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Tuesday, November 01, 2005

Ind. Decisions - Ruling today turns on a showing of actual malice

In Steven R. Shine v. J. Michael Loomis, a 15-page opinion issued today, Senior Judge Ratiff concludes:

Taking into consideration the designated facts and the law pertaining to those facts, we determine that the trial court erred in concluding that a genuine issue of material fact existed on the question of actual malice. Accordingly, we reverse and remand with instructions that the trial court grant Shine’s summary judgment motion.4Reversed and remanded with instructions.

SHARPNACK, J., concur.
BARNES, J., concurring with separate opinion:

I concur, but write separately to express both my concern and reservation that the First Amendment shields the conduct and speech described here. The chairman of a political party made a false statement to a media outlet about a candidate whom he did not support in a primary election. This statement accused the candidate of racially intolerant behavior. The charge was clearly incendiary particular in this context. “Coincidentally,” this statement received widespread media coverage and, perhaps not so “coincidentally,” the candidate lost the primary election to the candidate favored by the chairman.

I understand that in matters of public or general concern a showing of actual malice is required and that such exists only “when the defendant publishes a defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not.” Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 456 (Ind. 1999) (quotation and citation omitted), cert. denied, 528 U.S. 1005 (1999). I am also well aware that for Loomis to establish reckless disregard he was required to show that Shine in fact entertained serious doubts as to the truth of his publication or proof that he made the false publication with a high degree of awareness of the probable falsity. See id. Despite the hardball politics seeping through the entire fabric of this case, I reluctantly conclude that Loomis did not make such a showing.

I do note, however, that one of the affidavits used to buttress the claim that Shine was acting with some basis in truth is from a police officer who was the subject of the investigation that spurred the comments by Shine. Clearly, this is a rather shaky foundation for the constitutional principles at issue. I believe in constitutionally protected free speech and fully grasp that political elections must be covered under that guarantee, but the context and facts of this case make it particularly painful for me to do so.

Posted by Marcia Oddi on November 1, 2005 12:10 PM
Posted to Ind. App.Ct. Decisions