Northern District of Indiana Rejects Anti-Drug Activist’s Libel Claim for Reports, Cartoon on DUI Arrest and Acquittal
May 15, 2007
Eric Dorkin - Chicago
Charles D. "Chuck" Tobin- Washington
A police officer’s quote calling an Indiana anti-drug leader “the most obnoxious drunken female I have ever arrested,” and a cartoon depicting her in a jail cell with O.J. Simpson, will not support a libel claim for a newspaper’s coverage about her arrest, prosecution, and acquittal on a DUI charge.
Judge James T. Moody, of the U.S. District Court for the Northern District of Indiana, granted summary judgment for The Times, a Lee Enterprises newspaper. The court held that the plaintiff, Lita Filippo – former vice chair of the Partnership for a Drug-Free Lake County, a quasi-public agency that educates youth about the dangers of drugs and alcohol – had failed to establish actual malice for reports on her 2003 drunk driving arrest. The arresting officer had said Filippo was combative, threatening his job and warning him that her jewelry was worth more than his salary. Filippo was acquitted a year later after a jury trial.
Indiana law protects journalism touching on matters of public concern under the actual malice standard, requiring a plaintiff to prove that the defendant knew the information was false or published while entertaining serious doubts. The court in Filippo v. Lee Publications, Inc., after reviewing precedent, held as a matter of law that the two articles, two editorials, two editorial cartoons, and letter to the editor that Filippo challenged involved matters of public concern.
[T]he leadership of local drug and alcohol education efforts is of public interest to the Lake County community. This is particularly the case because the Partnership deals with local youth … Further, if college football and stock car racing have been labeled ‘matters of public interest,’ it seems clearly appropriate to apply the concept to something as grim and potentially perilous to the community as drunk driving.
The court rejected the actual malice argument that Filippo based on an alleged violation of journalism ethics. Filippo had cited the arresting officer’s testimony, in the criminal case, that he did not know his captain had put him on a speakerphone with a reporter present when the officer told the captain that Filippo was the “most obnoxious drunken female I have ever arrested” (the reporter disputed this account). Filippo also cited the newspaper editor’s testimony in the libel case that, under certain circumstances, clandestine quoting of sources could violate the newspaper’s ethics policy and make the source’s information suspect.
The court held that even if it credits the officer’s testimony, “evidence of an extreme departure from professional journalistic standards, without more, cannot provide a sufficient basis for finding actual malice.” As for the editor, the court held that his testimony “is not clear and convincing evidence from which a fact-finder could conclude that [he] subjectively entertained doubts in this situation.” (emphasis by the court).
The court also rejected Filippo’s claims relating to an editorial calling for her resignation from the Partnership, explaining that, in addition to the fact that she had no evidence of actual malice, “it is not defamatory to publish the true fact of an arrest.” Because the editorial made clear that Filippo’s criminal case had not yet been resolved, the court held, “a reasonable reader would view [the editorial] as a call for plaintiff’s resignation based on the fact that she, a local community anti-drug activist, was arrested for driving under the influence of alcohol.”
Also notable was the court’s conclusion that an editorial cartoon, published as commentary on the news that Filippo had threatened to sue the county, was non-actionable opinion. The cartoon depicted O.J. Simpson in a jail cell toting a golf bag and saying, “I’m still searching for the killer …”. Filippo was depicted back-to-back with him, wearing a button that reads, “Just say whatever to drinking and driving,” holding a steering wheel and a bottle of wine, and saying, “And I’m searching for the person responsible for putting me in this mess!”
Filippo argued that the cartoon falsely stated as fact that she had a “cavalier” attitude about the DUI charge. The court, however, concluded that, “there is no way to objectively verify or test the truth or falsity of whether plaintiff possessed a cavalier attitude toward drinking and driving.” Moreover, the court rejected the argument that the cartoon falsely implied that she was guilty, noting that an editorial on the same page made clear that Filippo merely had been arrested.
The court invited The Times to submit argument to recover its legal fees under the state’s “anti-SLAPP” (Strategic Lawsuit Against Public Participation) statute, which permits fee awards to prevailing defendants in lawsuits arising out of free speech activities. The court has not yet ruled on Filippo’s objection to a magistrate judge’s finding in December of 2006 that during discovery, Filippo and her lawyer had hidden a previous DUI arrest and other charges. The magistrate recommended an award of fees against Filippo and that her lawyer be reported to the state bar.
Holland & Knight represents Lee Enterprises in this matter.
For more information, e-mail Christina LaRosa at christina.larosa@hklaw.com, Eric Dorkin at eric.dorkin@hklaw.com, or Charles D. Tobin at charles.tobin@hklaw.com or call toll free, 1-888-688-8500.