What is libel by implication? - Directrouter.com

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Practice questions/topics: 

OUTLINE FOR SEPTEMBER 2006 SEMINAR 

LIBEL BY IMPLICATION – CURRENT TRENDS 

• What is libel by implication? 

• What fact scenarios have given rise to viable claims? 

• How do you recognize potential risk(s) when vetting material? 

• Are there ways to minimize those risk(s)? 

• How do you defend libel by implication claims? 

A. Definition(s) 

Libel or defamation by implication “has become a catchword for any 

claim of defamatory meaning that goes beyond what the words 

themselves denote.” 1 Courts have defined the tort in various ways, 

including: 

1. Libel by implication occurs when a defendant (1) juxtaposes a 

series of facts to as to imply a defamatory connection between 

them, or (2) creates a defamatory implication even though the 

particular facts are correct. Toney v. WCCO, 85 F.3d 383 (8th 

Cir. 1996). 

2. A publication can convey a false and defamatory meaning by 

omitting or juxtaposing facts, even though all of the individual 

statements considered in isolation are literally true or nondefamatory. 

Turner v. KTRK Television, Inc., 38 S.W.3d 103 

(Tex. 2000). 

3. Implied defamation occurs when a publication states facts that 

are literally true, but produces a defamatory meaning apparent 

from a plain reading of the publication in its entirety. Chapin v. 

Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993). 

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Thomas B. Kelley & Steven D. Zansberg, Libel by Implication, 

Commun. Law. (Spring 2002).


B. Fact patterns resulting in viable claims 

Libel by implication recently has been found in a various fact 

scenarios, which can be generally categorized as follows: 

1. False implications arising from true facts: 

a. Stevens v. Iowa Newspapers, Inc., 711 N.W. 2d 732 

(Table), 2006 WL 126626, 34 Med. L. Rep. 1430 (Iowa 

Ct. App. 2006): Plaintiff, a freelance sports writer, sued 

the Ames Tribune and a sports writer alleging defamation 

arising from a column which criticized plaintiff’s 

journalistic practices in response to an earlier column 

plaintiff had written. The trial court entered summary 

judgment in favor of defendants. On appeal, after 

concluding that the column’s statement that plaintiff 

“rarely attended events upon which he wrote columns” 

was “literally true” and “not directly defamatory,” the 

court held the statement was actionable. Specifically, the 

court found that a “reasonable juror” could find that the 

sports writer intended to convey the defamatory message 

that plaintiff was professionally incompetent. The court 

based its ruling in part on the sports writer’s 

testimony that, although the statement was not intended 

as a comment on plaintiff’s professional credibility, it 

was intended to express that plaintiff often offered 

opinions which had no basis in fact or research. 

b. Johnson v. Columbia Broad. Sys., Inc., 10 F. Supp. 2d 

1071 (D. Minn. 1998): Plaintiff, a cosmetic surgeon, 

sued a television station arising from a broadcast about 

his practice entitled “Scarred for Life.” Because the 

alleged defamation arose from statements implied from, 

rather than directly contained in, the broadcast, the court 

required plaintiff to establish that the broadcast was 

capable of being interpreted as alleged and that defendant 

intended the alleged implications. To resolve these 

questions, the court used a five-step analysis: (1) is the 

alleged statement capable of being proved true or false; 

(2) is the relevant portion of the broadcast susceptible to 

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the implication alleged; (3) did defendant intend the 

alleged implication; (4) is the alleged implication in fact 

false; and (5) would a person in the exercise of 

reasonable care have known the implication was false? 

Applying this analysis, the court found the found the 

broadcast contained several actionable implications 

which should be determined by a jury. In this regard, the 

court found that there were “fact issues” as to defendant’s 

intent raised by the “context” and “tenor” of the 

broadcast. 

2. Juxtaposition and omission: 

a. West v. Media General Operations, Inc., 120 F. App’x. 

601, 33 Med. L. Rep. 1321 (6th Cir. 2005): Plaintiffs, a 

probation counseling center and its owner, sued a 

television station for defamation arising from a 4-part 

investigative series detailing the “cozy relationship” 

between the center and local judges entitled “Probation 

for Sale.” After a jury awarded damages, the television 

station appealed. Although the Sixth Circuit reversed the 

award on other grounds, it held that plaintiffs were 

entitled to sue on various implied “topics” arising from 

defendant’s alleged juxtaposition of visual and audio 

components. Plaintiffs were not required to identify 

specific statements contained in the broadcast which they 

alleged were defamatory. In so ruling, the Court stated 

that the “video context” in which a statement is made 

must be examined because “a television director or 

reporter can, in many subtle ways, alter the tone and 

meaning of an otherwise innocuous broadcast through 

video and audio editing techniques.” Accordingly, a 

television news report can “imply a defamatory 

statement” not specifically stated through a combination 

of statements and visual effects. 

b. Franklin Prescriptions, Inc. v. The New York Times Co., 

267 F. Supp. 2d 425 (E. D. Pa. 2003): Plaintiff pharmacy 

sued for defamation arising from an article concerning 

unscrupulous online pharmacies, which take e-mail 

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orders for controlled and other drugs without requiring a 

prescription. Although there was no specific reference to 

plaintiff within the article, it did contain an edited version 

of plaintiff’s “web-grab” (a printout of plaintiff’s website 

used as photograph). The court denied defendant’s 

motion for summary judgment, ruling that the 

juxtaposition of plaintiff’s web-grab without explanatory 

information included in plaintiff’s website regarding the 

necessity of having a prescription “could lead a 

reasonable person to believe that [plaintiff] engages in 

the exact type of conduct described” in the article. 

Because the plaintiff was a private figure, the court 

refused to require plaintiff to prove that defendant 

endorsed the defamatory implication. 

c. Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 

2000): Plaintiff mayoral candidate sued television station 

for libel arising from news broadcast questioning his role 

in a life insurance scam. Although the Texas Supreme 

Court affirmed the reversal of a jury verdict in plaintiff’s 

favor, it held that plaintiff could state a cause of action 

for implied defamation based on the “publication as a 

whole” rather than on specific false statements. In so 

ruling, the court identified several key facts omitted from 

the broadcast which would have more accurately 

portrayed plaintiff’s role in the transaction at issue. By 

omitting these facts, and falsely juxtaposing others, the 

“broadcast’s misleading account cast more suspicion on 

[plaintiff’s] conduct than a substantially true account 

would have done.” 

3. False implications from false facts and/or opinions 

a. Hatfill v. The New York Times Co., 416 F.3d 320 (4th 

Cir. 2005): Plaintiff sued for defamation and other 

claims arising from a series of columns which raised 

questions and expressed opinions about the FBI’s 

investigation of the anthrax mailings. Plaintiff asserted 

that the columns falsely implied that he was involved in 

the mailings. The circuit court reversed the district court 

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dismissal of the action, ruling that a defamatory charge 

may be made expressly or by “inference, implication or 

insinuation.” The court held that the columns, taken 

together, focused only on plaintiff, which likely would 

lead a reasonable reader to conclude that plaintiff was 

responsible for the mailings. Moreover, this 

“unmistakable theme” was not sufficiently clarified by 

the columnist’s caution to readers that plaintiff should be 

presumed innocent, or his statement that the FBI should 

either arrest or clear plaintiff. 

b. Schlieman v. Gannett Minnesota Broad., Inc., 637 

N.W.2d 297 (Minn. Ct. App. 2001): Plaintiff police 

officer sued television station alleging defamation by 

implication arising from an investigative news report 

about the shooting of a citizen. In considering the lower 

court’s jury instruction barring consideration of whether 

juxtaposition or omission was a basis to find defamation 

by implication because of plaintiff’s status as a public 

figure, the court held that the instruction was defective. 

In so ruling, the court distinguished earlier rulings which 

established that a public-official plaintiff could not base a 

defamation by implication claim on true statements. 

Specifically, the court held that defamatory meaning 

should be distinct from falsity for purposes of proving a 

defamation by implication claim based on false facts, and 

plaintiff accordingly could rely on juxtaposition and 

omitted facts to find defamatory meaning. 

c. Gjonlekaj v. SOT, 308 A.D.2d 471 (N. Y. App. Div. 

2003): Plaintiff, a publisher of a rival Albanian 

newspaper, sued his competitor for libel arising from a 

news article which concerned plaintiff’s alleged claim of 

sole credit for the idea of publishing an Albanian 

translation of a book written by Pope John Paul II. The 

article at issue characterized plaintiff as a “leftist 

bookseller” who dealt in Communist propaganda in 

Albania. The article further stated that many “newly 

arrived Albanians don’t know [plaintiff’s] background, 

but to many of us who know him very well he is a 

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representative of Marxist ideology” which was 

destructive to Albania. The court denied defendant’s 

motion to dismiss, holding that these statements implied 

that defendant had knowledge of certain facts not known 

to readers which supported his defamatory opinion 

regarding plaintiff. 

C. Libel by implication disguised as false light 

1. False light is a form of invasion of privacy which is actionable 

where a publication places an individual is a “false light” before 

the public if (a) the false light is highly unreasonable; and (2) 

the publisher had knowledge of or acted in reckless disregard 

as to the falsity of the publicized matter and the false light in 

which the individual would be placed. Restatement (Second) of 

Torts §652(E) (1977). 

2. This language unfortunately has led some courts to declare that 

false light does not require a false statement of fact, only a 

statement placing a person in a false light. See, e.g., Heekin v. 

CBS Broad., Inc., 789 So. 2d 355 (Fla. 2d DCA 2001); 

Goodbehere v. Phoenix Newspapers, 783 P.2d 781 (Ariz. 

1989). This concept has opened the door for claims based on 

implied meaning, which typically would not survive scrutiny 

under traditional defamation standards, or where companion 

defamation claims fail. For example: 

a. Anderson v. Gannett Co., Inc., et al., Case No. 2001-CA- 

1728, First Judicial Circuit Court, Escambia County, 

Florida: In Anderson, the plaintiff is the owner and 

founder of a large road paving company -- Anderson 

Columbia -- based on Lake City, Florida. During a fiveday 

period in December 1998, the defendant Pensacola 

News Journal published a series of articles concerning 

problems between Anderson Columbia and state 

regulators. One of the stories in the series reported on 

Anderson Columbia’s political contributions and 

discussed a pending federal grand jury investigation of 

the company’s political connections. The article also 

reported that Joe Anderson had been indicted by an 

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D. Defenses 

earlier federal grand jury and charged with bribing local 

government officials to obtain road work. Anderson 

pleaded guilty to mail fraud and was sentenced to 

probation. The article also accurately reported that 

Anderson’s probation was extended because he had 

“shot and killed his wife” with a shotgun he was barred 

from possessing. The article’s next sentence explains 

where the death occurred and that Joe Anderson had filed 

for divorce, followed by a sentence that stated: “Law 

enforcement officials determined the shooting was a 

hunting accident.” Based primarily on these three 

sentences, plaintiff sued for false light alleging although 

the article was literally true, it placed him in a false light 

as having murdered his wife. Following a lengthy trial, a 

jury found in Anderson’s favor and awarded him more 

than $18 million. An appeal of the verdict currently is 

pending in Florida’s First District Court of Appeal. 

Even where libel by implication and related torts have been 

recognized as a viable claims, courts have employed traditional, 

constitutionally-based and tort-specific defenses in rejecting such 

claims. For example, 

1. Truth 

a. Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 

2005): Plaintiff, the brother of Oklahoma City Bomber 

Terry Nichols, sued for defamation by implication and 

false light arising from defendant’s documentary film 

regarding guns and violence in Anerica. The court 

granted summary judgment on plaintiff’s defamation 

claims, finding that he failed to demonstrate the 

publication contained false statements, implications or 

omitted material factual statements. Plaintiff’s false light 

and emotional distress claims failed for the same reasons. 

b. Mohr v. Grant, 108 P.3d 768 (Wash. 2005): Plaintiffs, 

the owners of an interior design firm, sued a television 

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station for defamation arising from broadcasts 

concerning the arrest and prosecution of an mentallyhandicapped 

individual arising from an incident at 

plaintiffs’ store. Plaintiffs alleged inter alia that 

defendant omitted material facts which resulted in 

defamation by implication. The court ruled that the 

television station was entitled to summary judgment 

because plaintiff failed to establish falsity, i.e., that the 

alleged false impression conveyed by the broadcasts 

would be contradicted by the inclusion of omitted facts. 

Specifically, the court found that the omitted information 

would not have negated the alleged defamatory 

implication in its entirety, and the broadcasts therefore 

were not actionable. 

c. Proskin v. Hearst Corp., 14 A.D.3d 782 (N.Y. App. Div. 

2005): Plaintiff, a former district attorney and judge, 

sued newspaper for defamation arising from article 

reporting his criminal conviction had been overturned 

based on ineffective assistance of counsel. The article 

reported that his career had stalled after public 

revelations that he had altered a client’s will to leave her 

money to his own children. The court rejected plaintiff’s 

allegation that the article implied his actions were 

criminal and defamed him because it failed to state that 

he altered the will at the client’s request. Rather, the 

court held that because the article did not affirmatively 

state plaintiff had done anything illegal or criminal, 

plaintiff’s defamation claim must fail. 

d. Montefusco v. ESPN, Inc., 47 F. App’x. 124, 2002 WL 

31108927, 30 Med. L. Rep. 2311 (3d Cir. 2002): 

Plaintiff, a former major league baseball player, sued for 

defamation and false light arising from an ESPN 

broadcast which reported concerned criminal charges 

against plaintiff connection with sexual and physical 

violence toward his ex-wife. Plaintiff alleged that the 

broadcast’s comparison of plaintiff to O.J. Simpson 

falsely implied that he was guilty of crimes of which he 

had been acquitted. The court dismissed the action, 

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ruling that all of the statements reported were factually 

accurate, as was the comparison to O.J. Simpson. 

e. Am. Transmission, Inc. v. Channel 7 of Detroit, Inc., 609 

N.W.2d 607 (Mich. Ct. App. 2000): Plaintiff 

transmission repair shop sued television station and 

reporter for defamation and other claims arising from 

investigative report concerning deceptive practices at 

shop. Although the statements in the broadcast were 

true, plaintiff asserted the entire broadcast was 

defamatory because it implied plaintiff was dishonest. 

The court affirmed summary judgment in defendants’ 

favor, ruling that plaintiff had failed to establish the any 

implications raised by the broadcast were false. 

2. Implication(s) not reasonable 

a. Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305 

(11th Cir. 2001): Plaintiff, the owner of a gold-refining 

business, sued magazine for libel arising from report 

concerning drug trafficking in the international gold 

trade. The Eleventh Circuit affirmed the district court’s 

dismissal of the action, holding that no “reasonable 

reading of the text supports the implication” that plaintiff 

was engaged in improper conduct, and that the use of his 

photograph failed to create any defamatory implication. 

Although not necessary to its holding, the court 

recognized that “a First Amendment problem is 

encountered when a private figure complains that he has 

been defamed by implication in a communication 

containing only true facts.” 

b. Worrell-Payne v. Gannett Co., Inc., 134 F. Supp. 2d 

1167 (D. Idaho 2000): Plaintiff, a former director of 

local housing authority, sued newspaper for libel by 

implication and related torts arising from news articles 

critical of plaintiff’s performance. The court granted 

summary judgment in favor of defendant, holding that 

the articles at issue were “not reasonably capable of 

sustaining the false implications” alleged by plaintiff. 

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3. No intent/endorsement 

a. Thomas v. Los Angeles Times Communications LLC, 45 

F. App’x. 801, 2002 WL 31007420, 30 Med. L. Rep. 

2438 (9th Cir. 2002): Plaintiff sued newspaper for 

defamation arising from article about plaintiff’s life story 

which he alleged implied that he had lied about previous 

exploits and that his language instruction program was a 

sham. The court affirmed dismissal of the action, ruling 

that even if plaintiff could show the articles were capable 

of the defamatory implications, he had failed to establish 

that the author had intended those implications. 

b. Abadian v. Lee, 117 F. Supp. 2d 481 (D. Md. 2000): 

Plaintiff health club manager sued fitness magazine for 

defamation and related claims arising from quotes by her 

contained in an article entitled regarding practices 

consumers should be aware of and/or avoid in connection 

with health club memberships. The court dismissed 

plaintiff’s action, ruling that she could not establish that 

the articles statements and omissions affirmatively 

suggested the author intended or endorsed the defamatory 

implications. 

2. Use of disclaimer(s) 

a. Leddy v. Narrangansett Television, L.P., 843 A.2d 481 

(R.I. 2004): Plaintiff, a fire marshall, sued a television 

station for defamation arising from an investigative series 

concerning disability pensions paid to firefighters and 

police officers which contained an interview with him. 

The court affirmed summary judgment in favor of 

defendants, ruling that the broadcasts did not 

communicate any false statements about plaintiff or 

imply the existence of defamatory facts about him. The 

court based its ruling largely on the disclaimer at the 

beginning of the broadcast which expressly stated that 

the report “was not implying plaintiff had done anything 

illegal.” 

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What is libel by implication? - Directrouter.com

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