Ralph Underwager and Hollida Wakefield v. Anna Salter

Citations: 22 F.3d 730; 22 Media L. Rep. (BNA) 1852; 1994 U.S. App. LEXIS 8699; 1994 WL 145010Docket: 93-2422

Court: Court of Appeals for the Seventh Circuit; April 25, 1994; Federal Appellate Court

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Psychologists Ralph Underwager and Hollida Wakefield authored two controversial books, "Accusations of Child Sexual Abuse" (1988) and "The Real World of Child Interrogations" (1990), which assert that many allegations of child sexual abuse arise from improperly applied clinical techniques rather than actual abuse. Their work received significant criticism from the medical community, notably a review in the Journal of the American Medical Association, which accused the authors of bias, misrepresenting literature, and failing to conduct a comprehensive review of the existing research. Despite their lack of acceptance in the medical field, Underwager has gained favor among defense attorneys, having testified in over 200 child abuse cases. His testimony contributed to a controversial legal decision in Australia, where a judge relied on his assertion that children cannot accurately recall or describe sexual encounters, leading to a defendant's exoneration, which sparked public outrage. The ensuing media scrutiny prompted psychologist Anna Salter to investigate Underwager's claims further. Salter, who has long questioned the accuracy of Underwager's interpretations of clinical literature, began to focus on the studies cited by Underwager and Wakefield after receiving a grant for research on child abuse interview studies.

Salter spent 18 months studying the works of Underwager and Wakefield, ultimately creating a critical monograph titled 'Accuracy of Expert Testimony in Child Sexual Abuse Cases: A Case Study of Ralph Underwager and Hollida Wakefield' in January 1990. This unpublished work, widely distributed and sent to the National Center for Prosecution of Child Abuse, critiques Underwager's 1988 book, alleging it misrepresents research, distorts quotations, and overlooks contradictory evidence. Salter, in a subsequent interview with '60 Minutes Australia,' accused Underwager of distorting facts and labeling his testimony as scientifically unsubstantiated. Toth presented a related two-hour session at a Midwest conference, which included the controversial 'Mr. Bubbles' episode. Underwager and Wakefield filed a defamation lawsuit in the Western District of Wisconsin, naming 11 defendants, including Salter, Toth, and several organizations. The district court dismissed claims against the National Center for Prosecution of Child Abuse, Channel 9 Australia, and 60 Minutes of Australia, while others were dismissed due to lack of contacts with Wisconsin. The court granted summary judgment for the American Prosecutors Research Institute and the National District Attorneys Association as they were unrelated to the alleged defamation. Ultimately, only Salter and Toth remained as defendants, and the court ruled in their favor, stating there was no evidence of 'actual malice,' which implies knowledge of falsehood or reckless disregard for the truth.

In Masson v. New Yorker Magazine, Inc., the court examined the statements made by Salter and Toth regarding Underwager, presuming that they held him in low esteem, yet concluded that both believed their statements to be true and did not act recklessly. The court acknowledged that some statements might be untrue and defamatory but found no genuine dispute over the actual malice standard. Plaintiffs argued they need not prove actual malice since they are not public figures, but the court noted that Wisconsin law applies and recognizes defenses against defamation claims, including conditional privileges for statements made among individuals with a common interest.

The court identified that Salter and Toth's communications fell within this privilege but emphasized that this privilege could be lost if the statements were made with knowledge of their falsity. The plaintiffs contested the relevance of the public figure status, yet the court determined that they were limited-purpose public figures due to their published works and public appearances on the topic of child sexual abuse. Underwager's extensive engagement in the subject, including media appearances and conferences, further supported this classification.

Underwager was a board member of the False Memory Syndrome Foundation until resigning after controversial statements about child sexual relations. Wakefield remains on the board. Under Wisconsin law, individuals involved in significant public controversies, like Underwager and Wakefield regarding child abuse, are classified as limited-purpose public figures. Despite low public recognition in a local survey, they are prominent figures in related legal and scientific discussions. Plaintiffs argue that they do not need to prove actual malice since the defendants are not media members. However, Wisconsin courts have not clarified whether defamation standards differ for media versus private defendants. The precedent established in Denny v. Mertz indicates that private-to-private defamation claims should follow common law without special burdens on plaintiffs. Nonetheless, Underwager and Wakefield are considered public figures in child abuse discussions, necessitating proof of actual malice for their claims. Wisconsin case law does not imply a lower burden for public figures against non-media defendants, and plaintiffs did not provide justification for such a distinction. The strong public interest in protecting the reporting and scholarly work of psychologists and prosecutors is emphasized, suggesting that the need for qualified privilege may be more significant for these professionals compared to traditional media outlets.

Newspapers, magazines, and broadcast stations are financially robust, and the potential obligation to pay damages is unlikely to significantly impact their operations or reporting practices. In contrast, individuals such as psychologists and prosecutors do not enjoy similar financial incentives, making them more vulnerable to chilling effects from large damage awards. The inquiry into actual malice reveals that neither Salter nor Toth knew their statements were false or acted recklessly in making them. Salter reviewed over 500 papers for her monograph and aligned with the majority view supporting her interpretation. Judicial precedents, including a Washington Supreme Court ruling, indicate that Underwager's analysis is not widely accepted in the scientific community, reinforcing the appropriateness of limiting his testimony. Both defendants conducted thorough investigations before publishing their statements—Salter through extensive literature review and Toth by reviewing relevant transcripts and reports. Underwager failed to present counter-evidence against Toth’s findings. Plaintiffs argue that the ongoing publication of allegedly defamatory statements by Salter and Toth indicates malice, with repeated dissemination being a key point in their claim. Additional testimony from an Australian psychologist suggested that interviewees expressed negative attitudes toward Underwager, but this alone does not establish malice.

Plaintiffs' counsel mistakenly equates 'actual malice' with 'ill will,' as the term has a distinct legal meaning. Individuals may publicly express their negative opinions about a public figure without it constituting actual malice, particularly if they believe those opinions to be true. In this case, Salter and Toth view Underwager as someone who misleads judges and aids child molesters, and they are not required by law to remain silent when challenged. The court emphasizes that scientific disputes should be resolved through scientific discourse rather than litigation. The ruling reinforces that filing a lawsuit does not grant individuals the right to silence opposing views, regardless of how detrimental those views may be to their reputation. The decision is affirmed, emphasizing a preference for dialogue and data over financial compensation in resolving such controversies.