A DISCUSSION OF LAW AND JOURNALISM

Rachel Uchitel v. The New York Post

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By Jaclyn Tyndorf

According to a New York Daily News article, Rachel Uchitel is considering taking legal action against the New York Post for misquoting her in a recent interview about the death of her fiancé.

In 2001, following the 9/11 attacks, a picture of Ms. Uchitel holding a sign of her missing fiancé appeared in newspapers. In 2009, Ms. Uchitel’s photo appeared in the press once again, this time because of her (alleged) affair with golfer Tiger Woods.

For the tenth anniversary of 9/11 and the death of her fiancé, Ms. Uchitel granted an interview to the Post in which she was quoted as saying  “I’m almost happy it ended the way it did…It would have been tragic if we got into fights and then divorced” and that if fate had not intervened, she would now be “a fat housewife with three kids living in Sands Point, Long Island”. The interview was published in a preview article on September 6 and in a Page Six Magazine article on September 8.

Ms. Uchitel wants an apology and retraction from the paper. In a letter to the Post, Daniel Horowitz, Ms. Uchitel’s lawyer, stated that the article created a false impression of Ms. Uchitel’s relationship with her fiancé by taking Ms. Uchitel’s statements and assembling them in a way that didn’t accurately portray what she’d said. Mr. Horowitz is  also demanding that the Post hand over the videotape of its interview with Ms. Uchitel. The Post stands by its article.

Though the Daily News article noted Ms. Uchitel’s possible legal action, it did not discuss whether she has a valid legal claim. LASIS will analyze.  

If Ms. Uchitel did go to court, she would probably sue NYP Holdings, Inc., the owner of the Post for libel and intentional infliction of emotional distress.

Libel: Mr. Horowitz stated that Ms. Uchitel has been in the public eye for 10 years. In doing so, he has conceded that Ms. Uchitel is a public figure. This is important because private individuals and public figures are treated differently under the law for libel claims. This is partly because private individuals don’t have as great of an opportunity as public figures to access the media and have their voices heard. In the 1974 case Gertz v. Robert Welch Inc., the Supreme Court stated that private individuals are more susceptible to injury than public figures and should be compensated accordingly.

After her first flirtation with the public eye in 2001, Ms. Uchitel came back into the public light when the National Enquirer featured her in an article about her link to Mr. Woods. (Ms. Uchitel has never publically admitted to having an affair with Mr. Woods.) She later appeared on Celebrity Rehab with Dr. Drew, and became a special correspondent for Extra.

According to New York case law, if the person seeking legal relief is a public figure, he must prove by clear and convincing evidence that the published material is false and written with “actual malice” to recover damages. Private individuals don’t have to prove actual malice. In the 1964 case New York Times Co. v. Sullivan, the Supreme Court stated that actual malice means that the words were published with knowledge of its falsity and a reckless disregard for the truth. As a public figure, Ms. Uchitel would need to prove that the Post knew that the information contained in the article was false when it was published.

If Ms. Uchitel were to sue NYP Holdings for libel, NYP Holdings would stand by its story and assert truth as a defense. If what it published is true, then it isn’t libelous. That’s the law. In addition, if the Post paraphrased Ms. Uchitel’s words, it can rely on the 1991 Supreme Court case Masson v. New Yorker Magazine that said quotes can be altered as long as the alteration doesn’t change the meaning of what the speaker is trying to convey.   It’s hard to see how her statements, even if quoted out of order or in different words, conveyed anything other than what it sounds like in the article:  she loved her fiancé, and a love affair that is cut short doesn’t go flat like others do, with time.

Intentional infliction of emotional distress: According to New York case law, there are four elements of this claim that need to be proven: (1) outrageous and extreme conduct; (2) intent to cause severe emotional distress or disregard of a likelihood of causing severe emotional distress; (3) a cause and effect relationship between the conduct and the injury; and (4) severe emotional distress. It isn’t clear that the Post’s behavior was either outrageous or extreme; we’re not even sure what she is so upset about.

Unless the Post made up the quotes from whole cloth, Ms. Uchitel’s chances of winning any such potential lawsuit are about the same of Tiger Woods winning in golf this past year: dismal.

Comments

6 Comments »

6 Responses

  1. Sponge Bob says:

    She’s hot. But she’s not the brightest bulb around. She said these things and now she’s sorry so she’s pretending she didn’t say them. Surprised Gloria Allred isn’t holding press conferences for her about this. Oh yeah — she’s threatening to sue Allred, too.

  2. saxnviolins says:

    “Mr. Horowitz stated that Ms. Uchitel has been in the public eye for 10 years. In doing so, he has conceded that Ms. Uchitel is a public figure.”

    i beg to differ.

    Mere notoriety does not qualify one as a “public figure”, based on the definition stated in Gertz v. Robert Welch. The definition is as follows:

    “For the most part, those who attain this status [of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.”

    By the definition above, merely being linked as a lover or ex-lover of somebody famous does not qualify one as a public figure.

    Who qualifies under the definition above? Maybe Al Sharpton or Rush Limbaugh.

  3. Griffin says:

    You’re right, just having an affair with someone famous might not be enough to be considered a public figure. But Rachel became part of a reality series, in which she discussed her addictions. Before she gave this interview. She’s a public figure. Not even a close call.

  4. saxnviolins says:

    You missed the point. Merely being famous or infamous does not make one a public figure based on the definition above. The Supreme Court definition refers to people at the “forefront of public controversies”, in order to influence the resolution of the issues involved.

    Another definition ( Hustler Magazine, Inc. v. Falwell 485 U.S. 46) says public figures are those:

    “who are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”

    Public interest is not merely what the public finds interesting (Kim Kardashian’s threads, Derek Jeter’s batting average, etc.) We are talking about the public interest here, which is also referred to as public concern. “Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community..” (Snyder v. Phelps, No. 09-751 March 2, 2011, Supreme Court).

    Based on those two definitions, a reality series participant who later was interviewed about her addictions will not qualify as a public figure.

    So the Florida pastor who wanted to burn Korans would be a public figure by the definition above, because his actions may or may not affect the troops, and inter-faith relationships in society. Similarly, some gay rights activist or immigration activist (whether for or against) would be a public figure by the definitions above.

  5. Griffin says:

    Agree with your saying that a reality participant (they’re a dime a dozen) who was later “interviewed” about her addictions would not be a public figure. But Uchitel was a hostess, had a press conference (aborted cuz she was paid off) about Tiger Woods, was asked to pose for Playboy and is supposedly in negotiations (stay tuned), was a feature article in Page 6 (are you not from NY?) and was on a reality show for CELEBRITIES, called Celebrity Rehab. (She wasn’t a contestant on The Bachelorette). So you can quote as many Supreme Court cases as you want. She’d be considered a public figure.

  6. Anonymous says:

    This is a law blog Griffin. And I presume the students here are preparing for the time when they will appear and argue in Court.

    When one argues in Court, one needs authority to make an argument. That authority is usually a Court precedent, not personal insistence that a person is a celebrity or not. You will note, the Court differentiates between Celebrity and public figure. By pubic figure is meant one who advocates for the public concern, like Rush Limbaugh or Al Sharpton, or the Westboro Church members who will picket Steve Jobs’ funeral, they way they did in many military funerals.

    We will just have to agree to disagree.

    I do not intend to persuade you to my point of view, merely to point to the students how the opposing side will argue. They must then have to present legal authority (case law) to argue the opposite (your point of view).

    I am from NJ, but I work in New York.

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