By: Daniel W. Weininger
In April 2005, the United States Court of Appeals for the Second
Circuit decided that the standard of proof for the element of
falsity in a New York public official/figure case is clear
and convincing evidence. The case, DiBella v.
Hopkins, involved a defamation action brought by a boxing
promoter against the former middleweight champion of the
world. While the matter resounded in New York law, the
appellate court refused to certify the question to the New York
Court of Appeals. Instead, the Second Circuit relied on New
York Appellate Division case law, its own precedents on this issue
and scholarly works to support its decision.
This piece examines the issue anew and concludes, contrary to
DiBella, that New York law calls for a preponderance
standard for the element of falsity. Firstly, the author
reviews the United States Supreme Court’s defamation jurisprudence
to set the framework for the issue. He discusses the
evolution of this body of case law from New York Times v.
Sullivan to Harte-Hanks v. Connaughton, where the
Court expressly refused to address the standard of proof for
falsity with its statement, “We express no view on this
issue.” The author then examines the sources underlying the
DiBella opinion and finds that most of them do not support
the Second Circuit’s clear and convincing standard, and in fact,
many contradict this assertion. Finally, the Note discusses
federal, state and New York authority from the Court of Appeals to
conclude that the New York standard of proof for falsity is
preponderance of the evidence.
Ultimately, the policy questions that underlie the standard of
proof question determine how much weight we give to either the
First Amendment or the rights of individuals to protect their
public image. How we tip the balance determines whether
public official/figure defamation plaintiffs will ever resort to a
court of law and publicly vindicate their honor.