By Bruce E. H. Johnson

When he visited the United States beginning in 1831, the French aristocrat Alexis de Tocqueville remarked on the uninhibited robustness of American media. The “hallmark of the American journalist,” he noted, “is a direct and coarse attack, without any subtleties, on the passions of his readers; he disregards principles to seize on people, following them into their private lives and laying bare their weaknesses and their vices.”1 Yet, he noted, nothing was “rarer than to see judicial proceedings taken against” the media because Americans believed that the people, not the government, were sovereign and that courts were “powerless” against the press.2

These days, criticism of government and public figures remains frequent, if not rampant. As a result, the public is better informed and equipped to make good choices. This is the case because of a tenacious effort on the part of U.S. Supreme Court justices and state court judges, including those in Washington, to interpret the Constitution in a manner that is consistent with freedoms of speech and of the press.

Mohr v. Grant
While accusations of slander, defamation, and libel are commonplace, people frequently misunderstand their place in the law. Earlier this year, for example, the Washington Supreme Court issued a ruling in storeowner Eliot Mohr’s defamation case against a Spo-kane reporter and television station for their portrayal of his lawsuit against a man with Down’s syndrome who had apparently washed the store’s windows against Mohr’s wishes.3

Mohr alleged that newscasts defamed him through false statements and, more importantly, omission of material facts -- specifically, that the man had made death threats to Mohr and his wife and that he had expressed doubts over the prosecution of a developmentally disabled person.4 The reporters included this information in subsequent newscasts once they learned about it.5

But these actions (or, more precisely, inactions) do not, in fact, constitute defamation. Rather, in Washington, a plaintiff must show that the statement in question either is plainly false or leaves a materially “false impression.”6 Mohr failed to make a prima facie showing of this key element, resulting in summary judgment against him. None of the facts in the newscasts had been false and the reporter had included all pertinent information in subsequent stories.7

Thus, defamation -- the umbrella term for spoken defamation (slander) and written defamation (libel) -- has a much more technical meaning than common understandings. At the same time, an examination of the history of defamation and its current state reveal that the principles underlying the law, as derived from the First Amendment, are relatively simple, creating an environment in which individuals generally feel comfortable saying and writing what they want.

A Brief History of Libel
Libel law has a dark history, beginning in pre-Norman times. At first, church law governed, with the goal of curing an offender’s soul.8 After the Norman Conquest in 1066, officials created separate ecclesiastical courts with exclusive jurisdiction over spiritual wrongs.9 Over the next two centuries, courts established several elements for the sin of defamation: the publication must have been made to a third party; a publication that harmed a reputation must have caused fear or hurt feelings; and the defendant could plead truth as a defense.10

Many of these concepts remain evident today, although most of modern libel law in the United States, based on the First Amendment, is largely a product of the latter half of the 20th Century.11 Washington, however, began its own tradition of free speech earlier with the creation of a free speech clause in the state constitution. Article I, section 5, adopted in 1889, states: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The convention chose this wording, a product of the 1789 French Revo-lution,12 over two other proposals.13 However, there are no state cases applying Art. I, ¤ 5 specifically to libel.

In the late 19th and early 20th centuries, Washington courts shaped the action of libel in a series of cases that, above all, clarified at least five separate principles: (1) libel was defined as it was at common law; (2) truth remained a defense that could be used to combat or mitigate a claim; (3) many statements constituted libel per se; (4) several privileges protect statements made about criminal and judicial matters; and (5) juries are entitled to decide several questions, including whether a particular statement constitutes libel.

Washington courts decided early on that truth could serve as a complete defense to an allegation of libel, in addition to serving as a mitigating circumstance.14 Specifically, the state Supreme Court found that truth was an absolute defense in civil cases.15

Goldmark and Sullivan
The modern law of libel, both nationally and in the states, did not truly take shape, however, until 1964 in New York Times v. Sullivan -- one of the most important cases in all of First Amendment law. In particular, Sullivan had a direct effect in Washington in the case of Seattle attorney John Goldmark, which sits on the cusp between the old common law rules of libel and the First Amendment limits of the post-Sullivan era.

In 1962, Goldmark, a three-term Washington state legislator and chairman of the House Ways and Means Committee, was up for re-election.16 But, that summer, an article in the weekly Tonasket Tribune alleged that Gold-mark’s platform advocated the repeal of a law requiring all Communist Party members to register, that his son attended Reed College -- the only school in the Northwest where the party secretary had been invited to speak -- and that he was “a member of the American Civil Liber-ties Union, an organization closely affiliated with the Com-munist movement in the United States.”17 The accusations continued throughout the summer and Goldmark lost the election.18

Following this defeat, Goldmark was intent on bringing the publishers to justice.19 He was represented by future eminent jurist William L. Dwyer, who (as noted) literally wrote the book on the case. The trial, interrupted by the Kennedy assassination, ended in January 1964 with a $40,000 jury verdict for Goldmark.20

The Goldmark verdict, however, was short-lived, as Sullivan was handed down just a few weeks later. In Sullivan, the U.S. Supreme Court found that public officials like Goldmark may not recover damages because of a defamatory statement relating to official conduct unless the statement was made with “actual malice,” i.e., “with knowledge that it was false or with reckless disregard of whether it was false or not.”21 As a result, the trial judge in the Goldmark case set aside the verdict, ruling that Goldmark had not proven actual malice. Goldmark decided against an appeal, feeling that his name had been adequately cleared.22

The importance of Sullivan cannot be easily overstated. As one scholar noted, “The Court did not simply . . . definitively put to rest the status of the Sedition Act.23 More important, it found in the controversy over seditious libel the clue to ‘the central meaning of the First Amendment.’”24

Current Washington Law
Two important aspects of Washington law developed in the wake of Sullivan and other key Supreme Court decisions. In deciding whether a plaintiff is a public figure or official, Washington courts enunciated two factors in a 1979 case: (1) the importance of the plaintiff’s position, and (2) the nexus between that position and the allegedly defamatory information.25 Courts have used these factors to find the following to be public figures: the secretary and chief examiner of Seat-tle’s Public Safety Civil Service Com-mission as related to her fitness for the position;26 the director of a county capital improvements department;27 a mid-level research analyst with respect to her expertise and job performance;28 a middle-school teacher;29 and a self-proclaimed authority on fluoridation.30

Following the U.S. Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, the Washington Supreme Court established a negligence standard for private individual plaintiffs.31 In addition, the court has elaborated on and created several privileges. An absolute privilege now shields statements made in judicial, legislative, or quasi-judicial administrative proceedings,32 statements made about the acts of important government executives,33 and the statements of high ranking state officials made in the course of their official duties34 or to publications required by law.35 In addition, the Court of Appeals recently recognized an absolute privilege for reporting the contents of public records, “so long as the publication is attributable to an official proceeding and is an accurate report or a fair abridgement thereof.”36

Washington also recognizes 12 qualified privileges, which require a showing of actual malice:37 (1) fair and accurate reports of judicial proceedings;38 (2) fair comment on matters of public concern if not made maliciously or based on false statements of fact;39 (3) fair and accurate reports of charges in recall petitions;40 (4) fair reports of acts, theories and representations of police;41 (5) statements to a prosecuting attorney;42 (6) statements made to protect an interest of the publisher;43 (7) statements made in furtherance of a common interest;44 (8) statements made by police officers about official activities;45 (9) statements made to protect the interest of the recipient or a third person;46 (10) statements made to protect family relationships; (11) intracorporate communications among co-workers in the ordinary course of their work;47 and (12) speech exercised pursuant to the First Amendment’s Petition Clause.48

Nearly 175 years after de Tocqueville made his famous journey to and through America, his words remain prescient. If, by comparison to other countries, American governments and their courts are, indeed, relatively “powerless” against the press, it is in large part because of the common law rulings that these courts have crafted in recognition of the rights of the people under the auspices of the First Amendment. n

KING-5, CBS and others. The author would like to thank Ambika Kumar, a student at the University of Chicago Law School, for her invaluable assistance in the research and preparation of this article.

1 Alexis de Tocqueville, Democracy in America at 168 (G. Lawrence trans. 1966).

2 Id. at 168-69.

3 Mohr v. Grant, 153 Wn.2d 812, 816 n.1, 108 P.3d 768 (2005).

4 Id. at 817.

5 Id.

6 Id. at 825.

7 Id..

8 Bruce W. Sanford, Libel and Privacy ¤ 2-1 at 2-2 (2d ed. 1991).

9 Id.

10 Id. ¤ 2-1 at 2-3.

11 Id.

12 Vincent R. Johnson, The Declaration of the Rights of Man and of Citizens of 1789, the Reign of Terror, and the Revolutionary Tribunal of Paris, 13 B.C. Int’l and Comp. L. Rev. (1990).

13 Robert F. Utter, The Right to Speak, Write and Publish Freely: State Constitutional Protection Against Private Abridgement, 8 U. Puget Sound L. Rev. 157, 172 (1985).

14 Haynes v. Spokane Chronicle Publ’g Co., 11 Wash. 503, 509, 39 P. 969 (1895).

15 Ecuyer v. New York Life Ins. Co., 101 Wash. 247, 255, 172 P. 359 (1918).

16 William L. Dwyer, The Goldmark Case 3-4 (1984).

17 Id.

18 Id. at 48.

19 Id. at 51.

20 Id. at 271.

21 New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

22 Dwyer, supra note 16, at 280-81.

23The Sedition Act of 1798 prohibited the publication of “false, scandalous, and malicious writing or writings against the government of the United States,” Congress and the President. The Sedition Act expired without renewal in 1801 and has since been repudiated. See Geoffrey R. Stone et al., The First Amendment at 7--8 (2d ed. 2003).

24 Harry Kalven, Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 208-09.

25 Clawson v. Longview Publ’g Co., 91 Wn.2d 408, 417, 589 P.2d 1223 (1979) (supervisor of a county motor pool was public official, in part because article at issue related directly to his actions on the job).

26 Harris v. City of Seattle, 315 F. Supp. 2d 1105, 1109-10 (W.D. Wash. 2004).

27 Eubanks v. North Cascade Broadcasting, 115 Wn. App. 113, 124, 61 P.3d 368, 373 (2003).

28 Price v. Washington State Senate, 12 Media L. Rep. 2035, 2037 (Wash. Sup. Ct. Comm’r 1986).

29 Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 741, 973 P.2d 1074 (1999).

30 Exner v. American Medical Ass’n, 12 Wn. App. 215, 220, 529 P.2d 863 (1974).

31 Taskett v. KING Broadcasting Co., 86 Wn.2d 439, 448-49, 546 P.2d 81 (1976).

32 Deatherage v. State, 134 Wn.2d 131, 135, 948 P.2d 828 (1997); Engelmohr v. Bache, 66 Wn.2d 103, 104-05, 401 P.2d 346, cert. dismissed, 382 U.S. 950 (1965); Hill v. J.C. Penney, Inc., 70 Wn. App. 225, 238-39, 852 P.2d 1111 (1993).

33 Richmond v. Thompson, 130 Wn.2d 368, 383 n.7, 922 P.2d 1343 (1996).

34 Aitken v. Reed, 89 Wn. App. 474, 490-91, 949 P.2d 441 (1998).

35 Corbally, 94 Wn. App. at 742.

36 Alpine Indus. Computers, Inc. v. Cowles Publ’g Co., 114 Wn. App. 371, 385, 57 P.3d 1178 (2002).

37 Guntheroth v. Rodaway, 107 Wn.2d 170, 177 n.2, 727 P.2d 982 (1986).

38 See generally Mark v. Seattle Times, 96 Wn.2d 473 (1981).

39 E.g., Cohen v. Cowles Publ’g Co., 45 Wn.2d 262, 264, 273 P.2d 893 (1954).

40 Herron v. Tribune Publ’g Co., 108 Wn.2d 162, 179-80, 736 P.2d 249 (1987).

41 McClure v. Review Publ’g Co., 38 Wash. 160, 168, 80 P. 303 (1905).

42 Getchell v. Auto Bar Systems Northwest, Inc., 73 Wn.2d 831, 836, 440 P.2d 843 (1968).

43 Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 960, 603 P.2d 828 (1979).

44 E.g., Ward v. Painters’ Local Union No. 300, 41 Wn.2d 859, 865, 252 P.2d 253 (1953).

45 Bender v. City of Seattle, 99 Wn.2d 582, 601, 664 P.2d 492 (1983).

46 Kauzlarich v. Yarbrough, 105 Wn. App. 632, 643, 20 P.3d 946 (2001); Corbally, 94 Wn. App. at 742.

47 Doe v. Gonzaga Univ., 143 Wn.2d 687, 702, 24 P.3d 390, 397 (2001), rev’d on other grounds, 536 U.S. 273 (2002).