It doesn’t take much to startle most journalists in
Connecticut, many of whom are as lion-shy as gazelles. A growl from a snarling
lawyer is in most cases sufficient to quiet the whole herd.
Dismayed by a political column written by Chris Powell of
the Journal Inquirer, World Wide Entertainment (WWE) senior vice president of
marketing and communications Brian Flinn wrote to Mr. Powell an e-mail threatening
to sue if Mr. Powell did not issue a retraction “by June 4, 2012 in as public a
manner as that in which you made these false statements.” Should Mr. Powell fail
to comply with Mr. Flinn’s demand, “we will seek legal and all available
remedies,” the e-mail specifies.
In the e-mail sent to Mr. Powell, copied to many other
Connecticut newspapers, Mr. Flinn advises, “This time, WWE is taking a
proactive and aggressive approach to ensure that accurate facts and statements
are made about our company and brand. This has absolutely nothing to do with
politics.”
A threat to sue must mention the word “malice,” and Mr.
Flinn’s e-mail does not disappoint: “That you would repeat the false statement
that WWE is in the pornography business, after being told of the falsity of
that statement, is especially strong evidence of malice.”
In the context of the First Amendment, public officials and
public figures must satisfy a standard that proves “actual malice” in order to
recover for libel or slander. Legal malice must be committed intentionally
without just cause or excuse.
In order to recover damages, WWE would have to show “actual
malice” on the part of Mr. Powell. The legal standard for publications is New
York Times vs. Sullivan 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
In that case, the Supreme Court ruled that public officials
and public figures cannot be awarded damages unless they prove that the person
accused of making the false statement did so with knowledge that the statement
was false or with reckless disregard as to the truth or falsity of the
statement. Demonstrating malice in this context does not require the plaintiff
to show that the person uttering the statement showed ill will or hatred toward
the public official or public figure.
It is nearly impossible to sustain that standard in a
commentary piece. There are multiple difficulties, these among others: Courts
have allowed hyperbole in commentary pieces; pornography, more often than not,
lies in the eye of the beholder; most often, communications of the kind sent by
Mr. Flinn are intended to curtail free
speech, and the First Amendment is a mighty bulwark against the suppression of
speech.
This is what Mr. Powell said of Mrs. McMahon in his column: “Her
practical qualifications for office did not extend beyond her fantastic wealth,
and that wealth derived from the business of violence, pornography, and general
raunchy.”
This is what Mr. Flinn said Mr. Powell said in his column: “That
you would repeat the false statement that WWE is in the pornography business,
after being told of the falsity of that statement, is especially strong
evidence of malice.”
In a suit alleging legal malice, a court would likely
examine the statement to which Mr. Flinn imputes malice rather more closely
than he might like. Mr. Powell is not saying that WWE is in the pornography
business. The present tense – “IS in the pornography business” – is important.
The subject of the putative “malicious” sentence is also important. Nowhere in
the column does Mr. Powell mention WWE. Therefore, Mr. Powell is not repeating “the
false statement that WWE is in the pornography business.”
WWE, as others have pointed out, is in a process of
transition, and its present rating falls on the non-pornographic side of
pornography. The “entertainment” provided by WWE, like the side-shows of P. T.
Barnum’s day, are intended to fool the foolish. Virtually all of the set-piecesin the WWE ring are highly scripted.
The “Barnum effect” is an actual term used by professors of psychology in which
students purposely are gulled into believing invalid results of psychological tests
in ethics courses. Deceptions of this kind always involve ethical catches. But
courts are not chiefly concerned with ethics: They are concerned with the
veracity of charges.
And Mr. Powell, in the line adduced by Mr. Flinn as legally
malicious, is making a statement about 1) Mrs. McMahon’s “practical
qualifications for office” and 2) Mrs. McMahon’s wealth, which Mr. Powel
conjectures “derived from the business of violence, pornography, and general
raunch” -- nice distinctions that will be important to a court gathered to rule
on the nature of Mr. Powell putative malice.
Of course the court must also decide whether Mr. Powell’s
statement breeches the wall erected by other courts interested in preserving both
the letter and the spirit of the First Amendment, which allows both Mr. Powell
and Mr. Flinn a certain latitude of expression without which public speech would be matter decided through frivolous
legal suits. Absent a presumption in favor of untrammeled speech, even masters
of prose such as Honoré de Balzac, self-described as “a galley slave to pen and
ink,” would not have been able to write without fear of prosecution the line: “the
secret of great fortunes without apparent cause is a crime forgotten”.
The line above from Balzac introduces Mario Puzo’s
Godfather, though it is there misquoted as: “Behind every great fortune lies a
crime.”
Balzac’s statement is carefully qualified, the improvising
somewhat reckless. Most galley slaves to pen and ink depend on courts to take
note of such differences.
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