20 Comm. Law. 3 (2002-2003)
Libel by Implication; Kelley, Thomas B.; Zansberg, Steven D.

handle is hein.journals/comlaw20 and id is 3 raw text is: Libel by Implication
THOMAS B. KELLEY AND STEVEN D. ZANSBERG

For the libel defense bar, the most per-
sistent and pesky issue of the day is that
of libel by implication. This article
will define the problem, identify how
courts have addressed it, and review
several recent pertinent decisions.'
Defining the Problem
The term libel by implication has be-
come a catchword for any claim of
defamatory meaning that goes beyond
what the words themselves denote. The
issue of defamatory meaning in libel
cases turn[s] upon words and punctua-
tion only because words and punctua-
tion express meaning,' as do pictures,
paintings, and cartoons. In any libel ac-
tion, defamatory meaning is found
when a plaintiff's reputation tends to be
harmed by the meaning of an expres-
sion (as apparently intended by the pub-
lisher). examined in light of the publica-
tion as a whole and the medium and so-
cial context in which it is published.'
Words. either individually or in com-
bination, may directly imply thoughts
not expressed. For example, to say that
Freddie was the only sibling to stay out
of trouble with the law necessarily im-
plies that his brother Eddie had trouble.'
Word pictures frequently convey clear
but unexpressed meaning. To say that,
after finding a woman with her husband,
the angry wife shot the woman implies
that the other woman and the husband
were having an adulterous affair.'
The meaning of words, as apparently
intended by the author, may also vary
from their literal meaning when consid-
ered in the context in which they are ut-
tered. The term context encompasses
a broad range of factors, including the
whole of the communication, the medi-
um, the social and cultural context, and
the probable expectations of the audi-
ence based upon all of these factors.'
Defamation is implied when pub-
lished words carry no defamatory mean-
Thomas B. Kelley (tkelle.v@faegre.con)
and Steven D. Zttnsberg (szansberg@
faegre.com) are partners in the Denver
office of Faegre & Benson LLP.

ing on their face but may be defamatory
when considered in light of some extrin-
sic fact known to some in the audience.
The classic example is that of a false re-
port that a woman has given birth to a
child when it is known that she is un-
married, implying that the birth was out
of wedlock. Such an implication, gener-
ated by resort to facts extrinsic to the
publication (the inducement), is re-
ferred to as an innuendo in the com-
mon law of libel. Where the subject of
the publication is of public concern, the
First Amendment requires that the plain-
tiff meet the applicable standard of fault
with respect to the defendant's failure to
learn of the facts that render the pub-
lished statements defamatory or to use
appropriate care to avoid falsity with re-
spect to that meaning.'
Arguably, an even stronger standard
must be applied because the danger to
reputation is not apparent from the
face of the publication, leaving the pub-
lisher unaware of any need to avoid
such harm.' Fortunately, such cases are
rare. Much more common are claims
based upon facts extrinsic to the publi-
cation that are unknown to the audience,
and it is by omitting those exculpatory
facts that a publisher may create a false
defamatory meaning.
Facts extrinsic to the publication also
give rise to defamation by implication
when the publication expresses an opin-
ion. During the late 1970s and 1980s,
claims for libel by implication frequently
arose when a statement, in the form of an
opinion, was claimed to imply the exis-
tence of unstated defamatory facts that
served as the basis for the stated opinion.
This recurring scenario was a byproduct
of the formulation of the opinion privi-
lege recognized by the Restatement
(Second) of Torts.' The drafters of the
Second Restatement distinguished be-
twev' 'ure opinion, which was ab-
solute!: protected by the First
Amendment, and a hybrid opinion,
which implied dhe existence of unstated
ia'-:,t anJ Jefa matory facts as the basis of
the opinion (in which case the implied
facts, but not the opinion, are actionable).
The question of whether unstated

facts are implied by the expression of an
opinion has been supplanted by the
'statement of fact analysis prescribed
by Milkovich v. Lorraine Jornal. The
Milkovich Court held that statements
that do not contain a provably false fac-
tual connotation are protected by the
Constitution. The analysis of whether a
statement is reasonably understood as
conveying a provably false factual con-
notation makes unnecessary any sepa-
rate consideration of whether an opinion
implies an unstated factual proposition.'
However, such an analysis, made in
light of the social and linguistic context
of the statement, requires courts to deter-
mine the reasonable meaning of the
statement, i.e., its gist. As demonstrat-
ed below, courts have applied a version
of the Milkovich analysis in making a
threshold determination of the meaning
of statements in issue for purposes of ad-
dressing claims of libel by implication.
The Real Problem
The raging controversy over libel by
implication has been generated by fact
patterns that are not only common but
arguably present in every unflattering
news publication. They are facilely
summarized in the 1984 edition of
Prosser & Keeton on Torts, which ex-
plains that defamation by implication
occurs when a defendant
(1) juxtaposes a series of facts so as to imply a
defamatory connection between them, or (2)
creates a defamatory implication by omitting
facts. [such thati he may be held responsible
for the defamatory implication, unless it quali-
fies as an opinion, even though the particular
facts are correct.
Unquestionably, the poster child for
libel by juxtaposition and omission is
Ruth Ann Nichols. In 1971, the
Memphis Press-Schnitar reported that
Mrs. Nichols received a gunshot wound
when another woman shot her and the
second woman's husband after she ar-
rived at the Nichols' home and found
her husband there with Mrs. Nichols.
According to Mrs. Nichols's allegation,
the article implied that she and the
woman's husband were having an adul-
terous affair and were caught by the
jealous wife, when in fact Mr. Nichols

Spring 2002 fl Communications Lawyer fl 3

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