A&A: Can a newspaper be sued for the content of a letter to the editor?

Q: I am a owner and publisher of a local community newspaper. We printed a letter to the editor that named a person in the community and mentioned their family in regards to legal matters and other issues they were dealing with. Now the person the letter referenced is suing my newspaper, claiming defamation of character. Not sure what my rights are or if I should be worried.

A: There are many defenses to defamation, though of course we’d have to know more about the specific facts to determine what those defenses might be.  For example, if the editorial was the writer’s opinion, and could not be construed to be a statement of fact that is false, then the allegedly defamatory statements would be protected under the First Amendment.  Likewise, if the editorial discussed legal matters that are matters of public record, then there may be a defense based on the fair report privilege.

You will want to look into the availability of California’s anti-SLAPP statute as a mechanism for getting early dismissal of the lawsuit.  Under the statute, the defendant must demonstrate that the statements at issue arise from the right of free speech under the US or California constitution and are in connection with a public issue (which is broadly defined), and the plaintiff must establish a probability of prevailing on his or her claim despite this.  Successful defendants are entitled to recoup their attorneys’ fees, as the statute contains a mandatory fee-shifting statute where the defendant prevails on the motion.

If you have media liability coverage, you might want to make sure attorneys are retained who have solid experience in defending against defamation claims.  (And some policies give the insured their choice of counsel.)  If you are currently seeking representation, I’d be happy to discuss our services here at Bryan Cave with you, as we have many years of experience with these types of lawsuits.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.