Media law experts expressed surprise when a Louisiana Supreme Court justice won a defamation case against the state’s largest daily newspaper.
An attorney for Justice Jeff Hughes says the verdict falls well within established norms. But if allowed to stand, it might have an impact on how Louisiana outlets cover public officials.
“It’s bound to have an effect, not just on public opinion, but on reporting in general,” says Bruce Hamilton, who directs the First Amendment Clinic at Tulane University’s School of Law. “And I see a potential chilling effect among members of the press.”
The jury in Iberville Parish’s 18th Judicial District found that The Advocate defamed Hughes in a 2019 editorial, arguing in a headline that “he made a mockery of justice.” The opinion piece also relied upon information from the paper’s previous investigative reporting.
“As a justice of the Louisiana Supreme Court, Jeff Hughes is supposed to embody the highest standards of judicial conduct,” the op-ed begins. “He failed that standard miserably two decades ago when he presided over a controversial custody case while he was, according to several people, romantically involved with one of its lawyers.”
Years later, a note was attached to the op-ed “to clarify that the attorney Judge Jeff Hughes was dating withdrew before he made his final ruling in the Nicholson custody case.”
For public figures like Hughes, mere negligence is not enough to win a defamation case. Instead, the plaintiff is supposed to prove “actual malice,” which means the defendant either knew the information was false, or published with reckless disregard for whether it was false or not.
The standard is higher for public figures than for private citizens to provide “breathing room under the First Amendment” to allow the press to report on matters of public concern, Hamilton explains.
“The law recognizes that some error is inevitable in reporting and publishing,” he says.
As reported by WWL-TV, Judge Kevin Kimball said Hughes could prove The Advocate showed “reckless disregard for the truth,” because while the news story said attorney Berkley Durbin withdrew from the custody case in August 1998, four days before Hughes ruled, the newspaper’s editorial two days later said “in 1999” Hughes and Durbin were “romantically involved” and “Durbin represented” the mother.
Pure opinion can’t be defamatory, but that doesn’t mean a columnist can just write whatever they want without fear of legal repercussions. A statement of purported fact within an opinion piece can still get a media outlet in trouble.
But the statements in the editorial were factually true, The Advocate’s attorneys stated in a motion to dismiss the case. Hughes did preside over the case, he was romantically involved with Durbin and he did refuse to recuse himself.
That leaves Hughes arguing that, while the individual facts might be true, when you string them together, they leave the impression that “Jeff Hughes ruled in favor of the mother represented by his girlfriend in his case,” as Hughes put it in a separate document.
Yet the Louisiana Supreme Court has held that “truthful statements which carry a defamatory implication” can be actionable for private citizens, but when “public officers and public affairs are concerned, there can be no libel by innuendo.”
So from the defendant’s perspective, the attempt to prove “libel by innuendo” is a fatal flaw in the case. But attorney Caleb Didriksen, who represented Hughes, says actual malice was “kind of easy to prove” because the newspaper was “given proof in writing” that Durbin “had actually withdrawn from the lawsuit eight months earlier.”
And while only two articles were at issue in the defamation judgment, “there were an additional 30-something articles that kept the storyline going,” Didriksen says, which he contends is further proof of actual malice.
Hughes had sought $10 million, though the jury awarded only $300,000, which reportedly was a compromise between jurors who wanted to award $500,000 and those who didn’t think he was defamed at all. The jury’s verdict form did not mention actual malice.
One ruling in a district court does not set a binding legal precedent for courts across the state. But following such a high-profile case, it would not be surprising for plaintiffs’ attorneys to cite the result, says Joseph Russomanno, emeritus professor of journalism and mass communication at Arizona State University.
At least two members of the U.S. Supreme Court—Clarence Thomas and Samuel Alito—have talked about watering down or doing away with the actual malice standard, he says.
“I have little doubt that those rumblings that we’ve heard from the U.S. Supreme Court have extended down the flow chart to lower courts here and there,” Russomanno says. “Some judges undoubtedly would echo what we’re hearing from a couple of members.”
Powerful people seem increasingly willing to file defamation suits in which the objective is not so much to win as it is to intimidate and to deter other journalists from pursuing similar stories, says Seth Stern, chief of advocacy at Freedom of the Press Foundation. This case does not appear to be as egregious as some others he’s seen, since there at least appeared to be some arguable inaccuracy involved, he says.
“I think this is a time for the judiciary to be vigilant in ensuring that lawsuits like these do not proceed,” Stern says. “Judges need to ensure that whether people love or hate the press, the law is still followed.”
The Advocate had not yet appealed the case as of last week, nor had a signed judgment been issued.
Scott Sternberg, the publication’s lead attorney, was not available for comment, nor was Judge Kimball. Attempts to reach Hughes were unsuccessful.
Jeremy Alford publishes LaPolitics Weekly, a newsletter on Louisiana politics, at LaPolitics.com. Follow him on Twitter, or Facebook. He can be reached at JJA@LaPolitics.com.
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