What type of libel plaintiff is the court likely to name Simmons?
David Simmons is neither a public official or an all-purpose public figure. The question is whether Simmons should be considered a private citizen or a vortex or limited public figure. Applying the classification tests that grew out of the Firestone case, we can see Simmons did not voluntarily participate in the public controversy, the accidents. Nor did Simmons voluntarily participate to affect the outcome of the accidents.
Although six people died in the accidents, and their families were affected by their deaths, it’s unclear if these families represent a “substantial number of people”. Therefore, it’s likely the court will name Simmons a private citizen.
What, then, will be the requisite standard of fault in this case?
Given Simmons is a private citizen, he need only prove negligence to be successful in his libel suit. However, given he is suing for millions of dollars, it’s likely he’s pursuing punitive damages, which means he will have to prove actual malice as well.
Will Simmons be able to prove the requisite standard fault?
Since the burden of proof is on Simmons, he will have to prove MyFacebookSpaceNews.com did not follow standard reporting practices in interviewing enough sources and checking facts.
The number and credibility of sources in this story are shaky. Only two people are interviewed for this story. Ruggiero is credible as a law enforcement officer. Readers have no reason to believe Robin Hubier is not credible, though her statement is opinion, However, David Simmons was not interviewed for this story, and he is the subject of much of the story.
Nonetheless, Simmons likely will not be able to prove negligence. The Court will be looking for horrible reporting, not lack of professionalism. Although interviewing three sources is journalistic SOP, interviewing two sources is not horrible reporting.
Also, Simmons is suing for being called stupid and a drunk driver. He does not dispute that his van slammed into the Samaritans or that he was driving fast. A reasonable person who witnessed Simmons’s driving would assume the driver of the van was impaired.
Additionally, the reporter does not explicitly state Simmons was drunk driving. The story quotes the officer saying Simmons was arrested under “suspicion of drunk driving” and Hubier states her opinion but does not explicitly call Simmons stupid.
Are there other defenses the news site might consider?
If the site can gather information from police records that show Simmons was driving under the influence, then Simmons can not clear the falsity hurdle for libel litigation.
Simmons is suing for $5million, which means he is likely suing for punitive damages. This means he is going to have to prove actual malice, even though he is a private citizen. The news site did not recklessly disregard the truth. The accident was on a Saturday, the story was printed on a Tuesday. There is no way of proving the reporter knew the published material was false.