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78 Iowa L. Rev. 237 (1992-1993)
Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan

handle is hein.journals/ilr78 and id is 249 raw text is: Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan C. Thomas Dienes* and Lee Levine** I. INTRODUCTION Can a libel action be predicated on statements that, standing alone, are neither false nor defamatory? Since defamation is typically defined as a publication containing false and defamatory statements of fact injurious to reputation,I the answer would seem to be no. And yet, as is so often true of absolute propositions, this response would be either misleading or simply wrong. Even when all the statements in a publication are factually correct and, at least standing alone, are not defamatory, courts have treated the publication as actionable under the rubric of implied libel.2 The challenge posed by cases purporting to assert claims for implied libel can be traced to the ambiguity of meaning and the differing perceptions of readers, viewers, and listeners. Words can have different meanings in distinct contexts and the perceived meaning can vary for different people.3 While a publication may convey an obvious meaning, it *Patrida Roberts Harris Research Professor of Law, George Washington University National Law Center; B.S., Loyola University, Chicago; J.D., Northwestern University; Ph.D., Northwestern University. **Partner, Ross, Dixon & Masback, Washington, D.C.; Adjunct Professor, Georgetown University Law Center; B.A., M.A., University of Pennsylvania; J.D., The Yale Law School. C. Thomas Dienes was General Counsel at U.S. News and World Report and continues to serve as Legal Consultant to U.S. News and The Atlantic. Lee Levine was counsel to petitioner in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), and has represented media defendants in a number of other cases discussed in this Article. The authors are grateful to David Anderson, Jerome Barron, Marc Franklin, Rodney Smolla, and Michael Sullivan for their generosity in reviewing and commenting on a draft of this work. The Article has been measurably improved as a result of their insights, although it is safe to say that they would not concur in all of it. Valuable research assistance was provided by Susan Hailer, a student at the George Washington University National Law Center. 1. Restatement (Second) of Torts § 558 (1977) defines the cause of action for defamation to require a false and defamatory statement concerning another. See Robert D. Sack, Libel, Slander, and Related Problems 39 (1980). 2. See, e.g.; Southern Air Transp., Inc. v. American Broadcasting Cos., 877 F.2d 1010, 1012 (D.C. Cir. 1989) (The applicable law holds that a defamatory inference may be derived from a factually accurate news report.); Church of Scientology v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) ('mhe arrangement and phrasing of apparently nonlibelous statements cannot hide the existence of a defamatory meaning.') (quoting Kapellas v. Kofman, 459 P.2d 912, 919-20 (Cal. 1969)). 3. The complexity of determining meaning borne of the various subtleties associated with any language is noted by Marc A. Franklin & Daniel J. Bussel, The Plaintiffs Burden in Defamation: Awareness and Falsity, 25 Win. & Mary L. Rev. 825, 828 (1984) (The recipient's

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