Ventura faces tough road proving defamation

Jury selection begins today in a defamation suit brought by former Minnesota Gov. Jesse Ventura.

Two years ago, Ventura sued Chris Kyle, a highly decorated Navy SEAL who has since died. In his best-selling memoir "American Sniper," Kyle told the story of a bar fight in which he punched a man he later identified as Ventura.

Ventura says the fight never happened and he wants to clear his name.

Previously:
• Ventura must show sniper disregarded truth
• Jury seated for 'American Sniper' suit

Mark Anfinson spoke about the case with Phil Picardi on MPR News' Morning Edition. Anfinson is a Twin Cities attorney and adjunct professor at the University of St. Thomas who specializes in First Amendment and media law. He has represented many local media outlets, including MPR News. The following is an edited transcript of their conversation.

Phil Picardi: What does Jesse Ventura have to prove to win this case?

Mark Anfinson: I think in legal terms he's going to have to be the superstar that he's always imagined himself to be. Whether he's up to that task can be very much a question because the legal standards that confront someone like him, who's a public figure in libel law terms, are very daunting.

Picardi: What is the difference between a public figure like Ventura, and a non-celebrity in this kind of a case?

Anfinson: In this kind of a case, it's a big difference. Because one of the things the libel plaintiff must prove to the jury is that the defendant was somehow negligent in publishing a falsehood. And that's for a private figure, you have to prove negligence. But when you get to be in that rarified category of a public figure as Jesse is, then you have to prove something called actual malice. Much higher standard, much more difficult to prove. And at least, according to the United States Supreme Court, should rarely be provable.

Picardi: How difficult is it to prove, if it's rarely provable?

Anfinson: Well, here's how the Supreme Court has defined actual malice. It's a very confusing term by the way, it has nothing to do with the common definition of malice. What it really means is the publication was made knowing it was false, or with a high degree of awareness of its probable falsity. If you think about that for a minute, how do you really prove that the defendant had that state of mind? It's really hard. It should be hard.

Picardi: And Chris Kyle has since died. He was killed on a Texas gun range last year. His widow is now the defendant in Ventura's case. Will that have any impact on this case?

Anfinson: Well, that's been an issue of some debate. I think it will because only Chris Kyle knew what he thought the facts were at the time the book was published. Now, typically in a libel case, the defendant never admits he knew he published a falsehood or is pretty sure it was false. So that happens all the time anyway. And what the plaintiff, the Jesse Venturas, try and do then is bring in circumstantial evidence. They bring in witnesses or documents and then they say to the judge, "He must have known he was publishing a falsehood." And I suspect that's what Ventura will try and do.

Picardi: Kyle did not actually name Jesse Ventura in the book. He called him "scruff face," but later named him in interviews. Could that be part of what we're talking about here?

Anfinson: Well, that's a very good point, because he just called him "Scruff Face" and then Ventura on the Bill O'Reilly show later said "Scruff Face" was Jesse Ventura. But libel law is quite tolerant in terms of identifying the plaintiff. If the judge and the jury reasonably know who the defendant intended to refer to. That's going to be good enough. So I think, I don't think Ventura will be slowed down much by the claim that the book is about him, or that the reference in the book is about him.

Picardi: What does Jesse Ventura hope to get out of this? He says he wants to clear his name.

Anfinson: Well, almost all libel plaintiffs say they want to clear their name. And some genuinely do. But money is almost very much hanging around the edges of these things too. And I'm sure that Ventura and his attorney would like to recover a large sum of money to compensate them for what they believe is a loss of reputation. And it could in a libel case, if things break Ventura's way, you could be talking about a lot of money.

Picardi: Is this really a significant case, does it have a larger legal impact?

Anfinson: It has a larger legal impact potentially. The actual malice standard, which we just talked about, which public figures and public officials must prove, was originally drafted by the United States Supreme Court as the most important barrier to protect speakers, especially the news media, as a First Amendment protection. If the court, especially a federal court, like the one this case is going to be heard in, don't apply the actual malice standard very rigorously, then we have some loss of First Amendment protections. So that's why it's important.

Picardi: There are also some cutting edge implications as well. I know a lot of what Ventura will probably talk about is the fact that millions of people have talked about this on the Internet and that's kind of a new thing. And Clint Eastwood has a movie coming out that's based on Kyle's book — we don't know, I guess, if he'll mention the Ventura or the "Scruff Face" incident, but there are some interesting.

Anfinson: It's going to be tempting, isn't it?

Picardi: There are some interesting cutting edge technologies and impacts from this case.

Anfinson: The impact part of this will be dramatic because of the reach of the various media now available. I do think in all candor that one of the most difficult things for Ventura to do is going to be to, if it gets to a jury, which is again, is very much in doubt, the jury is supposed to dismiss the case if he doesn't think actual malice had been established pretty clearly at the beginning of the trial. But if it does get to the jury, I have some doubts if the jury's going to be overly impressed that your reputation has been terribly damaged simply by an account of a bar fight, whether it's true or false. We'll see how that plays out too.

Picardi: Ventura says that part of his reputation with members of the military has been damaged because of this alleged incident where he has said some negative things about current military members, at least when Kyle was alive. So I guess that's a difficult thing to prove too, how his reputation might be damaged among military members, his brethren as he was once in SEAL?

Anfinson: Proving that your reputation has actually been harmed in the legal sense with legally admissible evidence is very, very difficult as well. But the joker in the libel trial deck is this: If Ventura can prove to the court's satisfaction that the passage in question was published with actual malice — again we're back to actual malice — then he doesn't have to prove specific harm to his reputation. The jury gets to assume that his reputation was harmed. And then it's "Katie bar the door" in terms of possible damages. Because they just get to pick a number and that's when it gets pretty, pretty scary in a libel case.

Transcript with help from MPR News reporter Liala Helal.