FOX 5 broadcast a series of investigative reports challenging the plaintiff's statements that he fought in the United States Invasion of Panama and received the Purple Heart Award. FOX 5 successfully argued that Ladner was a limited-purpose public figure, and that Ladner could not show evidence of actual malice sufficient to have his case heard by a jury.
The Georgia Court of Appeals in Ladner v. New World Communications of Atlanta, Inc., A17A00883 (Ga. Ct. App. 2017) has upheld the dismissal of a libel suit brought by a military veteran against WAGA-TV FOX 5 Atlanta. [Note: Duane Morris represented FOX 5 in this matter.] FOX 5 broadcast a series of investigative reports by reporter Randy Travis challenging plaintiff Shane Ladner’s statements that he fought in the United States Invasion of Panama and received the Purple Heart Award.
FOX 5 successfully argued that Ladner was a limited-purpose public figure, and that Ladner could not show evidence of actual malice sufficient to have his case heard by a jury.
Ladner sued FOX 5 contending that Travis falsely reported on Ladner’s military history. Ladner had claimed to have a Purple Heart and was regularly recognized in various public and charity events—including a parade in Midland, Texas, where he and his wife were injured in a collision between the parade float and a freight train. After the accident, the Ladners filed a civil lawsuit in connection with the accident and at least “tacitly supported” charitable drives that addressed Ladner’s military service. Once news stations began reporting differing accounts about Ladner’s war record, some of Ladner’s in-laws began to question Ladner’s claims. One in-law wrote a letter to the attorney general asserting that Lander had misrepresented his military service. Ladner joined the Army in 1990, but he had claimed to have served in the United States Invasion of Panama in 1989—when he was still enrolled in high school. Ladner’s in-law also questioned Ladner’s Purple Heart claims which, aside from frequent public recognition, obtained him a free vanity license plate and special tax remission from the state of Georgia. Having received a tip from one of the in-laws, Travis investigated these matters, reviewing military, employment and academic records, speaking with military experts, and taking statements from Ladner and his attorney.
Travis reported, during his FOX 5 investigative segments, that military and academic records showed that Ladner’s claim that he was injured during his service in Panama were false, and that his discharge records in his official military file made no mention of Ladner’s claimed Purple Heart. Travis also reported on Ladner’s contention that his superiors ordered him to lie about the circumstances surrounding his injuries, because he was wounded during a “sensitive” drug interdiction tactic. Based on numerous facts set forth in his full report, Travis asserted that “Ladner had no business being on the float with other war heroes” and that “the Army says Ladner never received a Purple Heart.” Following Travis’ report, Georgia prosecutors filed criminal charges against Ladner for making false statement in an application for a Purple Heart license plate.
FOX 5 successfully showed the trial court that Ladner was a “limited-purpose public figure,” and not a private person. This, in the Court of Appeals’ words, was “a critically important issue” because a private person must simply show that the defendant was negligent, whereas a public figure must prove actual malice by clear and convincing evidence.
Limited Public Figure Status
The trial court found, and the Court of Appeals affirmed, that Ladner voluntarily assumed the role of a limited-purpose public figure.
- First, the Court of Appeals found that a public controversy existed relating to the accident at the parade and the ensuing investigations and fundraising efforts that focused on Ladner’s prior military service.
- Second, the Court of Appeals held that Ladner was involved in the public controversies insofar as he (a) voluntarily sought recognition for his military service, such as by applying to participate in the Texas event where the accident occurred, (b) did in fact participate prominently in the Texas parade and spoke prominently in the aftermath, taking actions which “raised his public profile,” and (c) similarly engaged in public affairs, ranging from charity events and fundraising to his display of a Purple Heart license plate, which implicitly or explicitly “touted his military accomplishments.”
- Finally, the Court of Appeals found that the alleged defamation concerned Ladner’s involvement in these public controversies.
The real gravamen of the Court of Appeals holding that Ladner was a limited-purpose public figure was its finding that, although Ladner did not comment on the public controversy at issue, his “conduct” in “rais[ing] his public profile” made him a limited purpose public figure required to prove actual malice by clear and convincing evidence.
Having found that Ladner was a limited-purpose public figure, the Court of Appeals ruled that Ladner could not establish that Travis acted with “actual malice.” The Court of Appeals reasoned that:
- The impetus to investigate originated not with Randy Travis, but with Ladner’s wife’s family members.
- Travis investigated thoroughly, requesting and obtaining public records from military and academic institutions, reviewing documents furnished by Ladner, speaking with experts, confronting Ladner with records negating his claims and forcing Ladner to concede certain falsehoods (i.e., about his alleged service in Panama).
- Travis provided Ladner an opportunity to respond, and stated the positions of Ladner and his attorney in his broadcasts.
- Travis at all times believed that his findings were accurate.
Because defendants set forth evidence sufficient to negate a finding of actual malice, the burden shifted to Ladner to show that there was evidence of malice sufficient to create a genuine issue of material fact for a jury to decide. Ladner failed. The Court of Appeals ruled:
- Ladner’s contention that Travis rushed his reporting and should have investigated further does not create a genuine issue as to malice, since even a failure to fully investigate does not, as a matter of law, “evince actionable reckless disregard.”
- Ladner’s contention that Travis adopted certain experts’ opinions but not others, and that he adopted certain views about the authenticity of the records provided by Ladner, does not evidence malice, because Travis was entitled to select among differing opinions and because Travis had a good-faith basis to subjectively believe that Ladner provided records that lacked authenticity.
- Ladner’s contention that Travis employed “strong language” in his reports did not tend to show actual malice because “knowledge of falsity or reckless disregard of the truth may not be presumed nor derived solely from the language of the publication itself,” and moreover, all of Travis’ statements reflected Travis’ reasonable beliefs and conclusions based on the facts obtained.
Ladner stands out as a particularly thorough appellate opinion with a close inspection of the facts. The Court of Appeals took a more inclusive and factual approach in defining the pre-existing “public controversy.” This illustrates how a libel defendant can benefit from a comprehensive, rather than targeted, approach to discovery and to development of the facts at the summary judgment stage. A broad investigation of possible pre-existing public controversies gives a defamation defendant the opportunity to argue more than just one public controversy, which provides more chances for success on the initial prong of the limited-purpose public figure analysis. An appellate court, even in issuing an affirmance, may well be compelled by different facts than the trial court.
In addition, Ladner illustrates how a reporter’s inclusion of the plaintiff’s arguments is important. The Court of Appeals found that the inclusion of information favorable to the plaintiff helped establish a lack of actual malice. As the court explained, “reporting perspectives at odds with the publisher’s own tend[s] to rebut a claim of [actual] malice, not establish one.”
Finally, Ladner clarifies that the determination of whether a person is a limited-purpose public figure is not based solely upon whether the individual comments directly about a pre-existing controversy or “subjectively” intends to influence a public controversy. Rather, courts must consider the public figure question “through the eyes of a reasonable person” and should consider not only the plaintiff’s public statements, but also his “position” and “conduct” that places his “personality” into the public eye and “invites attention and comment.” Indeed, even an absence of conduct—such as failing to correct false statements about one’s achievements—may be deemed “tacit” support of those false statements sufficient to make one a public figure.
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