Peyton Manning May Want to Consider an Audible

Peyton Manning apparently may be filing a libel suit against Al Jazeera for its report entitled “The Dark Side.”   The report (on the link start at about the 40:40 mark) includes tape recorded comments of a pharmacist named Charlie Sly who claims that during 2011, Manning’s wife received shipments of Human Growth Hormone from The Guyer Institute, an Indianapolis based anti-aging clinic.  Sly made his comments to Liam Collins, a British athlete who went undercover to assist Al Jazeera in its reporting.  Collins  claiming he was attempting to make the 2016 Rio Olympics.  Sly disavowed his comments before Al Jazeera aired the report, but there seems to be no dispute that it was his voice and his words on the tape.  Al Jazeera also confirmed that Sly worked at The Guyer Institute in 2011.  And 2011 was the year when Manning was recovering from what originally appeared to be a career ending neck injury.   

Manning calls the report a “complete fabrication.”  And he added that he “probably will” sue Al Jazeera.  That of course raises the question whether he’d win.  But here’s the important point.  Even if the report isn’t true, Manning could still lose the lawsuit.  And in my view, Manning would have a tough time winning.  Here’s why.  

I’m reminded of an old saying that is attributed to both Woody Hayes and Bo Schembechler – “Three things can happen when you pass, and two of them are bad.”  Manning’s libel case falls into the same category.  Here are the three scenarios:  

Bad Thing #1 – The Al Jazeera story is true.  Manning loses the lawsuit, and the report goes from “sleazy/shoddy undercover journalism” to established fact.   

Bad Thing #2 – Manning proves that key elements of the Al Jazeera story are false, but fails to establish Al Jazeera broadcast the information with “Actual Malice.”  In several cases decided in the 1960s the United States Supreme Court concluded that “public officials” and “public figures” must prove “actual malice” to prevail in a libel suit.  “Actual Malice” means the defendant published or broadcast the story knowing it was false or with “reckless disregard” for the truth or falsity of the story.   It is a tough standard on purpose. The idea is to allow First Amendment protection to the discussion of matters of public interest.   

Manning is unquestionably a public figure.  So he would not only need to prove the Al Jazeera report was false, but that Al Jazeera either knew the report was false or entertained serious doubts about what it reported.  And that may be a tough hurdle.  A pharmacist who worked at Guyer at the time in question unequivocally stated that Manning and his wife obtained HGH there.  Although Sly later recanted, that doesn’t establish his original statement was false.  And Manning’s denial was a little ambiguous. While he denies the report about him, he doesn’t explicitly deny the report about his wife, deferring to her right to privacy.  All in all, Manning is facing a 1985 Bears level defense here.  

This case illustrates the perils of fame on the one hand, but it also illustrates how the “actual malice” standard protects the flow of information.  Al Jazeera’s investigation revealed explosive and controversial information about well-known athletes potentially doping (Manning wasn’t the only one mentioned in the report).   Some evidence supported the findings and other evidence disputed them.  Without the protection of the First Amendment and the actual malice standard, it’s likely Al Jazeera wouldn’t have broadcast the report.  But given the constitutional protection it enjoys, Al Jazeera ran the piece.   

It may be that Manning is right.  Or maybe he’s not.  But the First Amendment allows the public to have the discussion.  And ultimately, that is a good thing.