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The Role of “Character” in Libel Litigation

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The Role of “Character” in Libel Litigation The Role of “Character” in Libel Litigation ROBErt P. LATHAM AND AMANDA THOMPSON Be more concerned with your as a reliable pitchman, Woods brings facts that it can find about Woods, character than your reputation, suit for defamation. The case is going rules that any such conduct (whether because your character is what to trial in early 2009. The defense, true or not) does not relate to the you really are, while your rep- whether or not it has a defense to alleged defamation, and he grants the utation is merely what others liability for the alleged defamation, motion in limine. The case goes to think you are. needs to deal with the possibility of a trial, and Woods prevails and recov- ~John Wooden, former basket- large damages award. After all, this is ers damages based on his generally ball player and coach an extremely popular and richly com- solid reputation (other than an occa- pensated athlete. sional ill-tempered moment on a golf Woods is claiming a reputation as course). He recovers not only past but Just because you are a charac- the premier golfer in the world, a ded- also future damages. ter doesn’t mean that you have icated athlete, a dedicated family man, Back to reality: We all know what character. a reliable partner and spokesperson happens in the next year. Woods’s ~Winston Wolfe, Pulp Fiction for sponsors, and a man with nothing earnings are cut in half. Tag Heuer sordid in his past. The defense—even and Gillette drop him as a pitchman. before stories of Cadillac Escalades He no longer tops the Forbes list of Tiger Woods: A (Hypothetical) and golf clubs and Ambien and the world’s most highly compensated Cautionary Tale trees—acquires information, either by athletes. And four years have passed To illustrate the roles of character and its own investigation or by someone without him winning another major. reputation in libel cases and to give with an ax to grind coming forward, Returning to our hypothetical: emphasis to the differences between that Woods is keeping company with Despite the defense’s prophetic argu- the two, let’s consider a hypotheti- a number of mistresses and is in effect ments about Woods’s conduct being cal situation based in the shadow of a living in a house of cards that could relevant to future damages, Woods real life situation with which most of unravel at any time. Woods is asked gets to keep the future damages that us are familiar. about this information in his deposi- were awarded. Reality: It is early 2009, and tion. He refuses to answer. He seeks If this seems like an implausi- Tiger Woods is recovering from sur- a protective order and files a motion ble scenario, it is not. The issue of gery after having won his 14th major in limine to prevent this informa- what evidence to admit regarding a golf championship—the 2008 U.S. tion from not only coming out but plaintiff’s character or reputation is Open—while hobbling on one leg. even being raised, claiming that it is a fertile battleground in libel cases. He is the highest paid athlete in the irrelevant to anything involving the One of the reasons that it has been so world, with endorsement deals with financial deal at issue. The defense fertile is that those two words—char- the likes of Gillette and Tag Heuer argues that maybe it isn’t relevant acter and reputation—have sometimes and with a seemingly enviable fam- directly to the issue of truth as to been used interchangeably when they ily situation: a wife and two kids who whether he was involved in the hypo- should not be. are always visible at golf tournaments thetical financial improprieties but In this article, we will examine the and whom he references in at least that it does go to his character, and confusing jurisprudence regarding one endorsement. that at trial Woods will no doubt offer the interplay between character and Hypothetical: Something is written evidence about his character as well reputation. We also will identify the about Woods that does not involve as his reputation, as libel plaintiffs do. turning point in allowing evidence his family or romantic life. Let’s say To counter the defense’s argu- of character and why it is vitally that it involves a financial deal and ments, Woods’s lawyers argue that important to allow defendants in accuses Woods of financial impropri- these issues are irrelevant to his rep- defamation cases to be able to intro- eties. In order to protect his valuable utation because even if they were duce evidence of specific instances endorsement deals and his reputation true, nobody knows about them. of misconduct in order to prevent a The defense then responds that the potentially unjust result. information relating to Woods’s con- Robert P. Latham is a partner at Jackson duct should certainly be admissible Muddy Waters: Confusing the Terms Walker L.L.P. in Dallas and Houston, in order to mitigate future damages Character and Reputation Texas, where he chairs the firm’s media if these matters were to ever come To illustrate how unclear the author- law practice. Amanda Thompson is an out. The judge, worried about going ity can be in this area, consider this associate in the Dallas office of Jackson down a slippery slope by allow- from Corpus Juris Secundum (C.J.S.): Walker L.L.P. ing the defense to bring in any bad “Since the plaintiff’s general character 4 - Published in Communications Lawyer, Volume 29, Number 2, November 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. or reputation is necessarily involved instances of misconduct, including Court of North Dakota, citing Shir- in a defamation case, that type of evi- instances unrelated to the content of ley, stated initially that “evidence of dence is admissible.”1 However, the the allegedly defamatory statements.7 a plaintiff’s general bad reputation excerpt goes on to state that “the The Oregon Supreme Court, however, or bad character is admissible in a proof must be confined to reputa- reversed, stating: defamation action.”15 However, the tion with respect to the aspects of the court then went on to say that “spe- plaintiff’s reputation that were alleg- cific instances of a plaintiff’s conduct edly defamed, and testimony must Character and reputation are or a plaintiff’s particular charac- also be presented to the effect of that not synonymous. Character is ter traits are not relevant unless they trait, if true, upon the community’s internal; it is that set of per- were generally known by others in the view of the plaintiff.”2 sonality traits and moral values community.”16 Once again, a court This somewhat outdated treat- actually possessed by an indi- ignored any distinction between rep- ment (as we shall further discuss) of vidual. See State v. Johns, 301 utation and character in ruling on the issue suggests that unless the evi- Or. 535, 548, 725 P.2d 312 the type of evidence that would be dence sought to be admitted was a (1986). Reputation, however, admissible. component of the plaintiff’s already is external. It is the communi- The Supreme Court of New existing reputation, it is inadmissible. ty’s perception of an individual’s Hampshire in Small v. Chronicle & “Evidence of particular instances of character. Character is what a Gazette Publishing Co.17 engaged in a misconduct is not admissible to prove person is, reputation is what the similar analysis. In Small, the court the plaintiff’s general bad character person’s neighbors think he or stated: or reputation so as to show the plain- she is. See 1 A. Wigmore, Evi- tiff was not damaged significantly by dence 1147–48, § 5233 (1978). the alleged misrepresentation.”3 Thus, Plaintiff’s pleadings in this case A defendant in an action for reading this excerpt as a whole, it establish that he sought dam- slander may introduce, for the would seem that a plaintiff is able to ages for harm to his reputation, purpose of reducing the dam- proffer evidence of his general good not his character.8 ages, evidence to show that the character, but the defense is not able plaintiff’s general character or to proffer evidence of his general bad reputation is bad, but evidence character. However, the court ignored the of particular facts tending to To further blur the analysis, the interrelation between character and establish the plaintiff’s reputa- C.J.S. entry concludes thus: “[S]pecific reputation, particularly regarding the tion is inadmissible. True these instances of a plaintiff’s conduct potential for damages. This is an espe- acts of misconduct and the pub- or a plaintiff’s particular charac- cially surprising result given that the licity given to them may have ter traits are not relevant unless they Oregon Evidence Code makes char- affected his reputation. If they were generally known by others in the acter relevant in a libel case even have, then evidence of his repu- community.”4 This of course is not though, by definition, a libel plain- tation alone suffices to show it.18 character; it’s reputation. Limiting tiff will always seek damages to his proof of a libel plaintiff’s character reputation. to only those things that are known in The South Carolina courts in Weir Once again, while saying that evi- the community is to remove the com- v.
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