Media Defamation by Misrepresentation and a Potential First Amendment Defense

“You’ve got the wrong person!”

A case of misrepresentation by the media occurs when an individual who has done nothing wrong, has no connection with any illegal or immoral activities, is identified by the media in an negative and untrue manner.  This harms the individual’s reputation.  Depending on how many media outlets misrepresent the individual and their reach, the individual may not be able to escape the defamed tarnished reputation by moving.

One man in Phoenix Arizona had the media misidentify him in perhaps one of the biggest national news stories of 2014 — the Fort Hood shooting. My Fox Phoenix explains the story:

“Media outlets across the globe are confusing a valley veteran named Ivan Lopez, for the Fort Hood shooter who shares the same name.

“Authorities identified the Fort Hood shooter, who left three dead before turning the gun on himself, as 34-year-old Ivan Lopez. The other Ivan Lopez, 32 and from Phoenix, shares many similarities to the suspected shooter. He also is an Army veteran who had been stationed at Fort Hood three years ago, and served in Iraq… What seemed like a harmless coincidence at first, now has the veteran fighting to save his reputation. Lopez says his phone has been ringing non-stop since authorities released the suspect’s name.”

First Amendment a Defense by the Media for Negligently Misrepresenting an Identity

This raises a pretty interesting issue: is the media protected by the First Amendment when negligently misrepresenting an individual’s identity that results in libel?

The First Amendment protects the freedom of the press. “Congress shall make no law… abridging the freedom of speech, or of the press.” U.S. Const. amend. I.

The First Amendment is not absolute and the media cannot say whatever it wants without repercussions. See New York Times Co. v. Sullivan, 376 U.S. 254, 292 (1964). A vast majority of the defamation case law centers on either a group of people or a specific person allegedly committing various acts.  In these cases, it is to be determined how much truth there is to the claims, which will make a claim of defamation.  When there is a case of misrepresented identity, defamation hinges on whether the person was truly misrepresented or not.  This case it is clear, Mr. Lopez of Arizona was tragically misrepresented by various media outlets world-wide to be associated with the Fort Hood shooting.

To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty, integrity, virtue, or reputation.

Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989).

The media can be liable if they acted negligently to ascertain the facts about a private individual.  Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (holding that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, on the ground of a privilege protecting discussion of any public issue without regard to the status of a person defamed).  When the individual is a private citizen and not a public figure the necessary degree of fault which must be shown in a defamation action is negligence. Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 353 (1974) (Blackmun, J., concurring) (noting “[A] State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault”).

This case does not deal with a public figure or a limited public figure (judicially created distinctions in First Amendment analysis).  Mr. Ivan Lopez, 32 of Arizona, was not running for or elected to a public position.  Furthermore, the only reason why Mr. Lopez is in the news is because he shared a name and had similar characteristics to another individual who was in the news.  Mr. Lopez who was a private citizen who was injected into the Fort Hood shooting coverage because of false media reports. It appears the only reason why Mr. Lopez of Arizona spoke to the media was to clear his good name and clear up the misrepresented identity.  For all intents and purposes Mr. Lopez was a private citizen who did not want or seek any attention.

By misrepresenting Mr. Lopez of Arizona as the shooter at Fort Hood, the media outlets who made the wrong report not only had members of society, but he even worried about his family’s thoughts.  “I had people Tweeting my picture, saying I was a ‘piece of crap,’ I was a ‘monster.’ … They don’t even know who I am”…. “Lopez was able to warn his wife, Ysabel, moments before she got a call from someone asking, ‘Do you know your husband just shot himself?'” AZ Family reported.   The damage to Mr. Lopez’s reputation was not limited to Arizona, or the United States; he was brought into disrepute world-wide via misrepresentation.

This is not the first time the media’s lack of due diligence and fact-checking has led to the wrong person to be associated with tragedies.  Misinformation by law enforcement in the Newtown school shooting led to many major media outlets identify Ryan Lanza as the shooter.  The real shooter turned out to be his brother Adam Lanza, who murdered many people including his mother.   In the Aurora theater shooting ABC News incorrectly suggested a link between the shooter James Holmes and the Tea Party and many private citizens identified the wrong James Holmes on social media.

In these cases it is unclear if any litigation resulted because of the misidentifications.

It is likely that a court would find that the misrepresentation defamatory.

Possible Damages

It is unclear how this negative publicity currently affects the Mr. Lopez in Arizona, or if there will be any long-term ramifications.  If Mr. Lopez could show how the media coverage financially impacted his life, he may have a claim for compensatory damages.  Under Arizona law Mr. Lopez could only sue once for each instance of the defamatory publication. Ariz. Rev. Stat. § 12-651.  The suit however, would cover damages from all jurisdictions.

However, the Supreme Court indicated it is hesitant to award punitive damages in the cases of mere negligence by the media.

Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

Punitive damages are mean to to punish.  The Court is uneasy about punishing the media for mere negligent acts against private citizens.  With the media who failed to fact-check and perform its due diligence this is only a case of negligence.  With both names being similar, the men are about the same age, both served in the military at Fort Hood (although at different times), carelessness led to the wrongful reporting.  It certainly was not an intentional act aimed to harm Mr. Lopez of Arizona, like as in the standard of malice.  Thus, punitive damages most likely would not be an option.

Conclusion

It is an interesting case to consider.  Even though the First Amendment was designed to protect the press, the press does not do its job when it negligently misrepresents individuals.  This is a type of false speech with an injurious effect that is not protected under the First Amendment. United States v. Strandlof, 667 F.3d 1146, 1157 abrogated by United States v. Alvarez, 132 S. Ct. 2537 (U.S. 2012) and vacated, 684 F.3d 962 (10th Cir. 2012) (Holmes, J., dissenting) (theorizing it takes more than false speech to violate the First Amendment, arguing it takes injurious speech); see United States v. Alvarez, 132 S. Ct. 2537, 2545 (U.S. 2012) (recognizing “Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”)

Hopefully these sorts of cases will be avoided in the future by the media conducting some very simple fact-checking before publication.

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