Toward a unified standard for "reckless"

In which I discuss the common threads between Palin v. NYTimes and punitive damages:

Yesterday, Judge Rakoff in the Southern District of New York issued a lengthy and thoughtful opinion in which he said Sarah Palin couldn't proceed against the Times for defamation. The Times published an editorial that was wrong, incorrectly linking Palin to the shooting of Gabby Giffords. It issued a prompt correction. 

Judge Rakoff dismissed the lawsuit on a Rule 12(b)(6) motion (i.e. without the need for evidence . . . oddly, though, after he decided to hear testimony. He reasoned, and it seems clearly right, that to prove defamation against a public figure in a topic of public concern, the plaintiff must show "actual malice," which is "with knowledge the statements were false or with reckless disregard for their truth."

I try to follow First Amendment jurisprudence closely - hey, it's interesting - but don't practice in that field. To my understanding, Rakoff is clearly right here. But you can get that hot take from a thousand others. 

What's interesting to me is this: the standard to award punitive damages for denial of maintenance and cure to a Jones Act seaman, and the standard for gross negligence (either to vitiate indemnity or to afford punitive damages) is about the same as the standard for a 1st A defamation suit:

M&C: to get punitive damages: the plaintiff must prove that the employer's conduct has been "callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent." 

Louisiana law: the plaintiff must prove "willful, wanton, and reckless conduct that falls between intent to do wrong and ordinary negligence." The Houston Exploration Company v. Halliburton Energy Serv's, Inc., 269 F.3d 528 (5th Cir. 2001)

Federal maritime law: "Gross negligence is substantially and appreciable higher in magnitude than ordinary negligence. Other courts have defined gross negligence as the "entire absence of care," the 'want of even slight care and diligence,' and the 'utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.' At least one Louisiana court stated that one is grossly negligent when he 'has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.' Mere inadvertence or honest mistake does not amount to gross negligence." Id. (cleaned up). 

These all sound similar! I might go so far as to say that they both use the same terms: "reckless disregard." I would love to have somebody explain to me how they're different, or under which facts a jury could find reckless disregard in a maritime law punitive damages case, but not reckless disregard in a First Amendment case. 

As a practical matter though, the two standards are miles apart. Try dismissing an allegation for gross negligence or punitive damages on Rule 12(b)(6) in the marine context. You will lose every time. Marine punitive damages cases are even - maybe often - lost on summary judgment, with the Court finding the jury should decide. But with Palin v. NYTimes, it's dismissed after a brief factual hearing.

Why? Well, one reason is that we're more protective of our press than we are of our marine defendants. If that's the case, though, we should be clear about it and use different language for the standard. If it's not the case, then we should consider recklessness to mean recklessness, regardless of where it's applied.