|The Range Feud (Columbia Pictures 1931)|
The case arose amid what the court described as "a bitter feud ... between Chelmsford residents," focusing on the redevelopment of a historic property. Plaintiff Eliopoulos was a selectman, real estate attorney, and project developer; defendant Van Liew was a business owner and project opponent. The latter's vigorous opposition included a newsletter titled, "Why Perjury Matters." The jury found, and the trial court entered judgment, against the defendant for 29 defamatory statements, to the tune of $2.9m. The Appeals Court affirmed upon 26 statements.
Because the plaintiff was a public official and public figure, the case occasioned review of some First Amendment basics, namely, the Sullivan (FindLaw) "actual malice" standard and the Bose Corp. (FindLaw) standard of independent appellate review, besides the common law fact-opinion dichotomy. Actual malice was supported, inter alia, by evidence that the defendant had reiterated charges of unethical conduct knowing that an ethics commission had exonerated the plaintiff.
The jury's damages award comprised $2.5m for reputational injury, $250,000 for emotional distress, and $150,000 in other compensatory damages. Refusing remittitur, the Appeals Court held the damages sufficiently supported and neither excessive nor punitive. A real estate broker had "testified that potential real estate buyers and sellers do not want to work with [plaintiff] because 'a lot of folks think that he is a—a corrupt, unethical person, because it's been said hundreds ... of times, over the past few years, in mailings and e-mails to their homes.'" The Appeals Court opined, "The jury well could have found that the defamation turned [plaintiff] into a pariah in his own community, a status for him that has no end in sight."
Not many years ago, a politician-plaintiff's favorable verdict on actual malice was about as likely as, well not quite a unicorn, but maybe a California condor. I advised more than one public-figure colleague not to pursue a cause because of cost, emotional toll, and mainly the overwhelming probability of loss under prophylactic free speech rules, all notwithstanding merits. The "actual malice" standard on its face suggests no more rigor than a thoughtful recklessness analysis, but trial courts seemed to find it, to borrow the sometimes critique of strict scrutiny, "fatal in fact."
The efficacy of that conventional wisdom has been on the wane in recent years, and I welcome the return to fairness. The $3m defamation verdict against Rolling Stone and its reporter in November for "Rape on Campus" (NYT) and the Hulk Hogan (Bollea) privacy win against Gawker (settlement in NYT; new Netflix docko in The Atlantic) are high-profile instances of what might be a sea change underway to balance the scales. Much hand-wringing has attended the President's "open up our libel laws" statement (NYT), and rightly so. But that doesn't mean that the frustration that propelled Trump into office is wholly ill derived, on this point any less than on jobs and the economy.
The Appeals Court's application of "actual malice" was workaday and workmanlike. That's the kind of cool rationality we need in our courts, now more than ever.