Posted by Eugene Volokh:
So Say There's a Pair of Identical Twins,
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241661840
and they work for the same employer. Twin Richard is accused of
serious misconduct; a TV story reports on the story, showing Richard's
picture (which naturally looks just like twin Robert), and referring
to Richard by last name (which naturally matches Robert's). Can Robert
sue the TV station for libeling him, on the theory that many viewers
might assume the story is about Robert?
You'd think that was a law school exam hypothetical, but it's a real
case, Siena v. Meredith Corp., 2009 WL 1140531 (Conn. Super. Mar. 30).
An excerpt:
These counts arise from three news reports and one �tease�
broadcast aired on WFSB on February 27 and 28, 2006, concerning
Richard Siena, the plaintiff's identical twin brother. Both the
plaintiff, Robert, and his brother, Richard, were members of the
Middletown police department (department) at the time of the
broadcasts. The plaintiff and his identical twin brother both have
similar hair styles and both have a mustache. While both brother's
shared similar physical features and were employed as police
officers, they had different ranks in the department and sexual
orientations. The plaintiff, Robert was openly homosexual.
During the course of the broadcasts, the defendants reported that
Richard Siena admitted to viewing pornography on a police
department computer on numerous occasions while on duty and that
the department disciplined him with a written warning but
subsequently promoted him to lieutenant. The defendants reported
that �Officer Siena� was investigated by the Middletown Police
Department. The investigation was about pornography involving
sexually explicit photos of young adult and teenage males and was
referred to as kiddie or child porn during some of the broadcasts.
Susan Raff, Dennis House and Jessica Scheider, codefendants and
employees of WFSB Channel 3, identified the person who was the
object of the news in several ways. They called him �Siena,�
�Officer Siena,� �Rick Siena,� �Sergeant Richard (Rick) Siena,� and
�Lieutenant Siena,� during the broadcasts....
The plaintiff does not dispute the accuracy of these broadcasts as
they apply to his brother, Richard. Instead, he alleges that the
defendants' reports injured him because they negligently,
willfully, recklessly and/or intentionally caused viewers to
believe that the plaintiff rather than his brother, was the subject
of the department's investigation....
In the present case, the defendants' broadcasts specifically
identified an individual officer at the Middletown police
department as the subject of its pornography investigation. The
plaintiff argues that a reasonable viewer could interpret the
broadcasts to find that the plaintiff, and not his brother, was the
subject of the investigation, and therefore the broadcasts were �of
and concerning� the plaintiff. The defendant argues that no
reasonable viewer could find that the broadcast was �of and
concerning� the plaintiff as a matter of law. In this case, the
question of mistaken identity is somewhat unique in that it
involves identical twins. Under these unique facts, the court
concludes that the issue of whether the broadcasts are �of and
concerning� the plaintiff is the primary, material issue of fact
disputed by the parties in this case and that it should not be
decided as a matter of law because there is sufficient evidence for
a jury to reasonably find that the broadcasts were �of and
concerning� the plaintiff....
The comments to Restatement (Second), Torts § 564 (1977), provide
an appropriate analysis for these unusual facts. Comment (b)
states: �If the communication is reasonably understood by the
person to whom it is made as intended to refer to the plaintiff, it
is not decisive that the defamer did not intend to refer to him.�
Furthermore, �[i]t is not necessary that the plaintiff be
designated by name; it is enough that there is such a description
or reference to him that those who hear or read reasonably
understand the plaintiff to be the person intended.� ...
Having demonstrated that there is an issue of material fact
concerning whether the broadcasts were �of and concerning� the
plaintiff, the plaintiff has the additional burden of proving that
someone who saw the defendants' broadcasts actually understood that
the broadcast referred to the plaintiff.... [The plaintiff pointed
to several such people. -EV] ...
Because the plaintiff is a public official, he may not prevail
unless he can prove that the defamatory broadcasts were made with
�actual malice,� which the United States Supreme Court has defined
as �knowledge that it was false or with reckless disregard of
whether it was false or not.� ...
The court concludes there is an issue of fact concerning whether
the defendants acted with actual malice in their broadcasts,
because there is evidence that the defendants were aware that the
plaintiff had an identical twin brother and acted in reckless
disregard of this fact by broadcasting the plaintiff's name and a
picture that resembled the plaintiff in connection with a story
about his brother without sufficiently distinguishing between them
to viewers....
If anyone has a pointer to a publicly accessible copy of the full
opinion, please pass it along. For now, I hope the excerpts do it
justice.
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