Supreme Court of the United States

“ First, by adhering to, expanding and constitutionalizing the so-called "subsidiary meaning doctrine," a legal theory invented by the Second Circuit and adopted by no other circuit, the court of appeals permits the media to make knowingly or recklessly false statements with impunity, so long as the statements can be classified as a subset of a larger "overall view." ”

“ The only limitation the court of appeals would place on such a practice is that the writer's statement of his "overall view" itself be nonactionable, even if the reason is application of the actual malice doctrine, rather than truth. Thus, according to the court of appeals, a false and defamatory statement made with actual malice is protected by the First Amendment if a court concludes that the statement is "subsidiary in meaning" to a false and defamatory "overall view" expressed without actual malice. ”

“ Finally, by insisting on adherence to the actual malice requirement even where a defamation plaintiff agrees to seek *9 not substantial damages but merely a reputation-restoring judicial determination that defamatory statements are false, the court of appeals prevents a form of reputational vindication that would be consistent with the common law origins and history of the tort of defamation, as well as with the purpose and rationale of Sullivan, and which several judges and scholars have strongly advocated. ”

“ Where, as here, reputation and public discourse are endangered by falsehood, the availability of nominal damages functions as a guardian of truth. The court of appeals' holding misconceives Sullivan by making the issue of truth or falsity a hostage to the availability of substantial damages.
At common law, even where substantial libel damages were unavailable or denied, courts nevertheless awarded nominal damages to permit a plaintiff to vindicate reputation through a declaration of falsity. ”

“ The panel held that common law malice is almost always admissible "evidence" of actual malice "because it provides a motive for knowing or reckless falsehood." 759 F.2d at 117 (emphasis in original) . [13] To the panel, it was "beyond *20 question that one who is seeking to harm the subject of a story ... is more likely to publish recklessly than one without such motive." ”

“ Other statements confirm the monetary focus of the Court's concern. [22]
There is no risk of ruinous damages in a nominal damage case, and hence there is no reason to displace the common law remedy of nominal damages by imposing a requirement of actual malice. [23] Freed from the risk of ruinous damage recovery, there is no reason to shield a defendant from defending the truth of damaging allegations, See Leval, The No-Money No-Fault Libel Suit, 101 Harv. ”

“ Thus, even if the "overall view" was not published with actual malice, that conclusion cannot compel or "bear upon" a conclusion that the Vancouver statements were also made without actual malice, since the district court had explicitly held to the contrary. The analytic links between and among the "libel-proof plaintiff," "incremental harm," and the newly-minted "subsidiary *11 meaning" doctrines are so close that it borders on the frivolous to argue that the doctrines have radically different First Amendment consequences. ”

“ The court cautioned, "We do not intend by our holding to permit defamation defendants to freely embellish their stories with falsehoods while remaining free from liability." 781 F.2d at 312. [12]
With that caution, the holding in Lando II may well be characterized, as it was by Judge Kozinski, as "quite unexceptional" because the two remaining statements "merely implfied] the identical view" as the nine nonactionable statements. Masson v. New Yorker Magazine, 895 F.2d 1535, 1565-66 (9th Cir. 1989) (Kozinski, J., dissenting) . ”

“ Opinions Below The January 12, 2001 opinion of the United States Court of Appeals for the Second Circuit affirming the judgments of the United States District Court for the Southern District of New York dismissing the petitioner's complaint is reported at 238 F.3d 168 (App. A, infra, la-16a) . The November 23, 1992 opinion of the district court dismissing portions of petitioner's complaint on the ground that such portions were not "of and concerning" petitioner is reported at 806 F. Supp. 1157 (App. B, infra, 17a-35a) . ”

“ Among them:"↑ Geertz, purportedly believing Fishman, reported the alleged murders to the FBI, which investigated them. As Dondero told the court that sentenced Fishman, no such murders took place. Behar failed to interview the FBI agents with respect to this lie as well.↑ The court of appeals rejected CSI's argument on this point on the merits, holding that a public figure plaintiff must prove actual malice even to recover nominal damages. App. ”

“ Herbert v. Lando, 441 U.S. 153 (1979) ... 15, 27
Herbert v. Lando, 568 F.2d 974 (2d Cir. 1977) , reversed, 441 U.S. 153 (1979) ... 14
Herbert v. Lando, 781 F.2d 298 (2d Cir. 1986) , cert. denied, 476 U.S. 1182 (1986) ... passim
Herron v. King Broadcasting Co., 776 P.2d 98, 17 Media L. Rep. (BNA) 1289 (Wash. 1989) ... ”