CASE MAY SET NEW LIBEL SUIT STANDARD

Lawyer: Brewton Case Sets New Standard In Libel Suits

BREWTON, Ala. - An Alabama Supreme Court ruling in a Brewton defamation
suit has added a new element for determining malice when a falsehood about
an individual is in a newspaper report.

The 5-0 decision, reversing a circuit judge, said a jury must decide a
defamation suit against former Brewton newspaper editor John Wallace and
East Brewton Police Chief Wilson Mallard over an erroneous report in The
Brewton Standard about a drug arrest.

John Raymond Wiggins, a former candidate for Escambia County Commission,
sued Wallace and Mallard after the newspaper published an erroneous story
in August 2000 reporting Wiggins had been arrested and charged with
possession of marijuana and drug paraphernalia.

Mallard claims he told Wallace in an Aug. 8, 2000 phone call that the
person arrested was Clinton Keith Wiggins. But Wallace claimed the chief
said it was Raymond Wiggins.

Since both Mallard and Wallace knew Raymond Wiggins well, the court said,
the case includes "substantial evidence of a deliberate falsehood" by
Mallard or Wallace.

"This event devastated the Wiggins family that had enjoyed a fine
reputation as a Christian family for decades," said Wiggins' attorney Dawn
Hare. "Somebody lied. This opinion validates our position that a jury
should determine who did. This was no honest mistake."

The lower court had thrown out the case, saying Mallard and Wallace had
"qualified immunity" from such libel suits. But the Supreme Court in its
Oct. 22 ruling said the question is "whether evidence of a deliberate lie
constitutes substantial evidence of common-law malice. This precise issue
has never been directly addressed by this court."

Dennis Bailey, general counsel for the Alabama Press Association, said
Thursday that in the past, plaintiffs had to prove published statements
were false, the false information was knowingly published with malice, and
the plaintiff's reputation was damaged as a result.

Now as this case illustrates, he said, all it takes is "the police chief
saying, 'I didn't tell him that.' "

"This will make it easier for persons to sue newspapers when there are
errors made in arrest information," Bailey told the Mobile Register, which
reported the ruling Thursday. "The practical effect is that reporters are
not going to be able to rely on what officers tell them over the phone.
They need to get records, to see a copy of the arrest record. It makes
written records much more important to reporters."

Mallard and the city's liability insurance lawyer, Kathy Knight of Mobile,
could not be reached for comment Thursday. Wallace declined comment on
Wednesday. Wallace's lawyer, Chris McIlwain of Tuscaloosa, said he was
still studying the ruling and had no further comment.

Some public officials in certain situations enjoy protection from being
sued for defamation, a defense called absolute privilege. Newspapers have
qualified privilege, a defense that can be lessened by how reporters
present and research stories.

The justices ruled that ordinarily a trial judge could decide whether a
statement is "privileged," but application of privilege in the Brewton case
hinges on the "credibility" of Wallace and Mallard.

"If a jury were to believe Chief Mallard, it must necessarily disbelieve
Wallace," the ruling says. If that's the case, then, the newspaper report
was not privileged.

The Wiggins lawsuit asked for unspecified compensatory and punitive
damages. Wiggins' son, John Raymond Wiggins II, is also a plaintiff. Both
live at the same address.

They contend that the police chief's testimony that he gave Wallace the
correct information on the arrest "if believed by a jury, would establish
that the publication by the Standard was not a 'fair and accurate report'
of the chief's information."