The Slipperiness of Slander: The Suit Against Paris Hilton

By JULIE HILDEN
julhil@aol.com
----
Tuesday, Jan. 17, 2006

Arguing in court over what someone may have said at a dinner party, or in a bar, may seem the height of litigation madness. Yet that is exactly what the law of slander permits.

As I discussed in a prior column, part of former Congressman Gary Condit's libel and slander case against columnist Dominick Dunne -- related to the investigation of missing intern Chandra Levy -- alleged that Dunne made slanderous statements at a dinner party.

And now, Paris Hilton faces a multi-million-dollar suit over comments she may have made privately to her publicist about an incident at a bar - though, allegedly, she made the comments with a view toward having her version of events circulated in gossip columns.

In this column, I'll talk about the thorny First Amendment issues slander litigation raises, as a general matter. And I'll also discuss the Hilton case, in particular, currently pending in Los Angeles Superior Court - and how it illustrates these issues.

Libel Versus Slander: How They Are Defined

Libel (often known as defamation for short, or printed defamation) is defined as the publication of a false statement of fact, made with the requisite state of mind, that causes injury.

Slander is defined as the verbal communication to another of a false statement of fact, made with the requisite state of mind, that causes injury. While libel involves written or recorded statements, slander involves unrecorded, spoken statements.

In its famous decision in New York Times Co. v. Sullivan, the Supreme Court raised the bar on public-figure libel plaintiffs, requiring that public figures prove not just negligence, but "actual malice." And later, in St. Amant v. Thompson, the Court defined "actual malice" as requiring subjective knowledge that the statement at issue was probably false.

"Subjective knowledge," in law, differentiates "actually knew" from "should have known": In this context, it means, according to St. Amant, that the person making the statement "in fact entertained serious doubts as to the truth of his publication."

These same legal standards have also been applied in slander cases. Thus, based on these descriptions of the law, one might think that slander and libel are fairly similar claims.

But it turns out that, in practice, they are litigated quite differently. And from a First Amendment perspective, the way slander cases play out is troubling. Put another way, the current legal rules may not be enough to sufficiently protect First Amendment rights in slander cases.

Libel Versus Slander: How The Evidence At Issue Differs

By its nature, a libel case centers on a particular statement that is "fixed" - traditionally, it exists on a piece of paper that has been distributed to readers via a newspaper or magazine. The statement has almost always been approved by its author before publication (unless an editor made a last-minute fix to a given article -- and, if so, the author can't be held responsible for a fix of which he or she wasn't aware).

This "fixed" statement, in a libel case, thus becomes the centerpiece of litigation. No one can dispute what actually was written by, for instance, a New York Times journalist in a given article. And often, other "fixed" evidence accompanies the statement - in the form of the authors' notes on calls with sources; the various drafts of the article (if not discarded); and possibly also any written materials the editor may have kept relating to the piece.

Typically, no one can dispute the context in which an allegedly libelous statement was made, either - the article has finite boundaries, and the statements surrounding the alleged libel are "fixed" too. And this context can help the defendant in some very concrete ways, especially if he wants to get a meritless case dismissed at an early stage.

For example, the libel defendant can argue that context shows that the statement at issue is a statement of opinion, not fact. Or the libel defendant can argue that, given all the other, unchallenged, similar statements in that very article, the statement at issue ought to be considered "substantially true" - which is true enough for defamation law's purposes. (There's more on these defenses in one of my prior columns on defamation.)

For all these reasons, libel suits can often be dismissed before trial. The court can simply read the article at issue, and the relevant documents may be few. Accordingly, a court may either dismiss the case as legally insufficient, or dismiss the case on the ground that - with the facts more or less uncontroverted - there's no real case to be made for the plaintiff.

(Usually, only the investigation of facts as to the defendants' state of mind - remember, under the St. Amant case, it's subjective awareness of probable falsity that counts - make the issue complex, and difficult to resolve prior to trial.)

Not so with slander suits - where pre-trial motions to dismiss the case can easily fail, and where settlement negotiations may be conducted in the shadow of the prospect of an expensive, fact-intensive trial packed with witness testimony.

Why are slander cases so hard to resolve early on? Part of the answer is obvious: Slander is defined as being based on a "non-fixed" statement - that is, one that was initially only captured by fallible human ears, in fallible human memories (though listeners may later have written it, or their versions of it, down). That makes for "genuine issues of material fact" which, by law, make pre-trial dismissal of a complaint impossible. Since crucial facts are disputed, and the judge cannot dismiss the case, the plaintiff is allowed to present his or her case at trial.

Slander litigation - rather than having a focal document, like the article that is the centerpiece of a libel case - can thus quickly become a free-for-all of contradictory depositions, which promise later, contradictory trial testimony if a trial occurs. Just as a subsequent argument by participants about a bar fight can recapitulate aspects of the bar fight, so too can a slander suit often recapitulate the angry verbal clash on which it is based.

In the end, the only thing that really prevents slander suits from overrunning the legal system, is the shallow pockets of most of the defendants whom hurt and angry plaintiffs would otherwise sue for slander.

The Hilton Case: An Example of Slander Litigation Run Amok

That brings us to the slander case against Paris Hilton, a famously deep-pocketed defendant. This suit literally arose out of a bar fight (or what Hilton claimed was a bar fight, anyway). And, not surprisingly, the case has moved into the pre-trial factual discovery stage, during which depositions have been taken.

Moreover, the plaintiff is now charging that Hilton not only slandered her, but also perjured herself in her deposition - piling yet a third dispute on top of the litigation, which itself stemmed from the supposed incident in the bar.

The plaintiff is an actress named Zeta Graff. Graff alleges that Hilton, with the help of her then-publicist Rob Shuter, planted a story about Graff on the New York Post's famous gossip page, "Page Six." However, Graff's First Amended Complaint does not name the Post as a libel defendant. (Nor does it name Shuter).

The Post's story called Graff a "jealous ex-girlfriend"; said she went "berserk" when she saw Hilton dancing with Graff's ex, Paris Latsis; and claimed that Graff tried to grab the jewels off Hilton's neck, and was then booted from the bar by bouncers.

Graff alleges that her reputation as a "professional model, actress and film producer" was damaged because Hilton portrayed her "as a criminal, namely, a person who physically attacked [Hilton], attempted to steal her necklace, and had been stalking Hilton and her ex-fiance before the incident."

(This all raises an interesting question: Is Graff - hardly a household name - a public or a private figure? If she is a private figure, she might legally be able to prevail simply by proving negligence on the part of the paper. But her own complaint claims celebrity status that may convince a court to deem her a public figure when it comes to gossip of happenings at a celebrity party.)

The presence of an article - and thus of "fixed" statements - here may help the Post avoid libel liability if Graff decides, eventually, to sue the paper. But it hasn't helped dispose of the slander case, for there, what is really at issue is what Hilton said to Shuter.

Shuter's deposition testimony, as reported by Court TV, was extremely adverse to Hilton: He confirmed that there was indeed a run-in at the bar. But he also reportedly testified that Hilton wanted to say something "much more mean" than what she actually did say, and that he had to "tone her down." One senses, from this, that there's yet another fight in the mix here: A spat between Hilton and the now-estranged Shuter.

Meanwhile, Court TV reports that Hilton has admitted falsifying the facts of the run-in when she spoke to Shuter. However, Hilton claims Shuter, not she, was the one who decided to shop the story to Page Six - and thus caused the lion's share of the damage to Graff's reputation.

It does seem, then, that Zeta Graff has been wronged here. Indeed, the only dispute, reports suggest, is whether the primary wrongdoer was Hilton or Shuter.

Page Six may also have been at fault here, for possibly lazy reporting. Did it just rely on Hilton's (and Shuter's) word, or did it also try to talk to others who supposedly witnessed the incident, such as Paris Latsis?

Page Six should also take a close look at its confidential source practices. One has to ask why Shuter (and ultimately, his own source, Hilton) were accorded the privilege of confidentiality here by the Post: What was the pressing reason that they deserved anonymity?

Indeed, the use of anonymity here seems to have been misleading to readers. It suggested there were multiple direct sources when there appears to have been just one: Shuter. Thus, it obscured the fact that the whole story was, in essence, a plant by Hilton's publicist.

The Baleful Effect of This Kind of Litigation

Even if Graff deserves some justice, this case illustrates why, when an individual defendant has deep pockets, slander cases can run smack into the First Amendment - necessitating expensive discovery, and ultimately heading for a costly trial or a costly settlement (and maybe a costly appeal in the bargain).

Of course, many other kinds of cases slam the defendant with tremendous financial risk - risk that cannot be averted by early dismissals. But this type of case is all about speech - which the Constitution picks out as especially worthy of protection. Indeed, "chilling" speech - that is, deterring it, by creating fear that it will lead to punishment -- is an evil of constitutional stature.

In the end, it might be wiser - and better for the First Amendment -- if slanders were simply corrected by counter-speech, rather than extensive fact discovery in court. Doubtless, Graff's claims would have gotten a public forum even if she hadn't made them in a court complaint. After all, everything about Paris Hilton seems to spark comment nowadays - including this column.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden has written frequently for this site on defamation and the First Amendment - including in this column about Britney Spears, and this one about Tom Cruise. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.