233 F.3d 514 (7th Cir. 2000), 99-3715, Desnick, M.D. v American Broadcasting Co.

Docket Nº:99-3715
Citation:233 F.3d 514
Party Name:J.H. Desnick, M.D., Eye Services, Ltd., Plaintiff-Appellant, v. American Broadcasting Companies, Inc., Jon Entine, and Sam Donaldson, Defendants-Appellees.
Case Date:October 27, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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233 F.3d 514 (7th Cir. 2000)

J.H. Desnick, M.D., Eye Services, Ltd., Plaintiff-Appellant,


American Broadcasting Companies, Inc., Jon Entine, and Sam Donaldson, Defendants-Appellees.

No. 99-3715

In the United States Court of Appeals, For the Seventh Circuit

October 27, 2000

Argued September 12, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 6534--John A. Nordberg, Judge.

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[Copyrighted Material Omitted]

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Before Posner, Coffey, and Manion, Circuit Judges.

Posner, Circuit Judge.

Seven years ago the Desnick eye clinic, joined by two of the clinic's surgeons (who are no longer parties), brought this diversity suit against the ABC television network, a producer of ABC's program "PrimeTime Live," and the program's star reporter, Sam Donaldson, seeking damages for a variety of torts allegedly committed by the defendants in connection with a 15-minute program segment that was highly critical of the clinic. We affirmed the district court's dismissal, on the ground of failure to state a claim (Fed. R. Civ. P. 12(b)(6)), of all but the defamation charge. 44 F.3d 1345 (7th Cir. 1995). That charge was based on an accusation in the broadcast that the plaintiffs had tampered with a machine at the clinic called an "auto-refractor," which tests for cataract. The district judge had dismissed the charge on the ground that the accusation had not added significantly to the harm to the plaintiffs' reputation caused by the parts of the broadcast segment that the plaintiffs had not challenged. We reversed because the fact that the plaintiffs had not challenged the other accusations in the broadcast could not be construed as a concession that those other accusations were true. Id. at 1350-51. "Given the obstacles to proving defamation, the failure to mount a legal challenge to a defamatory statement cannot be considered an admission that the statement is true." Id. at

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1350. On remand, the district court granted summary judgment for the defendants, without reaching the question whether the accusation of tampering was true or false, on the ground that there was insufficient evidence of "actual malice" to permit the case to go forward. The Desnick clinic has again appealed.

The clinic is conceded to be a "public figure," so that under the Supreme Court's interpretation of the free-speech clause of the First Amendment it cannot maintain a suit for defamation unless it can prove that the defendant acted with "actual malice." This is a term of legal art that means not what it seems to mean but that the defendant either knew that the defamatory statement (here, the accusation of tampering with the auto-refractor) was false or was recklessly indifferent to whether it was true or false. E.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); Milsap v. Journal/Sentinel Inc., 100 F.3d 1265, 1270 (7th Cir. 1996) (per curiam). "Reckless indifference" denotes the same state of mind that must be proved to establish liability for infringement of a federal right under color of state law or for violation of the federal mail fraud statute knowledge by the defendant that there was a high risk of harm to the plaintiff coupled with a failure to take any feasible measure to counter the risk, either by investigating further to see whether there really is a risk and how serious it is or by desisting from the risky activity. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Tesch v. County of Green Lake, 157 F.3d 465, 474-75 (7th Cir. 1998); Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788-89 (7th Cir. 1995); Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) (en banc); United States v. Dick, 744 F.2d 546, 551 (7th Cir. 1984); Chance v. Armstrong, 143 F.3d 698, 703-04 (2d Cir. 1998); United States v. DeSantis, 134 F.3d 760, 764 (6th Cir. 1998); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).

In a defamation case by a public figure, therefore, "the plaintiff must demonstrate that the author 'in fact entertained serious doubts as to the truth of his publication,' . . . or acted with a 'high degree of awareness of . . . probable falsity,'" Masson v. New Yorker Magazine, supra, 501 U.S. at...

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