On January 10, 1983, this court dismissed the complaint with leave to amend because it contained factual errors on its face and failed adequately to allege that the article referred to plaintiffs personally and was published with actual malice.Although this court dismisses the complaint for failure to plead "of and concerning," it is appropriate to rule on the malice issue because of the important First Amendment interests implicated in this lawsuit. at 3005, and plaintiffs have admitted that they are public figures for purposes of this lawsuit. The Supreme Court has extended this requirement to public figures, see Gertz v. 1323, 1325, 20 L.Ed.2d 262 (1968), such that defendant had a "subjective awareness of probable falsity." Gertz v. 209, 216, 13 L.Ed.2d 125 (1964), and "in fact entertained serious doubts as to the truth of his publication," St. Subsequent Supreme Court cases have made it clear that malice is very difficult to prove, requiring plaintiffs to show that defendant had "a high degree of awareness of probable falsity," Garrison v. New York Times required plaintiffs who are public officials to prove malice in the sense of publication of false statements with knowing or reckless disregard for the truth. Defendants also moved to dismiss the complaint on the ground that plaintiffs failed adequately to plead malice as defined by the Supreme Court in New York Times Co.The court required plaintiffs to plead malice with greater specificity because of the errors apparent on the face of the complaint and because of the potential chilling effect of a baseless defamation suit on the exercise of defendant's First Amendment rights. The original complaint contained only broad, conclusory allegations of malice, such as that defendant acted "wantonly," "recklessly" and "with constructive knowledge" of the falsity of the article.However, Williams preceded Franchise, and the court concludes that Franchise is better reasoned. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. Go toĬonduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required.įranchise Realty Interstate Corp. Indeed, because defamation suits threaten the freedom of speech and of the press protected by the First Amendment, the "of and concerning" requirement may take on constitutional significance. Reasonably susceptible of special application to a given individual. The courts have chosen not to limit freedom of public discussion except to prevent harm occasioned by defamatory statements On the one hand is the societal interest in free press discussions of matters of general concern, and on the other is the individual interest in reputation. Go toĪ sound compromise between the conflicting interests involved in libel cases. There is nothing in the published article that makes a personal application to the plaintiff." 40 Cal.App.2d at 350, 104 P.2d 860. Noting that the Alliance had at least 162 officials, the court held that plaintiffs failed to state a claim for libel because "the publication does not defame any ascertainable person. The Noral court, for example, dismissed a complaint for defamation brought by officials of the Workers Alliance based on charges that officials of that group used dues to support Communist activities. But where the group is large - in general, any group numbering over twenty-five members - the courts in California and other states have consistently held that plaintiffs cannot show that the statements were "of and concerning them," See, e.g., Noral v. If the group is small and its members easily ascertainable, plaintiffs may succeed. However, when the statements concern groups, as here, plaintiffs face a more difficult and sometimes insurmountable task. When an article names specific individuals, this is easily done.
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