A number of years ago, there was a very high profile homicide case that started out as a suspected kidnapping. The police responded to the parents call with the best of intentions, but by modern forensic standards they did a poor job preserving the crime scene and protecting evidence.
The kidnapping note contained some obvious misspellings that suggested it was written by a foreign person, but some people questioned the way in which the note was discovered, and whether a parent might have written the note. The child's body was subsequently located in a location to which the parents would have had access. The child was determined to died on the night of the reported kidnapping of a severe head wound.
Some people accuse the wealthy father of using his influence to steer the investigation toward an intruder, and believe that the child was killed by a member of the household. You can easily find sites on the Internet accusing the police of covering up the real killing, with gruesome pictures of the unfortunate child's body.
Did the JonBenet Ramsey case come to mind? I'm actually describing the kidnapping of the infant child of Charles Lindbergh, back in 1932.
Although a man was convicted of the Lindbergh kidnapping and murder, valid doubts have been raised about the handwriting analysis offered in court to support his conviction, as well as many other aspects of the forensic case. Much of the forensic science used to support the conviction was new, and the approaches taken by the prosecution experts were often much more art than science.
Let's imagine that this were a more recent case, and that a television network aired what it claimed to be a thorough forensic analysis of the case, with experts identifying a surprising suspect. Instead of identifying the man convicted of the kidnapping and murder, let's imagine that they argued that the evidence weighed against an intruder theory, and accused a member of Lindbergh's household of the murder.
The Lindbergh kidnapping occurred long before the Supreme Court's 1964 decision of Times v. Sullivan,1 a case that articulated a higher standard of proof for defamation cases against media defendants when brought by public figures. Under Times v. Sullivan, when the defendant is entitled to First Amendment protection as part of the press, a plaintiff must show actual malice to recover damages, a term that means that the media company made its statements despite knowing them to be false, or with reckless disregard for the truth. How might Lindbergh prevail against a defendant who was involved in the show, or against the network that aired it, after Times v. Sullivan?
Due to the protections extended to the media, and the probability that people involved in the production and its broadcast would have been careful to use qualified language (e.g., "In my opinion...") and disclaimers, the Lindbergh family would likely have a difficult time prevailing in a lawsuit. However, mistakes or carelessness by people involved in the production or its broadcast could open the door to liability. Possible defendants might include:
- The production company behind the show;
- The TV network that broadcast the show;
- The experts who appeared on the show;
- People who commented on the show.
Looking at each in turn, what might allow for the Lindbergh family to prevail in a defamation lawsuit? Although defamation laws vary by state, it is possible to examine the potential liability of defendants in general terms, under typical defamation laws and the Times v. Sullivan standard.
The production company is likely to have reviewed the production with its lawyers from the time it first conceived of the show through the time it's passed off to the broadcast network to be aired on television. The company likely had the production vetted at various stages, including the final stage, to ensure that they are couching potentially defamatory statements as opinion, and to make sure that they include appropriate disclaimers.
A production company might get itself into trouble by engaging in conduct that suggests that it is less interested in truth than in sensationalism. For example, if they pay people to share new stories without properly vetting the new witnesses or their stories, or misrepresent the statements of witnesses to buttress the case made on the show, they may open themselves up to liability.
A more difficult case to make might be that the production team decided to point the finger at a particular suspect in order to generate higher ratings, then cherry-picked their experts and the evidence presented to point at that suspect without sharing alternative theories, but even then adequate disclaimers would likely prevent liability from attaching.
If the network produces the show, it faces the same issues in relation to the production as would an independent production company.
With the submission of an outside production to the broadcast network, the network would have its lawyers review the production and advise them about potential liability and the adequacy of disclaimers. Networks tend to be careful about compliance with defamation law, and to err on the side of adding extra caveats and disclaimers when they might be accused of defamation. Think, for example, about how many times you have heard a TV network use the term "alleged" to describe a criminal suspect, even when the case against that person seems overwhelming.
A network upon reviewing a show for possible purchase and broadcast might decide that it isn't of sufficient interest to the public, and may request that the show be changed. For example, the network might want the show to be more provocative, or might deem the original production to be too long and ask that it be shortened. As a result of that process, it is possible that the show will end up being more specific in its implications, and that evidence pointing in other directions might end up on the cutting room floor. But even with that, as long as the show's accusations remain plausible and proper disclaimers are used, the suspect identified by the show is unlikely to prevail in a defamation case.
If the network somehow misses a significant issue with the broadcast, or approves the show despite a significant issue, the possibility arises that the network will be found to have shown reckless disregard for the truth. If, for example, the show or an expert on the show states with certainty that a specific person committed the homicide, given the actual ambiguity of the evidence, that allegation within the show might support a defamation case against the network.
However, even in that context all you need to do is look at the cover of supermarket tabloids to recognize how emphatic a media company can be about a person's supposed commission of a crime based upon the most tenuous of evidence or a dubious claim from a witness or person involved in the investigation, to see how difficult it is to successfully sue a media company for that type of overstatement.
The experts who appear on a show that claims to analyze a crime, or otherwise opine in the media, are usually very savvy about defamation law. You can anticipate that the experts are going to qualify their opinions and that, no matter how close they come to making an accusation, they'll suggest that it's not the only possible solution.
Although couching an accusation as an opinion is not a perfect defense to a defamation claim, in a high profile case with plausible arguments that can be made for or against the guilt of the person they suggest to be the leading suspect it is generally sufficient to avoid liability.
An expert who fails to exercise that caution when on the air or while commenting on or promoting the production is much more likely to be sued for defamation. If an expert declares that a suspect is guilty, or that the evidence leads to only one conclusion, the expert may have to justify that conclusion in court.
Accusing a person of a heinous crime also normally implicates the law of defamation per se, through which a defendant has the burden of proving the accusations true and through which damages to the plaintiff are presumed.
If somebody found the show to be convincing, and shared their opinion that based upon what they saw in the broadcast they believed the suspect identified in the show committed the murder, it is unlikely that a defamation case could be sustained against the person.
Although the act of repeating or passing on a defamatory accusation will not ordinarily prevent a person from being sued for defamation, this is a case of high pubic attention and controversy. Any comment by a person who was commenting on an analysis of the murder would almost certainly be treated as fair comment on a matter of public controversy.
The sort of statements that might remove the person from the protection of fair comment might include a claim of special or secret knowledge that supported the accusation, such as the claim that they were at the crime scene and personally saw or heard something that was not part of the public record. But in terms of lay commentary on news and media coverage, no matter how incompetently produced, it is highly unlikely that a viable defamation case could be constructed.
At the end of the day, you should simply be grateful that you are unlikely to ever be at the center of a media firestorm, or be the subject of serious accusations of wrongdoing that become part of a national conversation. Because if the story is deemed newsworthy, with the case being a matter of public controversy and the media knowing how to tiptoe right up to the line of liability without crossing that line, odds are you're not going to have any recourse for having your name dragged through the mud.
1. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).