Kentucky Basketball: Gary Parish Thinks the Davises Will Not Sue

One year statute of limitations. Venue is Illinos state court. High probability Davis Sr. is a private figure, so the standard is negligence. He became a limited public figure after the alleged defamation, but that’s immaterial to the Aug 4 publication.

He has the burden of proof on falsity, and his testimony alone would be sufficient if the jury finds him credible. He need make only an initial showing, and then the burden switches to the defendant to prove truth or substantial truth as an affirmative defense. Not that it accurately reported the rumor, but that the rumor itself was true. It is no less libel to accurately repeat a defamation. Note: If Sr. did shop his son to other schools, it won’t matter if he actually sold his son to UK. The court will consider the act complained of to be close enough to the truth that Sr. will not be heard to complain of technical distinctions, as though that would save his reputation. Likewise, it doesn’t matter if the amount wasn’t $200K but $100K or $10K. Substantial truth in material aspects is enough to prevail on defense.

If Sr. is somehow a public figure for purposes of the Aug 4 publication, he must show actual malice. But that sounds much worse than it is in practice. Reckless disregard is enough, a lack of reasonable grounds to believe the truth of the matter asserted. Journalistic standards may serve as supporting evidence. If O’Brien casually repeated an Internet rumor, as appears to be the case, he has no reasonable grounds. Malice must be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of the report. The Sun-Times will have to show that the source was reliable, and it had no doubts about the accuracy of the matter asserted. Internet chatter? Good luck with that.

Moreover, if the language was defamation per se, as Mr. Barker, the Vine St. lawyer, indicated in his initial letter to the Sun-Times, and as I believe as well, malice in Illinois is imputed from the words therein. This was a serious charge of misconduct so obviously and naturally harmful that proof of its injurious character can be dispensed with. It was an attack on Sr.’s integrity and moral character, imputing dishonesty and corruption. The very nature of what was alleged is therefore sufficient to impute malice in Illinois. So no, a defendant doesn’t have to prove actual knowledge or bad intent or otherwise show what was in the mind of the defendant. Indeed, truth alone is not a complete defense. The statement must have been published with good motive and for justifiable ends.

There’s no equivalence between Parrish’s case and this one. Parrish had a hell of a source. The mere fact that there was no good case against Parrish, or that defamation suits against the media are difficult in general, does not mean Davis Sr. doesn’t have a good case here worth pursuing. Particularly if the matter asserted was an outright fabrication and O’Brien had no objective basis to rely on the accuracy of what he repeated. Sr. might not sue, but call me a lot more sanguine about the prospects. The defense has some pretty tough burdens of its own.