(From ACTUAL MALICE IS NOT ACTUALLY MALICE: CLARIFYING AND SOLVING ONE OF THE SUPREME COURTS ENDURING PARADOXES

by Jesse L. Jenike-Godshalk)

Celle v. Filipino Reporter Enterprises Inc. illustrates how evidence of common-law malice can sometimes be more probative on the issue of actual malice.

Here, a radio commentator, Lino Celle, competed for the same media audience, Filipino Americans in New York City, as a newspaper editor-in-chief, Libertito Pelayo. These two men disliked each other because in 1995 and 1996 Celle had written newspaper articles concerning a criminal conviction of Pelayos daughter. Pelayo believed that one of these articles made a legal error in the term of the criminal conviction, erroneously alleging that his daughter had been convicted of theft instead of the lesser crime of possession of stolen property.

The present case arose when, in April 1997, Pelayos newspaper published three articles about Celle. In one of these articles, the newspaper exaggerated civil proceedings that were being brought against Celle. The article stated, among other things, that Celle had been found negligent in the proceedings, even though this was not true. Celle then sued the newspaper for libel, and the court determined that Celle was a public figure who would have to prove actual malice in order to recover.

After Celle proved actual malice and won a favorable jury verdict, Pelayo appealed. On appeal, the Second Circuit determined that a jury could reasonably find actual malice based, in part, on evidence of common-law malice. In particular, Pelayo bore ill will toward Celle, because Celle had once published a newspaper article that exaggerated legal proceedings against Pelayos daughter. Thus, considering the ill will, and the factual similarity between the basis for that ill will and the publication of the challenged statement here[one] could conclude that Pelayo was [intentionally] imposing in-kind retribution on Celle by exaggerating the status of the legal proceedings against him.