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April 23rd, 2017

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An internet 'exotic' star and a battle over libel

Noah Feldman

By Noah Feldman Bloomberg View

Published August 8, 2016

You can libel a porn star with a photo, according to a federal appeals court, which has allowed a libel suit by internet pornography pioneer Danni Ashe to go forward. That decision in her case -- against an online tabloid that published an article about another porn actress who tested HIV-positive and illustrated it with an unrelated photograph of Ashe -- has important First Amendment implications.

For a public figure to win a libel suit, she needs to prove that the writer knowingly published falsehoods with "actual malice" (either with the knowledge that a statement was false or "with reckless disregard of whether it was false or not"). The decision by the U.S. Court of Appeals for the 9th Circuit said that could be achieved by implication -- and that reckless publication could amount to malice. Taken together, the two parts of the holding threaten internet free speech in the era of widely available stock photos.

In 2013, the Daily Mail published a story online with the headline "Porn Industry Shuts Down With Immediate Effect After 'Female Performer' Tests Positive for HIV." The accompanying photo, which the website credited to a stock footage agency, shows a woman in a negligee on all fours on a bed. Behind her is a neon sign that reads "In Bed With Danni." Her face is blocked out. The photograph is of Ashe, though you can't see her face. The caption reads "Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive."

If you bothered to read the article, you'd be able to tell pretty quickly that the unnamed subject of the story wasn't Danni Ashe -- assuming you knew who she was. The article said the performer who was diagnosed with HIV was "new to the industry"; Ashe, whom the Guinness Book of World Records once called the most downloaded woman on the internet, retired in 2004.

The article also said "the performer was not immediately identified." Thus, it was highly improbable that the photograph, whoever it was, showed the person diagnosed with HIV.

Nevertheless, Ashe sued for defamation under California law. The case went to federal court because she and the Daily Mail, a U.K.-based tabloid, were domiciled in different states. In such circumstances, the federal court applies state law, filtered through the dictates of the U.S. Constitution.

Under California law, a libel case that targets otherwise free speech can go forward only if the plaintiff can prove a probability of winning. The federal district court refused to dismiss the case, and the Daily Mail appealed to the 9th Circuit.

It's worth noting an assumption that the court never discussed: that it's libelous to allege someone is HIV-positive. As a general matter, it's not totally clear that such a statement should count as defamation any more than alleging that someone has been diagnosed with early-stage cancer counts. But perhaps the assumption could be defended on the theory that for someone in the porn industry, such a diagnosis might make it harder to find work.

There were two interesting and important elements to the decision. The first is the 9th Circuit's holding that you can libel someone by implication via a stock photo that's juxtaposed with a story.

It's a general principle of libel law that libel doesn't require an explicit statement of fact. A libelous implication is enough if a reasonable person would draw the inference. That's fine -- but would a reader who sees a stock photo really infer that the article is about the person depicted?

Admittedly, someone taking a very cursory glance might think an article about an HIV-positive porn star is about the porn star in the photo. But reading the article suggested the opposite.

Stock photos are a staple of internet journalism. I think it's reasonable to argue that a convention has emerged that viewers know the stock photo often doesn't depict the person described in the article.

The 9th Circuit's holding therefore will almost certainly have a chilling effect on editors choosing photos to illustrate online stories -- and that's a First Amendment problem.

Libeling a public figure also requires proof that the writer or publisher acted with actual malice -- in this case, reckless disregard for the truth. But how do you define a reckless "implication"? The court said it wasn't enough that a reasonable viewer would think Ashe was the subject of the article. Instead, it pointed to the website's conscious choice to add a caption under the photo and the absence of a disclaimer.

That's not enough evidence of reckless disregard. Editors change stock photo captions regularly to match stories -- and that doesn't mean they're trying to create an implication.

Again, the danger to free speech is noteworthy. Editors choosing captions for stock photos will likely now have to think twice about the implications of their captions -- which in turn chills their free-speech rights.

The First Amendment protects all free speech, even speech that is sloppily photo-edited. The 9th Circuit's opinion is unlikely to go to the Supreme Court, but maybe the rest of the 9th Circuit will reconsider and reverse it, protecting constitutional rights.


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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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