Anecdotes Weaken "Opinion" Defense in D.C. Libel Case

However, the federal appeals court in the District of Columbia reinstated the case in January when a three-judge panel ruled that reporting unflattering anecdotes about the plaintiff might be defamatory if it turns out that the vignettes never happened. And yet the court said it is an expression of opinion, not fact, to say that ". . . Weyrich began to experience sudden bouts of pessimism and paranoia – early symptoms of the nervous breakdown that afflicts conservatives today." The distinction made by the court is instructive for copy editors, editorial page writer, commentators and political reporters.

In a traditional "opinion" analysis, the appeals court explained, the label "paranoia" was not a report of provable fact in this context:

• The article does not claim to make a "psychological pronouncement."

• A "reasonable reader " would not understand it that way.

• The New Republic is itself well-known to be a "magazine of political commentary…"

• The context of the article is well-understood, meaning that it is recognized political commentary from a magazine of opinion.

But, as the folks at The New Republic breathed a sigh of relief, the court said, not so fast! "These findings do not end our analysis, however. The fact that the use of the term ‘paranoia’ constitutes protected, unverifiable comment in the present case does not insulate the otherwise verifiable anecdotes reported by the author…"

For example, one such anecdote claimed that Weyrich, during the 1988 presidential campaign, was angry with a George H. W. Bush staff member and sent a letter to the staffer’s fiancé implying that the woman’s intended spouse "was unfit for marriage." The New Republic anecdote said the staff member had exposed a Weyrich plot to embarrass then-candidate Dan Quayle, thus earning Weyrich’s anger.

The court said, if it turns out that the facts underlying the offending anecdotes are true, Weyrich’s libel claim is likely to fail. If, however, it develops that the anecdotes are false, then some of these stories might take on a defamatory meaning.

So take heed writers of commentary. The label "political commentary" does not insulate "the reporting of verifiable and arguably defamatory facts."

"There is no doubt", said the court, "that a reasonable person, reading the article’s repeated tale of [Weyrich’s] volatile temper and apparent emotional instability, could very well conclude that appellant is an emotionally unstable individual unfit for his trade or profession. One or more of the anecdotes arguably make appellant appear personally odious, infamous, or ridiculous. On remand, the District Court must take pains to distinguish those anecdotes that are both verifiably false and reasonably capable of defamatory meaning from those that are not."