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Attorney Richard A. Sprague has cleared another significant hurdle in his defamation lawsuit against the American Bar Association and its monthly magazine, the ABA Journal, now that a federal judge has ruled that a jury could conclude the magazine acted with actual malice when it described Sprague as a “fixer.” U.S. District Judge William H. Yohn Jr. found that since the magazine’s employees were aware that the term “fixer” has both positive and negative meanings, a jury could conclude that they “either deliberately cast this description in an ambiguous light in the hope of insinuating a false import to the reader, or that defendants knew or recklessly disregarded the possibility that its words would be interpreted by the average reader as false statements of fact.” But Yohn also emphasized that his ruling was no indication of his own opinion on the merits of Sprague’s case. Instead, he said, the decision merely recognized that the case presents a question that must be decided by a jury. “I in no way intimate what I believe the correct resolution of this question should be. From the court’s restricted procedural posture of considering defendants’ summary judgment motion, I find simply that there is evidence that, if believed and weighed as plaintiff urges, could support a jury finding, by convincing clarity, that defendants’ publication was imbued with actual malice,” Yohn wrote in his 17-page opinion in Sprague v. The ABA. Sprague’s first victory in the case came in November 2001 when Yohn refused to dismiss the suit, ruling that the magazine’s description of Sprague in an October 2000 article as “perhaps the most powerful lawyer-cum-fixer in the state” was capable of defamatory meaning, according to court records. The ABA’s lawyers had argued that the description was clearly intended as a compliment since the term “fixer” is often used to describe “a prominent, highly successful lawyer, widely known and sought after for his effectiveness as a problem-solver and trouble-shooter in connection with politically sensitive issues and cases.” But Yohn sided with Sprague and found that “fixer” also has a negative meaning that includes the criminal act of “fixing” cases. The ABA was on the winning end in the next round of litigation when Sprague and his lawyer, James E. Beasley, conceded that Sprague is a limited-purpose public figure and therefore must meet the actual malice test, according to court records. In July 2002, the ABA’s lawyers — Joyce S. Meyers and Michael Twersky of Montgomery McCracken Walker & Rhoads — moved for summary judgment, arguing that Sprague didn’t have the evidence to meet the actual malice standard which calls for “clear and convincing” proof that the defendant “in fact entertained serious doubts as to the truth of his publication.” Now Yohn has denied that motion, finding that Sprague’s evidence of actual malice just may be enough to convince a jury. Yohn found that Sprague’s case is “unique” and presents a question that has never been addressed by the 3rd U.S. Circuit Court of Appeals about defamation cases focusing on the use of an ambiguous word or term. “The novel issue … is how to apply the actual malice standard to a publication that contains a word of dual meaning, where one meaning is unquestionably defamatory, and the other is unquestionably not,” Yohn wrote. Yohn looked to the law of other federal appellate courts and found that “where a plaintiff’s defamation case depends on material that is capable of both defamatory and innocuous meanings, other circuits have interpreted the appropriate inquiry to be defendant’s state of mind as to a reader’s potential defamatory interpretation of the material.” In Salano v. Playgirl, Yohn found, the 9th Circuit described the actual malice standard in such cases as requiring proof that the defendant “either deliberately cast its statements in an equivocal fashion in the hope of insinuating a false import to the reader, or that it knew or acted with reckless disregard of whether its words would be interpreted by the average reader as false statements of fact.” As in any actual malice case, Yohn said, the focus must remain on the defendant’s “actual subjective state of mind.” But since defendants are unlikely to admit to a subjective state of mind that is a ground for liability, Yohn found that “objective circumstantial evidence” is sufficient to show actual malice. Applying the test, Yohn found that while the ABA Journal‘s employees deny intending or even anticipating that readers of the Journal would interpret the term “lawyer-cum-fixer” in the defamatory way, Sprague nonetheless has evidence that could lead a jury to reject those denials. The author of the article, Terry Carter, admitted in his deposition that he looked up a dictionary definition of “fixer” and that one meaning included among the definitions was the defamatory meaning, Yohn noted. Carter also testified that it might be impossible to think of an accusation against a lawyer that is more defamatory then accusing one of being a fixer, Yohn noted. And the magazine’s managing editor, Debra Cassens, who reviewed the article before it was published, conceded in her deposition that she assumed that the average reader of the ABA Journal would be familiar with both meanings of the word “fixer,” including the defamatory one. Yohn found that the ABA Journal has also previously used the terms “fix” and “fixer” in negative contexts in articles discussing allegations of fixed cases. “Such prior negative use is valid evidence supporting a jury finding that Journal editors knew of the defamatory capacity of ‘lawyer-cum-fixer,’” Yohn wrote. Sprague also has evidence that the original draft of the article included more information about Sprague’s legal experience that was deleted before the article was published, Yohn noted. The judge found that although it is “highly debatable” whether the jury should draw any inferences from the decisions to edit certain words and phrases out of the story, it was nonetheless “proper evidence for jury consideration because, taken in a light most favorable to plaintiff, they may bear on the actual malice issue.” Considering all of Sprague’s evidence, Yohn concluded that a reasonable jury could decide that the magazine acted recklessly since it knew of the defamatory meaning of the term “fixer” and its potential for causing reputational harm.

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