The Internet v. The Immediate Jewel of Their Souls

Clearly, the biggest little story sweeping through the blogosphere today is that of the dispute between blogger Katherine Coble and JL Kirk Associates (the latter being represented by the law firm of King & Ballow) over apparently less than mutually satisfactory business dealings between the parties and statements subsequently posted by Ms Coble and readers on her blog. Ms Coble has now received a letter from legal counsel for JL Kirk Associates demanding that she remove allegedly defamatory statements from her blog site and cease publishing any further such statements.

Predictably, the blogosphere is closing ranks in favor of Ms Coble. (Bill Hobbs offers what appears to be a good roundup tracking the story, as does Nashville is Talking.)

I may be one of the few libertarians, not to mention libertarian bloggers, who continues to believe that the law of defamation, properly understood and applied, is a good thing; that is, that one’s reputation is properly the subject of legal protection under some circumstances. But that’s for another day. I care to weigh in only on a point or two that so far seems not to have been addressed by my fellow bloggers.

First, however, the inevitable disclaimer. I am not a member of the Tennessee State Bar, nor do I have sufficient factual information nor have I conducted sufficient legal research to hold or offer an opinion as to the legal merits of the dispute one way or the other. I’m not taking sides and I'm sure as hell not offering legal advice to anyone. I’m not quite that big an idiot.

(Besides, I’m more of a contracts guy than a torts guy, anyway. And some would say even that is stretching my dubious credentials to their limit. I would be fascinated to know, however, what my old sparring partner at the (unfortunately now defunct) blog Left2Right, Don Herzog – not, to his credit, a lawyer, but an expert on tort law at the University of Michigan’s Law School – thinks about the law of defamation as it applies or should apply in general to the internet. Don, any thoughts?)

I was intrigued, in any case, by a paragraph in the demand letter as reprinted at Ms Coble’s website ** because it struck me that it could be interpreted to be claiming that the applicable law of defamation in Tennessee was substantially different from the general law of defamation as I understand it. The relevant paragraph is as follows:

Under Tennessee law, any malicious publication expressed in writing intending to injure the character or diminish the reputation of a business is libel. Moreover, even if statements are literally true, the publisher of those statements is subject to monetary damages where “the meaning reasonably conveyed by the published words is defamatory.” Memphis Publishing Comany [sic] v. Nichols, 569 S.W. 2d 412 (Tenn. 1978)

[** - Lest either Ms Coble or Mr. Korpady, the attorney who apparently signed the demand letter, accuse me of libel per quod (see below), I have no idea whether the word "company" was misspelled by either or both of them nor do I imply nor should the reader infer any carelessness on either's part. I merely cut and pasted the excerpt from Ms Coble's blog site and noted the misspelling without correction. Indeed, I have only Ms Coble's blog as evidence for any of this affair, as far as that goes. There, now that that little bit of CYA is done...]

As a general rule of law, the truth of the defendant’s published statements being alleged to be defamatory is a sufficient defense against a charge of libel. So the question occurs when it might be, under the law of Tennessee, that truth is not a sufficient defense.

Unsurprisingly, because the cited case is not all that recent it could not be found online except through subscription legal research services to which I do not have current access. I did, however, find at the Tennessee Supreme Court website several subsequent cases citing Nichols, including one that briefly summarized its relevant facts, as follows:

... Plaintiff cites Prosser for the proposition that “[t]he form of the language used is not controlling, and there may be defamation by means of a question, an indirect insinuation, an expression of belief or opinion, or sarcasm or irony.” William A. Prosser, The Law of Torts § 111 at 746 (4th ed. 1971) (footnotes omitted). Our review of Prosser and the cases cited therein, leads us to the conclusion that Prosser was referring to situations where actionable defamation may occur through sarcasm, insinuation, and the like, when the truth is twisted by either omitting relevant facts and circumstances, or alluding to “facts” and circumstances that do not exist. The classic Tennessee case on point is Memphis Publishing Co. v. Nichols, 569 S.W. 2d 412 (Tenn. 1978). In Nichols, the Memphis Press-Scimitar published an article stating that Mrs. Nichols had been shot “after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.” Although true, the Tennessee Supreme Court held that this statement could be defamatory because the story failed to mention that several others, including Mr. Nichols, were present at the time. Without this important fact, the article implied that Mrs. Nichols was having an adulterous affair with the suspect’s husband. The Court held that: “Truth is available as an absolute defense [to a charge of defamation] only when the defamatory meaning conveyed by the words is true.” Nichols, 569 S.W.2d at 420.

Hunt v. Tangel, C.A. No. 01A01-9705-CV-00199, __ S.W.2d __ (Tenn. Ct. App. 1997)

Ah, now that makes sense. It appears the court was grappling with the common law distinction between libel per se and libel per quod, a question of whether the published statements were defamatory on their face or required knowledge of extrinsic facts to make out the defamatory meaning which, in turn, affected the plaintiff’s burden of proof regarding damages. In its modern manifestation, however, one might say informally that a ‘falsehood’ is still required to prove a charge of libel when the published statements are themselves true in that the reader must be reasonably likely to draw a false and defamatory conclusion from those otherwise true statements as published.

Let me repeat that I neither know nor care to speculate on what statements were true or false or what sort of extrinsic facts there might be that could result in whatever truthful statements Ms Coble published being deemed defamatory or where, as lawyers are wont to say, "the equities" lie in this matter. It does not, in any case, appear that the law of defamation in Tennessee is especially different from that of other jurisdictions at least on the point herein considered.

One other observation, though. The phrase “intending to injure the character” from the demand letter also struck my eye. I don’t know whether that is the phrasing of Mr. Korpady, himself, or a phrasing merely taken from one or more defamation cases. Probably the latter. Courts, themselves, can be notoriously casual in their phrasing, causing much legal mischief as a result. Even so, as my long-ago torts teacher once observed upon hearing a student (not me!) use the often heard phrase “defamation of character,” defamation is about reputation, not character. False assertions can injure another person’s reputation; the quality of his character is up to him.