In the defamation action stemming from a 2010 New Yorker profile of  Peter Paul Biro (a specialist in art authentication through fingerprint analysis who was featured in the documentary  Who the #$&% is Jackson Pollock?), Judge Oetken yesterday granted a motion  for judgment on the pleadings filed by the New Yorker Defendants (Conde Nast, and David Grann, the profile’s author), and motions to dismiss filed by the Republisher Defendants (Yale University Press, editor Paddy Johnson, Gawker Media, and Business Insider).

As we reported here last year, the court had previously permitted some of Biro’s claims to proceed, ruling that the  “overall impact” of the profile was not defamatory, but that certain specific statements made in the profile were actionable.  In yesterday’s decision, Judge Oetken held that Biro failed to state a claim against the New Yorker Defendants because he failed to allege facts to support that Grann or his publishers acted with actual malice when it published allegations that he may be a fraud:

[Biro] has failed to allege that Grann or Advance had a motive for sabotaging Biro; that the Grann Article fabricated or recklessly distorted quotes given by Biro or another source; that internal inconsistencies contradicted the allegedly defamatory assertions; that the allegedly defamatory passages were inherently improbable or that the face of the Grann Article suggests actual malice; that Grann relied on wholly unverified or patently unreliable sources; or that Grann or his publishers made statements or acted in a manner indicating that they knew or suspected that the allegedly defamatory statements were false. Given the lack of factual assertions suggesting actual malice, Biro has failed to state a claim against the New Yorker Defendants.

Similarly, with regard to the Republisher Defendants, Judge Oetken found that Biro’s claim that they acted with actual malice “lacks plausibility.”   Biro had argued that  certain of the Republisher Defendants’ refusal to retract their articles was supportive of a finding of actual malice.   Judge Oetken disagreed:

While the failure to retract may, under certain circumstances, “tend[] to support a finding of actual malice,” Zerangue, 814 F.2d at 1071; see also Milsap v. Journal/Sentinel, Inc., 100 F.3d 1265, 1271 (7th Cir. 1996) (“Perhaps under certain circumstances a refusal to retract a published statement might be evidence of actual malice in its publication.”), the decision not to retract is, in and of itself, insufficient to establish by clear and convincing evidence that a defendant acted with actual malice. Sullivan, 376 U.S. at 286; Edwards v. Nat’l Audobon Soc’y, Inc., 556 F.3d 113, 121 (2d Cir. 1977) (“Surely liability under the ‘clear and convincing proof’ standard of New York Times v. Sullivan cannot be predicated on mere denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.”); Schwartz v. Worrall Publ’ns, Inc., 610 A.2d 425, 431 (N.J. Super. Ct. App. Div. 1992) (noting the limited probative value of “post-publication inaction” in establishing actual malice (citing Harte–Hanks, 491 U.S. at 688)). The reasons that such evidence lacks substantial probative value are twofold. First, a failure to retract occurs, by definition, after publication, meaning that its probative value as to a defendant’s state of mind at the time of publication is dubious at best. See McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1515 (D.C. Cir. 1996) (“McFarlane presents no authority, however, nor are we aware of any, for the proposition that a publisher may be liable for defamation because it fails to retract a statement upon which grave doubt is cast after publication.”) Second, a plaintiff’s denial as to the veracity of a story only “serves to buttress a case for actual malice when there is something in the content of the denial or supporting evidence produced in conjunction with the denial that carries a doubt-inducing quality.” 1 Rodney A. Smolla, Law of Defamation § 3:65.50 (2013). Here, there is no basis for inferring that knowledge of Biro’s complaint in this case should have conferred such “a doubt-inducing quality.” Thus, a defendant’s decision not to retract failure is not in itself enough to nudge an allegation of actual malice from conceivable to plausible, especially in a case such as this, where the article itself has the facial appearance of reliability.