Experts say ruling could undermine the ‘actual malice’ standard and make publishers more wary of critical reporting A $300,000 jury verdict won recently by a Louisiana supreme court justice who sued the Advocate , the state’s largest newspaper, for libel over an editorial has caused concern among some US press freedom advocates. One said the decision demonstrated a misunderstanding of a key legal principle governing such cases. And another worries the verdict could have a chilling effect on the media industry’s efforts to report critically on powerful people and institutions. George Freeman, the Media Law Resource Center’s executive director, and Seth Stern, the chief of advocacy at the Freedom of the Press Foundation, shared those thoughts after the 24 August conclusion of a complex, days-long civil trial pitting Louisiana supreme court justice Jefferson Davis Hughes III against the state’s Advocate newspaper. The judge maintained that a 2019 Advocate editorial whose headline included “Jeff Hughes … made a mockery of justice” libeled him – but as a US public figure, to meet his burden of proof in the dispute, he had to prove “actual malice” by the publication. Freeman said actual malice occurs when a publisher has substantial doubts about a story’s veracity – or has a “conscious awareness” that it is probably false – and runs it anyway. Members of an Iberville parish, Louisiana, jury that decided Hughes’s case heard testimony from two Advocate editors at the time that the outlet did everything it could to ensure the editorial was accurate – and they believed it was. Ultimately, the entire dispute seemingly turned on a discrepancy between the editorial in question and an investigative news story published two days earlier. The investigative news story from the Advocate and CBS affiliate WWL Louisiana quoted a woman who described helping her son fight for the custody of his five-year-old boy, Austin, in 1998 when she asked Hughes, then a lower court judge, to recuse himself from the matter. The woman told the outlets that she understood Hughes was dating a lawyer on the opposite side of the custody battle, Berkley Durbin – but that Hughes refused to step away. The news piece reported that Durbin withdrew from the case in August 1998, days before Hughes expanded custody for Austin’s mother. But the ensuing editorial noted “in 1999 …” Hughes and Durbin were “romantically involved” and then said, “Durbin represented Austin’s mother.” Hughes subsequently sued the Advocate for $10m, with him and his legal team claiming the publication took unreasonably long to clarify that timeline, had injured his reputation, and unduly caused him emotional distress. The Advocate’s attorneys, among other arguments, countered that Hughes failed to establish actual malice. Jurors who were picked for the case spent about a half hour deliberating before indicating on the plaintiff’s verdict form that the “Advocate defamed Jeff Hughes.” However, it awarded him $9.7m less than he demanded, and the verdict form made no mention of actual malice.

The Advocate’s president and publisher, Kevin Hall, afterward issued a statement to the newspaper saying, “We respect the jury’s decision … [and] stand by our journalism and remain committed to strong, independent reporting that serves our communities.” An attorney for Hughes told WWL Louisiana that “justice was served by the verdict,” allowed the judge “to clear his name from this unfortunate defamation”, and said that a large payout was never the goal. It was the second blow in quick succession to the US press. On 21 August, an Alabama jury awarded $9.25m in damages against the New York Times for wrongly reporting, citing an anonymous source familiar with the situation, that a college basketball player named Kai Spears had been present at the scene of a fatal shooting. But one notable factor in the Times case was that Spears – as a walk-on, or non-scholarship player – had been legally determined to be a private individual rather than a public figure. That meant Spears could win his case if he convinced the jury that the Times’ information was false and published with negligence, as the Washington Post reported . The Times nonetheless issued a statement saying the Spears “verdict and award of damages are contrary to law and not supported by the facts”. It also said Spears’s verdict marked the first defamation case in the US that the Times had lost in 50 years. Both the Hughes and Spears verdicts can be appealed. It was not immediately clear whether the Advocate and the Times intended to do so. Asked to comment on the Hughes verdict and its possible implications on the actual malice standard, Stern on Monday said it “won’t improve journalism” to impose “significant monetary damages whenever the inevitable mistakes occur”. “While [journalists] do their best to ensure that their sources and source materials are accurate, there is always a possibility that they aren’t,” Stern said. Stern added that is why the US supreme court for decades has held that journalists can only be held liable for defamation in cases involving public figures if they acted with “knowledge of falsity or reckless disregard of the truth”. He said otherwise it was a real possibility that a “fear of liability” would make publishers “more timid and suppress critical reporting of wealthy, powerful or otherwise newsworthy people”. Meanwhile, Freeman said he believed the Hughes verdict demonstrated how difficult it is to convey “what the actual malice standard requires”. “In the mind of the publisher, you really need to believe the story is either not true or probably untrue – but you published anyhow,” Freeman said. And, in the Hughes case, he said “there is no evidence or line of proof” that had occurred. US press and publishing Newspapers & magazines