Journal-Gazette Co. v. Bandido's, Inc.

SHEPARD, Chief Justice,

dissenting.

Today’s decision makes life more difficult for Indiana’s citizens when they have been falsely and publicly maligned in front of then-neighbors.

Constructing a regime that affords news organizations a respectable defense for defamation claims might well include some of the walls erected today, but the cumulative effect of this series of barriers is to leave defamed citizens virtually without a remedy. The U.S. Supreme Court and thirty state supreme courts have concluded that a free society can flourish without making it so hard for the average person to defend his or her reputation as it will now be in Indiana. Just one or two state courts have thought otherwise.

I. Cramped Rights for Private Citizens

If somebody posts scandalous and defamatory material about a Hoosier on the internet, sending it all over the world, the victim *472 may gain redress simply by showing that the defamation occurred (and, most likely, by responding effectively to the defense of truth). If a newspaper spreads exactly the same defamatory material, we know from Gertz v. Welch that the victim will have to show negligence. Even that, today’s opinion finds too favorable to victims. In deploying one of the toughest tests known to the civil law, actual malice, Justice Sullivan lays out various reasons why news organizations need more protection than the public they serve. More or less, he examines all the considerations that led the U.S. Supreme Court to declare that the First Amendment would be secure under a legal regime that makes redressing defamation easier, Gertz, 418 U.S. at 344-48, 94 S.Ct. 2997 , and finds that Indiana common law must make up for the protection the U.S. Supreme Court found unnecessary.

The greater irony in this choice is that it is justified with a certain flourish to the effect that in Indiana “[t]he reputations of public figures and public officials merit the same quantum of protection as those of private citizens.” Slip op. at 452 (quoting Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671 , 321 N.E.2d 580, 587 (Ind.Ct.App.1975)). The opinion accomplishes this “same quantum” by constricting the rights of six million Hoosiers all the way down to the narrow remedy available to Hoosier public figures under New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). I doubt that our fellow citizens, when they have been defamed, will take this restriction as a matter of state pride.

How difficult a task injured parties will confront in persuading appellate judges that they have proven their case is made apparent in the many pages, about sixty percent of the whole opinion, that Justice Sullivan takes to lay out his assessment of the evidence. He weighs the effect of using the word “rat” on the minds of newspaper readers, slip op. at 460-61, draws inferences about the state of mind possessed by the author of the headline, slip op. at 464-65, and about the level of consciousness of others who worked on the Bandido’s story, slip op. at 466-67.

As for what evidence appellate judges think would warrant damages, today’s decision is bleak news for the injured. Justice Sullivan gives us examples, such as cases in which the news organization actually fabricates a story or a reporter writes defaming material based solely on the reporter’s imagination. Slip op. at 465 n. 32. 1 There are known instances in which this sort of thing has occurred, but if these are the models upon which successful cases must depend, the great majority of defamations will be immune.

II. In Short, Pretty Much Every Citizen Loses

At the end of the day, we have a case before us in which a copy editor wrote a defaming headline that could not be justified on the basis of the reporter’s story about reports from the board of health. The copy editor was an employee whose job evaluations reveal that the newspaper knew she produced inaccurate headlines. A local judge had warned the newspaper about the special risks of improper inferences or interpretations of health department inspection reports. Nevertheless, newspaper management had never given the copy editor any directions or cautions about dealing with health department reports on restaurants. Finally, when newspaper management did focus on what its editors had done, it decided not to publish a retraction conforming to Indiana’s statute on retractions. 2

A jury of people in Albion were satisfied that all this showed reckless indifference and that this small business was badly hurt. The *473 appellate judges are not convinced. Judgment for the newspaper. 3

Most injured plaintiffs will not have the smoking guns that Bandido’s brought to this lawsuit. When the Court declares its dissatisfaction with the jury and the evidence in this ease, it effectively says to other injured citizens, “You’re toast.”

DICKSON, J., concurs.

. Justice Boehm describes the apparent paradigm in an equally narrow way as cases in which one "publishes a report with no idea whether it is true or not.” Boehm, concurring, slip op. at 470.

. The dismissive assessment of this part of the plaintiff's evidence, slip op. at 469-470, reflects on the seriousness of the earlier suggestion that a solid remedy to defamation of citizens would be "passage of state laws creating a limited right to respond to defamatory falsehoods.” Slip op. at 453 (quoting Aafco, 321 N.E.2d at 587 ).

. This is likely the future result for other injured Hoosiers. A national study suggests that appellate judges (who, as a class, spend more time thinking about how the press will portray their actions than jurors do) tend to rule for the press and that jurors tend to rule for injured parties. Seth Goodchild, Note, Media Counteractions: Restoring the Balance to Modem Libel Law, 75 Geo.L.J. 315, 323-24 (1986).