Headlines alone may constitute libel, Ninth Circuit says.

Newspaper headlines may form the basis of a libel action even though the accompanying story is not defamatory, an en banc panel of the Ninth Circuit Court of Appeals has unanimously held. (Kaelin v. Globe Communications Corp., 162 F. 3d 1036 (9th Cir. 1998).)

One week after O.J. Simpson was acquitted of the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman, a weekly newspaper published by Globe Communications featured the following headline on its cover: "KATO DID IT! ... he fears they want him for perjury, say pals." A story on page 17 of the newspaper explained that friends of Brian "Kato" Kaelin believed the police might be investigating him for perjury.

Kaelin, who was Simpson's houseguest at the time of the murders, filed suit against Globe Communications, among others, alleging libel. The trial court granted defendants summary judgment, ruling that Kaelin did not submit evidence of actual malice--knowledge that a statement is false or reckless disregard for its truth or falsity--which is required to prove libel.

Circuit Judge Barry Silverman, writing for the panel, reversed the lower court's decision. He noted that California courts in libel cases have emphasized that a publication is to be measured by the natural and probable effect on the mind of the average reader. Silverman reasoned that because the headline was published just one week after Simpson's acquittal, a reasonable person, might well have concluded that the "it" in the headline referred to the murders.

Although Globe argued that "it" referred to perjury, the court said that was not the only reasonably possible reading. "So long as the publication is reasonably susceptible of a defamatory meaning, a factual question for the jury exists," Silverman wrote.

Silverman said that although the issue of whether headlines alone could form the basis of a libel action was one of first impression for California courts, headlines are not "liability-free zones" under California law. Instead, they are essential elements of a publication. To determine whether a publication is libelous, courts must examine the totality of the circumstances of the publication.

Citing case law, Silverman wrote, "in analyzing the totality of the circumstances of an allegedly defamatory publication, the effect of a front page headline is neither insignificant nor unprecedented. In any event, it is a fact question for the jury."

Silverman rejected Globe's argument that the entirety of the publication, including the story itself, cleared up any false and defamatory meaning that could be found on the cover.

He emphasized that the story was 17 pages away from the cover and the cover headline did not reference the page where readers could locate the article. The court found that a reasonable juror could conclude that the article was too far removed from the cover headline to have the salutary effect that Globe claimed.

Gary Bostwick, a Santa Monica attorney who represented Kaelin, said, "Because of the widespread practice of people viewing tabloid newspapers while waiting in supermarket lines, whether a headline by itself may cause damage to a person's reputation is an increasingly important subject."