Digital Media and Data Privacy Law Blog

The First Circuit recently affirmed summary judgment in favor of Fox News Network and Fox personalities Steve Doocy and Brian Kilmeade over a three-hour cable program during which the hosts discussed a report of an alleged “hate crime” at a public school in Lewiston, Maine, where the plaintiff was the superintendent of schools.  During the program, Doocy and Kilmeade repeatedly quoted an article about the incident that contained false quotations and false citation to the Associated Press but also contained substantially true information.

The facts underlying Levesque v. Doocy, No. 08-1814, slip op. (Mar. 19, 2009), involve commentary about an incident at a public middle school in which a student placed a bag containing a leftover ham steak on the cafeteria table where Somali Muslim students were having lunch.  School investigators and police classified the event as a “hate crime.”  A reporter for the Lewiston Sun Journal wrote an article on the incident and interviewed the plaintiff, who was superintendent of the school system where the incident occurred.  The plaintiff was quoted in the article describing what happened as “‘a hate incident,’” and another source stated that without a response “‘more degrading acts will follow, until at some point we’ll end up having violence.’”

Several days after the Lewiston Sun Journal article, another writer (Nicholas Plagman) published an article about the Lewiston incident on Associated Content, a website that allows writers to post their own material.  According to the First Circuit, the Plagman article “mischaracterized some facts, such as reporting that the students left a ham sandwich, rather than a ham steak, on the cafeteria table.”  Additionally, the Plagman article included “fictitious quotations” based upon quotes accurately reported in the Lewiston Sun Journal article (e.g., the school and others were developing “an anti-ham ‘response plan,’” “These children have got to learn that ham is not a toy,” and more as reported in the opinion) and falsely listed the Associated Press as a source for the piece.

Plagman posted his article to Associated Content in both the humor and news categories, and the story was picked up and distributed by the news aggregator Google News where a Fox line producer found it.  Fox conducted additional research and was able to confirm some of the facts and sources.  Additionally, Fox located the earlier newspaper article and confirmed that the Lewiston Sun Journal was a legitimate paper.

During the three-hour cablecast of “Fox and Friends,” Doocy and Kilmeade discussed the incident as reported in the Plagman article, “frequently ridiculing Levesque” and reporting the fake quotes that Plagman attributed to the plaintiff.  During the program, Doocy made a few comments the plaintiff later tried to use to show that Doocy and Fox doubted the truth of the report—for example, “I’m not making this up,” “I thought this was a joke,” and “I hope we’re not being duped.”  At some point after the program, the plaintiff contacted Fox to complain about the inaccuracies in the program, and Fox retracted and apologized.

The plaintiff filed claims for libel, libel per se, false light invasion of privacy, and punitive damages based on five statements made by the defendants during the program.  He stipulated that he was a public official for purposes of defamation law.  The district court granted summary judgment for the defendants based largely on the requirement that a public-official plaintiff must demonstrate by “clear and convincing” evidence—even at summary judgment—that the defendant acted with “actual malice.”

Although the First Circuit was sympathetic to the plaintiff’s claim and critical of Fox’s reporting on the matter, the court affirmed the district court’s decision that the plaintiff failed to present clear and convincing evidence of “actual malice.”  The First Circuit affirmed the lower court’s ruling that two of the statements were not defamatory in nature—one of the statements was substantially true while another (the “anti-ham ‘response plan’”) was non-actionable “imaginative expression” or “rhetorical hyperbole.”

As for the three other statements that served as the basis for the action, the First Circuit agreed with the district court that a jury could find them to be defamatory.  The court then turned to the “actual malice” inquiry.

Levesque contends that the defendants' failure to corroborate the fabricated quotes from the Plagman article coupled with incredulous statements during the cablecast (e.g., "I hope we're not being duped," and "I thought this was a joke") establish that the defendants acted with reckless disregard for the truth. He notes that Fox rushed to broadcast the two-week-old story even though it was not breaking news. It is true that a more deliberate consideration of the Plagman article should have caused reasonable skepticism about the source and that the defendants were careless in relying on it, but this is an indication of negligence, not actual malice, and Superintendent Levesque faces the heavy burden of providing evidence that the defendants recognized the carelessness with which they were proceeding.

Ultimately, the court concluded that Fox used reputable sources to authenticate the incident and various facts that were reported by Plagman.  “In the present case, the two actionable statements attributed to Levesque were certainly absurd, but the Plagman article presented them within larger, accurate comments that could be corroborated with the [Lewiston Sun Journal] article.”  (An expert testified during deposition that the discrepancy between an Associated Content and Associated Press piece should have been noticed, but the court found the oversight to be merely negligent.)  Further, although the statements by Doocy and Kilmeae that arguably expressed doubt about the truth of the Plagman article (e.g., “I hope we’re not being duped”), the First Circuit found that “in the context of a consistently irreverent (and to many, insensitive) morning television show, . . . such statements frequently are used as devices to magnify the presentation and grab viewers’ attention”—the statements did not present clear and convincing evidence of actual malice.

Note that the First Circuit distinguished Levesque from Noonan v. Staples, a decision reached by a different panel (with one shared judge) only a few weeks earlier.  As we discussed in our post about Noonan, the First Circuit applied the Massachusetts common-law definition of malice, whereas the court in Levesque applied the constitutional standard.  Levesque demonstrates that the First Circuit obviously knows how to apply the “actual malice” standard to public officials—but getting to the point where the standard applies has not been easy for media defendants in the First Circuit recently.