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California Appeals Court Departs from Predominate Standard of Review for Libel by Implication Claims

By Nina D. Boyajian, Kelly L. McNamee and Jena A. MacCabe

Last month, on somewhat unusual grounds, a California state appeals court granted an otherwise paradigmatic anti-SLAPP motion to strike a complaint asserting libel by implication.  Sonoma Media Investments, LLC v. Superior Court, Nos. A151968, A152008, A152320 (Cal. App. 2019).

Rather than apply fully what is now considered to be the controlling legal standard for such claims, the court's directive granting defendants' anti-SLAPP motion and striking the complaint turned on plaintiffs' failure to prove the falsity of the alleged defamatory implication.  The court's reasoning, however, may prove problematic insofar as it ignores the need for a plaintiff to demonstrate the author's intention or endorsement of the purported defamatory inference and, instead, suggests that falsity alone provides the dispositive element in libel by implication cases.

The case arose from a series of investigative articles published by The Press Democrat, a daily newspaper with the largest circulation in the California North Bay.  In the span of less than a month in late 2016, The Press Democrat published five articles detailing substantial amounts of independent election expenditures made by Scott Flater on behalf of three City Council candidates.  Flater, along with his father-in-law William Gallaher, a prominent real estate developer, sued the newspaper asserting causes of action for defamation, libel per se, and false light invasion of privacy.  The gravamen of plaintiffs' complaint was that the articles falsely implied that Flater was Gallaher's "front man" such that the latter could circumvent direct campaign contribution limits, and that Gallaher was the true source of Flater's independent political expenditures—i.e., those made not to a specific campaign but tending to support one candidate.  Such a libel by implication claim presents a constitutionally problematic theory of recovery because it is premised not on actual published statements but on purportedly false suggestions, impressions, and implications arising from otherwise true statements.[1]

Defendants moved to strike the complaint pursuant to the California anti-SLAPP statute, which authorizes early dismissal of meritless or retaliatory causes of action brought to stifle the valid exercise of First Amendment rights. After confirming that plaintiffs' claims arose out of news reportage falling within the purview of the anti-SLAPP provision, the court turned to the merits by scrutinizing whether plaintiffs could establish a probability of prevailing on their libel by implication claim.  While some jurisdictions have yet to adopt or clarify a standard of review for such claims, the majority approach is to subject implication claims to rigorous scrutiny to avoid a chilling effect on admittedly true speech caused by burdensome litigation and intrusive inquiry into the editorial process.  Accordingly, the prevailing legal standard follows:

To survive a [dispositive motion] for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to [1] impart a defamatory inference and to [2] affirmatively suggest that the author intended or endorsed that inference.

Stepanov v. Dow Jones & Co., 120 A.D.3d 28, 44 (1st Dep't 2014)[2]; see also Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir. 1993) ("The language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference."); White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir. 1990) ("[I]f the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning."); Chaiken v. VV Publ'g Corp., 907 F. Supp. 689, 698 (S.D.N.Y. 1995) ("[P]ublisher is not liable for a defamatory innuendo unless it intended or endorsed that inference."), aff'd, 119 F.3d 1018 (2d Cir. 1997).

Here, the court's decision is silent as to the newspaper's intent or endorsement, the second prong of the analysis, as it relied solely on plaintiffs' failure to make a prima facie showing of the falsity of the alleged implication. Specifically, the court's inquiry into the merits focused on two declarations submitted by Flater—one that proffered evidence of falsity and another that failed to do so with the same exactitude—and a companion declaration submitted by Gallaher. The court questioned the evidentiary value of the first affidavit submitted by Flater, reasoning that the inconsistencies in Flater's affidavits indicated an inability to prove falsity.  The court concluded that, at the very least, the affidavits injected ambiguity into the analysis, making it impossible for plaintiffs to carry their constitutional burden of proving the falsity of the implications.[3]Notably, throughout this discussion, the court appeared to take comfort in the presumptive ease with which plaintiffs could have proffered evidence of falsity, suggesting that their failure to make such a straightforward showing highlighted the apparent truth of the implication at issue.

The court's comfort may have been misplaced, however, as most libel by implication claims are not readily amenable of direct proof of falsity.[4]  By its very nature, proving the falsity (or truth) of a putative defamatory implication – that may or may not exist in the mind of a reader – is a notoriously slippery enterprise.[5]  For this very reason, and to prevent the multiplication of defamation lawsuits based on subjective and amorphous inferences arising from truthful published accounts, courts across the country have required something more to establish a claim for libel by implication—notably, that an alleged defamatory inference was intended or endorsed by the publisher based on an examination of the language of the entire communication.  Dodds v. Am. Broadcasting Co., 145 F.3d 1053, 1064 (9th Cir. 1998) (citing federal appellate court decisions holding that "the particular manner or language in which the true facts are conveyed" must affirmatively demonstrate that the defendant intended to create the defamatory inference), cert. denied, 525 U.S. 1102 (1999).

Accordingly, dismissals of disfavored libel by implication claims typically derive from a plaintiff's inability to establish the requisite intent or endorsement, an effective means of disposing of such claims through threshold dispositive motion practice.  Without expressly analyzing—or even acknowledging the importance of—the author's intent or endorsement, but instead relying solely on plaintiffs' failure to establish falsity, the court's decision may muddy application of the speech-protective two-prong standard in future defamation by implication cases.

Nina D. Boyajian is a Shareholder and Jena A. MacCabe is an Associate in Greenberg Traurig's Los Angeles office.  Kelly L. McNamee is an Associate resident in the firm's Albany office.  They are members of the firm's Media and Entertainment Litigation Group. Plaintiffs were represented by Perry, Johnson, Anderson, Miller & Moskowitz, Santa Rosa, CA. Defendants were represented by Thomas R. Burke, Rochelle L. Wilcox and Diana Palacios, Davis Wright Tremaine.


[1] Libel by implication claims are carefully constrained and confront significant constitutional obstacles because they create a chilling effect beyond that associated with explicit misstatements of fact by charging the press "with the intolerable burden of guessing what inferences a jury might draw from an article and ruling out all possible false and defamatory innuendos that could be drawn from the article."  Woods v. Evansville Press Co., 791 F.2d 480, 487-88 (7th Cir. 1986).

[2] Recognizing that implication claims must be subjected to careful judicial scrutiny because freedom of speech is jeopardized in direct proportion to a libel plaintiff's ability to extrapolate from a news article to have it say something not contained on its face, the Stepanov court emphasized that application of the second prong of this inquiry presents a threshold question of law for the court.  120 A.D.3d at 44.

[3] According to the Supreme Court in Philadelphia Newspapers, Inc. v. Hepps, "where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech."  475 U.S. 767, 776 (1986).  The First Amendment mandates this resolution "to ensure that true speech on matters of public concern is not deterred . . . [and] to encourage debate on public issues."  Id. at 776-77.  "To do otherwise could only result in a deterrence of speech which the Constitution makes free."  Id. at 777, quoting Speiser v. Randall, 357 U.S. 513, 526 (1958).

[4] A non-literal approach to the truth defense would expose a reporter to tort damages for the falsity of statements she did not make (or consciously chose not to make) even though what she did report was true.  As stated by the federal district court in Conroy v. Kilzer, 789 F.Supp. 1457, 1462 (D. Minn. 1992) (emphasis supplied) in rejecting such an anomalous result:

[I]f plaintiff were allowed to base recovery on his own interpretations of defendants' statements, rather than on the statements they actually made, defendants could be held liable for statements that they did not make.  Holding media defendants liable for statements they did not make raises serious first amendment concerns.

[5] Locricchio v. Evening News Assoc., 438 Mich. 84, 122 (Mich. 1991) ("[I]t seems clear that claims of defamation by implication, which by nature present ambiguous evidence with respect to falsity, face a severe constitutional hurdle.").

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