How to Raise a Prima Facie Issue Re: Actual Malice
I see statements like this by twitter lawyers,
https://twitter.com/greg_doucette/status/1149557557662375936
Basically, they seem to take the position that “actual malice” is practically an impossible burden to get past. It’s a common position by the “nothing is defamation” defense bar. You also see it when you read articles on the Rolling Stone Rape case where Nicole Eramo sued Rolling Stone for defamation—before the case went to trial and she kicked Rolling Stone’s ass and won a multi-million dollar judgment—you see a lot of “well, she’s not going to be able to get past the “actual malice” hurdle. You saw the same think when Hulk Hogan sued Gawker. In both cases, the plaintiffs got past the actual malice hurdle and won big judgments.
I don’t know if Vic can win his lawsuit. But in scoring this case, it’s probably helpful to get a sense of what you need to show to raise a prima facie case of actual malice (vice just relying on doucette’s parroting of got to show actual malice and that’s not like real malice, yada yada yada. While actual malice isn’t the same as ordinary malice, it’s not as far removed as you might think.
Actual malice is a matter of constitutional law, so you can (and Texas courts do) rely on cases from other jurisdictions that have grappled with this issue. In this post, I look at federal and US Supreme Court cases, California cases, and Texas cases. Each can be distinguished, but I think they’ll give a sense of what Vic needs to show and help you understand why “Yes, Virginia, Ron’s deposition did hurt him.”
You start with the United States Supreme Court’s declaration that the “existence of actual malice may be shown in many ways, as long as the claim is properly supported by admissible evidence. Malice may be proved through any competent evidence, either direct or circumstantial. All of the relevant circumstances surrounding the transaction may be shown, provided they are not too remote, including threats, other defamatory statements, subsequent statements made by the defendant, any circumstances that indicate the existence of rivalry, ill will, or hostility between the parties, and facts that tend to show a reckless disregard of the plaintiff's rights on the part of the defendant.” Herbert v. Lando, 441 U.S. 153, 164 fn. 12 (1979). Notice, you can show a reckless disregard for the truth by putting evidence of rivalry, ill will, or hostility. I would argue that ample evidence exists of rivalry, ill will, and hostility toward Vic on the part of “I want his balls” Marchie, Ron the ____, and his paramour Monica.
In a California case, the court upheld a trial court’s conclusion that malice could be inferred “where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.”
Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 869 (2009) (citing
Christian Research Institute v. Alnor, 148 Cal. App. 4th 71, 85, 55 Cal. Rptr. 3d 600 (2007). Look at Ron’s deposition responses and I see a total reliance on unverified third-party information, if not outright imaginative fabrication.
Doucette, et al., will constantly point out that actual malice doesn’t mean malice. But the truth is that a court can look at “… anger and hostility toward the plaintiff ...” and “in an appropriate case, [infer] that the publisher himself had serious doubts regarding the truth of his publication ….” Christian Research Institute v. Alnor, 148 Cal.App.4th 71, 84–85 (2007). For example, “…an engineer's motive of wanting to suppress the making of a film and his anger with the film's producer “sufficient evidence from which the jury could have found that [the engineer] knew [his libelous statement about the producer] was false, or was recklessly indifferent as to whether his statement was accurate or not”)). Widener v. Pacific Gas & Elec. Co.,75 Cal.App.3d 415, 436 (1977). In Ron, I see a man who is angry and hostile toward Vic, a man who didn’t give a damn whether his statements were accurate or not. There’s a lot of ammunition that can go toward raising a prima facie case of actual malice in Ron’s total failure to look into whether his statements were true. A perhaps better example can be found in the the California Supreme Court case where it found that the evidence supported a finding of actual malice where a newspaper defamation defendant relied on a third-party source without interviewing a key witness or listening to a tape recording provided by the defamation plaintiff.
Harte–Hanks Commc'ns, Inc. v. Connaughton, 105 L.Ed.2d 562, 692 (1989). It’s pretty clear Ron didn’t go out and talk to anyone he was quoting or whose stories he was embellishing.
Also, it’s pretty clear that Ron lied about the source of his defamatory statements on multiple occasions (there were a ton of investigations). A court found that lying about the source of information can be evidence of actual malice from which a reasonable jury could find that (i) defendant misrepresented his investigation and sources of information and (ii) defendant had some motive not to probe into the truth regarding the alleged defamatory statement. From this, a reasonable juror could conclude that defendant was not honest when he testified about the sources of his information. This is some evidence of actual malice. See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1070–71 (5th Cir. 1987) (courts have upheld actual malice findings when “the supposed source of the story disclaimed giving the information”); see also Celle v. Filipino Reporter Enter., Inc., 209 F.3d 163, 190 (2d Cir. 2000) (defendant’s self-contradictory testimony about the source of his information supported actual malice finding). Tatum v. The Dallas Morning News, 493 S.W.3d 646 (2015).
The court does not have to only look at what Ron said (believed everything I said), but it can infer actual malice “from the relation of the parties, the circumstances attending the publication, the terms of the publication itself, and from the defendant’s words or acts before, at, or after the time of the communication.” Dolcefino v. Turner, 987 S.W.2d 100, 111-12 (199
. And while the fact that Ron didn’t bother to confirm his facts alone might not be actual malice, but they are factors to be thrown into the mill: “A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are factors to be considered. An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. Imagining that something may be true is not the same as belief.” Bentley v. Bunton, 94 S.W.3d 561, 596 (2002).
There’s a Texas case where the deponent couldn’t remember much about what she said or did. It didn’t help her when it came to fighting against a showing of actual malice. In a long list of facts, the Court noted the following “At her deposition, McKernan testified that she could not remember whether she had done anything to investigate Watson, including whether she had asked him what he did for a living, whether she had asked him if he ever had any criminal problems, or whether she had Googled his name. She further testified that she did not recall or know of anyone else at TMZ investigating Watson or his background. Later in her deposition, she testified that “[j]ail records are sometimes public record” and that she might have looked up whether Jones was in jail before the article was published.” It found sufficient evidence of actual malice to survive an anti-SLAPP motion. Warner Bros Entertainment, Inc., v. Jones 538 S.W.3d 781 (2017).
In closing, Doucette is right that actual malice requires knowing something is false or a reckless disregard for the truth. He and others are also right in stating that this can be a tough hurdle. But in this case, there’s a wide variety of evidence that can be used to show actual malice and Ron and Monica have left a long slimy trail that can be laid out by Ty when it comes time to oppose their anti-SLAPP. While I don't know how the court will rule on these future motions, I think anyone who tries to tell you Ron and Monica have this in the bag are either lying, ignorant, or haven't examined the evidence.
The Funimation motion is going to be tough. Unlike the other defendants, Funimation left a shorter slime trail.
good thing there's not hours of video of you engaging in said behavior even after the plaintiff's lawyer called you out on it huh?
