Public figures, private figures and why the difference matters in The New York Times libel defeat

The New York Times lost a libel case Thursday for the first time in more than 60 years. Ironically, both defeats played out in Alabama.

The earlier loss, in 1960, led to the landmark Times v. Sullivan ruling of 1964, in which the Supreme Court decided that it wasn’t enough for a public official to show that a offensive statement was false and defamatory. The official also had to show that it was published despite the knowledge that it was false, or made with reckless disregard for whether it was true or false.

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The second loss seems unlikely to lead to a similarly favorable outcome for the Times. Kai Spears, a former University of Alabama basketball player, won a $9.25 million judgment after the Times falsely reported that he was at the scene of a fatal shooting. Ryan Phillips, who covered the U.S. District Court trial for Patch, observes that $7.5 million of that was for punitive damages, which the Times will almost certainly appeal.

The Times’ story, published in March 2023, claimed that Spears was in the passenger seat of a car that was at the fatal shooting of 23-year-old Jamea Harris. In fact, he was not, as the Times acknowledged. Phillips wrote:

The defamation case ultimately centered heavily on the reporting process used by New York Times sportswriter Billy Witz, who relied almost completely on information from an anonymous source he met with in Tuscaloosa on the morning the article was published.

There are aspects to the case that I’m not going to get into here, including the wrinkle that Spears sued not just for libel but also for “false light” invasion of privacy. Rather, I just want to lay out the standard for proving libel.

As I noted, public officials must show actual malice in order to win a libel case. The Supreme Court adopted that standard as a way of shutting down bad-faith libel suits by the racist white power structure in the South during the Civil Rights era. The idea was that news organizations should not be punished for minor, honest mistakes.

Two years later, the court extended the actual malice rule to public figures. But the standard for private figures was not fully resolved until 1974, when the court ruled in Gertz v. Robert Welch Inc. that the states were free to set their own rules in libel cases as long as they required some degree of fault. (Before Sullivan, it was not unusual for states to have no-fault libel laws.) In Alabama, the standard for private figures is negligence. And it would certainly appear that Witz’s reliance on one anonymous source was the sort of thing that could lead the jury to believe he had acted negligently.

But Spears was a college basketball player. Was he truly a private figure? I contacted Phillips, and he responded by email: “It was established early in the trial and agreed upon by both sides before trial since he was a walk-on at the time.” He also shared transcripts in which Judge Annemarie Carney Axon, speaking with lawyers in the case, said that Spears was a private figure: “Spears is a private individual and the statements at issue pertain to a topic of public concern.” And: “Because Mr. Spears is a private individual, this is a matter of public concern.”

The Supreme Court, in Gertz, specifically ruled out recasting a private figure as a public figure simply because that person has gotten caught up in a matter of public concern. There are exceptions, and it’s incredibly complicated, but clearly Judge Carney Axon believed those exceptions did not apply to Spears.

Phillips again:

Witz testified during the trial and apologized to Spears from the witness stand for incorrectly identifying him as the person in Miller’s vehicle but insisted that he followed the newspaper’s standards and policies relating to anonymous sources.

This is important, because if that’s the case, then it suggests he did not act negligently, at least in the eyes of his employer. But one anonymous source? (Other documents say there were two, but the Times’ own account, by Katie Robertson, says that Witz relied on “a single anonymous source.”) If Witz really was relying on the Times’ “standards and policies,” I’d say that the paper ought to take another look at them.

Finally, there’s this, also from Phillips:

Birmingham attorney Michael L. Bell of Lightfoot, Franklin & White, representing the New York Times, argued the incorrect report amounted to an honest mistake rather than actionable wrongdoing.

“This is a case of an honest mistake,” Bell told jurors.

An honest mistake might get you off the hook if the standard is actual malice. Indeed, that’s why Republican political figure Sarah Palin has failed in her libel suits against the Times, since the paper has successfully argued that a sloppy insertion by former editorial-page editor James Bennet that falsely tied her to a mass shooting was not deliberate.

We also see Bell holding out the possibility that Spears will be ruled a public figure on appeal, with Phillips writing that Bell noted “Spears receiv[ed] a full scholarship to play for Alabama the following season.”

More than anything, though, it’s crucial to understand that libel protections were not damaged in the Spears case. If anything, they were affirmed. A false, defamatory report published negligently about a private figure is well within the bounds of libel law.