TBA Law Blog

Posted by: William Haltom on Jan 1, 2017

Journal Issue Date: Jan 2017

Journal Name: January 2017 - Vol. 53, No. 1

One of my all-time favorite movies is “Absence of Malice,” a 1981 film, which over the years has been viewed by many law students studying libel law. In the film, Paul Newman plays Michael Gallagher, a Miami liquor importer who becomes the subject of a newspaper story implying that he might have been involved in the disappearance and possible murder of a union president.

All of us who were fans of Paul Newman know that Butch Cassidy was a good guy who would never murder someone. Well, actually, Butch was, technically speaking, a bad guy, who did rob banks and blow up trains. But in “Absence of Malice,” Paul Newman as Michael Gallagher is absolutely innocent, and the newspaper — “The Miami Standard” — defames him in a story leaked to the paper by a bad guy lawyer in the U.S. Attorney’s Office.

When Paul Newman as Michael Gallagher reads the story in the paper, he does not hire a lawyer to file a libel lawsuit. Rather, he does what a manly man like Paul Newman would do and heads to the Miami Standard office to confront the reporter and demand the story be retracted.

The reporter is young Megan Carter, played by Sally “Gidget” “Norma Rae” Field. She immediately falls in love with handsome Paul Newman but does not agree to retract the story. Instead, she consults the lawyer for the Miami Standard who arrogantly and condescendingly explains libel law to her as follows:

I’m telling you, madam, that as a matter of law, the truth of your story is irrevelant. We have no knowledge if the story is false, and therefore we’re absent of malice. We’ve been both reasonable and prudent, and therefore were not negligent. We may say whatever we like to say about Mr. Gallagher, and he is powerless to do us harm. Democracy is served.

Michael Gallagher is told at this point that there is really nothing he can do about the fact that the Miami Standard has published a false story about him, other than perhaps sleep with Sally Field (which, of course, he does). But as all us Paul Newman fans know, if you told old blue eyes that he was powerless to do something, he would prove you wrong.

And so as Michael Gallagher, Paul Newman concocts an elaborate sting, much like he and Robert Redford did in the 1973 film by the same name.

Newman, a/k/a Michael Gallagher, gets his revenge on not only the Miami Standard but also on the bad guy lawyer who planted the false story in the first place.

The movie culminates in a show-stealing scene featuring Wilford Brimley as United States Assistant Attorney General Jim Wells who comes to Miami to meet with Paul Newman, Sally Field and the bad guy lawyer to get to the bottom of the whole incredible caper. In the scene Wells delivers one of the best lawyer lines I’ve ever heard in a movie. He threatens to take the bad guy before a grand jury. When the bad guy refuses to talk, he has a U.S. Marshall hand him a subpoena. The bad guy then starts talking, and Wells mumbles, “Wonderful thing, a sue-pee-knee!”

It’s a very entertaining film, and a dramatic demonstration of a principle point of American libel law: If you’re a public figure who is the subject of a false story, you can prevail only if you prove that the media printed or broadcast the false story with actual malice, meaning the media either knew the story was false or published it with reckless disregard for the truth.

“Absence of malice” has always been the first line of defense for a newspaper facing a libel action.

But newspapers are now going the way of the dinosaur, and in their place, we now have social media. According to a recent study by Pew Research, more than 62 percent of Americans now get their news not from newspapers or even TV or radio. They get it from social media, primarily from Facebook.

There are two problems with Facebook as a source of news. First, you don’t have to be Sally Field or work for the Miami Standard in order to be a reporter on Facebook. Thanks to Mark Zuckerburg, everybody in the world with access to a computer can now be a 21st century virtual Walter Cronkite, or at least pretend to be.

Second, much of the “news” you find reported on Facebook and other social media outlets is not only unreliable, it is downright false. In fact, much of it is intentionally false.

There are now internet “journalists” who intentionally post false stories. The fake news phenomena was particularly prevalent during the recent presidential election.

This isn’t absence of malice. It’s presence of malice. (Too bad Paul Newman is not around to do a sequel.)

Now you would think it would be very easy for a public figure to bring a libel action against a perpetrator of fake news. Well, not so fast, Brian Williams-breath!

First, it’s not easy to find and serve process of a presence of malice lawsuit on a fake news defendant. He’s probably down in his parents’ basement in an undisclosed location typing on his laptop.

Second, if you can find him, what’s your remedy? Do you want a retraction published on Facebook? How much is that worth? And if a fake news defendant is working out of his parents’ basement, he’s probably judgment-proof.

Third, and perhaps most interestingly for the future of libel law, is this: The fake news journalists respond that we are not supposed to take their stories seriously. They admit that their Facebook postings are fake, and brag that they are supposed to be fake, just like the news segment on “Saturday Night Live” or the stories on the satiric website, “The Onion.”

As it turns out, the presence of malice defense may even be more effective than the absence of malice defense.

I’m afraid there may be no legal remedy for fake news. The only real solution is this: You and I should disregard everything we read on Facebook.

Bill Haltom BILL HALTOM is a shareholder with the firm of Lewis Thomason. He is a past president of the Tennessee Bar Association and a past president of the Memphis Bar Association. Read his blog at www.billhaltom.com.