I have litigated, even tried, some defamation cases. I have read many. I have noticed a theme. The most “popular” way for the media to win a defamation case, has been for them to get some police officer on the stand, saying he took action based on the information. Knowing what I know, my guess is that sometimes that is truth, but sometimes police have been willing to lie on the stand (oh c’mon, you know I get to say police lie on the witness stand, go to Wikipedia and look up “testilying”).
In the Stepnes, we saw that theme trying to play out. But in that case, the media and the police were all sued. This meant their interests were not identical. The police officer/the city had something to lose if they simply did what the media defendants wanted.
And the media had something to lose if they rolled completely with police.
Stepnes was entitled to sue them all, but we never got to trial.
Why is that? Was some other technique used, when the media could not use the popular technique?
In the Stepnes case, the individual police officer went down, and he went down hard. His own lawyer spoke against him. CBS lawyers seemed to do the work for the city defendant. This suggests some kind of agreement between the various defendants, to let the individual police officer fry, in order to achieve some longer term goal.
At summary judgment, the officer/city argued that even if the individual police officer had not had probable cause to arrest Stepnes (and there were many ways that Stepnes showed he did not), that there was still “arguable probable cause,” a lower standard, and a determination made by a judge, not a jury (at least under current precedent).
At that stage, courts permits lawyers (in this case not just public-paid lawyers, but the full weight of the CBS legal department expanded by numerous private attorneys) to come up with hypothetical reasons why the police could have arrested the citizen, had they been educated and thinking about it in that way.
The citizens do not get this chance.
This favors the defendants in defamation cases, and makes it almost impossible for citizens to get to trial, let alone to win.