Media Outlets Get Victory in Appellate Ruling Over New Yorker Story

An art authenticator failed to plead actual malice in his defamation lawsuit against Conde Nast, Gawker, Business Insider and others.
The New Yorker

On Tuesday, a federal appeals court handed down a decision that will make it tougher for public figures to sue media outlets for defamation.

The case concerns a man named Peter Paul Biro, an art authenticator who was the subject of a 2010 article in The New Yorker that raised questions about his controversial fingerprint analysis techniques. Biro sued Conde Nast, publisher of The New Yorker, for defamation, plus other media outlets including Gawker and Business Insider for republishing allegedly defamatory material. 

In his opinion, 2nd Circuit Judge Raymond Lohier ruled that "a publicā€figure plaintiff must plead 'plausible grounds' to infer actual malice by alleging 'enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of' actual malice."

The appeals court affirms a ruling that Biro hadn't sufficiently pleaded actual malice.

Here's the full opinion.

The fact that public figures including politicians and celebrities have to show actual malice — knowledge of falsity or reckless disregard for truth — to prevail in defamation actions has been a part of American law since the landmark 1964 Supreme Court ruling New York Times Co. v. Sullivan. Since then, courts have further refined standards including by defining who is well known enough on a given topic to be regarded as a limited-purpose public figure.

Media outlets are given this advantage by courts in the interest of protecting their rights under the First Amendment. However, lawsuits can be expensive to defend, so the issue in Biro's appeal goes to the important question of whether plaintiffs have a burden at an initial stage to show actual malice. If they don't, plaintiffs may cause disruption simply by threatening litigation. The art authenticator argued that he should have at least been allowed to move to the discovery phase, but Lohier says there's nothing in Biro's complaint that would have prompted The New Yorker to question the reliability of the publication's sources.

Lohier's opinion is yet another example of a sea change in the adjudication of law ever since 2009 when the Supreme Court decided Aschcroft v. Iqbal, letting lower court judges address the plausibility of a claim at an early stage of a dispute. Last month, we wrote how a 2011 appellate opinion in Brownmark Films v. Comedy Partners had brought this standard to copyright cases and resulted in the most influential decision in entertainment law in the past five years. Today's opinion extends the analysis to defamation lawsuits.

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