Here's a question for all the news outlets, legal analysts, letter-to-the-editor writers, and news consumers out there: If you believe you've been falsely accused of professional misconduct by a suggestive article and a reader comment that takes the article's insinuations one step further, can you sue the news outlet in question for libel?
First, some background: The New York Times recently ran an editorial lamenting that Supreme Court Justice Antonin Scalia was testing the boundaries between law and his conservative politics, noting that Scalia had "met behind closed doors" on Capitol Hill to discuss the Constitution with "representatives led by Representative Michele Bachmann of the House Tea Party Caucus." Shortly thereafter, the Times published a letter to the editor from Bruce Fein, who argued that Scalia had "galloped beyond the farthest boundaries of judicial propriety" and suggested that a Tea Party member might try to repeal health care reform's individual mandate based on Scalia's secret advice.
The Wall Street Journal's James Taranto concedes that if Scalia indeed revealed his opinion on health care reform litigation to members of Congress it would have been a "gross violation of judicial ethics." But he argues that Fein's argument is simply false: Scalia's constitutional seminar, while organized by Bachmann and closed to the public, was open to all representatives and didn't touch on contemporary legal issues or legislative guidance according to two Democrats in attendance.
Taranto concludes that Scalia, as a public figure, would have a hard time winning a hypothetical libel case against the Times, arguing that the newspaper's description of Scalia's seminar was "artfully constructed to be literally truthful while conveying a false and damaging impression." But he wonders whether the case is less clear-cut when it comes to Fein's letter to the editor:
His account of the Scalia meeting is consistent with the Times's. But Fein fills in the blanks and resolves the ambiguities in the Times's account in ways that are contrary to fact but consistent with the Times's implicit message that Scalia behaved wrongfully. Our surmise is that the Times's editors expected ideologically sympathetic readers to do just that ...
Just one problem: Fein's letter was published by the New York Times. And not in some unmoderated online comments forum, but in the heavily edited letters section of the newspaper. That is to say, the Times's editors made the decision to publish a false accusation against Justice Scalia.