by Paul Alan Levy
A recent trial court decision from New York addresses a question about which I have long held a tentative opinion, albeit without having known of any direct precedent to back up my view: When speaker states facts in an online publication that are not subject to defamation liability when made (because the speaker lacked sufficient reason to suspect falsity to meet standards of negligence or actual malice), but after publication the person criticized tells the speaker that the accusations are false, can the speaker be held liable for failure to remove or retract the critical speech? It has long been my assumption that such a duty to retract is fundamentally at odds with the single publication rule, under which the act of defamation is complete at the time of first publication, and with the rule that the speaker’s mens rea is judged at that time of first publication (so, for example, evidence of truth that is obtained after publication cannot be used to support summary judgment on lack of actual malice).
The issue comes up for lawyers who represent or advise consumers who criticize businesses or political figures but then face a demand for removal, when the consumer receives an ultimatum saying that the alternative to removal is a motion for a preliminary injunction compelling removal. Should the client be advised to take down the allegedly defamatory matter while counsel evaluates the case (my general inclination is to say no, and that’s what I advise in my CLE course about online free speech litigation). But an 2011 blog post by Eugene Volokh takes the position, based on an excerpt from the Restatement of Torts as well as a handful of decisions, that such a duty exists. I have been dubious, but Professor Volokh has a habit of being right in this area of the law.
Rainbow v. WPIX
That issue was presented by a decision late last month in Rainbow v. WPIX, 2018 WL 5255253. A public school parent had complained about a teacher who was allegedly bullying the parent’s child: the parent identified the teacher as being “Starlight Rainbow,” and a local TV station, WPIX, carried a story about the controversy. Its report followed the parent’s lead in identifying the alleged bully, but the identification was mistaken: the alleged bully was named Cynthia Rainbow. When Starlight Rainbow, the name of a teacher at an entirely different school, learned about the false report, she asked the TV station to take the story off its web site. When it ignored her request, she sued for defamation. The station immediately removed the challenged report.
In granting summary judgment against Rainbow’s claim based on the original publication, the court applied the New York rule that a publication about a person who is not a public figure but on an issue of public concern can be held the basis for liability only if the speaker acted with “gross irresponsibility,” that is, without considering the standards for information gathering and dissemination that are observed by responsible parties. The court decided, not unreasonably as I see it, that the TV station was entitled to take at face value a statement by a parent that identified the teacher thought to be responsible for mistreating her child, and that the station’s unsuccessful efforts to get comment from the school system about the report were sufficient.
The court then turned to Rainbow’s claim that the TV station was liable for having failed to retract or remove the report after she had informed the station of the identification error. The court looked to an earlier New York trial court decision, Rodriguez v. Daily News, 2014 WL 12580400, also involving mistaken identification, where the newspaper (as well as WPIX!) had identified the wrong person as having been accused of sexual assault based on a mistake by the New York Police Department, and failed to remove the report for several months after the error was called to their attention. The court did not analyze the issue of removal or retraction, but simply said that it had been given no judicial authority for the proposition that a duty to remove or retract exists. Although Rodriguez as affirmed on appeal (142 A.D. 1062), the removal issue was not addressed in the appellate opinion. Rainbow also cited a few decisions from other jurisdictions where courts had observed that the plaintiffs in those cases had presented no authority supporting a claim for damages based on a failure to remove after a claim of falsity had been made. The only appellate decision, from the D.C. Circuit, was not quite on point: it appears to have held only that a failure to retract or correct was not evidence of actual malice in the original publication. But a few federal district court decisions have rejected claims based squarely on a duty to remove, largely relying on the supposed lack of authority supporting the existence of such a duty, but without a careful analysis of the policies at issue.
Professor Volokh’s Approach
But if Professor Volokh’s 2011 blog post is correct, these other decisions were wrong in reporting that no authority supports a duty to correct. Looking closely, though, my take is that the supposed authority is overstated. The authority discussed most extensively in the blog post is a segment of the Restatement of Torts (section 577(2)) taking the position: “One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.” The hypothetical addresses graffiti about a woman on the wall of the men’s bathroom, and says that the property owner can be held liable for failure to wash the scribbles off once he learns that they are there.
But there are a few problems here. First of all, the Restatement addresses who is liable for the publication, NOT whether that liability turns on when the host learns of falsity after the graffiti is posted, and not, even, what the mental state is required or standard of care imposed on the property owner about the falsity of the comment. Perhaps it is an implicit assumption of the bathroom-wall hypothetical is that an original publisher could also be held liable for a failure to remove. but the Restatement does not address that proposition (and the original publisher, and guy who wrote the graffiti, presumably knows that at best he is spreading rumors or at worst is writing maliciously to get back at someone who has spurned him). And in the online context, the entire discussion has an air of unreality considering that, pursuant to section 230 of the Communications Decency Act, the host for online defamation is not liable for communications submitted by a third party.
Professor Volokh also cited a South Carolina district court decision, Taub v. McClatchy Newspapers, 504 F.Supp.2d 74 (2007), as supporting liability for failure to remove, but that decision rested on the assumption that South Carolina does not follow the single publication rule, but rather uses the “continuing publication rule” under which a new act of defamation occurs each time the web site is accessed. He also cited a Georgia state court appellate decision, Jones v. Albany Herald Pub. Co., 658 SE 2d 876 (2008), but that case was one in which the court considered not a tort duty to remove but rather whether failure to remove showed actual malice. Thus, neither stands for the proposition that there is a duty to remove a publication that was published without actual malice, after it is proved to be false.
Professor Volokh then concludes by saying, “I know of no case that has rejected it as to Web sites.” So we have both sides saying what the rule is based on the assumption that there is no authority to the contrary.
However, having looked at the arguments made by Professor Volokh and the cases that he cites, and at the cases cited by the court decisions on which the Rainbow decision relied, I think the latter are closer to being correct about the absence of contrary authority.
The Right Rule
As I see it, the First Amendment does not speak directly to this issue. (When I reached out to WPIX’s counsel, he suggested that the rule against liability for failure to remove might be demanded by Miami Herald v. Tornillo, 418 U.S. 241 (1974), but I see an enforceable statutory duty to publish a reply regardless of whether there was anything actionable in the original story as being distinct from whether a publisher can be held liable in damages for failing to publish a deserved retraction of a previous article that contained false allegations).
Consequently, this is a matter of state policy. In that regard, although the single publication rule has its origins in statute of limitations concerns, the general rule against holding a speaker potentially liable every time someone else sees the speech seems inconsistent with the proposition that the standard of care exercised by the speaker is subject to reconsideration each time the speech is viewed anew. Indeed, the Taub decision treated the issues as being related, as did the Ninth Circuit in refusing to allow a claim on the theory that failure to retract constitutes a republication. Roberts v. McAfee, 660 F.3d 1156 (2011). I would also be concerned about the significant burdens imposed on the press (and on other speakers) if they were held subject to a claim for damages for failure to reinvestigate a story every time someone objects to it after publication. Still, you would think that a responsible TV station would be quick to correct the record. When I was growing up in New York, WPIX was considered to have a sensationalistic and indeed unreliable news operation akin to the National Enquirer, and perhaps not much has changed.
Still, this issue bears watching – I understand from counsel for Rainbow that she plans to pursue an appeal.
The ruling below was affirmed on appeal, stating "Plaintiff provides “no authority to support [her] argument that the [caselaw] imposes a duty to correct previously-acquired information—and the law does not recognize such an obligation.” Rainbow v. WPIX, 179 A.D.3d 561117 N.Y.S.3d 51 (App. Div. 1st Dep't 2020)