Written by: Alexander JL Theoharis
Researched by: Jay D. Hall
Edited by: Peter Fehrs

Despite his untimely death in 1995, formerly prolific rap artist Tupac Shakur has continued to influence the world from beyond the grave. The most recent ripple came from a set of supposed FBI documents implicating Sean “Diddy” Combs in Tupac’s 1994 murder attempt. Mr. Combs has long claimed no involvement in the attack, and the new revelations caused him to issue a press release calling the entire thing an utter fabrication. The LA Times’ veteran reporter Chuck Phillips wrote a story based on the documents that garnered more than a million visitors — more than any other story on the site.

The problem? As it turns out, the supposed FBI documents were flat-out fakes. In a scathing analysis of the alleged documents, the Smoking Gun reveals that the LA Times’ “informant” is a known con man currently serving time. What’s worse for the Times: its failure to properly check facts leaves them open to a potentially damaging defamation lawsuit. “I would suggest to Mr. Phillips and his editors that they immediately print an apology and take out their checkbooks - or brace themselves for an epic lawsuit,” Sean “Diddy” Combs’ lawyer said Wednesday.

Subsequent to these details coming to light, the LA Times has done an excellent job of purging the story from the internet — any former links to it redirect to an apology, and the paper published a retraction. With the Times licking its wounds and admitting its mistakes, is there any ground left to sue the country’s fourth-largest newspaper? If so, what can Mr. Combs expect to receive as damages?

Defamation - Me Against the World

Defamation occurs when a false, injurious statement is published to people other than the person it concerns. The key point here is “false” — a paper can publish most true horrible things without fear of (legal) reprisal; after all, its goal is to publish news. If Sean “Diddy” Combs had in fact been involved in the attempted murder, he would be without any legal remedy. Punishing certain types of speech through defamation law is one of the very, very few places where freedom of speech is restricted.

If the defamation occurs in printed form, it is “libel.” The California Code (which governs this claim) defines libel as such:

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

If defamation occurs outside tangible mediums (such as shouted during a speech or on a crowded train), then it’s slander. Slander rarely finds its way into the courts because lies that are yelled aloud don’t stick around, are difficult to recall, and likely don’t reach vast numbers of people. Any damages resulting from the remarks would be minimal. Libel, on the other hand, can be a very real problem. A printed publication can achieve rapid, wide-spread distribution, and in the case of newspapers or magazines, the reader assumes a level of accuracy. The LA Times initially published the controversial article online, which allows an even faster dissemination. Defamation law was created to provide a legal recourse for damaging lies — after all, if everything is covered by First Amendment protection, a prolific newspaper or website could torpedo careers without fear of repercussion. Punishments for libel and slander exist to keep publishers honest and to help restore those wronged (typically through a retraction of the false statements and a payment of monetary damages).

How Sorry Are You?

The law categorizes damages for libel in three camps: general damages, special damages, and exemplary damages. General damages include loss of reputation, shame, mortification, and hurt feelings. Special damages include the money spent as a result of the defamation or losses due to a diminished client base (among more narrow interpretations not at issue here). Finally, exemplary damages are designed to punish malicious publications.

At first glance, the LA Times’ retraction and apology for its lack of fact-checking would appear to be an embarrassed plea for forgiveness. In fact, that apology has legal significance: by retracting its earlier statement, the paper limits damages under California law. Since he demanded a retraction, and the LA Times granted it, the “plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast.” Should Mr. Combs take the Times to trial, he’ll have access to a significantly smaller pile of cash under the assumption that the apology undid most (if not all) of the damage.

Though Mr. Combs seems barred from receiving general damages, the best way to get around this barrier would be to show that the retraction was insufficient. The LA Times received over a million readers for its article, which was the highest it had all year. It is unlikely that as many eyes saw the apology, so the retraction may have been insufficient because it was not received on the same scale as the original expose. However, the rate at which other newspapers jumped on the LA Times’ questionable reporting skills may have made up the difference in dissemination, leaving it a tough argument to push.

Special damages under the statute are those damages that compensate for the actual costs incurred. This is mostly the costs of combating the libel, as well as any provable diminishment to business. If Mr. Combs had performances cancelled due to the libel, for instance, he’d be able to recover the profits he expected from those concerts.

The biggest yet least likely set of damages available to Mr. Combs comes in the form of exemplary damages. If the plaintiff can prove LA Times writer Chuck Phillips wrote with “actual malice,” the jury can award greater damages and punish the libelous author to deter him from such action in the future. It is extremely unlikely that Mr. Phillips can be shown to have acted with actual malice, as it appears he genuinely believed his informant and bore no ill-will towards Mr. Combs. The retraction printed by the LA Times eliminates any payouts for general damages (since it was done within 20 days of the request for retraction), and narrows the claims to just the special damages, a significant reduction.

Street Fame

While libel victims tend to seek monetary rewards to compensate for the actual harm they’ve suffered, an unusual twist pops up in the case of rappers. If a newspaper claimed, for instance, that Dr. Phil sold clients’ life stories to Hollywood film executives, a decrease in clients is a foreseeable result, and the publisher would be expected to make up for the lost clients through monetary damages (labeled “special damages,” as described above). With rappers, it seems, the more controversy associated with the performer, the more public interest and appeal to the target demographic.

The negative publicity might work well for a typical rap star, but Sean “Diddy” Combs has gone to great lengths to branch into other business opportunities, including charities, a clothing line, and record labels. Even if the “benefits” of controversy were to boost his credence and sales in the record business, he could claim damages for the adverse effects to his other business ventures.

The biggest obstacle to Mr. Combs, though, resides in his desire to shelter his private life from the press. If he chooses to take the case to trial, the LA Times will have the opportunity to depose him. This would be a goldmine for the LA Times news outlet — a deposition allows questioning without many of the checks of a courtroom. It’s unlikely that the star, who is worth $358 million, would be interested in subjecting his potentially embarrassing secrets to nosy lawyers just to make a few million dollars. If there’s a large risk associated with the trial (and in all likelihood a small damages award to be had), settlement talks would produce a minimal payout. In the past, celebrities have often donated such sums to charity. Whether the case is pursued, dropped, or settled, one thing is certain: with the supposed revelations turned into little more than libel, hip-hop fans will have to make their way back to the conspiracy table to find out who killed Tupac Shakur.