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Lawsuit for libel brought against public official turns on whether the statements objected to were uttered with ?actual malice?

Lawsuit for libel brought against public official turns on whether the statements objected to were uttered with ?actual malice?
Shulman v Hunderfund, 12 NY3d 143

In the words of Justice Smith, ?In this action for libel by a public figure, the record does not clearly and convincingly show that the statements in question were made with "actual malice," as required by New York Times Co. v Sullivan (376 US 254 [1964]). We therefore hold that plaintiff's [Larry Shulman] complaint against defendant James Hunderfund must be dismissed.?

Shulman, a member of the Commack Board of Education, was a candidate for reelection.

Hunderfund, the school superintendent, believed that Shulman wanted him fired and was opposed to his candidacy. Hunderfund participated with others in preparing and circulating an anonymous flyer attacking Shulman.

The flyer made several accusations, said to be the result of "[a]n investigation of Mr. Shulman's record" by "Concerned Citizens of Commack." Only a paragraph bearing the caption (in bold capital letters) "BROKE THE LAW," in the flyer is at issue in this action. This paragraph stated:

"Shulman flagrantly broke the law when he awarded a lucrative food service contract to one of his business associates. Concerned Citizens has verified the fact that Shulman NEVER revealed his business relationship with the food service company PRIOR to the awarding of this contract. Shulman's disregard of ethical principles and conflict of interest laws has cost the District dearly."

Shulman lost the election and sued Hunderfund and another individual for libel.

Although the jury found for Hunderfund?s co-defendant, it awarded $100,000 in punitive damages against Hunderfund. Supreme Court set aside the verdict for Shulman and entered a judgment in Hunderfund's favor.

The Appellate Division reversed the Supreme Court?s action and ordered that judgment be entered in accordance with the jury?s verdict (see Shulman v Hunderfund, 48 AD3d 449 [2d Dept 2008]). On appeal, the Court of Appeals reversed the Appellate Division?s ruling and reinstated so much of Supreme Court's judgment as dismissed the complaint against Hunderfund.

The Court of Appeals said that because ?the record does not clearly and convincingly show that Hunderfund knew Shulman to be innocent, or that he had no basis for thinking him guilty, of any legal transgression, Shulman's case must fail.? Justice Smith wrote: ?If Shulman (in Hunderfund's mind) did violate the law in connection with the Whitsons transaction, then the paragraph challenged in this lawsuit was (in Hunderfund's mind) substantially true.?

The Constitution, said the court, which protects "vehement, caustic and sometimes unpleasantly sharp attacks" in a political context, does not insist on complete verbal precision.

Justice Smith then explained:

"In this, the Constitution follows the common law of libel which, as the United States Supreme Court has observed, ?overlooks minor inaccuracies and concentrates upon substantial truth? (Masson v New Yorker Magazine, Inc., 501 US 496, 516 [1991]).

"In Masson, the Supreme Court defined "actual malice" in accordance with this ?historical understanding? of libel law, which ?would absolve a defendant even if she cannot 'justify every word of the alleged defamatory matter'? (id. at 516-517, quoting B. Witkin, Summary of California Law § 495 [9th ed. 1988]).

"It is understandable, of course, that Shulman did not like Hunderfund's provocatively phrased, and anonymous, charges against him. But so long as Hunderfund did not substantially depart from what he believed to be the truth, the only remedy for Shulman ? and for other public figures similarly situated ? is, as Supreme Court said in its order setting aside the verdict in this case, to develop a thicker skin.?

Full post as published by New York Public Personnel Law on February 11, 2010 (boomark / email).