2nd Circuit Upholds “Clear and Convincing” Standard Proof of Falsity in Defamation Case

In DiBella v. Hopkins, the 2nd Circuit has upheld a lower court ruling that under state law, the public figure plaintiff’s burden of proof of falsity in a defamation case is properly clear and convincing, rather than preponderance of the evidence. The plaintiff had argued, naturally enough, that “had the trial court charged preponderance of the evidence as the burden of proof, he would have succeeded on all of his claims…” rather than just on one.

The appellate court acknowledged that the state courts have not fully resolved this issue.

“When a state offers full protection to a federal right, state law necessarily disposes of the constitutional question…If, however, the state standard is not fully protective of a given right, a court must reach the federal constitutional question…In this case, then, we must examine state law to determine whether it provides for the highest standard available–clear and convincing proof of falsity–thus rendering a discussion of the federal constitutional standard unnecessary. Here, we are persuaded that state law requires clear and convincing proof of falsity, and decline therefore to address this open question in federal constitutional law. Having said that, we recognize at the outset that the New York Court of Appeals has not addressed New York’s standard of proof for falsity in a defamation case. In the absence of authoritative law from the state’s highest court, we must either (1) predict how the New York Court of Appeals would resolve the question, or, if state law is so uncertain that we can make no reasonable prediction, (2) certify the question….We have considered and rejected the necessity of certifying this question of state law to the New York Court of Appeals….We do not believe this case presents any of the exceptional circumstances that would justify using the certification procedure. Rather, in light of existing authority…we must undertake the imprecise but necessary task of predicting on a reasonable basis how the New York Court of Appeals would rule….”

Read the entire opinion here.