Tan v. Younis

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS WILLIE TAN and BENIGNO R. FITIAL, Plaintiffs-Appellants, v. YOUNIS ART STUDIO, INC., dba MARIANA’S VARIETY, Defendant/Third Party Plaintiff-Appellee, FOR PUBLICATION v. STANLEY T. TORRES, Third Party Defendant-Appellee SUPREME COURT NO. CV-04-0004-GA SUPERIOR COURT NOS. 01-0624 & 03-0116 OPINION Cite as: Tan v. Younis, 2007 MP 11 Argued November 18, 2004 Saipan, Northern Mariana Islands Attorney for Appellants: Attorney for Appellee: Steven P. Pixley, Esq. G. Anthony Long, Esq. P.O. Box 7757 SVRB P.O. Box 504970 Saipan, MP 96950 Saipan, MP 96950  BEFORE: MIGUEL S. DEMAPAN, Chief Justice, F. PHILIP CARBULLIDO, Justice Pro Tem, and ROBERT J. TORRES, Justice Pro Tem. DEMAPAN, Chief Justice: ¶1 Appellants Willie Tan and Benigno R. Fitial challenge an order for summary judgment in favor of Younis Art Studio, Inc. Because we find Tan is a public figure, Fitial is a public official, and since Tan and Fitial have not demonstrated Younis Art Studio, Inc. acted with actual malice, the trial court was correct in dismissing Tan and Fitial’s defamation claims. Accordingly, summary judgment is AFFIRMED. I ¶2 Tan and Fitial charge the Marianas Variety newspaper and its publisher, Younis Art Studio, Inc. (collectively “Variety”), of defamation. The alleged defamatory statements were published in the Variety as political advertisements, placed by Appellee Stanley Torres. These political advertisements contained re-prints of a letter Torres wrote to Fitial, 1 then Speaker of the 1 Torres’s letter reads: Dear Speaker Fitial: I am writing this letter because I think it is important that the voters knows who they are voting for. Since you are bragging and claiming credit for repealing the Foreign Investment Act in 1982, and that you were the one who brought in the garment factories and their other related businesses such as their own barracks for 4,000 Chinese and other foreign country nationals workers, cardboard box factories, Century Insurance, Century Travel Agency, Century Finance, Century Hotel, CTSI Trucking and Transfer, Shipping Lines, Shirley’s Café, Sunset Apartments at the Navy Hill for the Hospital Staff Housing and maybe soon to own the Verizon Telephones Company in the CNMI. I have no problem with them. However, I am sure that the voters must be well informed of your participation in these businesses, and I am sure that they will all appreciate it. Pues [sic], if you are going to be elected the Governor of the CNMI, and like many of your supporters are telling us about your sincere, honesty and trustworthy, you owe the people of the CNMI to tell the TRUTH about the over One Hundred Thousand Dollars you received in CASH, that you said you got from your friend, Mr. Tan, the money you smuggled out of the Philippines while you were the Vice Speaker of the House of Representatives in 1985? Was the money Mr. Tan paid you for repealing the Foreign Investment Act? Was the money you received from Mr. Tan for L&T Garment and Poker machines which flowed into the CNMI? Was it that money which let Mr. Tan walk into the Lower Base government buildings and public lands 2 House and gubernatorial candidate, on October 19, 2001. 2 Torres wrote the letter on official House stationary in his capacity as a member of the House of Representatives, and addressed it to Fitial, in Fitial’s official capacity as Speaker of the House of Representatives. to become the largest garment factory in the CNMI, thanks to very cheap rental fees, and isn’t that the TRUTH? Mr. Tan’s garment factory is the only one on public lands, all other garment factories are on private lands and are paying millions of dollars to private land owners while Mr. Tan’s garment is making millions and millions of DOLLARS on merely $18,000 per year of rental fees, and that is the TRUTH. Ben, tell the people the TRUTH. How many poker machines do you have or how many machines did Mr. Tan give you to operate and share the profits? Please tell the people the TRUTH why Mr. Tan designated you to be the Director of the Bank of Saipan where Mr. Tan owns 30% of the Bank? And as some time ago you were the Chairman of the Board of the Bank too? Tell the people of the CNMI that you are also sitting on the Board of Directors of the MARIANAS CABLE VISION (MCV), representing Mr. Tan’s $400,000.00 controlling interest. Please tell the people the TRUTH that you are the President of the Saipan Tribune Newspaper which is wholly owned by Mr. Tan. I understand that the Tan’s Holding Company is also one of the Bidders to buy-out the VERIZON Telephone System in the CNMI. I wonder if you are and I wouldn’t be surprised if you are also a player in this venture and if it will become a reality. Are we going to repeal again the Commonwealth Telecommunications Commission (CTC) to the new owners favor? Just wondering. Ben, tell the CNMI people the TRUTH that Mr. JERRY TAN, the brother of MR. WILLIE TAN, once said that the people of the CNMI are all crooks, that the Saipanese are accessible to BRIBERY, everybody is or are related to the Governor and are coming to us to trade favors for money. Remember, I’ve said this for several times and Jerry did not object it. Isn’t that an arrogant and an insulting statement of JERRY TAN to the people of the CNMI? Ironically, look where are they now and how long they’ve been here? While everybody has heard the rumors of your “VOTE BUYING”, I know of personal loans pay offs on behalf of the Committee to Elect Benito R. Fitial.. Ben, didn’t the Tans pay their way into the CNMI through your receiving that money? If you think (in your favorite term) that I am a hypocrite, think twice. You know that I know all the facts. Sincerely, /s/ Rep. Stanley T. Torres Excerpts of Record (“E.R.”) at 54-55. 2 Tan and Fitial concede Torres’s letter is not defamatory, yet maintain the advertisements containing reprints of Torres’s letter are defamatory. 3 ¶3 Prior to its publication in the Variety, Torres’s letter was entered into the record of the 12th House of Representatives, filed with the House Clerk, and made a part of the legislative journal. The letter accuses Fitial of smuggling $100,000 from the Philippines in 1985, when Fitial was Vice-Speaker of the House. The letter also questions whether the $100,000 was from Tan, a well-known Commonwealth businessman, for repealing a statute, and whether those and other funds were bribes assuring the commercial success of Tan in the Commonwealth. ¶4 Three days after Torres wrote the letter, the Variety printed a front page article discussing it. The article’s headline read, “Torres accuses Fitial of accepting bribe,” followed by a caption reading, “Fitial calls allegation ‘absurd’.” The article reprinted Torres’s accusations against Fitial, as well as excerpts from Fitial’s media release denying the accusations. The Variety contacted Tan’s legal counsel for a statement prior to publication but did not receive a response in time to include it. Two days later, the Variety printed a follow-up story in which Torres claimed to have evidence substantiating his claims. That article contained no response from either Fitial or Tan. 3 ¶5 On October 25, 2001, Torres ran a paid political advertisement in the Variety which included his letter accusing Tan and Fitial of criminal activity. The advertisement contained the letter’s full text, a photograph of Torres, and the following additional statements in large lettering: “I don’t hide behind legislative shield to tell LIES. I don’t go to daily Mass and receive Holy Communion and tell LIES.” Prior to publishing the advertisement, the Variety’s advertisement manager, Jeannette Sarabia, approached Abed Younis (“Younis”), the Variety’s owner, to get his approval. Sarabia sought approval because she thought the advertisement was “questionable.” Younis approved the publication without additional investigation beyond that conducted by reporters for the previous articles. 3 Tan and Fitial do not challenge the October 22, 2007 article or the October 24, 2007 article as defamatory. 4 ¶6 That same day, Tan sent Torres a letter demanding Torres retract his statements accusing Tan of bribery. Rather than retracting his statements, however, Torres republished his political advertisement along with excerpts from Tan’s retraction demand and his response: “RETRACTION? OVER MY DEAD BODY.” This advertisement appeared in the Variety on October 26, November 1, and November 2, 2001. ¶7 In November, 2001, after the general election, Tan filed a defamation claim against the Variety. Tan also filed a separate lawsuit against Torres, which they later settled, resulting in a joint statement in which Torres apologized for “any damages caused to Willie Tan as a result of his statements accusing Willie Tan of criminal conduct.” In March 2003, Fitial filed a defamation claim against the Variety. In both of these civil actions, the Variety filed a third- party complaint against Torres. The two cases were subsequently consolidated for trial. 4 ¶8 In their pleadings before the trial court, Tan denied bribing Fitial and Fitial denied being bribed. However, Tan admitted Fitial took, or caused to be taken, at least $100,000 out of the Philippines while on a trip with Torres in 1985. Tan denied the money Fitial took out of the Philippines came from him or a company in which he had an ownership interest. ¶9 Fitial admitted he received $25,000 from Tan’s brother-in-law, which he then removed from the Philippines in 1985. To avoid declaring the cash to customs, he divided the money into $5,000 batches and distributed it to people traveling with him to be collected later. Torres confirmed he helped Fitial remove the money from the Philippines. Although Torres claimed Fitial told him the money was from Tan, Torres acknowledges he never saw Tan give Fitial any money, and he never had Tan confirm the money in question came from him. 4 E.R. at 38. 5 ¶ 10 The trial court granted summary judgment for the Variety, concluding no reasonable jury could find actual malice by clear and convincing evidence. 5 Tan and Fitial argue summary judgment was improper as sufficient evidence exists to create a jury question. They also maintain allowing summary judgment to stand would create a defamation standard for public officials and public figures more exacting than actual malice, virtually eliminating the cause of action for public plaintiffs. II ¶ 11 Before the U.S. Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254 (1964), defamation was a state law matter, free from First Amendment constraints beyond those already accounted for through common law development. 6 A person was liable for defamation if they published, either by spoken or written word, an unprivileged communication of and concerning another which was false and defamatory. Restatement (First) of Torts § 558 (1938). If the defamation was printed, known as libel, it was actionable per se. Id. § 569. Libel in which an inferential step was necessary to reach the “sting” of the allegation was considered libel per quod in some jurisdictions and the plaintiff would have to demonstrate special damages – that is, demonstrable pecuniary loss – in order to recover. See id. If the statements were communicated orally, known as slander, special damages were necessary unless the statements fell into one of four prescribed slander per se categories. Id. §§ 570, 575. If the plaintiff was able to prove she was defamed, general damages were presumed. Id. § 621. Punitive damages were generally available if a plaintiff could demonstrate the defendant acted with traditional malice – ill will – towards her. Sheldon W. Halpern, Of Libel, Language, and Law: New York Times v. Sullivan at 5 E.R. at 11-12. 6 See Sheldon W. Halpern, Of Libel, Language, and Law: New York Times v. Sullivan at Twenty-Five, 68 N.C. L. Rev. 273, 277 (1990). 6  Twenty-Five, 68 N.C. L. Rev. 273, 278 (1990); see also Gertz v. Robert Welch, 418 U.S. 323, 370 (1974) (White, J., dissenting). ¶ 12 Then, in New York Times, which addressed an elected official’s defamation claim against a newspaper, the U.S. Supreme Court found the common law action insufficient to safeguard First Amendment guarantees. 376 U.S. at 279-80. To remedy this, the Court announced the heightened actual malice standard: The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id. The Supreme Court later extended the actual malice standard to cases involving public figures. Curtis Publ’g. Co. v. Butts, 388 U.S. 130, 155 (1967). ¶ 13 Defamation actions have a long history in this jurisdiction. Trust Territory courts heard cases for both criminal libel 7 and civil libel. 8 No criminal libel statute was retained by the Commonwealth Legislature, but the common law civil action remained. 9 Despite the frequency of defamation actions in the Commonwealth, there is little resonance between decisions as they primarily focus on either First Amendment considerations or common law elements and privileges, without placing both in a larger context. Our decision today provides an occasion to merge our case law with First Amendment limitations to articulate a broad and coherent defamation framework. 7 Uto v. Trust Territory, 2 T.T.R. 209 (1961) (upholding a Trust Territory Code § 425 criminal libel conviction). 8 See St. Pierre v. Micronitor, 6 T.T.R. 249 (1973) (denying motion for change of venue in civil libel action). 9 See Tenorio v. Santos, 1 CR 46 (Dist. Ct. 1980); Borja v. Goodman, 1 N.M.I. 225 (1990); Bolalin v. Guam Publ’ns, Inc., 4 N.M.I. 176 (1994). 7  III ¶ 14 Since no Commonwealth statute exists creating a cause of action for defamation, our decisions have consistently found the Restatement (Second) of Torts controlling. 10 See, e.g., Fidelino v. Sadhawani, 3 CR 282, 291 (1988); Bolalin, 4 N.M.I. at 182. However, 7 CMC § 3401 11 makes Restatement provisions applicable only when, and to the extent, “written law” or “local customary law” is silent. Section 3401 requires cautious application; courts must be vigil, since a survey of local law is necessary before resorting to the Restatement, and conscientious, since “a court . . . called upon to apply and pick and choose from . . . [the Restatement’s] large body of laws . . . in fact legislates.” Borja, 1 N.M.I. at 248 (Hillblom, Special J., concurring). ¶ 15 When applied in defamation cases, section 3401 also requires courts be particularly cognizant of First Amendment speech protections. In the event Restatement defamation provisions are found inapplicable due to contrary local law, or modified in an effort to conform to local law, the Restatement’s First Amendment safeguards risk being circumvented. 12 As such, 10 Various Restatement provisions have been adopted, including those listing the prima facie elements, Fidelino v Sadhwani, 3 CR 282, 291 (Trial Ct. 1982), provisions expounding those elements, Camacho v. Santos, 1 CR 281, 286 (Dist. Ct. 1982); Tenorio v. Camacho, 3 CR 195, 208 (Trial Ct. 1987), certain privileges, Izuka v. Camacho, 1 CR 724, 732 (Dist. Ct. 1983), defenses, Fidelino, 3 CR at 291-92, and damages, Tenorio v. Santos, 1 CR 46, 67 (Dist. Ct. 1980). 11 In all proceedings, the rules of the common law, as expressed in the restatements of the law approved by the American Law Institute and, to the extent not so expressed as generally understood and applied in the United States, shall be the rules of decision in the courts of the Commonwealth, in the absence of written law or local customary law to the contrary; provided, that no person shall be subject to criminal prosecution except under the written law of the Commonwealth. 7 CMC § 3401. 12 Restatement defamation provisions move from the general to the specific. For example, Restatement § 558(c) describes the degree of fault required for liability as “amounting to at least negligence on the part of the publisher.” While this is true, it does not include the heightened actual malice standard required for public officials and public figures. The heightened standard for public officials and public figures is found at section 580A. If section 580A were held inapplicable due to superseding local law, section 558(c)’s unmodified negligence standard would be unconstitutional if applied to a public official or public figure. Therefore, in the event local law renders a Restatement defamation provision inapplicable, we must compare the resulting standard to the New York Times line of cases to ensure conformity with First Amendment criteria. 8  an independent First Amendment analysis is required when courts are faced with defamation issues for which our case law is unsettled. 13 ¶ 16 Commonwealth courts faced with defamation actions must first look to local law, including case law, to find the controlling defamation standard. Only if this search proves lacking is resort to the Restatement appropriate. Additionally, courts must undertake an independent First Amendment analysis whenever presented with defamation issues for which our case law is unsettled. Taken as a whole, our cases demonstrate this approach. Yet the journey has been long and winding. Restatement § 558 and the Search for a Defamation Standard ¶ 17 The first defamation case heard by a Commonwealth court, Tenorio v. Santos, 1 CR 46, involved cross-complaints for slander. The Court reasoned since both complainants were candidates for public office at the time of the alleged defamation, and due to the strong public policy protecting speech – especially political speech, New York Times and its progeny controlled. Id. at 58-61. As such, actual malice was required before either was eligible for damages. Id. at 61. The Court concluded defamation of a public figure is shown by “clear and convincing proof that the . . . statement . . . was defamatory; was published to third persons and spoken with actual malice, with at least reckless disregard of falsity of the defamatory content of that statement.” Id. at 69. This language, while instructive for defamation actions involving 13 A similar approach is seen in Borja, 1 N.M.I. 225. In separate concurring opinions, Justice Villagomez and Special Judge Hillblom found the Restatement’s official reporting privilege at section 611 inapplicable due to superseding local law incorporating First Amendment protections. Id., at 242, 245. Justice Villagomez determined NMI Constitution Article I, Section 2 provides the appropriate defense for a newspaper defendant charged with defamation for reporting a public court record. Id. at 242-44. The similarities between NMI Constitution Article I, Section 2 and the First Amendment led Justice Villagomez to import the reasoning of United States Supreme Court cases finding First Amendment prohibitions against defamation liability without fault. Id. at 243-44. Special Judge Hillblom found Covenant section 501 incorporates First Amendment provisions as they were interpreted by United States courts at the time the Covenant was ratified. Id. at 269. First Amendment case law development beyond the point of ratification is left to Commonwealth courts. Id. at 273. Despite this, he was “persuaded [the Court] should interpret section 501 as incorporating no less First Amendment protection to the press than that provided by the First Amendment as construed by courts of the United States.” Id. 9  public officials or public figures, proved inadequate to deal with later cases involving private figures. ¶ 18 Fidelino v. Sadhwani, 3 CR 282, presented an opportunity to broaden Tenorio’s language to encompass private figures, but instead the Court decided to adopt a new formulation. Id. at 291. Fidelino addressed a private figure’s claim that statements identifying him as having an outstanding account balance were an intentional attempt to disparage his business interests. Id. The Court found Restatement (Second) of Torts § 558 (1977) controlling: To create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Id. The Court dismissed the defamation claim, finding the published statements substantially true and thus non-defamatory. 14 Id. at 292. The Court did not discuss the remaining elements of its new defamation standard. Nor did the Court address the New York Times line of cases in an effort to incorporate actual malice into a unified approach. ¶ 19 The next major attempt at revising the Commonwealth defamation action came by way of three concurring opinions in Borja, 1 N.M.I. 225 (1990). Plaintiff in Borja claimed he was defamed by a newspaper article reporting the recent conviction of a man for sexual abuse of a minor. 15 The man who was the subject of the article coincidentally had the same name as plaintiff. Plaintiff argued the newspaper’s failure to distinguish between the two, by listing the convict’s address, was intentional and malicious, causing plaintiff substantial harm to his 14 The Court based this finding on Restatement § 581A, cmts. d and f. Fidelino, 3 CR at 292. 15 Plaintiff in Borja sued both the newspaper reporter and the publishing company. We refer to both defendants collectively as “newspaper.” 10  reputation. The newspaper claimed the article was privileged because it was a fair and accurate report of court records, and even if the report was not privileged, the newspaper had not acted with actual malice. ¶ 20 All members of the Court agreed the Commonwealth defamation action was based on the Restatement, but the extent to which certain Restatement provisions applied and why was the source of some divergence. Id. Chief Justice Dela Cruz concluded Restatement § 558 defines the defamation action since no Commonwealth statute or customary law exists creating liability for defamation. Id. at 232. He also found Restatement § 611’s official reporting privilege applicable in the Commonwealth because “[a]ny change to the common law rule of defamation, including the available defenses, should come from the legislature.” Id. at 238. Since the prima facie defamation action requires an unprivileged communication, the official reporting privilege is incorporated into it. Id. at 241-42. ¶ 21 Justice Villagomez agreed Restatement § 558 outlined the prima facie case for defamation, id. at 242, but believed the official reporting privilege at section 611 was inapplicable because “Article I, Section 2 of the NMI Constitution provides a defense to defamation. 16 Since that provision is applicable, there is no need to apply the Restatements or any law adopted through section 501 of the Covenant.” Id. at 242-43. Justice Villagomez found Article I, Section 2 of the NMI Constitution analogous to the First Amendment of the federal Constitution, and on that basis he adopted the United States Supreme Court’s reasoning that members of the media must have acted with some degree of fault to be liable for defamation. Id. at 243-44. Finding no fault on the part of the newspaper, he agreed plaintiff’s defamation action must fail. Id. at 244. 16 “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” 11 ¶ 22 Special Judge Hillblom agreed the Restatement controlled, but noted section 558 could not by itself outline the tort because section 558 operates in conjunction with other Restatement sections. 17 Id. at 249. However, the acceptance of one section does not guarantee the acceptance of others since 7 CMC § 3401 relegates the Restatement to the role of gap filler when local law is absent. Id. at 249-250. Similarly, Restatement defamation defenses are inapplicable if local law serves the same purpose. See id. at 273. Special Judge Hillblom determined Covenant Section 501 should be interpreted as incorporating full First Amendment speech protections, thereby providing a local law defense analogous to the Restatement’s official reporting privilege and rendering it inapplicable. Id. at 273-75. Finding the plurality reasoning in Time, Inc. v. Firestone, 424 U.S. 448 (1976), persuasive, he agreed plaintiff’s claim must fail since “a publisher cannot be held responsible in damages for publishing a defamation without the plaintiff showing negligence or fault.” Borja, 1 N.M.I. at 273-75. ¶ 23 Despite being the most in depth case discussing the relationship between Commonwealth, federal, and common law defamation, disagreement between the Justices in Borja resulted in majority support for little more than the proposition that the Restatement provides the framework for a Commonwealth defamation action. Beyond this, Borja outlined two distinct approaches for addressing defamation. The first approach adopts the Restatement’s formulation of the common law action in its entirety, as “[a]ny change to the common law tort of defamation . . . should come from the legislature.” Id. at 238 (Dela Cruz, C.J., concurring). The second approach treats each Restatement defamation section as an individual provision subject to 7 CMC § 3401. Since 17 [I]t is not section 558 alone but the sections 558 through 581A . . . which creates and defines the cause of action. The particular section of the Restatement applicable depends on the particular circumstances of the case. Although Restatement section 558 generally lays out the elements of a cause of action for defamation, it does not define those elements. Definitions are found in other sections of the Restatement . . . . Borja, 1 N.M.I at 249. 12  only those sections not preempted by local law are held applicable, Commonwealth courts are left to develop a uniquely Commonwealth cause of action. This latter approach was supported by two of the three justices in Borja, 18 but no express agreement created a standard by which evolution of the Commonwealth action should proceed. ¶ 24 Our two post-Borja defamation cases did not explicitly address total versus piecemeal adoption of Restatement defamation sections. See Bolalin, 4 N.M.I. 176; Sekisui House, Ltd. v. Hiraga, 1999 MP 21, 6 N.M.I. 44. Nevertheless, they evidence support for a section by section approach since neither cite previous cases as having adopted Restatement defamation in its entirety, opting instead to independently determine the applicability of Restatement sections. 19 Bolalin involved a group of waitresses who claimed they were defamed by an article linking Commonwealth waitresses to the sex industry. 4 N.M.I. at 180. In affirming summary judgment, the Court adopted Restatement § 564A as the appropriate standard in group defamation claims to determine whether allegedly defamatory statements can be understood as of and concerning each individual plaintiff. Id. at 183-84. In Sekisui House, the Court vacated a summary judgment finding defendant’s statements defamatory. 1999 MP ¶ 19, 6 N.M.I. at 47. The Court relied on Restatement §§ 581A and 566, reasoning defendant’s statements were either true, which is an absolute defense pursuant to section 581A, or statements of opinion not 18 Justice Villagomez found Restatement § 558 applicable, but section 661 superseded by local law. Borja, 1 N.M.I. at 242-43. Special Judge Hillblom stated: [T]he court may only apply the Restatement as substantive law on a particular element of a cause of action where there is no “written law” on that element or issue unless the court finds such application of “written law” would lead to a result totally inconsistent with the basic cause of action itself or would lead to an absurd result. Id. at 250. 19 In Bolalin the Court found “[t]he trial court duly applied Restatement provisions in the absence of local law,” 4 N.M.I. at 182 (footnote omitted), and the Court in Sekisui House, Ltd. v. Hiraga, was faced with “an issue of first impression.” 1999 MP 21 ¶ 13, 6 N.M.I. 44, 46. 13  implying additional defamatory statements, which is non-actionable pursuant to section 566. Id. ¶¶ 16-17, 6 N.M.I. at 46-47. First Amendment Adaptations to Common Law Defamation ¶ 25 Not only must Commonwealth courts faced with novel defamation issues undertake a 7 CMC § 3401 analysis, they must also be mindful of First Amendment considerations. To the extent Restatement sections are found inapplicable due to superseding local law, or are adapted to conform to that law, there exists a risk First Amendment safeguards built into the Restatement’s defamation framework might be circumvented. This risk is minimized by comparing additions or modifications to the Commonwealth defamation action with the New York Times line of cases. ¶ 26 Additionally, courts must be mindful of the relationship between common law defamation and federal constitutional defamation, and must examine novel defamation issues within this context. Federal constitutional law has not usurped the entire defamation arena, and defamation law in the Restatement is not simply a taxonomy of U.S. Supreme Court decisions. Rather, traditional common law applies to the extent it has not been superseded by First Amendment concerns. New York Times and its progeny have drastically altered the defamation landscape, and only by reading these cases alongside the common law principles they seek to modify does the appropriate defamation standard come to light. Tenorio v. Santos, 1 CR 46, typifies this approach. ¶ 27 The Tenorio Court was faced with the question to what extent recovery for punitive damages had been augmented by First Amendment concerns. 1 CR at 65-66. The plaintiff in Tenorio argued that because Gertz, 418 U.S. 323, made punitive damages contingent on actual malice, private figures were limited to recovery for “actual injury” while public figures remain 14  eligible for presumed and punitive damages. Tenorio, 1 CR at 65. Further, Plaintiff argued public figures were able to recover punitive damages on the same evidentiary burden – actual malice – as other categories of damages. Id. The Court dismissed Plaintiff’s argument, reasoning Gertz made recovery of punitive damages more difficult by supplementing rather than supplanting common law’s threshold for recovery. 20 Id. at 66. ¶ 28 In Gertz, the United States Supreme Court refused to extend the actual malice standard to private plaintiffs because it found States had an increased interest in protecting the reputations of private individuals, those who have not put themselves in the public eye and who do not have the same recourse as public figures to media outlets in order to rehabilitate their image. 418 U.S. at 341-46. However, the Court determined that, despite increased State interest in protecting private plaintiffs, this “interest extends no further than compensation for actual injury.” Id. at 349. Thus, the Court found common law defamation’s strict liability ran afoul of the First Amendment: The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability 20 In the Court’s own language: [I]t is the Court’s understanding of . . . Gertz . . . that [it] clearly do[es] not allow an automatic award of punitive damages upon a public figure’s showing of actual malice. Gertz merely states that, while a nonpublic figure may recover actual damages only upon the showing of some “fault” on the part of the defendant – i.e. that the burden of proof is lesser for a private plaintiff than a public figure – the nonpublic plaintiff may not recover punitive damages except by showing that the defamatory statements by the defendant were made with actual malice. It would be totally inconsistent with the language of Gertz and the principles which created the constitutional privilege afforded public figures, not to mention plain logic, to say that although a public figure plaintiff has a greater burden than a nonpublic figure to obtain an award of actual damages, he does not have to prove anything further to recover punitive damages, while the nonpublic figure must overcome a still greater hurdle to recover punitive damages. Tenorio, 1 CR at 66. 15  for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Id. at 349. After Gertz, private plaintiffs had to demonstrate “actual injury” in order to recover. Presumed and punitive damages were not ruled out, but were instead conditioned on a plaintiff’s ability to demonstrate actual malice – knowledge of falsity or reckless disregard of falsity. 21 ¶ 29 Gertz determined actual malice to be a constitutional prerequisite to collecting punitive damages but did not address traditional punitive damages standards. Under Gertz, actual malice could well serve as the sole threshold for punitive damages. 22 However, since Gertz does not expressly overrule the common law’s requirement of traditional malice for punitive damages, and since its application does not pr