Dr. David Kipper filed a defamation lawsuit in a New York trial court against NYP Holdings Co. (NYP), the owner and publisher of the New York Post. Kipper based his case on an article in the December 7, 2003, edition of the Post. The article was an 8-paragraph “rewrite” of a 98-paragraph article taken from the wire service of the Los Angeles Times (LAT). The LAT article described rock musician Ozzy Osbourne’s allegations that his former physician, Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series. In addition, the LAT article accurately stated that the California Medical Board had “moved to revoke” Kipper’s license because of his alleged gross negligence in the treatment of other patients. However, the Post article, which appeared under the inaccurate headline “Ozzy’s Rx Doc’s License Pulled,” contained an error. Despite clearly indicating that it was based upon LAT reports, the Post rewrite incorrectly stated that “the state medical board revoked Kipper’s license.” NYP later conceded that this statement was false and defamatory, and published a “Correction” in response to a retraction demand from Kipper’s attorney. 

The circumstances surrounding the erroneous statement in the December 7 article were not entirely clear. During the evening of December 6, a Post editor assigned the task of rewriting the wire service story to a reporter, Lyle Hasani Gittens. Gittens testified at a deposition that he did not recall writing—and did not think he wrote—that Kipper’s license was revoked. Gittens speculated that the error might have occurred during the editing process. After Gittens prepared the rewrite, he transmitted it to an electronic “basket” where it was reviewed by an editor. Gittens was aware that editors sometimes made stylistic changes to the text of articles. He denied having any knowledge that Post editors deliberately changed the facts of stories. The editor responsible for editing Gittens’s rewrite testified at his deposition that he would “never deliberately” falsify information pertaining to a doctor’s licensure, but that he could not offer any specific details pertaining to his review of the rewrite. Following the editor’s review, the article then went to the copy desk, where, among other things, the story’s headline was written. 

The sole source material for Gittens’s rewrite was the LAT wire service story. Gittens testified that the Post sometimes reprints stories disseminated on reputable wire services (such as that of the LAT) verbatim, and that additional research regarding the factual accuracy of such stories is not generally undertaken. Regarding the LAT wire service dispatch relevant to Kipper’s case, the editor testified that “this is not the kind of story that [the Post] would have expected a reporter to do additional research [on].” Upon completion of the discovery phase in Kipper’s defamation lawsuit against NYP, the defendant moved for summary judgment. Assume that Kipper is a public figure. What First Amendment-based fault requirement must be proved in order for Kipper to win the case? In light of the facts, which party should win the case? How would the analysis change if Kipper were a private figure?