By William Ketter
CNHI

The scenario is disturbing. A deputy sheriff sues the Terre Haute Tribune-Star for libel because it published a sworn citizen’s complaint against him. After four years of preliminary legal wrangling, an emotional trial ensues. Without regard to time-honored judicial precedent or the expressed purpose of the First Amendment, the jurors find in favor of the deputy sheriff and award him $1.5 million in damages – one of the highest defamation judgments in Indiana history.

How could this happen in a judicial process that is suppose to separate legitimate libel litigation from purely angry complaints by public officials that don’t like what the press prints about them?

The answer lies in a cozy local court system and an obvious lack of knowledge of the “actual malice” standard that federal and state courts have long applied to public officials, including law enforcement offciers, who sue the news media for defamation.

The actual malice standard – established 44 years ago by the U.S. Supreme Court in the New York Times versus Sullivan decision – requires public officials to prove a story was not only false and defamatory, but that it was published recklessly or with serious disregard for whether it was true.

In other words, first a judge and then a jury must determine without question that the state of mind of the news organization included knowing the information was false and deliberately publishing it anyway.

In The Tribune-Star case there was no such evidence or testimony. Instead, lawyers for the paper showed the court that it accurately published the contents of a sworn affidavit by a female motorist who said the deputy sheriff knocked her to the ground with his clipboard and verbally abused her, including making sexual innuendoes, during a traffic stop.

The deputy sheriff sued The Tribune-Star over the initial story reporting the woman’s complaint of police misconduct and the sheriff’s decision to send it on to the state police to investigate, and a subsequent story about the county prosecutor receiving the state police report for a determination of whether to pursue the case. The first story quoted another officer involved in the traffic stop as saying he was the one who pulled over the motorist.

After the second story appeared, the deputy sheriff, who had refused to comment earlier, sent a letter to the paper requesting a retraction, asserting the woman’s allegations against him were untrue, and that he had not been the one who stopped the motorist in the first place. Yet the official complaint specifically named the deputy sheriff as the officer who pulled over the woman motorist, and the sheriff had sent that version of the complaint to the state police. The female motorist, when contacted by the paper, continued to insist the deputy sheriff was the officer involved.

A month later, the state police investigation was released. It concluded the woman motorist had misidentified the officer who stopped her, and that she had been deceptive in asserting that the deputy sheriff shoved her to the ground and verbally abused her.

The Tribune-Star published the complete results of the state police report under the headline: “Police: Woman made up traffic stop story.” But that did not deter the deputy sheriff from pursuing his defamation action against the paper.

A local judge refused to dismiss the lawsuit even though the newspaper’s stories were based on the woman motorist’s sworn statements that were also the essence of the state police investigation into the case. And despite the actual malice standard that applies to law-enforcement officials.

Four years later, on July 22, 2008, the case went to trial before a six-member jury. At the trial, the deputy sheriff and his former wife gave tearful testimony about how the stories had damaged his reputation and caused him emotional distress even though he’d been promoted to detective since the case was first reported. The sheriff testified on behalf of his deputy, saying he told the paper's reporter he doubted the veracity of the motorist's complaint -- a statement published in the original story -- and had asked that no story appear in print.

Three days later, on July 25, 2008, the jury took less than three hours to find in favor of the deputy sheriff, and awarded him $500,000 in compensatory damages and $1 million in punitive damages.

The outcome shocked media law experts. It should also send an immediate chill through the news community because the stories at issue were accurate reports of a sworn citizen’s affidavit claiming police misconduct. And a sworn affidavit is supposed to be libel-proof under First Amendment free press and free speech protections.

There’s no question libel law is complex, and often juries do not understand the actual malice standard that applies to public officials suing for defamation or the types of documents – even when they contain wrong information -- considered privileged from litigation when reported by the press.

That’s why the majority of jury libel judgments are reversed or substantially reduced on appeal.

If that doesn’t happen in this case, the media in Indiana and elsewhere will be forced toward timidity and away from the kind of journalism that holds public officials accountable and exposes wrongdoing.

Read more at E&P on line.