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FIRST AMENDMENT - LITTLE V. CONSOLIDATED PUBLISHING COMPANY

In Little v. Consolidated Publishing Company, [Ms. 2090705, May 13, 2011] __ So. 3d __(Ala. Civ. App. 2011), the Alabama Court of Civil Appeals considered important issues related to freedom of the press. In that case, The Anniston Star published an article and an editorial that quoted a political opponent of an Anniston City Council member claiming that there was "buzz" that the council member based his decision to push for a particular individual to be hired to conduct an audit for the city because he "had or has a personal relationship" with her. The article was also published under a headline that mischaracterized the council member's role in her hiring, saying that he "ordered" the audit even though the city council voted 5-0 to approve it. The city council member brought suit against the reporter and the publishing company that owns the newspaper, alleging libel and the tort of outrage. The Alabama Court of Civil Appeals held that the plaintiff had not satisfied his burden of proving constitutional malice to support a claim for libel against a public official. The main opinion also held that there was insufficient evidence to support a tort of outrage claim. The opinions, however, were fractured with respect to the details. Judge Thompson agreed that the plaintiff failed to prove constitutional malice, but wrote a special concurrence to "point out that the published statements also involved matters of public concern that are entitled to heightened scrutiny" and concluded that under that standard the plaintiff "failed to meet his burden of showing the falsity of the statements he claims were defamatory." Judge Moore dissented with respect to the affirmance of the summary judgment on the plaintiff's libel claim, arguing: (1) pursuant to WKRG-TV, Inc. v. Wiley, 465 So. 2d 617 (Ala. 1986) and other common law principles, the key inquiry in determining truthfulness as a defense to libel is not "whether the reporter fairly and accurately quoted or summarized the statement of the third party, but whether that statement is substantially true"; (2) that a "newspaper reporter or publisher cannot avoid liability for publishing a false and defamatory statement on the ground that the newspaper reporter or publisher accurately quoted the rumormonger, even if the newspaper story clearly identified the statement as an unverified report and even if the newspaper story contains a denial of the rumor by its subject" (citations omitted); (3) that the plaintiff showed substantial evidence of the rumor's falsity; (4) that the phrase "personal relationship," particularly in context, can have defamatory meaning; and (5) that although the plaintiff failed to present clear and convincing evidence that the defendants knew what they published was false, "summary judgment is [nevertheless] inappropriate because a jury could reasonably find constitutional malice by inferring that [the defendants] subjectively entertained serious doubts as to the veracity of the rumor and that, by publishing the headline, [defendants] purposefully or recklessly contributed inaccurate facts that improperly enhanced the rumor."

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