Defamation Chapter 4: Libel and slander

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DefamationChapter 4 Libel and slander

• Communications Law. COMM 407, CSU Fullerton

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Protection of Persons Reputation

• Basic human dignity protection of ones
  reputation from unjustified invasion and wrongful
  hurt

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Defamation of character

• Wrongfully hurting a persons good reputation
• Slander (spoken) and Libel (written)
• Defamation is a civil wrong (tort)
• Any living person or legal entity (e.g.,
  corporations) may sue for defamation.
• Special case groups (members must be affected
  as individuals)
• Government organizations/agencies may not sue

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Libel suits are troublesome

• The most common legal problem faced by a person
  who work in the mass media about 75 lawsuits
  filed against the media are in this category
• Lawsuits take a lot of money and time
• Damage claims are often outrageous
• Libel law is complicated and confusing (often
  judges make erroneous decisions)
• Some plaintiffs file frivolous libel lawsuits to
  silence the critics in the media

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Erroneous decisions

• For most judges a libel case is a new experience
• Jurors are confused by the legal concepts e.g.,
  actual malice
• Thus
• 75 of libel cases are overturned by appeal courts

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The Lawsuit as a weapon

• Strategic Lawsuits Against Public Participation
  (SLAPP) Run that story and we will take you to
  court
• Although 90 of SLAPP lawsuits fail, they are
  intended to intimidate and silence a less
  powerful critic by so severely burdening them
  with the cost of a legal defense that they
  abandon their criticism.

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In 1992 California enacted a statute intended to
prevent the misuse of litigation in SLAPP suits.

• It provides for a special motion at the outset of
  a lawsuit to strike a complaint where the
  complaint arises from conduct that falls within
  the rights of free speech and lacks any basis of
  genuine substance, evidence, or prospect of
  success.
• If this is demonstrated then the burden of proof
  shifts to the plaintiff, to present evidence
  demonstrating a reasonable probability of
  succeeding in their case by showing an actual
  wrong would exist as recognized by law, if the
  facts claimed were borne out.
• The filing of an anti-SLAPP motion stays all
  discovery.

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Elements of defamation

• Defamatory content
• Identification
• Publication
• Falsity
• Fault
• Harm / Compensation

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Defamatory content

• A communication which has the tendency to so harm
  the reputation of another as to lower him/her in
  the estimation of the community or to deter third
  persons from associating with him/her

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Defamatory content

• Imputations of criminal behavior
• Sexual references and implications
• Personal habits (honesty, integrity, etc)
• Ridicule (showing someone uncommonly foolish or
  unnatural)
• Business reputation
• Disparagement of property (product)

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Defamatory content

• Libel per se (in itself damages are implied).
  A statement that is defamatory on its face
  (regardless of context) murderer, rapist, etc.
• Libel per quod depending on the situation /
  context communist, liberal, right-winger, etc.
• Today the distinction is not important the
  plaintiff needs to prove damages in both

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Fair Comment and CriticismFact versus Opinion
(p. 143)

• Expressions of pure judgments are not subject to
  libel lawsuits
• But
• Expressions of opinion may often imply an
  assertion of objective fact. Couching such
  statements in terms of opinion is often not
  sufficient.

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Identification

• At least some of the readers or listeners must
  understand to whom the defamatory statement
  refers.
• Plaintiff explicitly named
• Suggesting plaintiffs actual name
• Picture, drawing, description
• Similarities to fictional characters

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Publication

• Who made the statement?
• Who disseminated it?
• Who repeated it?
• It must be communicated to a third person,
  someone other than the plaintiff or defendant
• Internet services are generally exempt from
  liability

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Fault standard for truth/falsityThe old strict
liability standard (now unconstitutional)

• Strict liability on the part of the defendant
• a defendant could be liable for defamation merely
  for publishing a false and defamatory statement
• The rules did not require that the defendant knew
  that the statement was false or defamatory in
  nature.
• The only requirement was that the defendant must
  have intentionally or negligently published the
  information.

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New York Times v Sullivan (1964)

• An ad in the N.Y. Times alleged that the arrest
  of the Rev. Martin Luther King, Jr. in Alabama
  was part of a campaign to destroy King's efforts
  to integrate public facilities and encourage
  blacks to vote.
• L. B. Sullivan, the Montgomery city commissioner,
  filed a libel action against the newspaper
  claiming that the allegations against the police
  defamed him personally.
• Under Alabama law, Sullivan did not have to prove
  that he had been harmed and a defense claiming
  that the ad was truthful was unavailable since
  the ad contained factual errors. Sullivan won a
  500,000 judgment.

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New York Times v. Sullivan (1964)

• Question 
• Did Alabama's libel law, by not requiring
  Sullivan to prove that an advertisement
  personally harmed him and dismissing the same as
  untruthful due to factual errors,
  unconstitutionally infringe on the First
  Amendment's freedom of speech and freedom of
  press protections?

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New York Times v. Sullivan (1964)

• Decision 9-0 for New York Times
• The Court held that the First Amendment protects
  the publication of all statements, even false
  ones, about the conduct of public officials
  except when statements are made with actual
  malice
• that the statement was made with knowledge that
  it was false or with reckless disregard of
  whether it was false or not.

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New York Times v. Sullivan (1964)

• The debate on public issues should be
  uninhibited, robust, and wide open, and that it
  may well include vehement, caustic, and sometimes
  unpleasantly sharp attacks on government and
  public officials
• (from Justice Brennans opinion)

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Public persons and officials

• Public figures are those who thrust themselves
  into the forefront of particular public
  controversies in order to influence the
  resolution of the issues involved
• Public officials are those who have substantial
  government responsibility

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Gertz v. Welch (1974)(the new private person
standard)

• Gertz was an attorney hired by a family to sue a
  police officer who had killed the family's son.
• In a magazine American Opinion, the John Birch
  Society accused Gertz of being a "Leninist" and a
  "Communist-fronter" because he chose to represent
  clients who were suing a law enforcement officer.
  
• Gertz lost his libel suit because a lower court
  found that the magazine had not violated the
  actual malice test for libel which the Supreme
  Court had established in New York Times v.
  Sullivan (1964).

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Gertz v. Welch (1974)(the new private person
standard)

• Question 
• Does the First Amendment allow a newspaper or
  broadcaster to assert defamatory falsehoods about
  an individual who is neither a public official
  nor a public figure?

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Gertz v. Welch (1974)(the new private person
standard)

• Decision 5 to 4 for Gertz
• The Court reversed the lower court decision.
• The application of the New York Times v. Sullivan
  standard in this case was inappropriate because
  Gertz was neither a public official nor a public
  figure.
• Ordinary citizens should be allowed more
  protection from libelous statements than
  individuals in the public eye.
• However, the actual malice standard could be
  used in assessing claims for punitive damages by
  private persons.

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The Gertz Ruling (1974) (the new private person
standard)

• As long as they do not impose liability without
  fault (strict liability), states are free to
  establish their own standards of liability for
  defamatory statements made about private
  individuals.
• Most states use negligence (lesser degree of
  fault)
• A few states use actual malice
• Negligence failure to do something that he/she
  has a duty to do, and that a reasonable person
  would do. E.g., in journalism checking the facts

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Classifying the Plaintiff A Rough Guide

• Public Official Government Employee
  Substantial Control or Responsibility
• All-Purpose Public Figure Career of Courting
  Media Pervasive Fame and Influence
• Vortex Public Figure Public Controversy
  Voluntary Leadership Role
• Involuntary Public Figure Pattern of Notorious
  Conduct Prior (Undesired) Media Coverage
• Private Persons Most Others

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Damages

• The sum of money the law imposes for a breach of
  some duty or violation of some right.
• Presumed (before Gertzs case the court assumed
  that any defamation would be harmful)
• Compensatory damages (special, actual) compensate
  the claimant for the quantifiable monetary losses
  suffered by the plaintiff
• Punitive damages are intended to reform or deter
  the defendant and others from engaging in conduct
  similar to that which formed the basis of the
  lawsuit

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Limits on damages

• Large awards inhibit the vigorous exercise of
  First Amendment
• Private plaintiffs must provide solid evidence of
  their injuries or prove actual malice
• Punitive damages only when actual malice is
  proven (even in private persons cases).

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Privilege

• Absolute privilege
• members of Congress engaged in congressional
  debates
• Also most government officials while conducting
  their official duties
• Qualified (conditional) privilege
• a libel defense that allows the media to report
  on government proceedings and records without
  fear of libel suit

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Libel and emotional distress
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Hustler Magazine v. Falwell (1988)

• In a parody that appeared in Hustler magazine the
  prominent fundamentalist evangelist Reverend
  Jerry Falwell was depicted as a drunk in a sexual
  liaison with his mother in an outhouse

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From the Campari Ad

• But your mom? Isnt it a bit odd?
• I dont think so. Looks dont mean that much to
  me in a woman.
• Go on.
• Well, we were drunk off our God fearing asses on
  Campari, ginger ale and soda And mom looked
  better than a Baptist whore with a 100 donation.

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From the Campari Ad

• Did you try it again?
• Oh, yeah. I always get sloshed before I go out
  to the pulpit. You dont think I could lay down
  all that bullshit sober, do you?

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Hustler Magazine v. Falwell (1988)

• Falwell sued for
• 1. libel,
• 2. invasion of privacy,
• 3. intentional infliction of emotional distress.
• In the trial court he lost on (1) and (2) but
  prevailed on (3). He was awarded 200,000
  damages for emotional distress

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Hustler Magazine v. Falwell (1988)

• The Supreme Court reversed (8 to 0)
• a public figure or official may not recover for
  intentional infliction of emotional distress
  arising from a publication unless the publication
  contains a false statement of fact that was made
  with actual malice.

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Hustler Magazine v. Falwell (1988)

• That the material might be deemed outrageous and
  that it might have been intended to cause severe
  emotional distress were not enough to overcome
  the First Amendment.

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Hustler Magazine v. Falwell (1988)

• Vicious attacks on public figures are part of the
  American tradition of satire and parody, a
  tradition of speech that would be hamstrung if
  public figures could sue them anytime the
  satirist caused distress.

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