Vanderbilt Law Review

First Page



To quote or not to quote' is no longer a valid question in defamation law because courts have lessened the burden on writers to use the exact words of the speaker in quoted language. If individuals feel that the press has misquoted them, they have three realistic options: First,ignore the misquotation; second, contact the media and request a re-traction; and third, file a lawsuit claiming defamation and seeking monetary damages.' The first alternative is the easiest, but given the emotional overtones of defamation, it is also the most unlikely. If the media were more sensitive and less defensive, the second alternative might be the best solution. For many individuals, however, a lawsuit appears to be the only way to obtain satisfaction.'Yet if the individual elects to file a lawsuit, the truth or falsity of the quotation will be far down the list of factors addressed by the court and may not be addressed at all. Plaintiffs in a defamation suit first must weave their way through the maze of categories that the courts have erected. The most pressing questions include: (1) Is the plaintiff a public official, a public figure, or a private figure; (2) Did the plaintiff bring suit against a media defendant or a non-media defendant; (3) Does the quoted language concern an issue of public or private concern; and(4) Can the plaintiff prove actual malice by the defendant? Doctrines such as the libel-proof plaintiff" and neutral reportage also must be considered. Because the answers to these questions usually are unclear,commentators in the field have described defamation law as contradictory and confusing'" and a "hodgepodge that operates erratically at best, and perversely at worst."'

This Recent Development will explore defamation law in the context of quoted material. Part II chronicles the judicial decisions that have given rise to the categorization of defamation suits, the definition of actual malice, and the resulting procedural problems. Part III focuses on the decision in Masson v. New Yorker Magazine and discusses re-cent developments in the actual malice area and burden of proof requirements at the summary judgment stage as these developments relate to misquoted material. Part IV analyzes current problems that plaintiffs in defamation cases encounter because courts fail to consider the truth or falsity element of the defamation tort and primarily focus on constitutional protection under the first amendment.

Part V proposes alternatives that could aid an aggrieved plaintiff without infringing on first amendment rights. These proposals include a more sensitive media, legislation recognizing retraction statutes and declaratory judgment suits, and an expansion of the actual malice definition in cases concerning deliberate misquotation. This Recent Development concludes that freedom of expression in a democratic society may be maintained without the protection of deliberately misquoted material and suggests that the protection of such misquotations actually may hinder public debate.