Roger Clemens and New York Times v. Sullivan

JB

My colleague Sandy Levinson asked me whether Roger Clemens got a raw deal. In particular, he asked whether Senator Mitchell's report that Roger Clemens was among the major league baseball players accused of steroid use shows the folly of the Supreme Court's constitutional rules in defamation cases. New York Times v. Sullivan and its progeny hold that public figures cannot succeed in defamation suits unless they show actual malice, i.e., knowledge of falsity or reckless disregard for the truth. (The actual case in point is Gertz v. Robert Welch, which extends the NYT privilege from public officials to public figures like Clemens). After all, Sandy pointed out, Clemens can't clear his name by suing Senator Mitchell. All he can do is cost the newspapers and Mitchell (and himself) hundreds of thousands of dollars in legal fees in a case that he will eventually lose because the bar is set so high. (Sandy's claim, it should be understood, assumes for the sake of argument that Mitchell wrongly accused Clemens of using steroids. If Clemens did use steroids, then he cannot succeed because truth is a defense in a defamation action.).

I don't think that NYT v. Sullivan (or Gertz) are really to blame in this case. After all, even if the constitutional privileges weren't available, (suppose that Clemens were a private figure), Mitchell would probably enjoy various common law privileges, including (conceivably) the privilege of giving advice to an employer (including Major League Baseball) or making a communication on a matter of common interest. These privileges would require Clemens to show that the accusations were unreasonable and made with malice (i.e., ill will or hatred; this, confusingly, is not the same standard as "actual malice" in NYT v. Sullivan). It is also possible that the privilege of fair comment would apply, but that usually applies to cases of opinion. And it is also possible that the Mitchell report, even though it is for Major League Baseball and not for the government, might fall under the absolute common law privilege for public testimony or public reports on matters of public concern. It is likely that Mitchell would enjoy at least one of these common law privileges, in which case Clemens would also very likely lose.

It is true that NYT v. Sullivan makes it even easier for Clemens to lose a libel suit, but the real question is whether it serves the public interest to promote dissemination of information about and public discussion of issues like the steroid scandal in baseball. Both the Constitution and the common law (which applies to public and private figures alike) agree that the dissemination of such information is important.

Clemens, as a public figure, with abundant access to the media, can call as many press conferences as he wants and provide as much evidence as he likes to the press to clear his name. What he can't do is take Mitchell to court and collect damages, unless he can show that Mitchell didn't care whether what he said about Clemens was true or false. It is very likely that Clemens will be unable to do this.

Is NYT v. Sullivan a good idea? Some scholars have suggested that we replace it with a rule that allows a plaintiff to go to a jury on the question of falsity of the accusation in return for waiving any damage award. In fact the current law of defamation sometimes allows this in practice, because the plaintiff can always sue and request a special verdict on truth or falsity. The problem under the current system, however, is getting to a jury in the first place, because courts tend to try to throw defamation claims out on summary judgment.
Posted 10:10 PM by JB [link]