Groups criticize lawsuits proposal

Bill would lower ‘false light’ bar

Proposed legislation to overhaul defamation and invasion-of-privacy lawsuits has alarmed media advocates, who say it would restrict free speech, invite frivolous lawsuits and tip the scales against news outlets.

Sen. Kim Hammer, R-Benton, cited national media coverage of a January confrontation between Kentucky high school students and an American Indian activist as the rationale for Senate Bill 230.

Hammer said his aim is to make it easier for plaintiffs to win lawsuits accusing someone of casting them in a “false light” — often thought of as defamation. Established case law in Arkansas has long recognized those privacy rights and provided an avenue to sue for invasion of privacy or defamation.

SB230 would reduce the burden of proof that lawsuit filers must meet to win a case and would allow them to receive so-called pain and suffering damages without first proving they suffered monetary damages because their reputations were harmed.

It would also allow plaintiffs to state their claims “generally,” which would better protect cases from early dismissal for technical reasons, according to law professor Robert Steinbuch, who said he helped write a draft amendment to the bill. Arkansas case law has long required plaintiffs to file more specific, fact-based complaints.

“I think this is an unnecessary bill and could

potentially lead to frivolous lawsuits that perhaps might be unintended,” said John Tull, who represents the Arkansas Press Association, which opposes the bill. “This could potentially chill free speech because it broadens the possible lawsuits that can be brought for a person revealing truthful information.”

Little Rock attorney Robert “Alec” Gaines said the bill “stacks the deck in favor of the plaintiffs.”

“This would make it very easy to grant a claim — scarily easy, if that’s a word — terrifyingly easy,” Gaines said.

Gaines’ father-in-law is Walter E. Hussman Jr., publisher of the Arkansas Democrat-Gazette. Gaines provides legal counsel for the newspaper but has not been asked to work on SB230 on behalf of the publication, he said.

Today, privacy-rights cases in Arkansas are governed by “common law,” or precedent set by judges.

Such cases include unreasonably intruding on someone’s seclusion; using someone else’s name or likeness; giving unreasonable publicity to someone’s private life; or publicizing someone in a false light.

SB230 would codify the law for suits involving someone who “improperly intrudes” on someone else’s privacy or publicizes someone in a “false light.”

If the legislation were approved, then plaintiffs could either pursue damages under common law or under the new law.

Hammer said he was motivated by a “national trend” of irresponsible reporting by media outlets. He specifically cited national coverage of students from Covington, Ky., and an American Indian activist at the Lincoln Memorial in Washington, D.C.

The family of one of the students filed a federal lawsuit against The Washington Post seeking damages. The lawsuit, which is pending, says the newspaper “falsely accused [the student] of instigating” the confrontation and “conveyed that [the student] engaged in acts of racism.”

No specific Arkansas cases inspired the bill, Hammer said.

“I think what I’ve identified — and what I’m referring to — is the national trend that outlets can say what they want to say with no fact base behind it and get a free pass,” Hammer said, adding that his aim is to “not make the hurdles as high for” plaintiffs.

Hammer’s draft amendment reduced the scope of the initial bill, including giving immunity to people who report potential crimes to law enforcement authorities, but concerns over the potential effects linger. As of Friday, his amendment had not been formally incorporated into the initial bill.

“We believe it’s unconstitutional and would have a chilling effect on free speech,” Arkansas Press Association Executive Director Ashley Wimberley said by email.

Plaintiffs in civil cases must meet a specific evidentiary “burden of proof” standard depending on the type of case.

To win a false-light case, a plaintiff must prove five elements. The burden of proof for four of those elements is the lowest possible standard, “preponderance of the evidence.”

But the fifth element — which is that the defendant published the false-light information knowing it was false or likely false — has carried a higher burden, “clear and convincing evidence.”

SB230 would apply the lowest possible burden to all five elements.

The bill would make a defendant liable for making a false statement “negligently,” rather than only if the defendant knew, at least, that it was likely false. This standard would only apply to private figures, Steinbuch said.

Tull, however, raised concerns with how the bill was drafted, saying that a carveout for public figures is vague.

The draft amendment says the negligence portion of the bill does not apply to public figures if false statements “relate directly to the plaintiff’s status as a public figure.”

Tull said he’s not sure whether that would cover, for example, the private business dealings of Arkansas’ governor.

SB230 would also allow for lawsuit filers to “plead generally” — or write more vaguely in their lawsuit complaints than what is typically allowed in Arkansas civil cases. This would give a lawsuit a better shot at making it through dismissal motions, increasing the likelihood that it can go to trial.

Such a change may also violate Amendment 80 of the Arkansas Constitution, which gives the judiciary power to set so-called pleading standards, Gaines said.

The Motion Picture Association of America, the film industry trade association, on Friday said it also opposes SB230.

“We oppose this bill because it threatens the ability of our members to tell their stories, particularly when it comes to movies and television programs about and inspired by real people and events, such as docudramas, biopics, and similar works,” said Vans Stevenson, senior vice president for state government affairs, in an emailed statement.

Steinbuch said he does not believe the bill would “quell” free speech.

“It will have some effect on speech because it will make people more cautious about saying something that is false,” Steinbuch said. “I think that press or non-press, if they have doubts, will make greater efforts to resolve those doubts prior to publication.”

SB230 has been assigned to the Senate Judiciary Committee. Hammer plans to present it to the committee this week, he said.

“We believe it’s unconstitutional and would have a chilling effect on free speech.”

— Arkansas Press Association Executive Director Ashley Wimberley

Hammer