Judson A. Lovingood v. Discovery Communications, Inc., et al.

In N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) this Court announced that in defamation cases involving a public official/public figure, the Plaintiff must present clear and convincing evidence that the false, defamatory statements were made with actual malice. This standard has been further explained to be: “There must be sufficient evidence to permit the conclusion that the Defendant in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson, 390 U.S. 727, 731 (1968), or that he acted with a “high degree of awareness of . . . probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). However, N.Y. Times did not address whether First Amendment protection is given to a Defendant who publishes and alters prior sworn testimony in a defamatory manner for entertainment purposes. Thus the questions presented are:

1. Whether the publication of totally false and fabricated testimony of a public official testifying under oath to produce an entertaining, dramatic effect in a movie is “speech that matters” and deserves elevated protection by the N.Y. Times standard requiring actual malice rather than treating all sworn witnesses the same?

2. Whether defamation actions regarding false publishing of the sworn testimony of a witness should require proof of actual malice if the witness is a public official rather than recognizing there is no appropriate distinction in the identity of the witness under such circumstances?