Practice point: The defendant's burden in support of summary judgment is not to prove as a matter
of law that it did not publish with actual malice, but to point to
deficiencies in the record that will prevent plaintiff from proving that
fact by clear and convincing evidence. Here,
defendants were granted summary judgment because they cited
deficiencies in the record that prevent plaintiff from proving actual
malice, that is, that defendants entertained serious doubts as to the
truth of its publication or acted with a high degree of awareness of probable falsity at the time of publication.
Student note: Plaintiff is a public figure, having put itself front and center in the public controversy over animal cruelty and seeking to influence public opinion and action on the issue. As a public figure, plaintiff must show by clear and convincing evidence
that defendants published the ad at issue with actual malice in order
to prevail on any claim of libel.
Case: Humane League of Philadelphia, Inc. v. Berman & Co., NY Slip Op 04989 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Equitable distribution of marital assets.
