August 2010
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“The Contours of Actual Malice” or “Rand Paul Learns About Tabloid Journalism”

Rand-8If you’re not a liberal by eighteen, you’ve got no heart; if you’re not a conservative by thirty, you’ve got no brains — as the saying goes.  The axiomatic truth behind those words is what makes this GQ story about Rand Paul kinda cute and heartwarming.  Some of the senatorial candidate’s Baylor buddies remember that he was quite the rebel back in the day, and what better time to talk to a reporter about it than ninety days before an election?  I’m sure the political theater aspect of this whole thing never entered into the minds of GQ’s editorial staff.

Understandably, Paul and his campaign staff are a bit upset about the story.  It paints the picture of a college dropout who regularly participated in felonious assaults on women — one to which Kentucky voters may have a hard time relating.  In response, a spokesperson for the campaign has hinted that there may be a defamation suit in the works, and GQ’s Editor-in-Chief, along with the rest of the left, doing their best Glenn Beck impression, just want to know why there’s been no denial.  Why isn’t he answering questions?  Don’t we have a right to know?

In the week since the story was first published, the most salacious charges therein have been largely discredited, and only one question remains (at least as far as we’re concerned):  If the story was really false, can Dr. Paul prevail in a libel suit against GQ?  The answer to that question is not a simple “yes” or “no” — but hey, what fun would it be if it were.

Since Rand Paul is a public figure, he must successfully prove, not only that the statements in the story were false, but that GQ published them with knowledge of their falsity, or at least with reckless disregard for whether they were false.  This standard, which comes from the Supreme Court decision of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is known by the term of art “actual malice.”  (Be on the lookout for upcoming dissents from Kagan about whether this should still be the standard.)  As you might imagine, this is a pretty difficult hurdle to clear, and as a result, most public figures don’t bother with the trouble, and as a result, we’re able to pass the time in the grocery store checkout aisle reading headlines about which Brangelina star is single-handedly fighting off the Masonic alien takeover plot that threatens to end all organized world governments.

The public policy involved here is a good one.  It should be harder for public figures to sue people and shut them up.  A public figure is in a better position than the ordinary citizen to answer an erroneous news item with an explanation, so unless the publishing entity is actively spreading lies, or isn’t even bothering to check whether something is a lie, there’s no foul.

Moving on with the analysis of the instant fact pattern, assuming for the sake of argument that the GQ story was false, under which circumstances would actual malice be present?  Again, for the sake of argument, let’s assume that GQ wasn’t aware that the story was false.  They had a source who claimed it was true; isn’t that enough?  Maybe.  Did they have two confirming sources?  I’m guessing no.  Personally, I roll my eyes at any news item based on *factual* accounts provided by a source that must, for whatever reason, remain anonymous.  Anyone who doesn’t realize that such garbage is, at best, propaganda should seriously consider euthanasia.  Does reporting on anonymous tips rise to the level of “reckless disregard for the truth,” I say “yes,” but I’m sure there are plenty who would disagree.

Don’t be confused, however, between the right that everyone has to remain anonymous, in criticizing or participating in public discourse, and the shoddy practice of quoting an anonymous source.  In the former, the speaker had better give some hard, verifiable facts before she should be given any credibility whatsoever.  The latter is, nine times out of ten, unforgivable deception that any reputable news outlet will avoid if it has any notions of integrity.  If the magazine you’re reading is citing anonymous sources, as long as you’re aware they’re probably printing lies, there’s no need to worry about it.  If you’re voting in elections based on that information, though, pay attention to this:  Anonymous sources in every state election commissions’ offices all confirm that the 2010 mid-term elections will be actually held on Wednesday, November 3rd.  See you at the polls then.

This article was originally posted on The Legal Satyricon

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