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Ventura verdict sends message to writers: Be careful

The U.S. Supreme Court in the New York Times v. Sullivan case feared that legitimate stories would go unreported if that price was a crippling damage award.

Courtroom sketch by Ken Avidor

It wasn’t the longest libel trial in history, but it certainly felt that way. After three weeks, Jesse Ventura, whom the late “American Sniper” and former Navy SEAL Chris Kyle referred to in his best-selling autobiography as “Scruff Face,” convinced eight jurors that Kyle made up a story about a fight in a California bar. Kyle claimed he punched the former governor after Ventura said that he “hated America,” that the Navy SEALS “were killing men and women and children and murdering,” and that they “deserved to lose a few” in the war in Iraq. Ventura said the encounter never happened and that Kyle’s account made Ventura sound like a traitor, undermined his career as a professional gadfly and raconteur, and destroyed his reputation among the SEAL community. Although Kyle never identified “Scruff Face” in the book itself, he subsequently told interviewers that he was referring to Ventura.

Jane Kirtley

So Ventura did what any red-blooded American public figure would do: He sued. He sought millions of dollars in damages, not only for Kyle’s alleged defamation, but also for the author’s misappropriation of Ventura’s name and image to promote the book. To top it off, Ventura added a claim for “unjust enrichment.” He argued that proceeds from the book sales, as well as from the sale of the film rights, belonged to him because Kyle’s book would never have taken off without that story about the bar fight.

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As a public figure, Ventura had a tough battle ahead of him. He had to convince the jury that Kyle’s story had hurt his reputation among right-thinking people – in this case, his former comrades, the SEALS. In addition, he bore the burden of proving that what Kyle had written was false and that Kyle either made it all up or acted recklessly when he recounted the story. This “actual malice” standard was first articulated 50 years ago by the U.S. Supreme Court in New York Times v. Sullivan, and was intended to promote debate and discussion about matters of public concern, and to short circuit frivolous suits by public figures who can’t take legitimate criticism. The high court’s ruling permits writers to make factual errors and still be protected from liability, as long as the mistake was made in good faith. 

Mindset and motivation are critical

Under the Sullivan standard, the writer’s mindset and motivation are critical. Libel defendants are usually grilled on the witness stand about what steps they took to verify what they wrote and whether they checked with the subject of the story to get his side. But in this case, the author was no longer available, because Kyle was killed in a shooting at a gun range in Texas about a year after Ventura filed his suit in 2012. Although the jury did see a video deposition of Kyle’s testimony taken before his death, most of the evidence about what happened in the bar came from Ventura himself and from a parade of witnesses produced by the attorneys for both sides.

That’s standard procedure in a libel case when the facts are in dispute. But as in Kurosawa’s classic Japanese film, “Rashomon,” the accounts differed wildly. This is not surprising when the alleged incident occurred years ago and many of the observers admitted that they were under the influence of alcohol at the time. But if the evidence was inconclusive, Ventura would lose his case.

The jury had to sort through the testimony to decide whom to believe. As hours stretched into days, it became clear that the case was not going to be a slam dunk for either side. Under the federal court rules, the verdict had to be unanimous, so even one holdout on any element of the required proof would mean a deadlocked jury and a mistrial. The jury sent Judge Richard Kyle a message on Monday saying just that. Kyle asked them to try one more time, and then separately met with the lawyers to ask them to agree to a “majority” verdict. 

Decision to accept 8-2 verdict

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Something persuaded the lawyers to accept this option, even though, like the hero in “The Lady or the Tiger,” they couldn’t know what was going on behind the jury room door. Whether it was Judge Kyle’s powers of persuasion, pressure from their clients, or simply the desire to avoid having to try the case all over again, they agreed to accept an 8-2 verdict, which turned out to be in Ventura’s favor. The jury awarded him $500,000 in damages for the defamation claim, and $1.3 million for the unjust enrichment claim, which will have to be paid out of Kyle’s estate.

Based on his triumphant appearance on Wednesday morning, Ventura considers himself vindicated. He told the Star Tribune that he would have “permanently moved to Mexico” had he lost, because he would have had “nothing here to live for.”  That kind of rhetoric, for which Ventura was well known during his governorship, may have convinced the jurors that he was genuinely devastated by his supposed ostracism by the SEALS.

Reputation restored, monetary award

Ventura has said he was only after the truth, and he and his supporters are characterizing the verdict as an official pronouncement that Kyle was a liar. He is like many libel plaintiffs who insist that they go to trial because they have no other option and that it is the principle, not the money, that motivates them. Assuming no appeal – which seems unlikely – Ventura will walk away not only with his reputation restored, but with the additional consolation of a hefty monetary award.

Some would argue that this is exactly the way it should work, and that authors who aren’t able to prove their claims should be prepared to pay the price. But the U.S. Supreme Court in Sullivan feared that legitimate stories would go unreported if that price was a crippling damage award. The jury’s verdict may seem like a vindication to Ventura, but it reminds those who write about public figures, especially in the freewheeling world of the blogosphere, that they do so at their own risk. It’s a sobering way to mark the 50th anniversary of New York Times v. Sullivan.

Jane E. Kirtley is the Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communication, University of Minnesota. She also is the director of the Silha Center for the Study of Media Ethics and Law. 

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