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The Pennsylvania Supreme Court last week dismissed libel claims against the Philadelphia Daily News and The Legal Intelligencer brought by a crusader against “gangsta rap” music who claimed that articles about her prior libel suit against now-deceased rapper Tupac Shakur falsely stated that she had accused Shakur of damaging her sex life.

But the court left the door open for C. Delores Tucker to refile the lawsuits if she is able to show that the newspapers were “unequivocally told” that her husband’s loss-of-consortium claim did not include any claim that Shakur’s lyrics had damaged their sex lives, according to the opinion.

The newspapers’ lawyers – Amy B. Ginensky of Dechert for the Daily News and James W. Gicking of Marshall Dennehey Warner Coleman & Goggin for The Legal – argued that the articles were not even capable of defamatory meaning since Tucker and her husband had, in fact, included a claim for loss of consortium in the suit against Shakur.

But the justices disagreed, finding that where a couple pursues a loss-of-consortium claim without any sexual component, it may be defamatory to report that the couple is suing over damage to their sex lives.

“It is known that married people have sexual relations, and it is not generally defamatory to report that they do so. However, it may be defamatory to state falsely that a husband has sued to recover $10 million for loss of sexual relations as a result of the lyrics of two songs,” Justice Sandra Schultz Newman wrote in Tucker v. Philadelphia Daily News.

Such a statement, Newman said, “could make the Tuckers seem overly interested in money or sex, and not concerned with their life work of fighting for civil rights.”

But Newman found that C. Delores Tucker – who is a public figure – was unable to show that either newspaper acted with “actual malice.”

Under the actual malice standard, a public figure plaintiff must show that the newspaper was aware prior to publication that a story was false or exhibited “reckless disregard” for whether it was true.

Tucker’s lawyer, Richard C. Angino, argued that the newspapers showed actual malice by emphasizing the sexual “spin” offered by Shakur’s lawyer, Richard Fischbein.

Newman disagreed, finding there was nothing wrong with interviewing Fischbein.

“In fact, the newspapers acted reasonably in quoting Mr. Fischbein. As an attorney and the executor of the estate of Shakur, he is an entirely appropriate person for the newspapers to have interviewed,” Newman wrote.

The story published in The Legal, she said, also noted that Tucker herself “could not be reached for comment.”

By noting that Tucker’s views were unavailable, Newman said, the newspaper was “implicitly advising the reader that there may be another perspective to this story.”

The fact that the newspapers did not interview Tucker, she said, “does not mean that they knew that the statement of Mr. Fischbein was false, nor does it create the inference that [the] newspapers had ‘obvious reason to doubt the veracity’ of his statements, especially where the . . . complaint appeared to validate them.”

Newman noted that Tucker claims the newspapers “misrepresented” her claim against Shakur despite being told that while a loss-of-consortium claim can include a claim for damage to one’s sex life, no such claim was being made by the Tuckers.

That allegation was “problematic” for the newspapers, Newman said, because a jury could conclude that the articles were printed with actual malice if the newspapers recklessly disregarded such a fact.

But Newman found that Tucker’s lawyer conceded in his deposition in a suit against Newsweek magazine that he did not explicitly say to the reporter that the loss-of-consortium claim had no sexual component.

In his deposition, Angino said: “I said only in the rarest of cases would you have a count that actually involves sex. I’m under oath, so I cannot say to you that I said specifically, this case does not involve sex.”

Newman noted that the Newsweek article was printed more than two weeks after the articles in The Legal and the Daily News.

“It appears that, if Mr. Angino could not state under oath that he told the Newsweek reporter that the . . . complaint did not involve a claim of loss of sexual relations, it is unclear whether he told [the] newspapers in this case,” Newman wrote.

The suit, Newman said, was “ambiguous” on the issue of which newspapers were explicitly informed of the nature of Tucker’s claims.

As a result, Newman concluded that the suit was “impermissibly vague” and must be dismissed.

But Newman left the door open for the Tuckers to refile the suits if they are able to make more specific pleadings.

“We dismiss it with leave to replead only in the event that the Tuckers are able to allege, in good faith, that their attorney unequivocally told these specific . . . newspapers that the loss of consortium claim did not include a claim for loss of sexual relations,” Newman wrote.

In a brief dissent, Justice Russell Nigro said he believed that Newman was placing “too great a burden on the Tuckers to plead specific facts underlying their claim of actual malice.”

Nigro, who was joined by Justice Ronald Castille, said the Superior Court was correct in reversing the trial court’s decision to dismiss the suit at such an early stage of the proceedings since the issue of actual malice turns on the “state of mind” of the defendant.

“I would simply overrule the preliminary objections regarding actual malice and would give the Tuckers the opportunity in discovery to uncover facts other than those already available to establish the . . . newspapers’ reckless disregard for the truth,” Nigro wrote.

(Copies of the 45-page opinion in Tucker v. Philadelphia Daily News, PICS No. 04-0682, are available from The Legal Intelligencer . Please refer to the order form on Page 11.)

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