Communication Currents

These days, there seems to be a public opinion poll on every topic, from presidential approval ratings and consumer product use, to knowledge about current events and views of celebrities. However, while polls became ubiquitous in the 20^th century, they were not used at all as evidence in court cases until the early 1950s. While polls are now frequently used in court, they are rarely used in defamation cases. In a new article in the NCA journal First Amendment Studies, Eric P. Robinson outlines the history of using public opinion polls as evidence in defamation cases, and argues that the courts should use them more.

Defining Defamation and Reputation

In a defamation lawsuit, a legal claim is based on harm to the plaintiff’s reputation. Robinson states that the “law conceives of reputation, and damage to reputation, as a social phenomenon.” A defamatory statement, according to the courts, lowers the plaintiff in the estimation of the community or deters third persons from associating or dealing with him. The author notes that this view differs from how other disciplines comprehend reputation and damage, based on information-gathering, or stakeholder’s attitudes and actions. But the law takes into consideration social interactions and a measurement of the opinions of others. To accurately measure the opinions of others, Robinson strongly recommends using public opinion polls.

Robinson further breaks down how plaintiffs must show proof that their reputation has been damaged: their reputation must have been damaged not in the estimation of the entire community, but an “important and respectable part of the community” (Peck v. Tribune Co.). Robinson writes that judges often use their own personal knowledge and intuitive judgments to inform their decisions. Instead, he argues, the best way to gather that collective opinion is by polling.

Public Opinion Polls in Defamation Cases Over the Years

Much of the article features Robinson’s roundup of the eight defamation trials that have used public opinion polls as evidence. According to Robinson, the courts accepted the polls as evidence in all but one of the cases in which they were introduced by the parties. Two of the cases included polls the judges discovered themselves. Here are a few highlights of the case summaries:

• In 1949, a case (Mattox v. News Syndicate) used a straw poll of the plaintiff’s social circle to determine if respondents believed a statement about the plaintiff that had been published in a news story. The plaintiff won.
• In 1983, an attorney for Frank Sinatra (Rudin v. Dow Jones & Co.) brought a libel suit against Barron’s business magazine for publishing a letter to the editor with a headline (“Sinatra’s Mouthpiece”) that they claimed had a negative connotation. The poll submitted for evidence asked individuals to assess the character of an individual based on suggested headlines (i.e. “John Doe’s Mouthpiece,” or “John Doe’s Spokesman”). The case was dismissed.
• In 2009, Anna Nicole Smith’s attorney, who also was her companion, filed a lawsuit (Stern v. Cosby) against the authors of a tell-all book that alleged he had had sexual relations with another man. The court used a recent opinion poll about views of homosexuality in New York in conjunction with a recent decision by the state’s highest court that anti-sodomy laws were unconstitutional. The court dismissed the suit. Robinson notes that this case shows that poll results are subject to interpretation, and can be cherry-picked by the parties to work to their favor, since the results might have differed in another state.

The Argument for Polls as Evidence

Robinson acknowledges that while the courts have become more accepting of social science evidence in the last century, “their approaches to free speech issues are often in direct conflict with results of social science research on the same questions.” Moreover, when the judge and jury are proxies for public opinion, they don’t represent the general public, and therefore present a narrow, subjective view of the case.

The author also lays out some of the challenges associated with public polling, including methodology, sample size and demographics, framing and priming of questions, and the increasing difficulty involved with recruiting and contacting respondents. Additionally, a poll is only exemplary of a snapshot in time. “While the obvious solution would be pre-and post-exposure polls, this is impossible in a defamation case in which the claim does not arise until the statement is made,” Robinson writes.

Ultimately, the courts are more likely to use a public opinion poll as evidence if it is relevant, the sample and questions are appropriate to the suit, and if it was conducted with currently accepted standards for validity. Robinson argues that opinion polls can provide the best evidence of or against defamation, rather than judges’ and juries’ understandings and perceptions. “It is time to use proven methods to determine the impact of alleged defamatory statements on actual people,” he concludes.