In 1986 the U.S. Supreme Court ruled that the First Amendment requires a libel plaintiff to prove the falsity of the defamatory statement if the statement involves a matter of public concern.[67] The case in which the Court established the falsity requirement, Philadelphia Newspapers v. Hepps, involved a charge that plaintiffs were linked to organized crime, but the Court did not define what constitutes “a matter of public concern,” simply asserting that crime certainly qualified. In a subsequent case, the Supreme Court said that a confidential credit report did not constitute a matter of public concern.[68] Certainly most of what fills a daily newspaper or an evening news broadcast would qualify as matters of public concern, but the Court’s failure to define the term raises many questions. For example, would gossip column items, especially about private individuals, qualify as “matters of public concern”? What about intimate details about prominent individuals? Or reviews of service providers on Internet sites such as Angie’s List?
In one of the more thorough discussions of what constitutes a matter of public concern, the N.C. Court of Appeals in 2005 said that the determination requires examining “‘the content, form, and context’” of the speech.[69] The court concluded that a radio broadcast blaming a construction company for the appearance of two sinkholes in the parking lot of a Hickory restaurant after a heavy rainfall addressed a matter of public concern. The court first cited widespread national and even international news coverage of the sinkholes. “The record reveals that, more than merely being newsworthy, the sinkholes were a matter of public study: two days after they developed, the sinkholes were discussed at the Western Piedmont Council of Government which was attended by a number of influential people, including members of North Carolina’s Department of Transportation; North Carolina State University and University of North Carolina at Charlotte began teaching on the sinkhole subject; and that the Hickory Visitors Bureau received calls from as far away as Michigan asking how to find the sinkholes. Based on this record and in light of the clear safety ramifications the sinkholes posed to the community of Hickory, we find that determining the cause of the sinkholes was a matter of “‘public concern.’”[70]
In most cases, whether the plaintiff must prove falsity or the defendant must prove truth is not a factor in the outcome of a libel suit. However, in those cases in which truth is hard to prove, the Hepps rule can be of real benefit to the press. For example, in the Hepps case, the Philadelphia Inquirer had relied on confidential sources for its story alleging that Hepps and his company were linked to organized crime. Proving the truth of the allegation would have required the Inquirer to reveal the identities of those sources. The Supreme Court acknowledged that sometimes plaintiffs would be unable to meet their burden of proof even though the defamatory statements were false. The Court felt, however, that to require defendants to bear the burden of proving truth would have a “chilling effect” on the discussion of matters of public concern.[71]
Even before the U.S. Supreme Court ruled that the First Amendment requires plaintiffs to prove falsity in most libel suits, the N.C. Court of Appeals had placed that burden of proof on those bringing libel actions. In a 1979 libel case brought by a private person plaintiff, the court said, “If the plaintiff’s case is to succeed, he must show that the factual statements concerning him and his actions were false.”[72] In 1983 the Court of Appeals again ruled a private plaintiff must prove falsity in his libel action against a newspaper. The court did not explicitly restrict the requirement to reports involving matters of public concern although both cases involved articles that would fall into that category.[73] After the U.S. Supreme Court decision in Hepps, North Carolina courts have continued to declare that “a plaintiff must allege and prove that a defendant made false, defamatory statements of or concerning the plaintiff.”[74]
[67] Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986).
[68] Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
[69] Neill Grading & Const. Co., Inc. v. Lingafelt, 168 N.C. App. 36, 45, 606 S.E.2d 734, 740 (2005) (quoting Corum v. Univ. of North Carolina, 330 N.C. 761, 775, 413 S.E.2d 276, 285 reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985 (1992)).
[70] 168 N.C. App. at 45-46.
[71] 475 U.S. at 776-77.
[72] Brown v. Boney, 41 N.C. App. 636, 648, 255 S.E.2d 784, cert. denied, 298 N.C. 294, 259 S.E.2d 910 (1979).
[73] Cochran v. Piedmont Publ’g Co., 62 N.C. App. 548, 549, 302 S.E.2d 903, cert. denied, 309 N.C. 819, 310 S.E.2d 348 (1983), cert. denied, 469 U.S. 816 (1984).
[74] See, e.g., Boyce & Isley, PLLC v. Cooper, 710 S.E.2d 309, 317 (N.C. Ct. App. 2011); Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 356, 595 S.E.2d 778, 783 (2004); Tyson v. L’Eggs Products, Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987).
