This has been a pet peeve of mine for a while; now I’ve found some actual authority for it.
A plaintiff in a defamation case bears the burden of proving that the defamatory statements are false – the burden is not on the defendant to prove that the statements are true. So, the phrase “truth is a defense” is a misstatement of the law. Christian Research Institute v. Alnor (Feb. 28, 2007) 2007 DJDAR 2875, 2877, citing CACI 1700. The case deals with the burden of proof a plaintiff must meet against an anti-SLAPP motion challenging a defamation claim – the plaintiff must prove falsity by a preponderance standard even if the plaintiff is a public figure. (Malice must still be proven by clear and convincing evidence, but the element of falsity has a lower burden of proof). The CACI is useful and persuasive, but it is not legal authority on its own.
I’ve nowhere else to lodge this particular morsel of information so I may as well post it here so I know I can find it later when I need it. By the time I do need it, it will likely be in the official case reporters. I would expect, given that the ACLU represents the appellant here, that the appellant will at least petition the California Supreme Court for further review; I would also expect that the Supremes will deny review since the decision does conform with what I understand to be the existing law. But, you never know, and if they grant review, I’ll have to wait a while before I can cite this case.
The point is, truth is not a defense to defamation. If the defendant can prove the truth of the statements, that negates the plaintiff’s prima facie case. That’s different than an affirmative defense.
