In the E-Mail and Twitter Era, Is 'Actual Malice' Easier To Prove?

Washington Post writer David Weigel has resigned his job reporting on the conservative movement and the Republican Party and the newspaper is well rid of him. Having only been hired in the spring of 2010, it took little time for this ill-trained scribe to demonstrate his lack of suitability for engaging in journalism at the major league level.

Weigel was found to have penned a substantial number of emails on a list serve that included disparaging comments about many of the people he covered during the course of his job. It was actually sort of cute reading his apology in which he sought to insulate himself, however thinly, by noting in the opening sentence that it was an off-the-record list serve from which his offending missives were pulled. How precious. No doubt he would give similar quarter to any source claiming off-the-record status.

In many circles, this demonstration of poor judgment alone would have been sufficient to dismiss a reporter but the Post is not well rid of him because of his politics or his opinions. It is because, though the public airing of his personal comments and attitudes, he has made himself a poster child for how to lose a libel suit.

The greatest hurdle in any libel or defamation action is proving either actual malice or reckless disregard; both the William Westmoreland suit against CBS News and Ariel Sharon’s defamation suit against Time Magazine — brilliantly chronicled by New Yorker writer Renata Adler in her book, Reckless Disregard, hinged on that crucial element. The other two major tests are: the accusation must be false, and the accuser must know it is false. This is why, under the strict U.S. libel laws, it is almost impossible for a public figure to win a libel case.

Still, the Weigel case has inadvertently exposed an avenue that clever lawyers — armed with private emails or even Twitter feeds — might well exploit in the future. Consider for a moment the accusation of anti-Semitism hurled at one well known conservative. This is the sort of assertion that can defame and cause harm to the reputation of the individual. In another instance, the former Post writer accuses another writer of lying. Besmirching the professional conduct of a person can cause loss of stature, be harmful to a person’s reputation, or result in ridicule or contempt. Any of this can form the basis of a potential libel action.

Many times, an apology and a resignation signal the end of an unfortunate episode of trials and tribulations. In the brave new world of modern journalism, in which everything is instantaneous, nothing is private and reporters’ biases have become part of the story, a whole new era may just be starting.