Underwager v. Channel 9 Australia
1995 WL 634865, 69 F.3d 361 (1995)
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Rule of Law:
The First Amendment's free speech protections apply to all persons legally within the United States, and a public figure plaintiff in a defamation case must prove by clear and convincing evidence that the defendant acted with actual malice, which cannot be established when the defendant reasonably relied on information from a published state supreme court opinion.
Facts:
- Ralph Underwager is a Minnesota psychologist who frequently testifies as an expert witness regarding the unreliability of children's testimony in sexual abuse cases.
- In 1990, the Australian television program 'Sixty Minutes Australia' broadcast a documentary critical of Underwager's theories and credentials.
- Charles Vaughn, an Indiana attorney, and James Peters, Sr., a Virginia attorney, appeared on the program and made critical statements about Underwager.
- Kim Oates, an Australian professor who had served as an expert witness opposing Underwager in a case, was legally visiting the United States.
- On January 22, 1992, Oates replayed a portion of the 'Sixty Minutes Australia' videotape at a professional conference in La Jolla, California.
- During his presentation, Oates also made his own critical comments, including a statement that Underwager's book was a 'biased book' commissioned by insurance companies for a $160,000 fee.
- Vaughn and Peters stated they had no knowledge that Oates intended to show the tape at the conference in California.
Procedural Posture:
- Ralph Underwager filed a defamation suit against Charles Vaughn, James Peters, Sr., and Kim Oates in the U.S. District Court for the Southern District of California.
- The district court granted motions from Vaughn and Peters to dismiss the claims against them for lack of personal jurisdiction.
- The district court granted summary judgment in favor of Oates, dismissing the claims against him on the merits.
- Underwager (appellant) appealed the dismissals and the summary judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the First Amendment shield a foreign national, legally present in the United States, from liability for defamation of a public figure, where the allegedly defamatory statements are either non-actionable opinions or, if factual assertions, are not made with clear and convincing evidence of actual malice?
Opinions:
Majority - Fletcher, J.
Yes. The First Amendment's speech protections shield a foreign national legally present in the U.S. from defamation liability to a public figure unless the plaintiff proves actual malice. First, the court held that the speech protections of the First Amendment apply to all persons legally within the borders of the United States, not just citizens. Second, as a public figure, Underwager was required to demonstrate by clear and convincing evidence that Oates acted with 'actual malice'—knowledge of falsity or reckless disregard for the truth. The court applied a three-part test to distinguish protected opinion from actionable fact, finding most of the statements were non-actionable opinion, rhetorical hyperbole, or not provably false. Regarding the one potentially verifiable factual assertion—that Underwager's book was commissioned by an insurance consortium—the court found no evidence of actual malice. Oates's reliance on a statement he read in a published opinion from the Washington Supreme Court (`State v. Swan`) was not reckless and negated the claim of actual malice, as he had no reason to doubt its truth.
Analysis:
This decision significantly clarifies two aspects of First Amendment law. First, it explicitly extends the amendment's free speech protections to non-citizen visitors legally present in the country, providing an important safeguard for international academics, journalists, and speakers. Second, it reinforces the formidable 'actual malice' standard for public figures by establishing that reliance on information contained within an official, published judicial opinion is a powerful defense against a claim of recklessness. This creates a strong shield for individuals who republish or comment on information from official court records, thereby protecting public discourse about judicial proceedings.
