in the determination as to whether an opinion will receive First Amendment protection is the context in which the opinion is expressed.  The 2009 Federal Appeals Court decision in the case of Gardner v. Martino dealt with the opinions stated by KHOW, Denver radio talk show host Tom Martino, who hosts a show in which consumer problems are discussed.  Martino voiced his strong opinions about a caller’s problems with a Jet Ski company and was sued by the company that sold the Jet Ski to the caller.   In its discussion of the context of a talk radio show, the court stated, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy.”  The court went on to say that “no reasonable listener could consider Martino’s comments to imply an assertion of objective facts rather than an interpretation of the facts equally available to Martino and to the listener.  The court further stated that, “If it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”  Similar reasoning was applied by the 9th Circuit Federal Court in a 2005 case brought against ESPN by Evel Knievel.

So where does this leave talk show hosts?

It leaves us in a pretty good position where we could be considered pretty much libelproof.  Talking about public issues with malice toward none (although perhaps without charity toward all, as Abraham Lincoln would have preferred) giving our opinions as we see them on the issues of the day, the law protects us.

And that is a good thing.  For as the Supreme Court said in the 1984 case of Bose Corp. v. Consumers Union of United States, Inc., “The freedom to speak one’s mind is not only an aspect of individual liberty –– and thus a good unto itself –– but also is essential to the common quest for truth and the vitality of society as a whole.”

Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC.  He is legal editor for TALKERS magazine.  He can be e-mailed at: stevenjjweisman@aol.com.

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Category: Analysis