Appeal of Ventura verdict will test 50 years of history

In Federal Court in St. Paul tomorrow, attorneys for the estate of “American Sniper” Chris Kyle will try to convince a panel to overturn the $1.8 million award a jury gave to former Gov. Jesse Ventura in a defamation lawsuit last year. Kyle, without mentioning Ventura, claimed in a book that he “laid” him out on the floor after he was “running his mouth” about the war in Iraq and President George W. Bush.

But in the process, the court will be thinking about the actions of the New York Times, Martin Luther King Jr., four members of the clergy, and the man who was in charge of police and fire in Montgomery, Alabama, because the case is a test of the Supreme Court decision that defined defamation of libel in America when it involves public figures: New York Times Co. v. Sullivan.

Let’s hit the Wayback Machine.

It started with this ad in the New York Times from, A. Philip Randolph in March 1960 to raise money for Martin Luther King. Jr., against a perjury indictment, and to support a campaign that would give African Americans the right to vote.

“Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence,” the ad said. “They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times — for “speeding,” “loitering” and similar “offenses.”

The ad never mentioned Lester Bruce Sullivan, who was the Montgomery official in charge of the police and fire departments in Montgomery. But when he sued for defamation, he got $500,000 from the New York Times.

In overturning the award, Supreme Court Justice William Brennan acknowledged that many of the statements made about events in Montgomery weren’t true; Dr. King had been arrested four times, not seven, for example.

“The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection,” Brennan wrote. “The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.”

It didn’t.

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship,'” Brennan declared, invoking for the first time the phrase “actual malice,’ and defined it as “knowledge that it was false or with reckless disregard of whether it was false or not.”

It is this phrase — actual malice — that will be at the heart of the debate in St. Paul on Tuesday.

In his decision, Brennan declared that it’s up to the public official to prove “actual malice.”

As Madison said, “the censorial power is in the people over the Government, and not in the Government over the people.” It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.

In his support of Brennan’s opinion, Supreme Court Justice Hugo Black emphasized that people and the press should be free to criticize officials “with impunity.”

This Nation of ours elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as “obscenity,” Roth v. United States, 354 U.S. 476, and “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568, are not expression within the protection of the First Amendment, freedom to discuss public affairs and public officials is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.

“It may be urged that deliberately and maliciously false statements have no conceivable value as free speech,” Justice Arthur Goldberg acknowledged. “That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished.”

There was no dissent in the opinion.

Attorneys supporting Kyle say the jury in the Ventura case was improperly given its assignment, not making clear that it was Ventura’s team that had to prove Kyle actually believed his statements were false.

Ventura’s attorneys will argue that Kyle “knowingly lied about an incident that simply did not occur.” And that, they contend, is “actual malice.”