Overview of Defamation

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Overview of Defamation

• Tom J. Cafferty

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Before NY Times Co. v. Sullivan (1964)

• Three elements were necessary to establish a
  libel cause of action at common law
• 1. Defamatory words
• 2. The words must be of and concerning
• plaintiff
• 3. Publication to third parties

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Public Official/ Public Figure

• Public Person Official or figure must prove
  constitutionally defined actual malice
• Private Person Need only show fault
  negligence in publishing the defamatory
  falsehood

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Public Official

• NY Times v. Sullivan (1964) First Amendment bars
  a state from awarding a public official damages
  for a defamatory falsehood relating to his
  official conduct unless the falsehood was
  published with actual malice --- with knowledge
  that it was false or with reckless disregarding
  of whether it was false or not.

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Rosenblatt v. Baer (1966)

• Definition of public officials. Public
  Official designation must apply to those among
  the hierarchy of government employers who have,
  or appear to the public to have, substantial
  responsibility for or control over the conduct of
  governmental affairs.

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Crucial factor

• Individuals apparent ability, because of his
  relationship with government, to influence the
  outcome of public affairs.
• High rank or title is not in itself
  determinative.
• Position must be one which invites public
  discussion apart from that resulting from the
  particular charges in controversy.

7
Gertz v. Robert Welch (1974)

• In dictum, Court provided reason for holding
  public officials to the New York Times standard
• An individual who decides to seek governmental
  office must accept certain necessary consequences
  of that involvement in public affairs. He runs
  the risk of closer public scrutiny than might
  otherwise be the case.

8
Hutchinson v. Proxmire (1979)

• In dictum, Court stated public officials category
  cannot be thought to include all public
  employees.
• The Court in Rosenblatt made clear the "public
  official" issue is one for the court, not the
  jury, to resolve It is for the trial judge in
  the first instance to determine whether the
  proofs show the plaintiff to be a 'public
  official.'" The Court reasoned that judicial
  resolution of the "public official" question
  "will both lessen the possibility that a jury
  will use the cloak of a general verdict to punish
  unpopular ideas or speakers, and assure an
  appellate court the record and findings required
  for review of constitutional decisions."

9
Curtis Publishing Co. v. Butts (1967)

• Private individuals may become intimately
  involved in the resolution of important public
  questions.

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Curtis Publishing Co. v. Butts (1967)

• Private individuals may, because of their fame,
  shape events in areas of concern to society at
  large --- play an influential role in order
  society.

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Curtis Publishing Co. v. Butts (1967)

• Public figures have access to mass media (as
  public officials do) both to influence policy and
  to counter criticism.

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Gertz v. Robert Welch, Inc. (1974)

• The pervasive-fame-or-notoriety public figure
  who becomes a public figure for all purposes and
  in all contexts.

13
Gertz v. Robert Welch, Inc. (1974)

• The limited purposed public figure (vortex
  public figure) who attains public figure status
  become of involvement in a controversy --- status
  is only within the limits of that controversy.

14
Time Inc. v. Firestone (1976)

• Involvement in litigation (divorce proceeding) is
  not alone sufficient to confer limited purpose
  public figure status must look to who the
  participants are and their position.

15
Hutchinson v. Proxmire (1979)

• Scientist was not limited purpose public figure
  for purposes of criticism of his federally funded
  research.

16
Rebozo v. Washington Post Co.
(5th Cir. 1981)

• Bebe Rebozo held to be public figure based upon
  his demonstrated access to the media and his
  activities his relationship with President
  Nixon thereby making Rebozo a prime subject of
  public comment.

17
Time Effect on Public Figure Status

• 1. A news account or historical commentary that
  relates to the source of the person's prior fame
  or notoriety receives the protection of the
  Sullivan standard, however removed in time the
  publication is from the peak of fame or notoriety
  - so long as the plaintiff's original conduct or
  the forces underlying his fame have in fact been
  continuing public interest.
• Brewer v. Memphis_Publ. Co., 626 F.2d 1238
  (5th Cir. 1981).

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Time Effect on Public Figure Status

• When the plaintiff's original "public figure"
  status stemmed from participation in controversy,
  he remains a "public figure" for purposes of
  later publications relating to that particular
  controversy - so long as the public maintains an
  independent interest in that controversy.
  Street v. National Broadcasting Co., 645 F.2d
  1227 (6th Cir. 1981).

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Actual Malice Standard

• New York Times v. Sullivan (1964)
• The decision denies recovery to public officials
  for defamation, except when they can prove that
  the defamatory statement at issue was published
  with "'actual malice' - that is, with knowledge
  that it was false or with reckless disregard of
  whether it was false or not.

20
Actual Malice Standard

• Garrison v. Louisiana (1964)
• The Court reiterated that "only those false
  statements made with high degree of awareness of
  their probable falsity demanded by Sullivan may
  be the subject of either civil or criminal
  sanctions."

21
Actual Malice Standard

• Beckley Newspapers Corp. v. Hanks (1967)
• Publication "with bad or corrupt motive" or
  "from personal spite, ill will or a desire to
  injure plaintiff" does not rise to the level of
  constitutional "actual malice."

22
Actual Malice Standard

• St. Amant v. Thompson (1968)
• Reckless conduct is not measured by whether a
  reasonably prudent man would have published, or
  would have investigated before publishing. There
  must be sufficient evident to permit the
  conclusion that the defendant in fact entertained
  serious doubts as to the truth of his
  publication. Publishing with such doubts shows
  reckless disregard for truth or falsity and
  demonstrates actual malice.

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Actual Malice Standard

• Time, Inc. v. Pape (1971)
• Misinterpretation of official documents does not
  constitute actual malice.

24
Actual Malice Standard

• Bose Corp v. Consumers Union (1984)
• Inaccurate description of what defendant
  perceived does not amount to actual malice.

25
Actual Malice Standard

• Harte-Hanks Communications v. Cinnaughton
• Extreme departure from journalistic standards
  by itself could not support a finding of actual
  malice.

26
Evidence

• Plaintiff must prove actual malice by "clear and
  convincing evidence."
• Bose Corp. v. Consumers Union (1984). The
  question whether the evidence in the record in a
  defamation case is of convincing clarity required
  to strip the utterance of First Amendment
  protection is not merely a question for the trier
  of fact. Judges, as expositors of the
  Constitution, must independently decide whether
  the evidence in the record is sufficient to cross
  the constitutional threshold that bars the entry
  of any judgment that is not supported by clear
  and convincing proof of actual malice.

27
Evidence

• Anderson v. Liberty Lobby. (1986). We conclude
  that the determination of whether a given factual
  dispute requires submission to a jury must be
  guided by the substantive evidentiary standards
  that apply to the case...Thus, where the factual
  dispute concerns actual malice, clearly a
  material issue in a New York Times case, the
  appropriate summary judgment question will be
  whether the evidence in the record could support
  a reasonable jury finding either that the
  plaintiff has shown actual malice by clear and
  convincing evidence or that the plaintiff has
  not.

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New Jersey Standard

• The NJ Supreme Court in Sisler v. Gannett Company
  (1986), held that an individual who was neither a
  public official nor a public figure would
  nonetheless be required to demonstrate actual
  malice where that private person, possessing
  sufficient experience, understanding and
  knowledge entered into a personal transaction or
  conducted his/her personal affairs in a manner
  that one in such a position would reasonably
  expect would generate public interest.

35
Private Individuals

• In Gertz v. Welch (1974), the Supreme Court
  delegated to the States the responsibility to
  define "the appropriate standard of liability"
  applicable to the publisher of a defamatory
  falsehood injurious to the reputation of a
  private individual, "so long as they do not
  impose liability without fault." In order to
  establish that defendant breached some standard
  of care in publication of the defamatory material
  it necessarily follows that a private individual
  plaintiff must initially establish falsity of
  that material.

36
Private Individuals

• There can be no legal fault for libel based upon
  publication of truthful material, however
  defamatory.
• A private individual libel plaintiff is also
  required to carry the burden of proof to prove
  falsity of the published material when the
  publication at issue is of public concern.

37
Common Law

• Gertz v. Robert Welch.
• "Under the First Amendment there is no such
  thing as a false idea. However pernicious an
  opinion may seem, we depend for its correction
  not on the conscience of judges and juries but on
  the competition of other ideas."

38
Common Law

• Re Yagman (9th Cir. 1986)
• "...since an opinion is protected because it
  cannot be false and a statement is not actionable
  defamation unless it is false, 'an opinion is
  simply not actionable defamation.'"

39
Common Law

• Milkovich v. Lorain Journal Co. (1990)
• "Even if the speaker states the facts upon
  which he bases his opinion, if those facts are
  either incorrect or incomplete, or if his
  assessment of them is erroneous, the statement
  may still imply a false assertion of fact.
  Simply couching such statements in terms of
  opinion does not dispel these implications....
• However, "statements of opinion relating to
  matters of public concern which do not contain
  a provably false factual connotation" are
  privileged, as are statements that "cannot
  'reasonably be interpreted as stating actual
  facts' about an individual."

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Absolute Privilege

• Absolute privilege is granted to persons
  involved in judicial proceedings. This privilege
  extends not only to the participants involved,
  but also to the media which accurately
  republishes judicial proceedings. "The privilege
  covers anything that may be communicated in
  relation to the matter at issue, whether it be in
  the pleadings, in affidavits or in open court."

41
Absolute Privilege

• Absolute privilege is also accorded to members
  of legislative bodies for defamatory statements
  made in the performance of their duties and to
  the publishers of such statements. The
  constitution provides, under the so-called
  "Speech and Debate Clause," that "for any Speech
  or Debate in either House, they shall not be
  questioned in any other Place." This immunity
  extends to members of Congress testifying at
  legislative hearings, but not to defamatory
  statements made by a member of Congress in
  newsletters and press releases or in other such
  non-legislative communications.

42
Absolute Privilege

• Absolute immunity and privilege is also extended
  to chief executive officers of the federal,
  state, and local governments during the discharge
  of their duties. This privilege encompasses all
  publications and utterances within the "outer
  perimeter" of the "line of duty," even including
  defamatory press releases concerning public
  actions of government employees.

43
Absolute Privilege

• Absolute privilege is available to a publisher
  who publishes defamatory material with the
  plaintiff's informed consent. Of course, consent
  to publication in one form cannot be presumed to
  authorize publication in some other form.
• Guarantees a considerable degree of protection to
  those who diligently require their writers to
  obtain proper releases whenever possible from
  individuals about whom the publication of
  potentially defamatory material is contemplated.

44
Qualified Privileges

• The Privilege of Reply or Statements of
  Self-Interest
• Reporters Privilege to Publish Fair Reports of
  Official Proceedings

45
Reporters Privilege to Publish Fair Reports of
Official Proceedings

• "In a society in which each individual has but
  limited time and resources with which to observe
  at first hand the operations of his government,
  he relies necessarily upon the press to bring to
  him in convenient form the facts of those
  operations. Great responsibility is accordingly
  placed upon the news media to report fully and
  accurately the proceedings of government, and
  official records and documents open to the public
  are the best data of government operations...With
  respect to judicial proceedings in particular,
  the function of the press serves to guarantee the
  fairness of trials and to bring to bear the
  beneficial effects of public scrutiny upon the
  administration of justice."

46
Qualified Privileges

• The Privilege of Reply or Statements of
  Self-Interest
• Reporters Privilege to Publish Fair Reports of
  Official Proceedings
• Public Interest
• Common Interest

47
Common Interest

• "A communication made by a person with an
  interest or duty to make the communication and
  sent to a person with a corresponding interest or
  duty is protected by a qualified privilege, even
  though without the privilege the communication
  would be 'slanderous and actionable.'" Weldy v.
  Piedmont Airlines (2nd Cir. 1993).

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Qualified Privileges

• The Privilege of Reply or Statements of
  Self-Interest
• Reporters Privilege to Publish Fair Reports of
  Official Proceedings
• Public Interest
• Common Interest
• Interest of Recipient or Third Person
• Neutral or Balanced Reportage

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Neutral or Balanced Reportage

• The Second Circuit in Edwards v. National
  Audubon_Society, (2nd Cir. 1977) recognized a new
  privilege. This privilege is generally referred
  to as the doctrine of "neutral reportage."
• Protects a publisher from liability for its
  republication of defamatory statements made by a
  responsible, prominent person or organization
  about a public official or public figure,
  provided the subject statements are of public
  concern and have been reported accurately and
  disinterestedly.
• What is newsworthy in the republication of such
  statements is not their truth or falsity, but the
  fact that they were made.

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Damages

• Presumed damages
• Compensatory damages
• Punitive damages

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Presumed Damages

• "The common law of defamation is an oddity of
  tort law, for it allows recovery of purportedly
  compensatory damages without evidence of actual
  loss. Under the traditional rules pertaining to
  actions for libel, the existence of injury is
  presumed from the fact of publication. Juries
  may award substantial sums as compensation for
  supposed damage to reputation without any proof
  that such harm actually occurred."

52
Presumed Damages

• "For the reasons stated below, we hold that the
  States may not permit recovery of presumed or
  punitive damages, at least when liability is not
  based on a showing of knowledge of falsity or
  reckless disregard for the truth."

53
Presumed Damages

• Dun Bradstreet v. Greenmoss Builders (1985)
  Supreme Court held that the Gertz restrictions on
  the availability of presumed damages do not apply
  to all speech. Because there is a "reduced
  constitutional value in speech involving no
  matters of public concern," presumed and punitive
  damages may be awarded "even absent a showing of
  'actual malice.'"

54
Compensatory Damages

• The Supreme Court held in Gertz, supra
• "Suffice it to say that actual injury is not
  limited to out-of-pocket loss. Indeed, the more
  customary types of actual harm inflicted by
  defamatory falsehood include impairment of
  reputation and standing in the community,
  personal humiliation and mental anguish and
  suffering. Of course, juries must be limited by
  appropriate instructions, and all awards must be
  supported by competent evidence concerning the
  injury, although there need be no evidence which
  assigns an actual dollar value to the injury."

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Compensatory Damages

• Impairment of reputation in the community
• Mental anguish or emotional distress
• Special damages, i.e. out-of-pocket monetary
  expenses or losses, such as medical bills or loss
  of income

56
Punitive Damages

• The Supreme Court in Gertz also precluded state
  courts and federal courts from submitting to
  libel juries the issue of punitive damages,
  unless there is adequate trial proof in support
  of the existence of constitutional actual malice,
  i.e. actual knowledge of falsity or reckless
  disregard of probable falsity. The constitutional
  bar to punitive damage awards not founded upon
  evidence of actual malice was applied to all
  libel plaintiffs, public officials, public
  figures and private individuals.